JUDGMENT H. N. Kapoor, J. 1. THIS appeall has been filed by Tejpal Singh against the order and judgment dated 15-9-1976 of the Special Judge, Meerut convicting him under section 165-A IPC and sentencing him to three months' RI. 2. A preliminary objection was raised by the learned Deputy Government Advocate that the appeal is barred under section 376 CrPC as the sentence is only for three months' RI and under Sec. 9 of the Criminal Law (Amendment) Act No. XLVI of 1952 for purposes of appeal or revision the Special Judge would be deemed to be a court of session. There appears to be force in this argument. Learned counsel for the appellant, however, prayed that this appeal may be treated as a revision and it be disposed of accordingly. His main contention is that section 165-A IPC did not exist on the date when the offence was said to have been committed and as such the conviction is illegal. I consider it a fit case for treating it as a revision and for interference under there visional jurisdiction. The prosecution case briefly stated is as follows. Tejpal Singh had gone to the Military Recruitment Office at Meerut for being recruited as a sepoy in the Army on 29-9-1974. Devi Datt (PW 5) who was a peon there was working as recruiting assistant. There were two other such assistants. As stated by (sic) there for getting themselves recruited to fall in a queue for the purpose of examination by the recruiting officer Lt. Col. N. S. Chandhoke (PW 1). Sometime, the recruiting assistant used to take measurements and weight also when directed by the recruiting officer. He himself has no power to recruit any person. It is said that the appellant took Devi Datt aside in room and requested him to get recruited. So he offered to pay Rs. 80/- to Devi Datt for this purpose. Devi Datt stated that no money for recruitment was taken. Even then he put bundle containing Rs. 80/- in the pocket of the pant of Devi Dartt. Devi Datt at once took him to the room of the recruiting officer Lt. Col. N. S. Chandhoke (PW 1) and narrated the facts to him. He also produced the sum of Rs. 80/- before him. The appellant was then detained in the room of Lt. Col. N. S. Chandhoke. 80/- in the pocket of the pant of Devi Dartt. Devi Datt at once took him to the room of the recruiting officer Lt. Col. N. S. Chandhoke (PW 1) and narrated the facts to him. He also produced the sum of Rs. 80/- before him. The appellant was then detained in the room of Lt. Col. N. S. Chandhoke. He is said to have a talk on phone with the S. P. and at the suggestion of the S. P. he talked to the station officer Sadar Bazar who at once arrived there in a jeep. In the meantime Lt. Col. N. S. Chandhoke asked the appellant to state the facts and threatened that otherwise he would call the police. The appellant is then said to have made an extra judicial confession before him. It was not reduced in writing. Lt. Col. Chandhoke then asked Devi Datt to give a written report which he forwarded with his endorsement and handed it over to S. I. Raghubir Singh (PW 2) who had arrived there. The accused along with the eight ten rupees notes were handed over to the police officer. The Sub-Inspector then took the appellant with him to the police station where a case under section 165-A IPC was registered against him. S. I. Sohanlal (PW 6) took up the investigation of the case and after completing the investigation, he submitted the chargesheet against the appellant who was duly tried. 3. IN his earlier statement the accused had denied the prosecution allegations and stated that he had not given Devi Datt Rs. 80/- nor had made any such confession before the police officer. IN a subsequent statement, he however, stated that he stood in a queue. Devi Datt, however, took him aside and asked him to pay Rs. 200/- for getting him recruited. As he avoided paying anything Devi Datt then threatened that he would otherwise take him to Col. Sahib and did take him to Col. Sahib. He did not adduce any evidence in defence. 4. THE learned Special Judge did not plaice any reliance on the extra judicial confession said to have been made before Lt. Cel. N. S. Chandhoke (PW 1) because in his opinion it was hit by Sec. 24 of the Indian Evidence Act because such a confession was extracted under threat that police could be called otherwise. 4. THE learned Special Judge did not plaice any reliance on the extra judicial confession said to have been made before Lt. Cel. N. S. Chandhoke (PW 1) because in his opinion it was hit by Sec. 24 of the Indian Evidence Act because such a confession was extracted under threat that police could be called otherwise. It was obviously meant that inducement was given that he would not be handed over to the police in case he had made such a statement. THE conviction is thus based on the solitary testimony of Devi Datt (PW 5). Nayab Risal Dar Mahendra Singh (PW 3) head clerk of that office was also examined. He stated that he did not hear any talk between the appellant and Devi Datt) who were in the other room. He stated that he was called by Col. Sahib. At his dictation he prepared the FIR. He had also prepared the details of eight ten rupee notes which were lying on the table of Col. Sahib. The first point to be considered is whether section 165-A IPC was on the statute book on the date when the offence was said to have been committed. This section was inserted by Sec. 3 of Act No. XLVI of 1952 Criminal Law (Amendment) Act of 1952. This section was then repealed by Repealing and Amending Act No. XXXVI of 1957 section 2 the first Schedule. According to the First Schedule, sections 2, 3, 4 and 5 of Act No. XLVI of 1952 were repealed. The obvious conclusion would be that this section does not exist any more on the statute-book after the Repealing and Amending Act. It is surprising that in the latest edition Indian Penal Code by Chitaley (1974 Edition), it is still shown to be existing. There could thus be no convictions under section 165-A of the IPC. 5. LEARNED Deputy Government Advocate, however, argued that it would make no difference and it is possible for this court to alter the conviction into one under section 161/116 IPC and maintain the sentence of imprisonment. There could thus be no convictions under section 165-A of the IPC. 5. LEARNED Deputy Government Advocate, however, argued that it would make no difference and it is possible for this court to alter the conviction into one under section 161/116 IPC and maintain the sentence of imprisonment. No doubt, the Honourable Supreme Court has held in the case of Om prakash v. State of U. P., AIR 1960 SC 409 that the High Court had committed no illegality in altering the conviction into One under section 161/109 IPC from section 165-A IPC as it was found that section 165-A IPC had not come into force on 4-12-1948 when the offence had been committed. This section was inserted on July 28, 1952 that judgment was reversed by Honourable the Supreme Court on another point. But it appears that in that case the offence under section 161 IPC had been actually committed and the accused in that case had been convicted under section 161/109 IPC for abetment of that offence. The Honourable Supreme Court made the following observations "As regards the first contention, it is sufficient to say that the effect in law of section 161/109 IPC is precisely the same as that of section 165-A at least in so far as the abetment of an offence actuallly committed, is concerned. There were no further facts needed to be brought to the notice of the appellant by the amended charge, and the punishment both under section 161/109 and section 165-A is the same. In fact, if section 165-A could be regarded as a freshly created offence, it did nothing more than provide expressly that was already provided by the Code by the two other sections. The change was in respect of abetment of offences not committed, that is to say, section 161 read with section 116. In view of the provisions of sections 225 and 537 of the Code of Criminal Procedure, this error in the charge cannot be taken note of, particularly as the appellant himself could have raised this objection at a much earlier stage during the trial and also as no prejudice has been suggested nor could be found by us. This contention, therefore, is rejected." 6. IN the present case the offence had not been committed. It might have been possible to convict the accused under section 161 IPC read with Section 116 IPC. This contention, therefore, is rejected." 6. IN the present case the offence had not been committed. It might have been possible to convict the accused under section 161 IPC read with Section 116 IPC. But the wordings of the charge would have been different in that case. I do not think that the charge, as framed, has all the ingredients of the charge under Section 161 read with Section 116 IPC. The charge reads as follows : " That yon on the 29th day of July, 1974 at about 9.30 p.m. in the Recruiting office, Meerut offered Rs. 80/- to Sri Devi Datt Sharma, recruiting assistant, as illegal gratification and, thus abetted a public servant in the commission of an offence punishable under Section 161 IPC and thereby committed an offence punishable under Section 165-A of the IPC and within my cognizance. And I hereby direct that you be tried by this court on the said charge." I am, therefore, of the opinion that the accused has been prejudiced in the absence of a proper charge and it will not be proper to maintain the sentence by altering the conviction into one u/Sec. 161 read with Section 116 IPC. After such a long time when the sentence is only of three months' RI I do not consider it proper to remand the case to the lower court for fresh trial after framing proper charge. 7. THERE is another aspect of the matter. Devi Datt (PW 5) himself stated that his duty was only to see that person who arrived there for recruitment had fallen in queue and only sometimes on the direction of Col. Sahib, he could take their measurements and weight. He clearly stated that it was not for him to motivate any person for recruitment nor he had any hand in the recruitment. Lt. Col. N. S. Chandhoke (PW 1) had also stated that he or the assistant recruiting officer could have recruited a person and Devi Datt Sharma or any other recruiting assistant could have only taken measurements and weight for the purpose of finding out whether it was according to the physical standard. It is not the prosecution case that Devi Datt was paid any money for doing his part of the duty and falsely showing him of the specified physical standard. Devi Datt himself stated that the accused was healthier than him. It is not the prosecution case that Devi Datt was paid any money for doing his part of the duty and falsely showing him of the specified physical standard. Devi Datt himself stated that the accused was healthier than him. The money alleged to be paid was thus not for any such work which could have been done by Devi Datt. But it was for getting him recruited, that is, for the work which could have been done by Lt. Col. N. S. Chandhoke or the Assistant Recruiting Officer. It is not the prosecution case that the money was given to Devi Datt for being passed over to the Recruiting Officer or the Assistant Recruiting Officer. If the money is being paid even to a public servant for doing or for bearing to do an official act which he himself has no power to do and he does not accept the money, I am unable to understand as to how an offence under Section 161/116 IPC could be made out. It would have been a different matter if such a public servant had made a wrong representation and that person had paid the money to him in the hope that he would be able to get the work done. In that case that public servant might have been guilty under Section 161 IPC Illustration C and the person giving the money for abatement. But it is not the prosecution case that any such wrong representation had been made by Devi Datt. I am, therefore, of the opinion that it will not be possible to convict the appellant even under section 161/116 IPC. 8. IN the result the appeal which is treated as a revision is allowed and the conviction and sentence of the applicant Tejpal Singh are set aside. He is acquitted of the offences which he was charged. He is on bail. He need not surrender to his bail bonds which are Hereby discharged. Revision allowed.