Court caseAIR 1959 SC 673

The appellant, a government officer in Assam, was tried with a Mauzadar (a local revenue functionary) on the allegation that the Mauzadar had accepted illegal gratification from a villager in connection with a land matter and that the appellant had abetted the taking of that bribe. The Mauzadar was acquitted because the court was not satisfied that he had received the money as a bribe within s. 161 IPC. The appellant's conviction for abetment under s. 161 read with s. 109 IPC was nevertheless maintained by the High Court, and he appealed.

The Supreme Court set aside the conviction. The charge was abetment of an offence said to have been actually committed by the Mauzadar. Once the Mauzadar was acquitted on the finding that he had not committed the offence of taking a bribe, the foundation of the s. 109 charge disappeared; a person cannot be punished under s. 109 for abetting an offence that the court has found was not committed. Nor could the conviction be converted into one under s. 116 (abetment of an offence not committed), because the appellant had never been charged with, or given the chance to meet, that different case.