Patna High Court
Ramsagar Pandit vs The State Of Bihar on 20 September, 1960
Equivalent citations: 1961CRILJ385
JUDGMENT Tarkeshwar Nath, J.
1. The appellant has been convicted under Section 5, Clause 1 read with Clause 3 of the Prevention of Corruption Act (Act II of 1947) and sentenced to a rigorous imprisonment for three years and a fine of Rs. 500/-, in default to six months' rigorous imprisonment, by the Special Judge of Bhagalpur. The learned Judge found, after giving a liberal allowance for the known sources of income of the appellant, that he was in possession of a minimum amount of Rs. 52298/6/3 and that he failed to account satisfactorily for it,
2. The facts leading to the prosecution of the appellant are these : The appellant joined Government service in 1942 as a teacher in the Reformatory School at Hazaribagh on a pay of Rs. 125/- per month. In July, 1945 he became a lecturer in mechanics in the Agricultural College at Sabaur. He served in that capacity till 30-11-1949 and from 1-12-1949 he became Mechanical Assistant Engineer at Sabaur.
He continued to be so till 31-8-1952 after which he reverted to the post of lecturer in mechanics. The appellant belonged to the interior of district Champaran and his means and resources were limited. His father was old and had no employment, whereas his younger brother was serving as 'a post master of a branch post office on a monthly salary of Rs. 25/- per month. The appellant had two wives, the first one lived with her father-in-law whereas the second one lived with the appellant.
The appellant had one daughter from the first wife and one son aged about 18 years, on(c) daughter aged about 15 years- and another issue of young age from his second wife. His wives had no assets of their own and they had to depend on the appellant for their maintenance. It appears that fortune favoured the appellant and he turned a new leaf in course of about 2 years, 1951-52. The enquiry revealed the following:
(a) On 2-8-1951 the appellant opened a Savings Bank Account No. 77946 in his name in the Head Post Office at Bhagalpur with a deposit of Rs. 10/-only, but by 3-6-1952 the credit balance was to the tune of Rs. 5901/4/-.
(b) In August, 1951 he opened another Savings Bank Account No. 314 in his name in the Imperial Bank at Bhagalpur with a deposit of Rs. 1400/-, but by December, 1952 the balance to his credit was Rs. 6450/10/-.
(c) In March, 1951 he opened a current account No. 2/409 and 505 in the Imperial Bank at Bhagalpur with an initial deposit of Rs. 505/-only, but by June, 1953 the balance to his credit was Rs. 4997/16/-,
(d) The appellant had before August, 1945 a Savings Bank Account No. 46599 at Hazaribagh in the name of his second wife, but he got this account transferred to Bhagalpur with a balance of Rs. 840/- and odd annas when he was posted at Sabaur. By June, 1951 the balance in this account was to the tune of Rs. 10279/15/-.
(e) On 28-6-1951 the appellant opened a Savings Bank Account No. 77636 in the Post, Office in the name of his daughter Kusum Kumari with a deposit of Rs. 10,000/-, but by 19-4-1952 the balance was Rs. 15,150/-.
(f) In 1946 he opened a Savings Bank Account No. 64448 in the Post Office at Bhagalpur in the name of his son Kedar Nath Gupta with a deposit of Rs. 251/-, but by 19-4-1952 the credit balance was Rs. 15,142/12/-.
3. The net result was that during the years 1951 and 1952, that is, in course of less than 20 months, he deposited a sum of Rs. 32065/3/- in his three accounts, Rs. 16500/- in the name of his second wife, Rs. 5000/- in the name of his daughter Kusum Kumari and Rs. 8200/- in the name of his son. In 1952 he purchased a motor car for Rs. 12,567/4/3 and he paid the price in three instalment. The first instalment of Rs. 5000/-was paid on 15-3-1952 by a cheque, the second one of Rs. 5067/4/3 in cash on 7-4-1952 and the third one of Rs. 2000/- by a draft on 8-4-1952. It further appeared that the amount of second instalment was not withdrawn from any Bank and the appellant had thus this additional sum with him for the payment of the price.
4. The prosecution case further is that in the years 1950 to 1952 huge quantities of pumping sets worth about Rs. 58 or 59 lacs were purchased by the Agricultural Department, Bihar, for the supply throughout the entire State and the duties of the appellant were to receive the consignments, distribute the supply in different places, pass bills of the different firms and make payments after certifying that the articles were up to the mark. The appellant showed undue favours to certain firms and their employees and made an illegal gain in the discharge of his official duties.
Subsequently when the appellant came to know that the authorities had taken a note of the huge amounts deposited by him in the Bank and that the matter was being enquired into, he hastened to withdraw practically tile entire amount with the result that in May, 1956 the total amount either to his credit or those of his wife and his son was Rs. 108/5/- only. On 24-7-1956, P.W. 1, Parmhans Pandey, Sub-Inspector of Police, Political (Anti-Corruption Department) sent a report stating these facts to the officer in charge of the Kotwali Police Station, Bhagalpur, and in that report he further mentioned that the appellant could not satisfactorily account for a sum of Rs. 62088/-which was quite disproportionate to his known sources of income.
He indicated therein that the appellant committed the offence of criminal misconduct as defined in Section 5 of Act II of 1947 and was liable to be punished under Sub-section (2) read with Sub-section (3) of Section 5. The appellant was alleged to have committed the offence between December, 1949 and December, 1952. The Inspector of Police drew up a first information report on the basis of this report and Maqbool Ahsan, Deputy Superintendent of Police (P.W. 23) took up the investigation of this case.
He examined the various accounts standing in the name of the appellant, those of his son, daughter and his wife. He asked for papers showing transactions of money-lending, but none was placed before him. The house of the appellant was searched, enquiries were made about the a central property and the income which he received while he was a non-gazetted officer.
5. On 26th March, 1957, the Superintendent of Police sent a letter Exhibit 34/1) to the Secretary to the Government of Bihar, Development Department, Patna, requesting him to obtain the sanction of the Government under Section 6 of the Prevention of Corruption Act Act II of 1947 and Section 197 of the Criminal Procedure Code for the prosecution of the appellant under Section 5(2) and (3) of Act II of 1947.
In that letter the Superintendent of Police, besides stating the facts mentioned in the report of Parmhans Pandey (P.W. 1), made an allegation that the appellant had received a sum of Rs. 400/-as illegal gratification from Baidyanath Saran, Proprietor of Messrs. Seekers and Co., Patna. in respect of the supply of the pumping sets. The Superintendent of Police while asking for sanction concluded in paragraph 17 of his letter as follows:
(a) The accused was receiving money by corrupt or illegal means by abusing his position as a public servant.
(b) He was in possession of pecuniary resources, disproportionate to his known source of income which he failed: to account for satisfactorily.
(c) The accused has committed an offence, punishable under Sub-section (2) read with Sub-section (3) of Section 5 of Act II of 1947....
6. On 11th April, 1957 sanction Exhibit 29) was granted in the following terms:
And whereas the Governor of Bihar has reasons to believe, on a consideration of the facts mentioned in the aforesaid documents that Shri Ram Sagar Pandit Lecturer now under suspension) Sabour Agricultural College, Bhagalpur has committed offences under Clause 2 read with Clause 3) of Section 5 of the Prevention of Corruption Act, 1947 II of 1947;.
Now, therefore, the Governor of Bihar in pursuance of the provision laid down in Section 6 of the said Act, 1947 is pleased to accord sanction to the prosecution of the aforesaid Shri Ram Sagar Pandit under the said section....
By order of the Governor of Bihar Sd/- H. N. Thakur Joint Secretary to Government.
7. On 18th April, 1957, P.W. 23 submitted a charge-sheet against the appellant indicating therein that the appellant was in possession of pecuniary resources quite disproportionate to his known source of income which he failed to account for satisfactorily; he received money by corrupt or illegal means by abusing his position as a public servant and as such he committed the offence of criminal misconduct as defined in Section 5 of the Prevention of Corruption Act.
In these circumstances he mentioned that a prima facie case under Sub-section (2) read with Sub-section (3) of Section 5 of the said Act had been made out against the appellant. It appears that on 7th May, 1957 the Superintendent of Police sent another letter Exhibit 34 to the Secretary to the Government of Bihar, Development Department, Patna, requesting him to obtain sanction of the Government under Section 197 of the Criminal Procedure Code as well. On receipt of this letter, sanction Exhibit 29/1 was again granted on 25th June, 1957 in the following terms:
Whereas the Governor of Bihar has considered the facts stated in the First Information Report and the letter No. 1195 Cr. dated the 25th March, 1957, of the Superintendent of Police, Bhagalpur, addressed to the Secretary to the Government of Bihar, Development Department (copy enclosed) through the Commissioner, Bhagalpur Division and Whereas the Governor of Bihar has reasons to believe, on the consideration of the facts mentioned in the aforesaid documents, that Shri Ram Sagar Pandit, Lecturer (now under suspension) Sabour Agricultural College, Bhagalpur, has committed offences under Clause (2) read with Clause (3) of Section 5 of the Prevention of Corruption Act, 1947 (Act II of 1947).
Now, therefore, in partial modification of the sanction accorded in Government Order No. 1136 dated the 11th April, 1957, the Governor of Bihar, in pursuance of the provisions laid down in Section 6 of the said Act and under Section 197 of Criminal Procedure Code, is pleased to accord sanction to the prosecution of the aforesaid Shri Earn Sagar Pandit under the said section. A copy each of the letter of the Superintendent of Police, Bhagalpur, and the First Information Report of the ease is attached herewith.
By order of the Governor of Bihar Sd/. H. N. Thakur, 25-6-1957 Joint Secretary to Government.
8. The appellant was put on trial before the Special Judge of Bhagalpur and the charge framed against him runs thus:
That during the period of the years 1951 and 1952 at Sabour P.S. Mofassil and at Bhagalpur town, P.S. Kotwali, district Bhagalpur, you, being a public servant' viz., Mechanical Assistant Engineer, Sabour Agricultural College habitually accepted gratification other than legal remuneration and obtained, for yourself, pecuniary advantage by corrupt and illegal means or by otherwise abusing your position as public servant with the result that during the said period you came in possession of a sum of about Rs. 62000/- which was disproportionate to your known resources of income and which you could not satisfactorily account and you thereby committed the offence of criminal misconduct, an offence punishable under Sub-section (2) read with Sub-sections (1) and (3) of Section 5 of Act II of 1947, the Prevention of Corruption Act, 1947.
9. The appellant admitted that he opened those accounts and deposited the various sums from time to time, but he took the plea that he did not earn money by illegal means. He alleged that the sum of Rs. 5000/- deposited in the name of his wife belonged to her exclusively and the remaining amount belonged to him as his earnings during the period commencing from January, 1931. and onwards. He filed a written statement and enclosed a chart indicating his approximate income and expenditure during the period from 1931 to August, 1953.
It appears from that statement that he worked as an Engineer in various other Mills and Factories in 1931 and the years following and he has further indicated that he advanced huge amounts ranging from Rs. 7000/- to Rs. 25000/- on pro-notes to various debtors from 1932 to 1941. It appears from that chart that his total approximate income was Rs. 93,217/-, approximate amount of his expenditure was Rs. 23,267/- and the total amount of saving was Rs. 69,950/-.
He denied the various allegations made against him and stated that the Director of Agriculture used to place orders for the purchase of the pumping sets and the bills also were being sent to him by the various companies. He, however, was in charge of the maintenance and the repair work regarding these pumps and being a subordinate officer he used to comply with the orders passed by the Director of Agriculture in accordance with his direction.
The appellant deposed in this case and denied having received any illegal gratification or commission from any company or individual including Baidvanath Saran (P.W. 13). He, however, admitted that in June, 1951 he drew a huge amount of money under the instruction of Director of Agriculture as the Central Government was to stop the scheme of supplying pumping sets. He added that a good number of drafts were kept in the treasury but on receipt of requisite certificates from the district authorities payments were made subsequently in due course.
10. The learned Judge considered the evidence, the known sources of income of the appellant including his pay, took into account the various accounts in the Bank and it is proper to refer to the following findings arrived' at by him:
(a) Even by giving the largest margin to the accused for his known sources of income the accused must be held to be in possession of unaccounted amount of Rs. 52298/6/3. This maximum amount of Rs. 61789/7/3 or minimum amount of Rs. 52298/6/3 not satisfactorily accounted by the accused must be held disproportionate to the known source of the income of the accused....
(b) It must therefore be held that the accused has not given satisfactory explanation for the different bank accounts referred to above. The story that the accused had invested a huge amount of money in the money lending transaction appears to be false.
(c) Therefore the entire conduct of the accused and the history of the banking accounts and the evidence given by him and his witnesses demolish the theory that the sum of Rs. 61 thousand and odd which was deposited in the name of the accused and his different family members in the year 1951-1952 was derived from any other known source of the accused.
(d) To sum up there is sufficient evidence on record to indicate that during the contract period the accused had hand in the fixation of the price. During the distribution period also the accused; was actively associated with the distribution of the pumping sets to different places.
(e) There can be no doubt about the fact that these circumstances clearly go to lend enough strength to the prosecution presumption that the accused was making illegal gain out of his economic position in the scheme in the year 1951 and 1952.
(f) Under the circumstances it is held that the amount of Rs. 61 thousand and odd which was found in possession of the accused must be presumed to have been gained by the accused as a result of the commission and omission in discharge of his duties as the Assistant Mechanical Engineer, Agriculture Department.
11. The learned Judge thus found him guilty and convicted him as stated above.
12. Mr. Awadhesh Nandan Sahay for the appellant has, at the outset, submitted that on the facts stated in the report of Parmhans Pandey, on the basis of which the first information report was drawn up, and those alleged in the letter of the Superintendent of Police asking for a sanction, no case of criminal misconduct within the meaning of Section 5(1) of the Prevention of Corruption Act was made out and the net result of the allegations made was only to this extent that the appellant was in possession of resources disproportionate to his known source of income, which he failed to account for.
He pointed out that sanction was asked for the prosecution of the appellant under Section 5(2) and (3) of Act II of 1947 and in fact the Government of Bihar did accord sanction for the prosecution of the appellant under Clause (2) read with Clause (3) of Section 5. According to him no sanction was given for prosecution in respect of the criminal misconduct envisaged in Section 5(1) of the Act.
He further urged that Sub-section (3) of Section 5 did not create any offence and the aid of that Sub-section could only be taken for drawing a presumption in a trial for an offence punishable under Sub-section (2) of Section 5. He referred to the decision in the case of Akhouri Inderdeo Prasad v. The State , and placed a great reliance on the principles laid down in that case. It is necessary to examine the facts of that case more closely and compare them with those of the present case.
In that case a clerk failed to account for the possession of a huge amount and the landed properties and hence the Deputy Superintendent of Police filed an application for sanction to prosecute him. He mentioned in that application that a prima facie case had been made out against the clerk under Section 5(2 and 3) of Prevention of Corruption Act. The District Magistrate passed a short order in the following terms:
Seen, Prosecution sanctioned.
13. The charge in that case first referred to the sums recovered at the residence of the clerk, found in his Bank account and also to the landed property. The charge then was that as the pecuniary resources and the property were disproportionate to his known sources of income, he was guilty of criminal misconduct within the meaning of the Prevention of Corruption Act and as such, he committed an offence punishable under Section 5(2) of the said Act. The trial court found in that case that the accused was a public servant, sums of money disproportionate to his known sources of income were in his possession and the explanation offered by him was most unsatisfactory.
On those findings, the court drew a presumption under Section 5(3) of the Act and found him guilty of criminal misconduct. A question then arose as to whether the conviction of the clerk based upon the presumption drawn against him under Section 5(3) of the Act was justified. The various provisions of the Prevention of Corruption Act were considered and it was held that Sub-section (3) of Section 5 did not create an offence, separate from the one under Sub-section (1). It is useful to refer to the following observations:
Criminal misconduct by a public servant has been explained in Sub-section (1) of Section 5, Clauses (a), (b), (c) and (d). If a public servant is alleged to have committed such a criminal misconduct as is contemplated by Clauses (a), (b), (c) or (d) of Sub-section (1) of Section 5, then he becomes punishable under Sub-section (2) of Section 5, and the trial then, and then only, is for an offence punishable under Sub-section (2). A Court must, therefore, first find that the public servant concerned is being tried for an offence punishable under Sub-section (2) and then in. appropriate circumstances proceed to draw a presumption. It is not sufficient to say, as the learned Special Judge has said, that it can draw a presumption in a case under Section 5(3), Prevention of Corruption Act.
In that case their Lordships further found that from the very start there was no case against the clerk - and much less there was a finding - that he committed criminal misconduct within the meaning of Clauses (a), (b), (c) or (d) of Sub-section (1) of Section 5 of the Act. In that case it was not so stated in the first information report; nor in the application filed before the District Magistrate for sanction to prosecute the appellant; nor in the charger was it so indicated in the judgment of the learned Special Judge.
The conviction of the clerk was based solely upon the impression that Sub-section (3) of Section 5 of the Act created a distinct head of criminal misconduct and hence a presumption within the meaning of that Sub-section was drawn against him. This view of the Special Judge was held to be erroneous and the conviction was set aside. The facts in the present case are different.
The Superintendent of Police indicated in his letter for sanction that the accused showed undue favours, received money by corrupt or illegal means and he made one definite allegation that the accused received a sum of Rs. 400/- from Baidyanath Saran, proprietor of a firm, as illegal gratification. The sanction to prosecution was not at all Cryptic as the one in the case of Akhouri Inderdeo Prasad 1958 Pat LR 50 : AIR 1958 Pat 374 referred to above and, on the other hand, it indicates that the sanction was accorded after a consideration of the facts stated in the first information report and the letter of the Superintendent of Police.
These facts and circumstances were not available in the case of Akhouri Inderdeo Prasad 1958 Pat LR 50: (AIR 1958 Pat 374). Turning to the charge of the present case, I find that it has been definitely stated that the appellant habitually accepted gratification other than legal remuneration and obtained for himself pecuniary advantage by corrupt and Illegal means and that he committed an offence punishable under Sub-section (2) read with Sub-sections (1) and (3) of Section 5, The allegation regarding habitual acceptance of gratification has been mentioned in the charge and it amounts to criminal misconduct under Section 5(1) of the Act.
It was not at all necessary to mention Sub-sections (1) and (3) in the charge inasmuch as Sub-section (2) was the penal clause and it would have been enough to mention only that Sub-section Sub-section-'lion (3) was quite redundant as it did not create an offence and, on the other hand, the legislature by enacting this Sub-section intended to lay down a rule of evidence enabling the court to raise a presumption of guilt in certain circumstances. In my opinion, the facts and circumstances of the present case are mot in pari materia with those available in the case of Akhouri Inderdeo Prasad 1958 Pat LR 50 : AIR 1958 Pat 374.
The learned counsel referred to the decision in the case of Gokhulchand Dwarkadas v. The King AIR 1948 PC 82. In that case the accused was prosecuted for the offence under Clause 18(2) of the Cotton Cloth and Yarn (Control) Order, 1943 and Section 23 of that Order provided that a previous sanction was necessary for the prosecution of an individual in respect of the contravention of any of the provisions of that order. It was laid down that if the facts constituting the offence charged were not shown on the face of the sanction, the prosecution had to prove it by extraneous evidence that those facts were placed before the sanctioning authority.
It was emphasised that the sanction to prosecute was an important matter; it constituted a condition precedent to the institution of the prosecution and the Government had an absolute discretion to grant or withhold their sanction, Dealing with the facts of that case, their Lordships pointed out that there was nothing- on the face of the sanction, and no extraneous evidence to show that the sanctioning authority knew the facts alleged to constitute a breach of the order and thus they held that the sanction was invalid.
In the case of Madan Mohan Singh v. State of Uttar Pradesh also the same principle was laid down that if the facts constituting the offence did not appear on the face of the letter sanctioning prosecution, it was incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority.
That situation, however, does not arise here, as in the present case the letter itself asking for a sanction refers to the acceptance of illegal gratification by the appellant which constitutes the offence of criminal misconduct. The learned counsel then referred to the decision in the case of Jaswant Singh v. State of Punjab . In that case the sanction was to prosecute Jaswant Singh Patwari for accepting an illegal gratification of Rs. 50/- from one Pal Singh, but a charge was framed for his habitual acceptance as well of illegal gratification.
The Special Judge found that Jaswant Singh accepted the illegal gratification from Pal Singh and certain other persons as well. On appeal, the High Court of Punjab having regard to the sanction held that Jaswant Singh could neither be charged nor convicted of a much graver offence of habitual acceptance of bribe. It was further held that the sanction was valid qua the charge of acceptance of illegal gratification of Rs. 50/- from Pal Singh and the conviction was affirmed.
A contention was raised that the charge for habitually accepting illegal gratification and the trial were without jurisdiction as the sanction was confined to illegal gratification of Rs. 50/- paid by Pal Singh, but it was overruled. It was held that the prosecution for offence under Section 5(l)(d) was not barred as the proceedings were not without previous sanction which was validly given for the offence of receiving a bribe from Pal Singh, but the offence of habitually receiving illegal gratification could not be taken cognizance of and the prosecution and trial for that offence was void for want of sanction.
The view taken by the High Court was affirmed and the appeal was dismissed. The ratio decided of that decision was that after a sanction was granted for the prosecution in respect of one offence cognizance could not be taken in respect of another offence in respect of which there was no sanction. The same principle was reiterated in the case of Gadhia Bhanuchandra Vallabhdas v. State AIR 1954 Sau 132, namely that the sanction, should relate the facts constituting the offence and for which the person is to be prosecuted.
14. The learned counsel further submitted that even if there was an allegation of criminal misconduct and acceptance of illegal gratification in the letter of the Superintendent of Police, the sanctioning authority did not accord a sanction for the prosecution of (he appellant for criminal misconduct specified in Clauses (a), (b), (c) and (d) of Section 5(1) of the Act and, on the other hand, the sanction was in respect of an offence under Clause (2) read with Clause (3) of Section 5.
In other words, he urged that although the facts constituting criminal misconduct were before the sanctioning authority, but the said authority limited the sanction (for the prosecution of the accused) to an offence under Clause (2) read with Clause (3) of Section 5 and did not accord a sanction for prosecution in respect of criminal misconduct specified in the various clauses of Sub-section (1). According to his contention the sanctioning authority refused to give a sanction for prosecution in respect of an allegation constituting criminal misconduct under Sub-section (1) of Section 5 and in that view of the matter the Special Judge had no jurisdiction to take cognizance and frame a charge in respect of an offence punishable under Sub-section (2) read with Sub-section (1).
He pointed out that the sanctioning authority was throughout under the impression that mere possession of a huge amount disproportionate to the known sources of income constituted an offence and as such, the sanction was granted in respect of an offence under Clause (2) read with Clause (3). Mr. Varma for the State refuted these contentions and urged that the sanction was really for prosecution of the accused in respect of an offence under Clause (2) of Section 5 and the expression "read with Clause (3)" appearing in the sanction was a surplusage, as Clause (3) did not create a separate offence.
He referred to another decision of the Supreme Court in the case of Biswabhusan Naik v. The State of Orissa in support of the proposition that no particular form was required for giving a sanction. In that case sanction was accorded for prosecution of an Inspector of Factories under Sub-section (2) of Section 5. He was convicted by the trial Court under Section 5(2) and the conviction was upheld by the High Court. In that case it appeared from the facts set out in the letter for sanction that the Inspector collected heavy sums as bribe and he was in possession of Rs. 2698/- at the time of his arrest.
These facts having been placed before the Government, sanction was accorded for prosecution in respect of the criminal misconduct in discharge of his official duty. It was held that the omission to mention Clause (a) in the sanction did not invalidate it and when it was confined to Section 5(2) it could, in the circumstances of that case, relate only to offences under Section 161 of the Indian Penal Code and Clause (a) of Sub-section (1) of Section 5.
15. In view of the principles laid down in these cases, the facts of the present case have to be considered to determine the effect of the sanction. The Superintendent of police undoubtedly alleged in his letter that the appellant showed undue favours, obtained money by corrupt or illegal means and received a sum of Rs. 400/- as illegal gratification from the proprietor of a firm and these facts were placed before the sanctioning authority. It is true that the sanctioning authority mentioned Clause (3) while granting a sanction, but as Sub-section (3) does not create a separate offence, it must be deemed to be a surplusage.
Section 6 of the said Act provides, inter alia, that no Court should take cognizance of an offence punishable under Sub-section (2) of Section 5 without a previous sanction. Sufe-section (2) of Section 5 is the penal section, but before a cognizance is taken of an offence under this Sub-section, it is imperative that there should be a sanction for the said prosecution. The sanction has to be in respect of an offence under Sub-section (2) of Section 5 and if this much appears from the sanction, it must be accepted as valid.
It was not at all necessary to mention either one clause or the other of Sub-section (1) in the sanction. I would, therefore, overrule the contention of the learned counsel for the appellant that the effect of the sanction was to limit the offence committed by the appellant to one under Clause (3) only of Section 5. The sanctioning authority, in my opinion, accorded a sanction for the prosecution of the appellant in respect of the offence under Sub-section (2) of Section 5 and the charge framed is not, in any way, illegal, or in excess of what was sanctioned. The charge was really for criminal misconduct which included habitual acceptance of illegal gratification. The appellant was not prejudiced as he was aware of the misconduct alleged and he filed a fairly long written statement. He led evidence to refute the allegations end he was. questioned about the material facts.
16. The net result is that the appellant was put on trial in respect of an offence punishable under Sub-section (2) of Section 5 of the said Act. The Special Judge, on a consideration of the evidence and the various accounts, found that the appellant was in possession of Rs. 52298/6/3 and this finding has not been challenged.
(After discussing evidence His Lordship held):
17-18. The position in the present case was that the appellant was put on trial for an offence under Section 5(2) of the said Act and it has been established beyond doubt that he (appellant) was in possession of a huge amount disproportionate to his known sources of income. In other words, the conditions laid down in the earlier part of Section 5(3) of the Act have been fulfilled and in these circumstances the learned Judge was right in raising the presumption that the appellant was guilty of criminal misconduct in the discharge of his official duties. The provisions of Section 5(2) and (3) were the subject matter of interpretation in the case of C.S.D. Swami v. The State and it is useful to quote the following passage:
The words of the statute are peremptory, and the burden must lie all the time on the accused to prove the contrary. After the conditions laid down in the earlier part of Sub-section (3) of Section 5 of the Act, have been fulfilled by evidence to the satisfaction of the Court, as discussed above, the court has got to raise the presumption that the accused person is guilty of criminal misconduct in the discharge of his official duties, and this presumption continues to hold the field unless the contrary is proved, that is to say, unless the court is satisfied that the statutory presumption has been rebutted by cogent evidence. Not only that the section goes further and lays down in (forceful words that 'his conviction therefore shall not be invalid by reason only that it is based solely on such presumption.
Their Lordships further observed that if there was evidence forthcoming to satisfy the requirements of the earlier part of Sub-section (3) of Section 5, conviction for criminal mis-conduct could be bad on the basis of the presumption which was a legal presumption to be drawn from the proof of facts in the earlier part of Sub-section (3) aforesaid. The appellant in this case has failed to rebut the statutory presumption.
19. On a review of the evidence and consideration of these points urged by the learned counsel for the appellant, I find no merit in this appeal and there is no ground to interfere either with the conviction or the sentence.
20. The result is that the appeal is dismissed and the conviction of the appellant and the sentence imposed upon him are confirmed.
H.K. Chaudhuri, J.
21. I agree.