According to the first part of this section, whenever an abettor abets such an offence for which the punishment provided is imprisonment, if the offence abetted is not committed in consequence of the abetment and there is no express provision in the Indian Penal Code to punish such abetment, the abettor shall be punished with imprisonment of any description for a term which may extend to one-fourth part of the longest term provided for that offence, or with such fine as is provided for that offence, or with both.
The second part of the section says that whenever an abettor abets an offence punishable with imprisonment and if the abettor himself or the person abetted is a public servant whose duty is to prevent the commission of such an offence, the abettor shall be punished with imprisonment of any description provided for that offence for a term which may extend to one-half of the longest term provided for the offence, or with such fine as is provided for the offence, or with both.
It is clear from the above that the law views an act to be more serious where either the abettor or the person abetted is a public servant who is under a duty to prevent commission of an offence and, therefore, higher punishment has been provided in such cases.
The Law Commission of India in its forty-second report on the Indian Penal Code had recommended for a still higher punishment for such cases where the abettor or the person abetted is a public servant because a public servant is expected to act differently than others. Nothing has, however, been done till now in this matter and the law remains to be as it was.
While the first two illustrations under this section illustrate the point with respect to the first part of the section, the last two illustrations illustrate the second part out of which illustration (c) deals with the case where the abettor himself is a public servant, and illustration (d) where the person abetted is a public servant. With respect to illustration (a), however, it is important to note that sections 161 to 165-A of the Indian Penal Code stand omitted by section 31 of the Prevention of Corruption Act, 1988 with effect from September 9, 1988.
Where the accused was charged with having abetted a civil surgeon, enhanced penalty under this section’s second para was held to be not applicable as the civil surgeon was not such a public servant whose duty it was to prevent the commission of such offence.
Where a doctor in charge of a government hospital was offered illegal gratification to order for the retention of a patient in the hospital for a longer period than necessary and the doctor refused the bribe, it was held that abettor was guilty for abetting an offence under section 161 read with section 116 as is clear from illustration (a) of section 116 of the Code.
Where the accused went to the office of a public servant and told him that he would pay him a certain amount if an order sanctioning the sale of a gun in his favour was obtained the same day, it is clear from illustration (a) to section 116 that this would amount to an abetment under section 116 and would necessarily constitute an offence under section 165-A of the Code.
The accused who had got a warrant of attachment of certain land issued against a judgment-debtor, wanted to have it signed by the Revenue Assistant in his capacity as a Collector. He wished to bribe the Reader of the Revenue Assistant in order to get this done.
While he was standing outside his court room he saw a Magistrate coming out of the room and thinking that he was the Reader placed two rupees and warrants of attachment on his hand to get the same signed and take the amount. The accused was held liable under sections 161 and 116 of the Code as he requested the magistrate in his capacity as a public servant to do the work.