JUDGMENT Sadasiva Aiyar, J. 1. The petitioner before us was the accused in the Chingleput Joint Magistrates Court. He was convicted of abetment of bribery (Sections 116 and 161, Indian Penal Code) because he thrust Rs. 50 (in five ten rupee currency notes) on the 16th October 1916 into the hands of Gnanaprakasam Pillai who was then the Sub-Magistrate of Saidapet. (That officer is now dead.) The accused, when so giving the currency notes, requested the Sub-Magistrate to show favour to D. W. No. 5, against whom a case was then pending in the Sub-Magistrates Court. As the, Sub-Magistrate thought that the accuseds object was (to use the Sub-Magistrates own words as P. W. No. 1, to play a trick" on the Sub---Magistrate, to set "a snare to catch" him and that the accused was possibly an "instrument in the hands of others---a man sent to catch" him (the Sub-Magistrate) when he was, to all outward appearance, accepting a bribe, he consulted his neighbour P. W. No. 2 (a respectable retired Mussalman Deputy Magistrate) and under his advice reported the matter to the Divisional Magistrate. The District Magistrate then sanctioned the prosecution of the accused, who was sentenced by the Joint Magistrate to three months rigorous imprisonment and a fine of Rs. 300. The conviction and sentence were confirmed on appeal to the Sessions Judge. 2. Mr. Nugent Grant for the petitioner did not dispute the correctness of the material findings of the lower Courts, as set out above, notwithstanding that the Joint Magistrate thought it quite possible that the Sub-Magistrate stooped to tutor" two witnesses (P. W. Nos., 4 and 5) on the prosecution side to speak to their having seen facts which it is improbable that they could not have really seen. (I may be permitted to express my surprise at the learned Joint Magistrates remark in his judgment that he did not much blame him", that is, the Sub-Magistrate for so tutoring his witnesses, because it was no easy matter to prove any criminal charge" without the help of such false evidence). 3. Mr. Grant, however, argued that the petitioners act, namely, thrusting the notes into the Sub-Magistrates hand accompanied by the request to him to show favour to Arunagiri Naicker did not, in law, constitute the offence of abetment but was merely "laying a trap" (in the words of Mr. 3. Mr. Grant, however, argued that the petitioners act, namely, thrusting the notes into the Sub-Magistrates hand accompanied by the request to him to show favour to Arunagiri Naicker did not, in law, constitute the offence of abetment but was merely "laying a trap" (in the words of Mr. Grant) to catch a man suspected of taking bribes so as to bring him to justice. If I understood Mr. Grant aright, his argument amounted to this, namely, that acts done with the intention to entrap a person suspected of habitual offences of a particular kind in order that he might repeat, his offence and thus be brought under the clutches of the law is not abetment" of such offence, especially if the offence is not committed notwithstanding the encouragement and temptation caused by such acts. 4. I might first clear the ground by observing that the fact of the non-commission of the offence notwithstanding the acts of encouragement has no relevancy except on the question of punishment. (See explanation 2 to Section 108, Indian Penal Code, and Sections 115 and 116, Indian Penal Code). 5. Coming to the main argument, the first definition of the abettor of the doing of a thing (section 107, Indian Penal Code) is "A person who instigates any person to-do that thing." The word "instigate" in the Concise Oxford Dictionary is defined as "urge on, incite, bring about by persuasion", and in Webster as "urge forward, provoke", with the synonyms of "stimulate, urge, spur, provoke, tempt, incite, impel, encourage, Animate." Mr. Grant put forward the following illustratini in support of his argument. A suspects his servant B of habitual theft and throws about marked coins in his room in order to put temptation in the way of B. Can this act of A be treated as constituting the offence of abetment of theft by B? I think it must be admitted that the question is not free from metaphysical difficulties. If "instigation" includes, or is syhonymous with, tempting or putting temptation in the. way of a person suspected, I think the act of A in throwing about the coins dose come within the definition of abetment. Is it reasonable to hold that the Legislature intended to make such an act of placing temptation in the "way of suspected criminals also punishable as abetment? I shall put forward another illustration. way of a person suspected, I think the act of A in throwing about the coins dose come within the definition of abetment. Is it reasonable to hold that the Legislature intended to make such an act of placing temptation in the "way of suspected criminals also punishable as abetment? I shall put forward another illustration. A Police Inspector finds thana road is infested by a gang of dacoits who rob cart passengers usually at dusk. He starts in a cart with dozen constables disguised as women, ostentatiously earing valuable ornaments, and goes along the road at dusk in order to trap the dacoits. The dacoits fall into the trap and drag down one of, the disguised constables and rob him, and then the other constables throw off their disguises and drawing their weapons overpower the dacoits. Can the Police be said to have abetted the commission of decoity because they knowingly put forward temptation m the way of the dacoits? I think the Legislature contemplated that unless A not Merely does acts amounting to the laying of traps and the putting of temptations in the way of B but also communicates his intention by words, gestures or conduct expressly directed to the person B who is intended by him (A) to be influenced to commit the forbidden thing, A cannot be held to abet B. If, for instance, one of the constables is sent by the Police Inspector as an ordinary, village to the dacoits in order to gain their confidence as a friend of the dacoits and in order thereafter to inform then that a party of women loaded with jewels; would be going at dusk on such and such a day in a cart and that the dacoits would do well to waylay the cart, I think the Police Inspector and that particular constable would be guilty of abetment, however laudable may be their ultimate motives. So in the other ease, if the master A asked another servant of his (C) to incite the suspected dishonest servant (S) to steal the coins lying about, A would be guilty of abetment. As Mr. Nelson says (page 235 of. So in the other ease, if the master A asked another servant of his (C) to incite the suspected dishonest servant (S) to steal the coins lying about, A would be guilty of abetment. As Mr. Nelson says (page 235 of. his book),: Instigation consists in actively suggesting and stimulating another to act." Mere silence by A or omission by him to warn B not to yield to the temptation is not "instigation", as A is not legally "bound" to so give warning or to disclose the fact that temptation has been put in the way of B. The communication directly or indirectly of a "command", counsel" or "express liking or approbation" or consent" to the act to be done by B is necessary to constitute abetment by instigation. If, however, B does not confine himself to the placing of temptation before B but actively suggests and stimulates the doing of the forbidden act, I think A would be guilty of abetment. I do not see why agents-provocateurs should not be guilty of abetment because their ultimate motives may be good, provided they are guilty of active suggestions to their victims. The laudableness of ultimate motives might be a ground for the responsible authorities not prosecuting the abettor or for the Court inflicting a lenient punishment en him when he is prosecuted and convicted, but it is not a ground for holding that he is not guilty of the offence of abetment at all. In the case, however, of an attempt by a private person to bribe a public officer, there is usually not much difficulty as to ultimate laudable motives. If the tempter is not a private individual but an official higher in official position than the person tempted and so much beyond suspicion himself that his motive in tempting his subordinate (say through a private person) could only have been to find out whether the suspicion against his subordinate was well-founded, the motive might be, wholly laudable though, even in such a case, 1 think that the offence would have been committed. 6. In the present case, the accused did actively suggest and stimulate the Sub-Magistrate by thrusting the notes into the latters hands and telling him to show favour to Arunagiri and hence, I think that the offence of abetment has been committed by him and the conviction must be upheld. 7. 6. In the present case, the accused did actively suggest and stimulate the Sub-Magistrate by thrusting the notes into the latters hands and telling him to show favour to Arunagiri and hence, I think that the offence of abetment has been committed by him and the conviction must be upheld. 7. I now come to the question of motive and sentence. It was frankly admitted: by Mr. Grant that the defence of the petitioner in. the lower Courts was false> namely, that the whole case against him was a concoction. But it has been held in numerous cases that where the facts disclose another defence than the one set up (say, the right of private defence where the plea of the, accused was alibi), the Courts are entitled to give effect to the arguments advanced in favour of the accused on those facts and even to acquit the accused. See In re Pachai Gounden 26 Ind. Cas. 458: 15 Cr. L. J. 710. From Mr. Justice Spencers tote at the time of admitting the Revision Petition, I take it that he was not against considering the changed defence set up before the learned Judge for the accused. In the present case, it seems to me clear from the evidence that some of the Police and Revenue Officers of the Chingleput District would not have been sorry if the Sub-Magistrate, whose reputation was Wit at all goody was caught in a trap" and a Police Head Constable (D. W. No. 2) was evidently watching near the Sub-Magistrates house when the accused was laying the trap. The learned Session Judge says; "it is quite possible that the appellants primary object was only: to trap P. W. No. 1, though he also came to offer a bribe". The accused has, been Village Munsif for long and seems to be a respectable contractor and for rigorous imprisonment to act as, a deterrent oft such a person, it is not necessary that it should be of long duration. I would, therefore, reduce the sentence of rigorous imprisonment from three months to one month under the circumstances without interfering with the additional sentence of fine. Phillips, J. 8. In this, case the petitioner has been convicted under Sections 116 and 161 of the Indian Penal Code. This conviction was confirmed in appeal by the learned Sessions Judge. I would, therefore, reduce the sentence of rigorous imprisonment from three months to one month under the circumstances without interfering with the additional sentence of fine. Phillips, J. 8. In this, case the petitioner has been convicted under Sections 116 and 161 of the Indian Penal Code. This conviction was confirmed in appeal by the learned Sessions Judge. In the Trial Court the petitioners defence was that the case was a complete concoction and this plea was repeated in the Appellate Court. In the revision petition also the plea is again repeated but there is also another ground taken, that is, that, because the petitioned had come to set a trap in offering the bribe, there was no offence of bribery or abetment of the same; and this revision petition has now been argued by petitioners Counsel solely on the footing that the petitioner did sire the bribe to the Sub-Magistrate but that he did so merely in order to entrap him into committing an offence. Seeing that in the Original Court and in the Appellate Court the petitioner did not set up this defence but denied the whole story of the prosecution, saying that he did not offer any bribe at all, it is somewhat difficult at this late stage of the case to accept the present plea unless it is established by very good evidence, and I do not think the plea should be admitted unless it is an obviously true one. No doubt, prosecution witness No. 1, the Sub-Magistrate to whom the bribe was given, did say that he suspected that the petitioner, who was not on friendly terms with him, had come to entrap him; but apart from this there is absolutely nothing definite in the evidence to support the plea that is: now set up. It is contended that it is most unlikely that if the petitioner had wished to offer a bribe to the Sub-Magistrate he would have done it in such a public manner. There is, however, nothing improbable in the facts narrated by the "prosecution witnesses and the lower Courts decided that the facts as narrated were true, notwithstanding the petitioners plea that the whole case was a concoction. Consequently the truth or falsity of the plea can only be arrived at by possible inference from the facts of the case. There is, however, nothing improbable in the facts narrated by the "prosecution witnesses and the lower Courts decided that the facts as narrated were true, notwithstanding the petitioners plea that the whole case was a concoction. Consequently the truth or falsity of the plea can only be arrived at by possible inference from the facts of the case. When the plea has not been put forward either in the Original or Appellate Court, I do not think that the plea can be accepted in revision unless it is obviously a true plea, and that is not the case here. 9. Even if the plea were accepted and it were taken as true that the petitioner offered the-bribe to the Sub-Magistrate with the intention, not that he should exercise his judicial, authority in favour of a particular person, but merely in order that the Sub Magistrate might commit an offence and receive punishment for it, I Am not satisfied that the petitioner did not commit the offence of which he has been convicted. The argument put for, ward in support of the plea that such an act on the part of the petitioner would not constitute an offence is that he has no intention that the Sub-Magistrate should do or forbear to do any official act in return for the bribe and that, therefore, there being no criminal intention the petitioner has committed no offence. The offence, however, as defined in Section 161, is then a public servant accepts...from any person...any gratification whatever...as a motive or reward for doing or forbearing to do any official act, etc., etc. When, therefore, the petitioner offered the money to the Sub-Magistrate and offered it with a request that the Sub-Magistrate should do certain thing?, the Sub-Magistrate, if he had accepted it, would undoubtedly have committed the offence defined in Section 161 of the Indian Penal Code The question is whether the petitioner can be deemed to have abetted that offence. 10. When, therefore, the petitioner offered the money to the Sub-Magistrate and offered it with a request that the Sub-Magistrate should do certain thing?, the Sub-Magistrate, if he had accepted it, would undoubtedly have committed the offence defined in Section 161 of the Indian Penal Code The question is whether the petitioner can be deemed to have abetted that offence. 10. Under Section 107 of the Indian Penal Code, A person abets the doing of a thing who instigates any person to do that thing or intentionally aids, by any act or illegal omission, the doing of that thing." In this case the instigation to accept the bribe undoubtedly came from the petitioner and he intentionally aided the commission of the offence by paying over like money, with a request that it should be retained for a certain wrongful purpose Whether his intention was that the purpose for which the bribe was given should be carried Out or not appears to me to be immaterial, for he certainly intended that the offence of bribery should be committed, not by himself of course, but by the Sub-Magistrate. In this view I find that the petitioner did abet the commission of the offence of bribery and is, therefore, guilty of abetment of it; and this view of his offence, namely, that it is an offence committed in order to entrap the Sub-Magistrate, could other be considered as possibly justifying a lighter sentence. But, as I have, already said, this view of the petitioners offence cannot be considered now and I would dismiss the petition. 11. This case coming on for hearing under Section 429 of the Code of Criminal Procedure on the 6th (September 1917, upon perusing the petition and the judgments of this Court herein, dated 16th August 1917, and the records in the case and upon hearing the argument of Counsel on both sides and the case having stood over for consideration till this day, the Court made the following. ORDER. 12. The petitioner has been convicted of the offence of abetment of bribery. It has been found that he went to the house of the Sub-Magistrate of Saidapet, and saying that he wished to introduce one Arunagiri Naick, who was accused in a case then pending before the Sub-Magistrate, as a person to whom some favour should be shown, pressed Rs. 53 in notes into the Sub-Magistrates hand. 13. It has been found that he went to the house of the Sub-Magistrate of Saidapet, and saying that he wished to introduce one Arunagiri Naick, who was accused in a case then pending before the Sub-Magistrate, as a person to whom some favour should be shown, pressed Rs. 53 in notes into the Sub-Magistrates hand. 13. The learned Judges, who composed the Bench which heard the revision case, differed only on the question whether the sentence should be reduced for the reason that the petitioners object in offering a bribe to the Sub-Magistrate may have been rather to lay a trap for a dishonest official than to secure the acquittal of the offender, Arunagiri Naick. Mr. Justice Phillips declined to consider the case in tiffs aspect, as this defence was not raised at the trial or at the hearing of the appeal in the Sessions Court. As the whole case has now been referred to me, it is argued that it is open to me to find that the accuseds act did not in law constitute an offence at all, and that I should acquit him. 14. An offence under Section 161 of the Indian Penal Code is committed when a public servant accepts any gratification, other than legal remuneration, as a motive or reward for showing favour or disfavour to any person in the exercise of his official functions, The section says nothing about the intention of the offender, but the 4th explanation to the section makes it clear that a bribe may be received as a motive for doing a thing that the public servant who takes the bribe has not the least intention of doing and yet the offence will be complete. Also the motive or reward mentioned in the section is the consideration for showing favour, which is not necessarily identical with the motive or intention of the giver of the illegal gratification. The offence of abetment is committed by a person who instigates any person to do the thing which is made an offence by the words of the section. Also the motive or reward mentioned in the section is the consideration for showing favour, which is not necessarily identical with the motive or intention of the giver of the illegal gratification. The offence of abetment is committed by a person who instigates any person to do the thing which is made an offence by the words of the section. Illustration (a) to Sections 116 and 109 of the Indian Penal Code removes any doubt that there might be on the question whether the offer of a bribe to a public servant as a motive the reward for his showing some favour in the exercise of his official functions amounts to an offence under Sections 161 and 109 or 116 of the Indian Penal Code, and proves that Sadasiva Aiyar, J., was right, if I may say so, in his interpretation of the expression "instigates." Of course a person who gives money because it is demanded or extorted from him is not guilty of any offence under the Code, as there do no instigating or intentionally aiding in his case. As Sections 109 and 161 of the Indian Penal Code do not require as an ingredient of the offence that there should be any particular criminal intention in the minds of the giver or the receiver of the bribe, a superior official who set a trap to catch a corrupt subordinate or a person who acting under the orders of a superior official offered a bribe to a subordinate public servant would, I conceive, be technically guilty of abetment of bribery. 15. In such a caste there would probably be no prosecution Of the abettor, or if there was, it is possible that be might escape by invoking the aid to of Section 79 or Section 81 of the Indian Penal Code and pleading that he acted in good faith and believed himself to be justified by law in his act, or that he did it in good faith for the purpose of avoiding more harm to other persons. But this Village Munsif had no business to go about laying traps for his superior officers in scenes of his own making. There can be ho bona fides about conduct of that sort. But this Village Munsif had no business to go about laying traps for his superior officers in scenes of his own making. There can be ho bona fides about conduct of that sort. If his motive was not the obvious one of procuring the acquittal of Arunagiri Naick, the only ex-planation that seems consistent with his conduct is that his offer of a bribe was part of a plot hatched with the spiteful motive of ruining a man whom he bated. The Sessions Judge observes in his judgment. "Far from showing-that prosecution first witness bad a grievance against the appellant, the evidence tends to show that the appellant, because his case bad been dismissed, had a motive for getting prosecution first witness into trouble". This shows that this alternative explanation is the argument of Counsel on both sides and the case having stood over for consideration till this day, the Court made the following. ORDER. 16. The petitioner has been convicted of the offence of abetment of bribery. It has been found that he went to the house of the Sub-Magistrate of Saidapet, and saying that he wished to introduce one Arunagiri Naick, who was accused in a case then pending before the Sub-Magistrate, as a person to whom some favour should be shown, pressed Rs. 53 in notes into the Sub-Magistrates hand. 17. The learned Judges, who composed the Bench which heard the revision case, differed only on the question whether the sentence should be reduced for the reason that the petitioners object in offering a bribe to the Sub-Magistrate may have been rather to lay a trap for a dishonest official than to secure the acquittal of the offender, Arunagiri Naick. Mr. Justice Phillips declined to consider the case in tiffs aspect, as this defence was not raised at the trial or at the bearing of the appeal in the Sessions Court. As the whole case has now been referred to me, it is argued that it is open to me to find that the accuseds act did not in law constitute an offence at all, and that I should acquit him. 18. As the whole case has now been referred to me, it is argued that it is open to me to find that the accuseds act did not in law constitute an offence at all, and that I should acquit him. 18. An offence under Section 161 of the Indian Penal Code is committed when a public servant accepts any gratification, other than legal remuneration, as a motive or reward for showing favour or disfavour to any person in the exercise of his official functions, The section says nothing about the intention of the offender, but the 4th explanation to the section makes it clear that a bribe may be received as a motive for doing a thing that the public servant who takes the bribe has not the least intention of doing and yet the offence will be complete. Also the motive or reward mentioned in the section is the consideration for showing favour, which is not necessarily identical with the motive or intention of the giver of the illegal gratification. The offence of abetment is committed by a person who instigates any person to do the thing which is made an offence by the words of the section. Illustration (a) to Sections 116 and 109 of the Indian Penal Code removes any doubt that there might be on the question whether the offer of a bribe to a public servant as a motive for reward for his showing some favour in the exercise of his official functions amounts to an offence under Sections 161 and 109 or 116 of the Indian Penal Code, and proves that Sadasiva Aiyar, J., was right, if I may say so, in his interpretation of the expression "instigates." Of course a person who gives money because it is demanded or extorted from him is not guilty of any offence under the Code, as there "so no instigating or intentionally aiding in his case. As Sections 109 and 161 of the Indian Penal Code do not require as an ingredient of the offence that there should be any particular criminal intention in the minds of the giver or the receiver of the bribe, a superior official who set a trap to catch a corrupt subordinate or a person who acting under the orders of a superior official offered a bribe to a subordinate public servant would, I conceive, be technically guilty of abetment of bribery. 19. In such a caste there would probably be no prosecution Of the abettor, or if there was, it is possible that he might escape by invoking the aid of Section 79 or Section 81 of the Indian Penal Code and pleading that he acted in good faith and believed himself to be justified by law in his act, or that he did it in good faith for the purpose of avoiding more harm to other persons. But this Village Munsif had no business to go about laying traps for his superior officers in scenes of his own making. There can be ho bona fides about conduct of that sort. If his motive was not the obvious one of procuring the acquittal of Arunagiri Naick, the only plaintiff that seems consistent with his conduct is that his offer of a bribe was part of a plot hatched with the spiteful motive of ruining a man whom he bated. The Sessions Judge observes in his judgment. Far from showing that prosecution first witness had a grievance against the appellant, the evidence tends to show that the appellant, because his case had been dismissed, had a motive for getting prosecution first witness into trouble". This shows that this alternative explanation is.