# THE SUPREME COURT REPORTS FAGUNA KANTA NATH v. THE STATE OF ASSAM

- **Citation:** [1959] Supp. 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Criminal ·Appeal No. 203 of 1956
- **Bench:** J. L. Kapur, K. N. w ANCHOO
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-supreme-court-reports-faguna-kanta-nath-v-the-state-of-assam-1616
- **Pages:** 7

## Headnote

Criminal Law-Abetment--Bribery-Conviction for bribery set
aside-Maintenance of conviction for abetment-Legality-Indian
Penal Code (Act XLV of r86o), ss. ro7, r6r, r65A.
The appellant was triedJor an offence under s. l65A of the
Indian Penal Code for having abetted K, an Inspector in charge
of checking paddy, in the commission of an offence by the latter
under s. 161 of the Code.
The prosecution case was that while
the complainant was taking paddy for sale K demanded Rs. 200/-
as bribe and threatened him that unless the money was paid the
paddy would be seized, that at the instance of K the complainant handed over the bribe money to the appellant for being
counted and that the latter after checking the money paid it to
K. The Special Judge who tried the case accepted. the prosecution story and convicted K under s. 161 of the Indian Penal Code
and the appellant for abetment of the offence. On appeal, the
High Court was of the opinion that the evidence was not strong
enougli to prove payment to K, and set aside his conviction, but
confirmed that of the appellant on the ground that money was
taken by him for P,ayment to K as illegal gratification and
whether he actually paid it to him or not the offence fell under
s. l65A.
Held, that the conviction of the appellant for abetment
under s. l65A of the Indian Penal Code must under the circumstances be set aside. On the facts found, the appellant received
the money in the presence of and for and on behalf of K and if
K was acquitted on the ground that no offence under s. l6I was
committed, then no question of int~ntionally aiding by any act
or omission the commission of the offence arose. Consequently,
the appellant's conviction for the offence of abetment was not
maintainable.
Dalip Singh v. State of Punjab, [1954] S.C.R. 145, distinguished.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
·Appeal No. 203 of 1956.
_
Appeal by special leave from the judgment and
order dated December 14, 1955, of the Assam High
Court at Gauhati in Criminal Appeal No. 54 of 1955,
arising out of the judgment and order dated May 23,
I959
January IJ.
/
2
SUPREME COURT REPORTS [1959] Supp.
z959
1955, of th1l Court of the Special Judge, Lower Assam
Districts at Dhubri in Special Case No. 2 of 1954.
Faguna Kanta
1
•
Nath
Nur-ud-Din Ahmad and K. R. Ohaudhury, for the
v.
appellant.
The State of Assam
Naunit Lal, for the respondent.
1959. January 13.
The Judgment of the Court
was delivered by
Kapur J.
KAPUR, J.-This appea.I by special leave is directed
against the judgment and order of the High Court of
Assam.
The appellant before us was tried for an
offence under s. l65A of the" Indian Penal Code for
having abetted one Khalilur Rahman in the commission of an offence by the ·latter under s. 161, Indian
Penal Code.
Both the appellant and Khalilur Rahmau were convicted of the offences with which they
were charged and sentenced to one year's rigorous
imprisonment. On appeal the High Court acquitted
Khalilur Rahman but maintained the conviction and
sentence of the appellant.
The facts of this appeal are that on May 9, 1952,
the complainant Narendra Nath Brahma was taking
two carts carrying 25 Mds. of paddy for sale to Billashiparabazar along the path which runs by the side of
the river Gauranga.
When he had gone only a short
distance he was stopped by the paddy-checking Inspector, Khalilur Rahman, who was accompanied
by the appellant and three others. Khalilur Rahman
demanded Rs. 200 as bribe and threatened the complainant that unless the amount demanded was paid
his ·cart and paddy would be seized. In this he was
supported by the appellant and three others. The
complainant expressed his inability to give that much
amount but ultimately he agreed to pay Rs. 150. He
borrowed Rs. JOO from one Surajmal Oswal out of
which he offered Rs. 80 to Khalilur Rahman who
asked him to hand them over to the appellaut who.
counted the money and made it over to Khalilur Rahman. The complainant was also forced to execute a
promissory note f

## Text

..
THE SUPREME COURT REPORTS
FAGUNA KANTA NATH
v.
THE STATE OF ASSAM
(J. L. KAPUR and K. N. w ANCHOO, JJ.)
Criminal Law-Abetment--Bribery-Conviction for bribery set
aside-Maintenance of conviction for abetment-Legality-Indian
Penal Code (Act XLV of r86o), ss. ro7, r6r, r65A.
The appellant was triedJor an offence under s. l65A of the
Indian Penal Code for having abetted K, an Inspector in charge
of checking paddy, in the commission of an offence by the latter
under s. 161 of the Code.
The prosecution case was that while
the complainant was taking paddy for sale K demanded Rs. 200/-
as bribe and threatened him that unless the money was paid the
paddy would be seized, that at the instance of K the complainant handed over the bribe money to the appellant for being
counted and that the latter after checking the money paid it to
K. The Special Judge who tried the case accepted. the prosecution story and convicted K under s. 161 of the Indian Penal Code
and the appellant for abetment of the offence. On appeal, the
High Court was of the opinion that the evidence was not strong
enougli to prove payment to K, and set aside his conviction, but
confirmed that of the appellant on the ground that money was
taken by him for P,ayment to K as illegal gratification and
whether he actually paid it to him or not the offence fell under
s. l65A.
Held, that the conviction of the appellant for abetment
under s. l65A of the Indian Penal Code must under the circumstances be set aside. On the facts found, the appellant received
the money in the presence of and for and on behalf of K and if
K was acquitted on the ground that no offence under s. l6I was
committed, then no question of int~ntionally aiding by any act
or omission the commission of the offence arose. Consequently,
the appellant's conviction for the offence of abetment was not
maintainable.
Dalip Singh v. State of Punjab, [1954] S.C.R. 145, distinguished.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
·Appeal No. 203 of 1956.
_
Appeal by special leave from the judgment and
order dated December 14, 1955, of the Assam High
Court at Gauhati in Criminal Appeal No. 54 of 1955,
arising out of the judgment and order dated May 23,
I959
January IJ.
/
2
SUPREME COURT REPORTS [1959] Supp.
z959
1955, of th1l Court of the Special Judge, Lower Assam
Districts at Dhubri in Special Case No. 2 of 1954.
Faguna Kanta
1
•
Nath
Nur-ud-Din Ahmad and K. R. Ohaudhury, for the
v.
appellant.
The State of Assam
Naunit Lal, for the respondent.
1959. January 13.
The Judgment of the Court
was delivered by
Kapur J.
KAPUR, J.-This appea.I by special leave is directed
against the judgment and order of the High Court of
Assam.
The appellant before us was tried for an
offence under s. l65A of the" Indian Penal Code for
having abetted one Khalilur Rahman in the commission of an offence by the ·latter under s. 161, Indian
Penal Code.
Both the appellant and Khalilur Rahmau were convicted of the offences with which they
were charged and sentenced to one year's rigorous
imprisonment. On appeal the High Court acquitted
Khalilur Rahman but maintained the conviction and
sentence of the appellant.
The facts of this appeal are that on May 9, 1952,
the complainant Narendra Nath Brahma was taking
two carts carrying 25 Mds. of paddy for sale to Billashiparabazar along the path which runs by the side of
the river Gauranga.
When he had gone only a short
distance he was stopped by the paddy-checking Inspector, Khalilur Rahman, who was accompanied
by the appellant and three others. Khalilur Rahman
demanded Rs. 200 as bribe and threatened the complainant that unless the amount demanded was paid
his ·cart and paddy would be seized. In this he was
supported by the appellant and three others. The
complainant expressed his inability to give that much
amount but ultimately he agreed to pay Rs. 150. He
borrowed Rs. JOO from one Surajmal Oswal out of
which he offered Rs. 80 to Khalilur Rahman who
asked him to hand them over to the appellaut who.
counted the money and made it over to Khalilur Rahman. The complainant was also forced to execute a
promissory note for a sum of Rs. 70 in favour of the
appellant and he promised that the money would be
paid the following day after the paddy was sold. The
r
•
.,
(2) S.C.R.
SUPREME COURT REPORTS
3
1959
complainant learnt in the bazar that another person
Happaram Rai had been similarly treated but he had
only paid Rs. 15.
On May 11, 1952, the complainant
Fagu~a 1:anta
approached the appellant for the refund of his money
~.
and the return of his pronote and although the appel- The State of Assam
lant promised he did not do so.
The same day there
was a meeting at ]'utkibari Middle English School
where the Deputy Commissioner was present. The
complainant presented to him a written complaint
describing how he was forced to pay Rs. 80 and made
to execute a pronote for Rs. 70.
Thereupon both
Khalilur Rahman and the appellant were prosecuted,
the former under s. 161, Indian Penal Code, read with
s. 5(2) of the Preventio;1 of Corr·uption Act, 1947 (2 'of
1947) and the latter under s. 165A and they were convicted and sentenced by the Special Judge as already
stated.
The evidence of the complainant was that before
Rs. 200 was demanded from him, the appellant and·
Khalilur Rahman " went ·aside and had some talks
and coming together accused Khalilur Rahman demanded Rs. 200 ". He also stated "I told them that
I managed to procure l~s. 80 somehow and I wanted
to hand over to accused Khalilur Rahman who directed me to hand over to accused Faguna, saying he
would take counting, accused Faguna counted the
money and then made over the entire money to accused
Khalilur Rahman saying that.Rs. 80 would not do and
I should execute a handnote for the balance of Rs. 70
promising to pay on the following Saturday". According to the complainant it was Khalilur Rahman ~ho
tore out a page from his note book and handed over
the same to the cqmplainant and also lent him his
fountain pen and after the pronote was executed both
the pen and the pronote were handed over to Khalilur
Rahman. The Special Judge found :-
" I am fully convinced that a sum of Rs. 80 was
realised from the complainant for forbearing from
seizing of the paddy by the accused Khalilur Rahman, being helped and abetted by the accused ]'aguna
Kanta Nath."
Kapur].
4
SUPREME COURT REPORTS [1959] Supp.
z959
He therefore convicted Khalilur Rahman under s. 161,
Indian Penal Code, but acquitted him of an offence
Faguna Kanta
Nath
under s. 5(2) of the Prevention of Corruption Act,
v.
194 7, and convicted the appellant, for abetment of
The State of Asoam that offence. On appeal Deka, J., held that from
the complaint made by the complainant it was not
Kapur f.
clear that any payment was made to Khalilur Rahman. He said :
"It may be that Khalilur. Rahman was a party
to squeezing out some money from a dealer in paddy
who tried to evade the law, but that falls far short of
proving that he had accepted the money through
F~gunakanta Nath as alleged now in Court''.
The learned Judge accepted the complainant's story
that money was paid to the appellant but he was of
the opinion that the evidence was not strong enough
to prove payment to Khalilur Rahman and therefore
he was "prepared to give .the benefit of doubt to
· Khalilur Rahman and direct that his conviction under
s. 161, Indian Penal Code be set aside". As to the
appellant he was of the opinion that money was taken
by him for payment to Khalilur Rahman as illegal
gratification and whether he actually paid it to him or
not the offence fell under s. 165A and therefore he
held the appellant guilty under that section. Thus
according to the learned Judge the case against Khalilur Rahman was not proved and as money had been
paid to the appellant he was guilty of abetment under
s. 165A, Indian Penal Code.
The appellant has come
to this Court by special leave.
T.he main argument raised on behalf of the appellant is that as Khalilur Rahman has been acquitted,
on the facts and circumstances of this case the conviction of the appellant for abetment cannot be sustained. The evidence of the complainant on which
the conviction is based was that the money was
demanded by Khalilur Rahman and at bis instance it
was made over to the appellant who counted the
money and handed it over to Khalilur Rahman. The
pronote was also written at the instance of Khalilur
Rahman and was handed over to him. The part
played by the appellant according to the story of the
•
,
(2) S.C.R.
SUPREME COURT REPORTS
5
complainant was that before the demand of bribe
z959
both Khalilur Rahman and the appellant "went aside"
and held a conference and Khalilur Rahman then Faguna Kanta
Nath
demanded Rs. 200. Rs. 80 was brought by the comv.
plainant and paid to the appellant at the instance of The State of Assain
Khalilur Rahman for the purpose of counting and he
·
in turn gave it to Khalilur Rahman who put it in his
Kapur f.
trouser's pocket. About this portion of the evidence
the trial Court said " it may not be fully true " and
the finding of the High Court was that the money remained with him and was not paid to Khalilur Rahman; the question is whether in these circumstances
the offence of abetment can be held to have been
made out.
Under the.Indian law for an offence of abetment it
is not necessary that the offence should have been
committed. A man may be guilty· as an abettor
whether the offence is committed or not.
Section 165A
is as follows :
S. 165A "Whoever, abets any offence punishable
under section 161 or section 165, whether or not that
offence is committed in consequence of the abetment,
shall be punished with imprisonment of either description for a term which may extend to three years or
with fine or with both".
Therefore for a person to be guilty of abetment of an
offence under s. 161, it is not necessary that the offence
should have been committed.· Abetment is defined in
s. 107 and a person abets the doing of a thing when
(1) he instigates any person to do that thing or (2)
engages with one or more other person or persons in
any conspiracy for the dofog of that thing, ...... or (3)
intentionally aids, by any act or illegal omission, the
doing of that thing. Explanation (2) to s. 107 is as
follows:-
" Whoever, either prior to or at the time of the
commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates
the commission thereof, is said to aid the doing of that
act."
It is not suggested that there was any instigation by
the appellant for the commission of the offence.
6
SUPREME. COURT REPORTS [195S] Supp.
'959
Further the circumstances proved against the appellant
Fagnna Kanta did not bring the case under the second part of s. 107
Nath
bec.ause it is not alleged that there was any conspiracy
v.
and a charge of conspiracy must necessarily fail if the
The State of Assam other alleged conspirator is acquitted: See The King
-
v. Plummer (1) which has received the approval of this
Kapur J.
Court in Topandas v. State of Bombay (2).
In either of ,
these cases it is immaterial whether the person instigated commits the offence or not or the persons conspiring together actually carry out the object of conspiracy.
There then remains the third part of s. 107 that is
abetment by aid.
A person abets by aiding when by
the commission of an act he intends to facilitate and
does facilitate the commission thereof. By the acquittal of Khalilur Rahman. the High Court must be
deemed to have held that there was nci offence under
s. 161.
But it was contended on behalf of the respondent that the acquittal of Khalilur Rahman was wrong
and this Court should hold that a wrong acquittal
does not prevent the conviction of the appellant for
the offence of abetment. Counsel for the respondent
referred to Dalip Singh v. State of Punjab(') where at
p. 156 Bose, J., said:
"We have taken into consideration the fact that
the High Court considers that the portion of Mst.
Punnan's story regarding the lambardars has been
falsely introduced by the· police, also .that both courts
have rejected the evidence about the dying declaration.
Despite that, we agree with the learned Sessions Judge
that Mst. Punnan and Mst. Charni are to be believed
regarding the main facts and that they correctly
named all seven accused as the assailants. On that
finding the conviction under section 302 read with
section 149 can be sustained. We accordingly uphold
these convictions. The acquittals in the other three
cases will of course stand but the mere fact that these
persons have, in our opinion, been wrongly acquitted
cannot affect the conviction in other cases ".
In that case although the High Court had acquitted
three accused persons of an offence under s. 302 read
(1) [1902] 2 K.B. 339.
(2) [1955] 2 S.C.R. 881.
(3) [1954] S.C.R. 145·
..
(2) S.C.R.
SUPREME COURT REPORTS
7
withs. 149, Indian Penal Code, yet as in the opinion
I959
of this Court the acquittal was wrongs. 149 was held
Faguna Kanta
applicable in the case of four others who had been
Nath
convicted by the High Court of s. 302 read with
v.
s. 149. The decision in that case must be circumscrib- The State of Assam
ed to the peculiar circumstances of that case. In the
present case the person who demanded the illegal
Kapur J.
gratification for allowing the carts to proceed was
Khalilur Rahman who had the authority to do or not
to do a particular act and all"that the appellant is alleged to have done was to receive the money at the
instance of Khalilur Rahman for counting and then
paid the money to him. It is not tbe prosecution case
that the appellant abetted tbe offence by instigating
Khalilur Rahman to demand the illegal gratification ;
nor has the prosecution set up or proved a case of conspiracy between the appellant and Khalilur Rahman
for the commission of an offence under s. 161.
On
the findings of the Court the appellant received the
money for and on behalf of Khalilur Rahman and the
evidence of t_he complai:dant is that Khalilur Rahman
bad asked him to hand over the money to the appellant. If Khalilur Rahman is acquitted and therefore
the offence under s. 161 is held not to have been
committed, then in this case no question of intentionally aiding by any act or omission the commission
of the offence arises. It may be as counsel for the
respondent contended that the acquittal of Khalilur
Rahman is wrong and it appears and we say so with
respect that the findings of the High Court are inconsistent but as the matter of Khalilur Rahman is not
before us by way of appeal against acquittal we do not
express any opinion on that question.
We are of the opinion that on the facts found and
circumstances established in this case and as Khalilur
Rahman has been acquitted the appellant's conviction
cannot be upheld.
We therefore allow this appeal and
set aside the order of conviction. The bail bonds shall
also stand discharged.
Appeal allowed.