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SUPREME COURT OF INDIA
7th April, 1954.
M.C. MAHAJAN, C.J.I., BOSE AND GHULAM HASAN, JJ.
Biswabhusan Naik, Appellant
Versus
The State of Orissa.
Criminal Appeal No. 33 of 1952.
Advocates appeared
Messrs, Nur-ud-Din Ahmed, R. Patnaik and R. C. Prasad, Advocates, for Appellant; Mr. R. Ganapathy Iyer Instructed by Mr. R. H. Dhebar, Agent for the State.
Held: "It is not necessary for the sanction under the Prevention of Corruption Act to be in any particular form, or in writing or for it to set out the facts in respect of which it is given than it was under clause 23 of the Order which their Lordships were considering. The desirability of such a course is obvious because when the facts are not set out in the sanction proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged, but an omission to do so is not fatal so long as the facts can be, and are, proved in some other way.
"A sanction based on the facts set out in this letter, namely, the information received about the collection of heavy sums as bribes and the finding of Rs. 2,698 in his possession would be sufficient to validate the present prosecution. It is evident from this letter and from the other evidence that the facts placed before the Government could only relate to offence under section 161 of the Indian Penal Code and Clause (a) of Section 5 (a) of the Prevention of Corruption Act. They could not relate to clauses (b) or (c). Therefore when the sanction was confined to section
.5 (2) it could not, in the circumstances of the case, have related to anything but clause (a) of sub-section (I) of section 5. Therefore, the omission to mention clause (a) in the sanction does not invalidate it." (per Bose J.).
(2) Sub-section (3) of section 5 of the Act sets out a new rule of evidence. "Therefore, all that the prosecution has to do is to show that the accused, or same person on his behalf, is in possession of pecuniary resources or property disproportionate to his known sources of income and• for which the accused cannot satisfactorily account. Once that is established then the Court has to presume, unless the contrary is proved, that the accused is guilty of the new offence created by section 5, namely criminal misconduct in the discharge of his official duty.
"Now the accused was found in possession of Rs. 3248/-. He accounted for Re. 450/. of that sum by showing that it was paid to him at the time as a trap. He had been acquitted of that offence, so all he had to account for was the balance Rs. 2698-/. This is a large sum for a touring officer to carry with him in cash while on tour. His explanation was not considered satisfactory and that is a question of fact with which we are not concerned in this court. Therefore, all that remains to be seen is whether this was disproportionate to his known sources of income.
"The accused is a Government Factory Inspector and we were told that his salary is only Rs. 450/- a month. The High Court finds that the total sums drawn by him during his entire period of service of thirteen months was Rs. 6045/- as salary and Rs. 2155/- as traveling allowance. It also finds that he owns 0.648 acres of land which brings in no income worth the name. On the expenditure side of the accused account the High Court finds that he has a substantial family established which would not leave him enough margin for saving such a large sum of money. No other source of income has been disclosed.
It is evident that no touring officer of his status and in his position would require such a large sum of money for his touring purposes even if he was away from headquarters for a month. His explanation was disbelieved. These are all questions of fact. Once the facts set out above were found to exist and the explanation of the accused rejected as unsatisfactory, section 5 (3) was at once attracted and the Court was bound to presume (the word used in the section is" shall" and not "may") that the accused was guilty under section 5 (2), especially as this part of the section goes on to say." (ibid).
(3) No particulars need be set out in the charge in such a case. - Section 221-Prevention of Corruption Act (1947), S. 5(1)(a) -Requirements of charge under.
Held: No particulars need be set out in the charges in a case under the Prevention of Corruption Act, 1947, because the offence under section 5 (1) (a) of the Act does not consist of individual acts of bribe taking as in S. 161 of the Indian Penal Code but is of a general character. Individual instances may be useful to prove the general averment in particular oases but it is by no means necessary because of the presumption which section 5 (3) requires the court to draw. There was therefore no illegality either in the sanction or in the charge; nor has the accused been prejudiced because he knew everything that was being urged against him and led evidence to refute the facts on which the prosecution relied. He was also questioned about the material facts set out above in his examination under S. 342 of the Criminal Procedure Code and was given a chance then as well to give such explanation as he wished.
Judgment
BOSE, J.: The appellant was an Inspector of Factories under the Government of Orissa. It was a part of his duty to inspect factories and mills in the State of Orissa. He toured the districts of Koraput and Balasore from 18-8-1948 to 27-8-1948 and from 29-9-1948 to 30-10-1948 respectively. The prosecution case is that he collected bribes from persons connected with some of the mills he inspected in those districts. It is said that he used to threaten to close their mills and impose other penalties for alleged defects unless they paid him a bribe.
2. On 3-10-1948 he was coming at the Dak Bungalow at Basta in the Balasore district. Because of information received against him his person and belongings were searched on that day and a sum of Rs. 3,148 was recovered from him consisting of Rs. 450 paid at the time as a trap and Rs. 2,698 already in his possession. He was arrested on the spot but was later released on bail.
3. Departmental and other proceedings were taken against him and he was eventually brought to trial on 29-3-1950 and charged under Section 5(2) of the Prevention of Corruption Act (II of 1947) for criminal misconduct in the shape of habitually accepting illegal gratification. He was also separately charged and separately prosecuted under Section 161 of the Indian Penal Code for three specific offences of bribe taking but we are not concerned here with that as he was acquitted on all three counts.
His conviction here is under Section 5(2) alone. The trial Court sentenced him to rigorous imprisonment for four years and a fine of Rs. 5,000. The High Court upheld the conviction on appeal but reduced the sentence to two years and a fine of Rs. 3,000.
4. The accused applied for a certificate to appeal under Article 134 (1) (c) on three points. The High Court held that two of them were not of sufficient importance to justify the issue of a certificate particularly as one of the two was covered by the principle laid down by this Court. But it granted leave on all three as it considered that the first point was of importance.
The points were formulated as follows:
(i) whether the view of this Court as to the requirement of sanction in a case of this kind and the interpretation of - Gokulchand Dwarkadas v. The King , in AIR 1948 PC 32 (A), adopted by this Court in its judgment are correct;
(ii) whether the interpretation of this Court relating to the requirements as to the corroboration of an accomplice witness in a bribery case with reference to the latest unreported case of the SC which has since been reported in - Rameswar v. State of Rajasthan , AIR 1952 SC 54 (B) is correct;
and
(iii) whether the law as propounded by the decision now sought to be appealed against with reference to the considerations that arise in judging the presumptions under Section 5(3) of the Prevention of Corruption Act is correct."
The first point arises in this way. Four kinds of criminal misconduct are set out in Section 5 of the Prevention of Corruption Act. They are enumerated in Clauses (a), (b), (c) and (d) of sub-Section (1). The sanction is general and does not specify which of these four offences was meant.
It runs as follows:
"Government of Orissa.
Commerce and Labour Department.
Order No. 4561/Com., dated 3-11-1948.
In pursuance of Sanction 6 of the Prevention of Corruption Act, 1947 (II of 1947), the Governor of Orissa is hereby pleased to accord sanction for prosecution of Sri B. B. Nayak, Inspector of Factories, Orissa, employed in connection with the affairs of the Provice under sub-Section (2), of S. 5 of the said At.
2. Nature of offence committed:
Criminal misconduct in discharge of official duty.
By order of the Governor,
Sd/-V. Ramanathan,
Secretary to Government."
It was contended that the Privy Council held in- AIR 1948 PC 82 (A) that such a sanction is invalid. The High Court rejected this argument. We agree with the High Court.
5. The passage of the Privy Council judgment on which reliance is placed is as follows:
"In their Lordship s vi
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