Faguna Kanta Nath vs State of Assam

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 203 of 1956

Decision Date: 13 January, 1959

Coram: J.L. Kapur, K.N. Wanchoo

In this case, the Supreme Court of India delivered a judgment on 13 January 1959 concerning Faguna Kanta Nath versus the State of Assam. The Bench comprised Justice J L Kapur and Justice K N Wanchoo. The petitioner was Faguna Kanta Nath and the respondent the State of Assam. The decision is reported at 1959 AIR 673 and 1959 SCR Suppl. (2) 1, with later citator references to 1967 SC 553, 1970 SC 436 and 1990 SC 1210. The criminal matters involved sections 107, 161 and 165A of the Indian Penal Code (Act XLV of 1860). The appellant had been tried for an offence under section 165A for allegedly abetting an Inspector, identified as K, who was in charge of checking paddy, in committing an offence under section 161. According to the prosecution, while the complainant was transporting paddy for sale, Inspector K demanded a bribe of Rs 200, threatened seizure of the paddy if the money was not paid, and at K’s direction the complainant handed the money to the appellant for counting. The appellant, after verifying the money, allegedly handed it over to K. The Special Judge accepted this version, convicted Inspector K under section 161 and convicted the appellant for abetment under section 165A. On appeal, the High Court held that the evidence did not sufficiently establish that the money had actually been paid to K, and therefore set aside K’s conviction, but upheld the appellant’s conviction on the basis that he had taken money for illegal gratification intended for K, irrespective of whether the payment was completed, thus fitting the provision of section 165A. The Supreme Court, however, held that under the circumstances the appellant’s conviction for abetment must be set aside. The Court observed that the appellant received the money in the presence of and on behalf of K, and that if K was acquitted because no offence under section 161 had been committed, there was no intentional assistance to a criminal act, and therefore the appellant’s conviction for abetment could not be sustained. The decision distinguished Dalip Singh v. State of Punjab, [1954] SCR 145. The judgment arose from Criminal Appeal No 203 of 1956, filed by special leave against the Assam High Court’s order dated 14 December 1955 in Criminal Appeal No 54 of 1955, which itself stemmed from the Special Judge’s order dated 23 May 1955 in Special Case No 2 of 1954. Counsel for the appellant were Nur-ud-Din Ahmad and K R Chaudhury, and counsel for the respondent was Naunit Lal. The judgment was delivered by Justice Kapur.

In this appeal the Court examined the judgment and order of the High Court of Assam. The appellant, identified as Faguna Kanta Nath, had been tried for an offence under section 165A of the Indian Penal Code on the allegation that he had abetted the paddy-checking inspector, Khalilur Rahman, in committing an offence punishable under section 161 of the same Code. Both the appellant and Khalilur Rahman were found guilty of the charges framed against them and each was sentenced to one year of rigorous imprisonment. Upon taking the matter in appeal, the High Court set aside the conviction of Khalilur Rahman but affirmed the conviction and the sentence imposed on the appellant.

The factual matrix of the case concerns an incident that occurred on 9 May 1952. On that day the complainant, Narendra Nath Brahma, was transporting two carts loaded with about 25 maunds of paddy for sale at Billashiparabazar, moving along a track that ran alongside the Gauranga River. After traveling only a short distance, he was stopped by the paddy-checking inspector, Khalilur Rahman, who was accompanied by the appellant and three other individuals. The inspector demanded a bribe of Rs 200 and warned the complainant that his carts and the paddy would be seized if he refused to pay. The appellant and the three companions supported the inspector’s demand. Although the complainant asserted that he could not produce the full amount, he eventually consented to pay Rs 150. To raise part of the sum, he borrowed Rs 100 from a man named Surajmal Oswal. He then offered Rs 80 of the borrowed money to the inspector. The inspector instructed him to hand the cash to the appellant, who counted the money and thereafter handed it back to the inspector. In addition, the complainant was compelled to execute a promissory note for Rs 70 in favour of the appellant, promising that the amount would be paid the next day after the paddy was sold. Later, while at the bazar, the complainant learned that another individual, Happaram Rai, had been subjected to a similar demand and had paid Rs 15.

On 11 May 1952 the complainant approached the appellant seeking the return of the money he had paid and the cancellation of the promissory note. The appellant gave an assurance that the money would be refunded, but no refund was made. On the same day a meeting was held at Futkibari Middle English School in the presence of the Deputy Commissioner. During this meeting the complainant submitted a written complaint describing how he had been forced to part with Rs 80 and to execute the promissory note for Rs 70. Following the filing of the complaint, both Khalilur Rahman and the appellant were prosecuted. Khalilur Rahman faced charges under section 161 of the Indian Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, while the appellant was charged under section 165A of the Indian Penal Code. Both were found guilty by the Special Judge and sentenced as noted above. The complainant’s testimony included a statement that, before the demand for Rs 200 was made, the appellant and the inspector had stepped aside, conversed briefly, and that it was the inspector who subsequently demanded the bribe. He also recounted that he had told them he could procure Rs 80 and intended to hand it over to the inspector.

According to the complainant, after Khalilur Rahman instructed him to hand over the money to the accused Faguna Kanta Nath for counting, the accused Faguna counted the cash and then transferred the whole sum to Khalilur Rahman, saying that the eight-rupee amount would not suffice and that the complainant should execute a handnote for the balance of seventy rupees, promising to pay the balance on the following Saturday. The complainant further stated that Khalilur Rahman tore a page from his notebook, handed that page to the complainant, and also lent his fountain pen to the complainant for the purpose of preparing the handnote. After the handnote was completed, both the pen and the handnote were returned to Khalilur Rahman. The Special Judge recorded that he was fully convinced that a sum of eighty rupees had been obtained from the complainant for refraining from seizing the paddy, and that this amount had been taken with the assistance and abetment of the accused Faguna Kanta Nath. Consequently, the Special Judge convicted Khalilur Rahman under section 161 of the Indian Penal Code, acquitted him of the offence under section 5(2) of the Prevention of Corruption Act, 1947, and convicted the appellant for abetment of that offence.

On appeal, Justice Deka held that the complaint did not clearly establish that any payment had been made to Khalilur Rahman. While acknowledging that Khalilur Rahman might have been involved in extracting money from a paddy dealer attempting to evade the law, Justice Deka observed that such a circumstance fell short of proving that Khalilur Rahman had actually received the money through Faguna Kanta Nath as alleged. The appellate judge accepted the complainant’s account that money was paid to the appellant, but concluded that the evidence was insufficient to prove a payment to Khalilur Rahman, and therefore he was prepared to give Khalilur Rahman the benefit of doubt and set aside his conviction under section 161 of the Indian Penal Code. Regarding the appellant, Justice Deka reasoned that money had been taken by him for payment to Khalilur Rahman as illegal gratification, and that whether the appellant actually transferred the amount to Khalilur Rahman was immaterial because the offence fell within section 165A of the Indian Penal Code. Accordingly, the appellate court affirmed the appellant’s conviction under that provision, holding that the case against Khalilur Rahman had not been proved while the appellant’s act of taking the money constituted abetment. The appellant subsequently obtained special leave to approach this Court, primarily arguing that the acquittal of Khalilur Rahman precludes sustaining his conviction for abetment. The appellant’s contention was based on the complainant’s testimony that the demand for the bribe originated from Khalilur Rahman, that the money was handed over to the appellant for counting, and that the appellant subsequently delivered it to Khalilur Rahman, with the handnote also being prepared at Khalilur Rahman’s direction.

The testimony indicated that the complainant had handed the money to Khalilur Rahman, and that the appellant subsequently delivered the money to Khalilur Rahman. According to the complainant’s version, before the demand for the bribe was made, both Khalilur Rahman and the appellant had withdrawn to a private spot and conducted a brief conference. After that meeting, Khalilur Rahman is said to have demanded a sum of two hundred rupees. The complainant, in response, produced eighty rupees, gave them to the appellant on Khalilur Rahman’s instruction for the purpose of counting, and the appellant in turn handed the amount to Khalilur Rahman, who is alleged to have placed the money in the pocket of his trousers. The trial court expressed doubt about the full veracity of this portion of the evidence, describing it as possibly not entirely true. The High Court, however, concluded that the money had remained with the appellant and had not been handed over to Khalilur Rahman. The legal question that arose from these findings was whether, under such circumstances, the offense of abetment could be established.

Under Indian law, the commission of the principal offence is not a prerequisite for liability for abetment. A person may be held guilty as an abettor even if the substantive offence is not committed. Section 165A provides that “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 for a term which may extend to three years or with fine or with both.” Consequently, for a conviction under section 161, the actual occurrence of the offence is irrelevant. The definition of abetment is contained in section 107, which states that a person abets the doing of a thing when (1) he instigates any person to do that thing; or (2) he engages with one or more other persons in any conspiracy for the doing of that thing; or (3) he intentionally aids, by any act or illegal omission, the doing of that thing. Explanation (2) to section 107 further clarifies that “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.”

The record does not suggest that the appellant instigated the commission of the alleged bribe. Moreover, the facts established against the appellant do not satisfy the second limb of section 107, because no conspiracy is alleged, and a charge of conspiracy fails where the alleged co-conspirator has been acquitted. This principle is supported by the precedent in The King v. Plummer, which has been approved by this Court in Topandas v. State of Bombay. Those authorities hold that it is immaterial whether the person who is alleged to have been instigated actually commits the offence, or whether persons who are said to have conspired together actually achieve the object of the conspiracy. The remaining issue, therefore, is the third limb of section 107 – abetment by aid. The analysis proceeds to examine whether the appellant’s conduct falls within the scope of “aid” as defined under that provision.

In this case the Court explained that a person aids another when, by committing an act, he intends to facilitate that act and actually does facilitate it. The High Court’s acquittal of Khalilur Rahman was taken to mean that the court considered no offence under section 161 of the Indian Penal Code to have been proved. The respondent, however, argued that the acquittal of Khalilur Rahman was erroneous and contended that an erroneous acquittal should not bar the conviction of the appellant for the offence of abetment. To support this submission, counsel for the respondent referred to the decision in Dalip Singh v. State of Punjab, where Justice Bose, at page 156, observed that although the High Court had held certain portions of a witness’s testimony to be false and both courts had rejected a dying declaration, the convictions under section 302 read with section 149 could still be sustained because the principal facts were accepted. He further stated that the acquittals of three accused in that case did not affect the convictions of the remaining accused, and that a wrong acquittal could not invalidate other convictions. The Court noted that the precedent must be confined to the specific facts of that case. Turning to the facts before it, the Court found that the individual who demanded the illegal gratification to permit the carts to move was Khalilur Rahman, who possessed the authority to either permit or refuse the act. The appellant’s alleged role was limited to receiving the money on Khalilur Rahman’s instruction, counting it, and then handing it over to him. The prosecution did not claim that the appellant instigated Khalilur Rahman to demand the illegal payment, nor did it establish any conspiracy between the appellant and Khalilur Rahman for the alleged offence under section 161. The evidence showed that the appellant received the money on behalf of Khalilur Rahman, and the complainant testified that Khalilur Rahman had asked him to deliver the money to the appellant. Consequently, if Khalilur Rahman’s acquittal stands and the offence under section 161 is deemed not to have occurred, there is no question of intentional assistance by the appellant.

In this case the Court observed that liability for a crime could arise only when a person assists the commission of the offence by some act or by a failure to act. Counsel for the respondent submitted that the acquittal of Khalilur Rahman was erroneous and that the findings of the High Court appeared inconsistent. However, the Court noted that the question of Khalilur Rahman's acquittal was not presented for review in the present appeal, and therefore the Court refrained from expressing any view on that issue. After considering the facts that were found and the circumstances that were established, the Court concluded that because Khalilur Rahman had been acquitted, the conviction of the appellant could not be sustained. Consequently, the Court allowed the appeal, set aside the order of conviction, and ordered that the bail bonds previously issued be discharged. The appeal was thereby allowed in its entirety.