1. Public servant charged with misappropriation under Section 5(1)(c) of the Prevention of Corruption Act, 1947, and possession of assets disproportionate to known income. (Para 2 )
Back
Next 
1960 Supreme(SC) 332
SUPREME COURT OF INDIA
7th December, 1960
B.P. SINHA, C.J.I., S.K. DAS, A.K. SARKAR, N. RAJGOPALA AYYANGAR, AND J.R. MUDHOLKAR JJ.
Surajpal Singh, Appellant
Versus
State of U.P., Respondent.
Criminal Appeal No. 169 of 1959,
Advocates appeared
M/s. Nuruddin Ahmad and Naunit Lal Advocate, for Appellant; M/s. G. C. Mathur and C. P. Lal, Advocate, for Respondent.
Advocates:
C.P.LAL, G.C.MATHUR, NAUNIT LAL, Nuruddin Ahmed
C.P.LAL, G.C.MATHUR, NAUNIT LAL, Nuruddin Ahmed
Section 5(3) of the Prevention of Corruption Act, 1947, is a rule of evidence, not a separate offence. A conviction based on the presumption of disproportionate assets requires a valid charge of criminal misconduct under Section 5(1); it cannot sustain a conviction if the accused is acquitted of the only charged category.
Headnote:(A) Prevention of Corruption Act, 1947 - Sections 5(1)(c), 5(2) and 5(3) - Criminal misconduct by public servant - Possession of pecuniary resources disproportionate to known sources of income - Rule of presumption - Conviction based solely on presumption under sub-section (3) when accused is acquitted of the specific charge of criminal misconduct under sub-section (1)(c) - Whether sustainable - Sub-section (3) does not create a new offence but lays down a rule of evidence which empowers the Court to presume the guilt of the accused in certain circumstances, contrary to the general principle that the burden of proof remains with the prosecution (Paras 6, 8).
(B) Criminal Law - Charge - Conviction cannot be based on a new case not suggested or alleged during the trial - Appellate Court cannot affirm conviction on a category of offence not charged or suggested during the proceedings (Para 9).
Facts of the case:
A public servant was charged with conspiracy, forgery, and criminal misconduct under Section 5(1)(c) of the Prevention of Corruption Act, 1947, for allegedly misappropriating property entrusted to him. The trial court acquitted the accused of conspiracy, forgery, and the specific acts of misappropriation. However, the trial court convicted the accused under Section 5(2) based solely on the presumption under Section 5(3), as the accused failed to satisfactorily account for pecuniary resources found in his possession which were disproportionate to his known sources of income. The High Court upheld the conviction while reducing the sentence.
Findings of Court:
The conviction under Section 5(2) by invoking the presumption under Section 5(3) is incorrect when the accused has been acquitted of the only charge of criminal misconduct brought against him.
Issues: Whether a public servant can be convicted under Section 5(2) of the Prevention of Corruption Act, 1947, by invoking the rule of presumption in Section 5(3), if the accused is found not guilty of the specific category of criminal misconduct alleged in the charge.
Ratio Decidendi: Section 5(3) of the Prevention of Corruption Act, 1947, is a rule of evidence and not a substantive offence. The offence punishable under Section 5(2) must fall within one of the categories defined in Section 5(1)(a) to (d). If the only category of misconduct charged is not proven, the presumption under Section 5(3) cannot be used to convict the accused of a different category of misconduct that was never alleged or suggested during the trial.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether conviction under Section 5(2) via the presumption in Section 5(3) is sustainable when the accused is acquitted of the specific misconduct charge under Section 5(1)(c). (Para 4 , 7 )
3. Section 5(3) is a rule of evidence, not a separate offence; conviction requires a charge under one of the misconduct categories defined in Section 5(1). (Para 8 , 9 )
4. A conviction based on the presumption of disproportionate assets under Section 5(3) requires a corresponding charge of criminal misconduct under Section 5(1). (Para 8 )
5. Appeal allowed; conviction and sentence set aside. (Para 10 )
6. Does Section 5(3) of the Prevention of Corruption Act, 1947, create a separate offence?
No, Section 5(3) does not create a new offence but establishes a rule of evidence allowing the court to presume guilt of criminal misconduct if the accused possesses disproportionate assets they cannot satisfactorily account for. (Para 8 )
7. Can a public servant be convicted under Section 5(2) using the presumption in Section 5(3) if they are acquitted of the specific misconduct charge?
No. The offence punished under Section 5(2) must fall within one of the categories of criminal misconduct defined in Section 5(1). If the only charge brought under Section 5(1) fails, the presumption under Section 5(3) cannot sustain a conviction. (Para 8 )
8. Can an appellate court convict an accused under a different category of criminal misconduct than the one originally charged?
No, an appellate court cannot affirm a conviction based on a new case or category of misconduct not alleged by the prosecution during the trial, as this would be evolving a case from a vacuum. (Para 9 )
Judgement
S. K. DAS, J. : This is an appeal by special leave from the judgment and order of the High Court of Judicature at Allahabad dated March 27, 1958, whereby the said High Court maintained the conviction of the appellant under S. 5(2) of the Prevention of Corruption Act, 1947 (2 of 1947), but reduced the sentence of four years rigorous imprisonment passed on the appellants by the Special Judge, Kanpur to two years rigorous imprisonment.
2. The short facts are these. The appellant, Surajpal Singh, was employed in the Police Department of the Uttar Pradesh Government. He started his service as a constable on a salary of Rs. 13 per month from August 1, 1930. In 1946 his pay was increased to Rs. 46 per month. He was appointed a Head constable on a salary of Rs. 50 per month in 1947. He officiated as a Sub-Inspector of Police sometime in 1948 and 1949 on a salary of Rs. 150 per month. On March 1, 1949, he was reverted to his post of Head constable. Between the dates February 27, 1951, and September 9, 1952, he was posted as a Head constable attached to the Sadar Malkhana, Kanpur. The charge against him was that in that capacity he dishonestly or fraudulently misappropriated or otherwise converted to his own use many articles, principally those seized in connection with excise offence kept in deposit in the said Malkhana. These articles included opium, bottles of liquor, etc. The charge further stated that a sum of Rs. 9,284/1/0 was recovered on a search of his house on September 9 and 10, 1952, and this amount was disproportionate to the known sources of income of the appellant. There was an allegation by the prosecution that the acts of dishonest misappropriation etc. were committed by the appellant in conspiracy with two other persons called Bhagawat Singh and Gulab Singh. Therefore, the charges against the appellant were (1) for the offence of conspiracy under S. 120B of the Indian Penal Code ; (2) for the offence under S. 5(1) (c) of the Prevention of Corruption Act,1947, for the acts of dishonest misappropriation or user, read with S. 5(2) of the said Act; and (3) for an offence under S. 465 of the Indian Penal Code in respect of a particular entry said to have been forged in the Register of Properties kept in the Sadar Malkhana.
3. The learned Special Judge who tried the appellant, Bhagawat Singh and Gulab Singh, recorded an order of acquittal in respect of the latter two persons. As to the appellant, he was also acquitted of all the charges except the charge under S. 5(2) of the Prevention of Corruption Act. On this charge the learned Special Judge recorded an order of conviction, but this was based on the sole ground that the appellant had failed to account satisfactorily for the possession of Rs. 9,284/1/0 which according to the finding of the learned Special Judge, was disproportionate to the known sources of income of the appellant. It should be noted here that the learned Special Judge held the appellant not guilty of the various acts of dishonest misappropriation or user alleged against him in respect of the properties kept in the Sadar Malkhana.
4. In his appeal to the High Court the appellant urged various grounds, one of which was that he could not be convicted on the rule of presumption laid down in sub-s. (3) of S. 5 of the Prevention of Corruption Act, 1947, when on the only charge of criminal misconduct alleged under S. 5(1) (c) of the said Act he had been found not guilty. The High Court repelled this contention and upheld the conviction of the appellant but reduced the sentence.
5. The principal question before us is whether in the circumstances of this case, the conviction of the appellant on the charge under sub-s. (2) of S. 5 of the Prevention of Corruption Act, 1947, by invoking the rule of presumption as laid down in sub-s. (3) of that Section, is correct.
6. It is convenient to read here S. 5 of the Prevention of Corruption Act, 1947, in so far as it is relevant for our purpose :
"S. 5(1). A public servan
