The constitutionality of S. 4 of the Prevention of Corruption Act, 1947, and the jurisdiction of the Special Judge to try the case.

Judgment

RAGHUBAR DAYAL, J. : This appeal, by special leave, is against the order of the Patna High Court dismissing the appellant s appeal against his conviction for offences under S. 161, I. P. C., and S. 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947), hereinafter called the Act.

2. The appellant was the Construction Engineer at Sindhri. R. B. Basu was a contractor living in Calcutta and carrying on the business of the company named and styled the Hindustan Engineering & Construction Company. The prosecution alleged, and the Courts below have found, that the appellant accepted the sum of Rs. 10,000 as illegal gratification from Basu at the Kelner s Restaurant at Dhanbad Railway Station on July 18, 1951.

3. The Courts disbelieved the appellant s defence that he had taken the envelope containing this amount not knowing that it contained this amount, but knowing that it contained papers relating to Basu s contracts.

4. The contentions raised on behalf of the appellant are : (i) that the provisions regarding the presumption contained in S. 4 of the Act are unconstitutional; (ii) that the case was tried by the Special Judge who had no jurisdiction to try it; (iii) that there had been no proper corroboration of the statement of Basu about the accused demanding the bribe and accepting the amount as illegal gratification.

5. The Constitutionality of S. 4 of the Act was sought to be questioned on the ground that it went against the provisions of Art. 21 of the Constitution which reads: "No person shall be deprived of his life or personal liberty except according to procedure established by law." We do not consider this question to be a substantial question of law for the purpose of Art. 145(3), which lays down that the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution shall be five, in view of it being held that the word law in Art. 21 refers to law made by the State and not to positive law. It has been held in A. K. Gopalan v. State of Madras, 1950 SCR 88 that in Art. 21, the word law has been used in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice, and procedure established by law means procedure established by law made by the State, that is to say, by the Union Parliament or the Legislatures of the States. Section 4 has been enacted by Parliament and therefore it must be held that what it lays down is a procedure established by law.

6. The appellant was tried by the Special Judge of Patna. The offence was committed at Dhanbad, in Manbhum District. The case was challaned to the Magistrate at Dhanbad. On an application by the accused, the High Court transferred it to the Court of the Munsif-Magistrate at Patna. Subsequent to this order of transfer, the Criminal Law Amendment Act, 1952 (Act XLVI of 1952), came into force, on July 28, 1952. The case, thereafter, was forwarded to the Special Judge at Patna in view of S. 10 of the Criminal Law Amendment Act. The contention for the appellant is that there was the Special Judge at Manbhum and that he alone could have tried this case. Section 7 of the Criminal Law Amendment Act, reads:

"(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law the offences specified in sub-section (1) of section 6 shall be triable by Special Judges only.

2. Every offence specified in sub-section (1) of section 6 shall be tried by the Special Judge for the area within which it was committed, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government.

3. When tying any case, a Special Judge may also try any offence other than an offence specified in section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial."

Sub-section (1)