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TMI Blog2005 (9) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... t, Office Note and material available on record. I.O. failed to place any prima facie evidence against A-2 for alleged abetment. Hence cognizance is taken against A-1 only under Section 13(1)(d) read with Section 13(2) of P.C. Act. Issue summons to accused by 25-10-2004. 3. As far as the contention of the petitioner that the offence falls under Section 13(1)(e) of Act is concerned, the learned senior counsel for the respondents has not disputed the same and has conceded that it is a mistake. 4. The important and hotly contested question is whether A-2, wife of A-1 is liable as an abettor. The contention of the learned counsel for the petitioner is that in P. Nallammal v. State, 1999(3) RCR(Crl.) 676 (SC) : AIR 1999 Supreme Court 2556 it was held by the Hon'ble Supreme Court that the offence under Section 13(1)(e) could be abetted even by a private person; in this case A-2 wife of A-1 has abetted the offence as she has allowed the illegally acquired property by her husband, to be kept on her name by consenting for the same. 5. The learned Senior Counsel appearing for the respondents contends that under no circumstances, in the present case, an offence under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this : If A, a close relative of the public servant tells him of how other public servants have become more wealthy by receiving bribes and A persuades the public servant to do the same in order to become rich and the public servant acts accordingly. If it is a proved position there cannot be any doubt that A has abetted the offence by instigation. Next Illustration is this : Four persons including the public servant decide to raise a bulk amount through bribery and the remaining persons prompt the public servant to keep such money in their names. If this is a proved position then all the said persons are guilty of abetment through conspiracy. The last illustration is this : If a public servant tells A, a close friend of him, that he has acquired considerable wealth through bribery but he cannot keep them as he has no known source of income to account, he requests A to keep the said wealth in A's name, and A obliges the public servant in doing so. If it is a proved position A is guilty of abetment falling under the Thirdly clause of Section 107 of the Penal Code. 12. In the case on hand A-2 is the wife of A-1 and A-1 kept the ill-gotten property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in consequence of the abetment to attract Section 107 Indian Penal Code, punishable under Section 109 Indian Penal Code. In this case, there might be some distinction, as the acquisition of disproportionate assets is not committed in consequence of abetment. Here what has happened is first there was acquisition of property and then concealment or allowing to possess the same on the name of A-2, by A-2; as such the acquisition is not in consequence of the abetment, as the acquisition was initial act; but, here possession of the property is the offence and not mere acquisition; as such here the question is as how whether the acquisition is prior to abetment would not arise. 17. In Ranganayaki v. State, 2005(1) RCR(Crl.) 401 : 2005(1) Apex Criminal 233 (SC) : 2005(1) ALT(Crl.) 30 (SC) : (2004)12 SCC 521, the Hon'ble Supreme Court observed that:- 18. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of accused into evidence does not mean that no such mental condition existed in the mind of the assailants . 19. Thus sometimes it may not be possible for the prosecution to translate the mental dispositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely provided for the punishment of abetment as such then it is punishable with the punishment provided for the original offence. Law does not require instigation to be in a particular form or that it should only be in words. The instigation may be by conduct. Whether there was instigation or not is a question to be decided on the facts of each case. It is not necessary in law for the prosecution to prove that the actual operative cause in the mind of the person abetting was instigation and nothing else, so long as there was instigation and the offence has been committed or the offence would have been committed if the person committing the act had the same knowledge and intention as the abettor. The instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. It is only if this condition is fulfilled that a person can be guilty of abetment by instigation. Further the act abetted should be committed in consequence of the abetment or in pursuance of the conspiracy as provided in the Explanation to Section 109. Under the Explanation an act or offence is said to be committed in pursuance of abetmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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