Patna High Court
Akhouri Inderdeo Prasad vs The State on 7 February, 1958
Equivalent citations: AIR1958PAT374, 1958(6)BLJR228, 1958CRILJ925, (1958)IILLJ451PAT, AIR 1958 PATNA 374, 1958 ALLCRIR 290, 1958 BLJR 228, (1958) 2 LABLJ 451
JUDGMENT B.P. Jamuar, J.
1. This appeal has been referred to a Division Bench by a learned Single Judge. The question raised in the appeal involves the interpretation of Section 5 of the Prevention of Corruption Act (Act II of 1947).
2. The appellant, Akhouri Inderdeo Prasad, has been convicted by the Special Judge of Gaya under Section 5, Sub-section (2) of the Prevention of Corruption Act (hereinafter to be called the Act) and sentenced to suffer rigorous imprisonment for five years as also to pay a fine of Rs. 1,000/-, and in default, to suffer a further period of rigorous imprisonment for one year. An order has also been passed under Section 517 of the Code of Criminal Procedure for the confiscation of a sum of Rs. 36,083-12-0 which was recovered from the appellant's house. The appellant was a clerk at the Gaya Collectorate. He had been appointed on a salary of Rs. 20/- per month, but in the year 1954 he was drawing a salary of Rs. 76/- per month. On the 27th April, 1954, a box containing more than Rs. 10,000/- was stolen from the Nazarat of the Gaya Coliectorate. On the 29th April, 1954, the appellant's house was a subject of a search in the presence of a Magistrate and a sum of Rs, 36,083-12-0, was recovered therefrom. It seems that the recovery of such an amount caused surprise on which account further enquiries were made. It was then found that a sum of Rs. 17,115.6-0 was in deposit in the name of the appellant at the State Bank at Gaya, a part of which was in fixed deposit and the remainder in savings account, and a sum of Rs. 16,921-1-0, was in deposit in the saving bank account at the Gaya post office in the name of the appellant's minor children. This came to a total Rs. 70,120-3-0. The appellant has also a house in Gaya town and some land.
3. The appellant had given explanations in respect of these sums of money. With regard to the sum of Rs. 36,083-12-0 found in his house, the appellant gave the following explanation. He said that Rs. 754-12-0 was the personal cash of his wife which was kept in his wife's box. Rs. 239/- was meant for daily expenses and was in his own box, and Rs. 35,090/- were in two tin boxes which Amount had been given to him by his father. This totalled Rs. 36,083-12-0. With regard to Rs. 17,115-6-0, which was in deposit in the State Bank at Gaya, he explained that it was in 1938 that he had deposited Rs. 12,000/- an amount given by his father to him, and he continued to make further deposits till 1948. With regard to Rs. 16,921.1-0, he said that his father had sold ornaments belonging to two wives of his who are dead and had given the money to him, the sale of the ornaments having fetched a sum of Rs. 5,000, and his father had given him a further sum of Rs. 10,000/-.
4. The father of the appellant, whose name was Kamla Prasad, was born in 1875 and died in 1952 at the age of 77 years. From 1895 to 1901 he was employed in the Surguja Estate in the Madhya Pradesh, from 1902 to 1921, he was employed in the Gangpur Estate in Orissa, and from 1922 to 1942, he was employed in the estate of the Maharaja of Tekari in Bihar. It was accordingly the appellant's case that his father was able to amass considerable amount of wealth by reason of his having served in these estates, and was therefore, able to give him all that money.
5. The learned Special Judge has not accepted the appellant's explanations as to how he came to possess that amount of money as satisfactory, except with regard to a sum of Rs. 3,476/-, which had been earned in the shape of interest. He, therefore, drew the presumption of guilt under Section 5 (3) of the Act, and convicted the appellant under Section 5 (2) of the Act. It has to be examined whether the learned Judge was right in so doing.
6. Now the first information report in this case was drawn up on the statement of a Sub-Inspector of Police, Durjodhan Singh (P. W. 4) dated the 1st May, 1954, and the investigation was taken up by a Deputy Superintendent of Police. I shall state the substance of this first information report. It is stated therein that, during the investigation of a criminal case under Section 409/380, Indian Penal Code against Ramchandra Singh and others in which a box containing Government money amounting to Rupees 10,817/-, and odd had been removed from the Gaya Nazarat Office, the Sub-Inspector had searched the house of the appellant on the 29th April 1954, and had recovered a sum of Rs. 38,083-12-0, some in cash and some in Government currency notes of different denominations. It is then stated as follows:
"He (the appellant) is a ministerial clerk in the Gaya Collectorate and his present pay is Rs. 106/-only including all allowances P. M. He was appointed in 1934 as a probationer on Rs. 20/-. P. M. He also sometimes worked as Bench Clerk of S. D, O. Sadar Gaya. He is, therefore, in possession of pecuniary resources and property disproportionate to his own sources of income as a ministerial clerk of Gaya Collectotate. He maintains a family consisting of mother, wife, children, himself and others at present. So far he could not satisfactorily account for the said cash and landed property. Under these circumstances the said Akhory Inderdeo Pd. has committed the offence of criminal misconduct in the discharge of his duty as Public servant coming under the purview of Section 5 (2) and (3) of the Prevention of Corruption Act (II of 1947) which requires that a case be instituted and suitable investigation made. Accused Indradeo Prasad has already been arrested and forwarded to court in the case under Section 409/380, I. P. C. as mentioned above.
I am drawing up my own statements which would be treated as F. I. R."
Then on the 6th June 1955 the investigating Officer, namely, the Deputy Superintendent of Police, filed an application (exhibit 9) for sanction to prosecute the appellant under the Prevention of Corruption Act before the District Magistrate of Gaya giving details of the offence which the appellant was alleged to have committed and the District Magistrate sanctioned the prosecution. It is necessary to quote certain important paragraphs from the application filed by the investigating Officer. After stating that the house of the appellant had been searched and a sum of Rs. 36,083-12-0, had been recovered in presence of a Magistrate and local search witnesses he said:
" As a huge amount was recovered from the house of a poorly paid clerk drawing an initial salary of Rs 76/- only excluding P. A, etc. and this could not be satisfactorily explained by him besides he is the son of a poor man this case under the Prevention of Corruption Act was started."
Then further details were given regarding the various deposits, to which I have already made reference. He then states:--
"The accused clerk has failed to account for the possession of the above huge amount and the landed properties. Under the Act onus lies on him to justify the legal possession. Hence it was prayed as follows:--
"A prima facie case has been made out against him under Section 5 (2 & 3) of Prevention of Corruption Act (Act 11/47) and since a successful prosecution cannot be without the sanction of the appointing authority, I request that the said sanction may be accorded early."
The District Magistrate passed a short order:--
"Seen. Prosecution sanctioned."
This order is dated the 7th June 1955, and is exhibit 9 (a) in the case.
The next document to which I shall make reference is the charge framed against the appellant in this trial. I shall quote the whole of the charge:
"That you being a public servant employed as a clerk in the Gaya Collectorate on a salary starting from Rs. 20/- per month in the year 1934 and after progressive increments lastly raised to Rs. 76/- per month excluding the prescribed D. A., last drawn of Rs. 30/- per month in the year 1954, were discovered in the said year 1954 to be in possession of Rs. 36,083-12-0 at your residence, of Rs. 17,115/6/-kept in the fixed deposit and Savings Bank accounts at Gaya, Imperial Bank which is now Gaya State Bank, of Rs. 16,921 1-0, deposited by you on account three minor children of yours at the Gaya post Office and some landed property. Hence your pecuniary resources and property being disproportionate to your known sources of income, you were guilty of criminal misconduct within the meaning of the Prevention of Corruption Act (Act II of 1947) in discharge of your duty which is an offence punish, able under Section 5 (2) of the said Act triable by me, and I hereby direct that you be tried by the said Court on the said charge".
The learned Special Judge has accordingly stated in his judgment, regarding the prosecution of the appellant as follows:.
"According to prosecution the sums found in possession of the accused namely, Rs. 70,120-3-0, besides house and landed property in 1954 was extremely disproportionate to the known sources of income of the accused and as such a presumption of criminal misconduct must be drawn against the accused unless he can satifactorily account for the possession of Rs. 70,120-3-0, cash in his possession in the year 1954."
And the finding of the learned Judge is as follows:--
"I would hold that the prosecution has successfully proved in this case that the accused was public servant and sums of money disproportionate to his own sources of income were found in his possession in 1954. The explanation offered by the accused is most unsatisfactory. So a presumption under Section 5 (3) of the Prevention of Corruption Act has been drawn by me viz, that the accused is guilty of criminal misconduct as defined in Section 5 of Prevention of Corruption Act. The accused adduced evidence to displace the said presumption but I have held that the defence evidence in no way makes the defence case probable. I have held that the defence is most improbable and the circumstances completely belie the defence version. I have also discussed earlier that a conviction can be based solely on this presumption under Section 5 (3) of the Prevention of Corruption Act. I would, therefore, hold the accused guilty of criminal misconduct as defined in Section 5 of the Prevention of Corruption Act and I would therefore, convict accused Akhauri Indradeo under Section 5 (2) Prevention of Corruption Act."
Accordingly, the conviction of the appellant is based upon the presumption drawn against him under Section 5 (3) of the Act and now it is necessary to examine whether on the facts of the present case it is permissible for a Court to draw a presumption under that section.
7. Section 5, Sub-section (1) of the Act defines what is criminal misconduct committed by a public servant in the discharge of his duty, and it places the offence of criminal misconduct by a public servant under four heads, viz., "(a) If he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code."
(b) If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been or to be or to be likely to be concerned in any proceeding or business, transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate or from any person whom he knows to be interested in or related to the person so concerned, or,
(c) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do or,
(d) if he, by corrupt, or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage."
Sub-section (2) of Section 5 is the penal section, namely, that when a public servant commits criminal misconduct in the discharge of his duty, he shall be punishable with a certain imprisonment or fine, or both, and Sub-section (3) which is the important section in the present appeal may be quoted in extenso.
"In any trial of an offence punishable under Sub-section (2) the fact the accused person or any other person on his behalf is in possession for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefore shall not be invalid "by reason only that it is based solely on such presumption,"
The reasons which the learned Special Judge has given for drawing a presumption against the appellant under the above Sub-section (3) may be quoted in his own words. Me has said :
"In my judgment there is a new departure from the law of evidence in Section 5 (3) so far as certain presumptions are allowed to be drawn against accused if certain circumstances are proved to exist. In a case under Section 5 (3), Prevention of Corruption Act, the prosecution need prove (a) that the accused is a public servant (b) that sums disproportionate to his known source of income have been found in possession of the accused. In the present case, prosecution has adduced evidence which has not been challenged that the accused was a clerk of the Gaya Collectorate on the day Rs. 36,000 and odd was recovered from his house and at about that time he was also in possession of big sums both in the Bank and in the Post Office. The accused has admitted that he was in possession of these sums. Under Section 5 (3) a presumption has to be drawn that the accused is guilty of criminal misconduct within the meaning of Section 5 of Act II of 1947. I accordingly have drawn a presumption that the accused is guilty of criminal misconduct within the meaning of Section 5 of Prevention of Corruption Act as the explanation is not only not satisfactory but in my opinion, the explanation is most unsatisfactory."
8. Now, in my view, the learned Special Judge has entirely misdirected himself in the view he has taken of the law. The opening lines of Sub-section (3) of Section 5 of the Act are clear that the presumption under that sub-section can be drawn only in a trial of an offence punishable under Sub-section (2) of the Act and not otherwise. The learned Judge seems to be under the impression that such a presumption may be drawn "in a case under Section 5 (3), Prevention of Corruption Act", as will appear from what I have quoted above. This is not so. There is no case under Section 5 (3), Prevention of Corruption Act. This sub-section, in my judgment, does not create an offence of criminal misconduct. 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." Then the learned Judge is again wrong in stating that the prosecution need prove only two things, namely, (a) that the accused is a public servant, and (b) that sums disproportionate to his known sources of income have been found in his possession. This is not the law. I may repeat what I have said above in another way. Before drawing a presumption as contemplated by Sub-section (3) of Section 5, it must be shown that the accused is a public servant, that he is alleged to have committed criminal misconduct within the meaning of Sub-section (1) of Section 5 and that he is being tried for an offence punishable under Sub-section (2) of the section. The learned Special Judge has missed the last two links in that chain.
9. From what I have stated above, it will appear that the learned judge in the Court below was under the impression that Sub-section (3) of Section 5 creates a new offence, and it seems that he was of that view because of certain observations made by their Lordships of the Orissa High Court in the cass of Biswabhusan Naik v. The State, AIR 1952 Orissa 289 (A). In para. 8 of that case, their Lordships made the following observation :
"It is partly true that Sub-section(3) of Section 5 does not create an offence by itself, but is only in the nature of a rule of evidence as to what constitutes criminal misconduct; but in view of the provisions that on proof of unexplained possession of resources or property disproportionate to known sources of income, a presumption of misconduct is to be made against the accused and a conviction can be based solely on that presumption, it is virtually the creation of a distinct head of the offence of criminal misconduct."
I find "myself unable to agree with the latter part of the above observation. It cannot ho said that Sub-section (3) of Section 5 creates a distinct head of the offence of criminal misconduct. The offence of criminal misconduct had already been defined in Sub-section (1), Clauses (a), (b), (c) and (d) of Section 5. There is no fifth category of criminal misconduct, Sub-section (3) of Section 5, therefore.-cannot be said to be creating a distinct head of the offence of criminal misconduct.
10. The above decision of the Orissa High Court was under appeal before their Lordships of the Supreme Court in the case of Biswabhusan Naik v. The State of Orissa, A I R 1954 S C 359 (B). Their Lordships expressed no words either approving or disapproving the observation of their Lordships of the Orissa High Court to which I have expressed my disagreement. Their Lordships made it clear in their judgment that the prosecution in that case was confined to Section 5 (1) (a) which according to the Act itself amounted to criminal misconduct. Since the prosecution was under Sub-section (1) (a) of Section 5, the case before the Orissa High Court was one in which the trial was for an offence punishable under Sub-section (2) of Section 5 of the Act, and that being so, a presumption could be drawn under Sub-section (3) of Section 5, and it was unnecessary to hold that Sub-section(3) of Section 5 virtually created a distinct head of the offence of criminal misconduct.
11. In a later case, namely, in the case of Om Prakash Gupta v. The State of U. P. (S) AIR 1957 S C 458 (C), their Lordships of the Supreme Court have observed in Para. 12 of the Judgment as follows :
"Section 5 (2) makes the offence of criminal misconduct punishable with imprisonment which may extend to seven years or with fine or with both. Sub-section (3) is an important piece of legislation to the effect that where a person is charged under Section 5 (1) and it is found that the accused persons cannot satisfactorily account for the pecuniary resources or property disproportionate to his known sources of income, then the fact that he has such extensive pecuniary resources or property is sufficient to presume, until the contrary is proved, that the accused person was guilty of criminal misconduct in the discharge of his official duty and a conviction for that offence shall not be invalid by reason only that it is based solely on such presumption. It is clear, therefore, that where a person is charged with criminal, misconduct and it is seen that he is in possession of property or income which could not have been amassed or earned by the official remuneration which he had obtained, then the Court is entitled to come to the conclusion that the amassing of such wealth was due to bribery or corruption and the person is guilty of an offence of criminal misconduct. Such a presumption cannot be drawn in the case of a prosecution under Sections 161, 165 and 409, Penal Code.
These observations support the view which I have taken.
12. Their Lordships of the Bombay High Court in the case of S. N. Ranebennur v. The State, AIR 1956 Bom 717 (D) had to consider the observations made by their Lordships of the Orissa High Court in the case of AIR 1952 Orissa 289 (A). The argument raised before their Lordships of the Bombay High Court in the abovementioned case was that when sanction was given to prosecute the accused, the sanction fell short of setting out an offence under Section 5 (3) for which also the appellant was sought to be prosecuted. In other words, the argument was that the sanction being a sanction for the prosecution for an offence under Section 5 (2) read with Section 5 (1) (a) only, it is defective so far as the prosecution of the appellant upon a charge as framed against him is concerned, namely, under Section 5 (3), and their Lordships stated as follows :
"This contention of Mr. Purshottam postulates as its basis that Section 5 (3) creates an independent offence, i.e., an offence independent of an offence created under Section 5(1). In our view, however, this basis itself is non-existent and therefore, the contention of Purshottam must fail. Section 5 (1) creates an offence of criminal misconduct and speaks of various Acts by the doing of which a person would commit that offence. Section (5) (2) prescribes a penalty for that offence.
Section 5 (3) does not create any offence. It does not speak of any specific, individual act of a person, or his attempt at any specific act, but refers to a. state of his pecuniary position as contrasted with his known earnings, which might be a cumulative result of acts done by him, which would fall under Section 5 (1). In enacting Sub-section(3) of Section 5, the Legislature did not intend to create an offence, separate from the one created under Sub-section(1) but intended to lay down a, rule that if a person's pecuniary resources, as compared to his known or legitimate sources of income, reached a point which was disproportionate to the said income, it shall be presumed, unless the person concerned accounted satisfactorily for it, that he had acquired those pecuniary resources by the commission of an act or series of acts under Section 5 (1).
Possession of pecuniary resources disproportionate to the known sources of a person's income is not one particular act of a person, but is a consequence arising out of his habitual acceptance of bribes, in other words, a consequence of habitual commission of offence by him under Section 5 (1). Acquisition of such a pecuniary position is not, and cannot be, a separate or distinct offence from an offence under Section 5 (1)."
Then their Lordships examined the Orissa High Court decision and drew special attention to the passage which I have quoted above, and then stated as follows :
"Mr. Purshottam relies upon these observations in support of his contention that a distinct head of the offence of criminal misconduct was created by Sub-section(3) of Section 5 of the Act. In this connection, it is pertinent to note that in this very case which went up to the Supreme Court in A I R 1954 S C 359 (B), their Lordships of the Supreme Court made no observations which would support the above-mentioned view of the Orissa High Court that Sub-section (3) of Section 5 created a distinct head of the offence of criminal misconduct. Therefore, with great respect to the learned Judges of the Orissa High Court, we are unable to share their view which appears to us to be inconsistent.
It is an inconsistent view to say in the earlier part of the judgment that Sub-section (3) of Section 5 did not create an offence by itself and at the same time to say in the same judgment that virtually a distinct head of the offence of criminal misconduct was created by it."
I am clearly of the opinion, therefore, that Sub-section (3) of Section 5 cannot be held to create a separate offence and that, therefore, it is wrong to say that without putting the accused on trial for having committed criminal misconduct within the meaning of Sections 5 (1) (a), (b), (c) or (d) a presumption as permitted under Section 5 (3) of the Act can he drawn.
13. The learned Additional Government Pleader, however, argued that the charge framed against the accused did state at its close that the appellant was being tried under Section 5 (2) of thy Act and that, therefore, since this was a trial for an offence punishable under Section 5(2) of the Act, a presumption as contemplated under Section 5(3) of the Act can well be drawn. In my opinion there is a fallacy in this argument. Reading the charge as a whole, the appellant would appear to have been put on trial, not because he had committed criminal misconduct within the meaning of Section 5(1), (a), (b), (c) or (d), but because he was found to be in possession of property which was disproportionate to his known sources of income. This was the criminal misconduct alleged against him. But this is not criminal misconduct at all. It is necessary to charge the accused for having committed criminal misconduct within the meaning of any of the four clauses of Section 5 (1), and then if he is found to be in possession of property which is disproportionate to his known sources of income, a presumption under Section 5 (3) of the Act is permissible. Without there being a charge, it is not possible to say in which of the four circumstances, as mentioned in Section 5 (1), (a) to (d), the accused was being tried for having committed criminal misconduct. It is not permissible to assume that he is being tried under one or all the four conditions laid down in Section 5 (1), (a) to (d), without further saying so.
14. The contention of the learned Additional Government Pleader, who has appeared on behalf of the State, was that it is immaterial to state in the charge that a public servant has committed criminal misconduct as defined in Clauses (a) to (d) of Sub-section (1) of Section 5 of the Act and that this may well be omitted as a surplusage. He contended that so long as a public servant is informed that he is to be tried under Section 5 (2) of the Act, that would be sufficient to bring in the operation of Sub-section (3) of Section 5 so that a presumption within the meaning of that sub-section can be drawn "unless the contrary is proved." But what is to be proved to the contrary ? Sub-section (3) of Section 5 states that on proof of possession of pecuniary resources or property disproportionate to his known sources of income, a Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty. That is to say, the presumption has to be drawn unless the accused person proves that he is not guilty of criminal misconduct in the discharge of his official duty. Then the question arises of what criminal misconduct? That criminal misconduct must be within the four Clauses (a) to (d) of Sub-section (1) of Section 5. And if the prosecution does not disclose which of these four clauses constitutes criminal misconduct on the part of an accused, the accused has no notice, the contrary to which he has to prove. It cannot be presumed that in case of an omission to state that criminal misconduct is alleged on the part of an accused, it may be presumed that the prosecution has alleged criminal misconduct within all the four Clauses (a) to (d). That in my opinion would be contrary to all principles of justice. The learned Additional Government Pleader endeavoured to support his argument by reference to Sections 221 and 225 of the Code of Criminal Procedure, but, if I am right in my opinion expressed above, the provisions of those sections cannot be called in support of the argument advanced on behalf of the State.
15. From the very start there has been no case against the appellant and much less there has been 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. 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 charge; nor is it so indicated in the judgment of the learned Special Judge. On the contrary, the conviction of the appellant is based solely upon the impression that Sub-section (3) of Section 5 of the Act creates a distinct head of criminal misconduct and hence a presumption within the meaning of that sub-section has been drawn against the appellant. In my opinion, no such presumption is permissible in this case. The appellant has been convicted for what the prosecution thought, and which the learned Special Judge accepted, to be an offence, but is not an offence.
16. The result is that in my opinion the trial of the appellant was entirely misconceived and the conviction of the appellant under Section 5 (2) of the Act cannot be sustained.
17. The appeal is, therefore, allowed and the conviction of the appellant and the sentence imposed upon him are set aside as also the order of confiscation passed under Section 517 of the Code of Criminal Procedure.
U.N. Sinha, J.
18. I agree.