Biswabhusan Naik Vs. The State of
Orissa [1954] INSC 39 (7 April 1954)
BOSE, VIVIAN MAHAJAN, MEHAR CHAND (CJ) HASAN,
GHULAM
CITATION: 1954 AIR 359 1955 SCR 92
CITATOR INFO :
A 1955 SC 41 (11) R 1959 SC 707 (5) R 1961
SC1381 (10) F 1977 SC 786 (9,12,14)
ACT:
Prevention of Corruption Act, 1947 (II of
1947) Section 5(1)(2),(3) and section 6-- sanction under section 6 --Whether
necessary to be in any particular form-No particulars given in the charge or
sanction-Legal effect thereof.
HEADNOTE:
Held, that it is not necessary for the
sanction for an offence punishable under section 5(2) of the Prevention of
Corruption Act, 1947 (Act II of 1947) to be in any Particular form or in
writing or for it to set out the facts in respect of which it is given. It is,
however, desirable to state the facts on the face of sanction, 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 set out the facts in the sanction is not fatal so long as the
facts can be and are proved in some other way.
Where the sanction was confined to section
5(2) of the Act, it could not, under the circumstances of the case, have
related to anything but clause (a) of sub-section (1) of section 5 and
therefore an omission to mention clause (a) in the sanction did not invalidate
it.
under section 5(3) of the Act all that the
prosecution has to do is to show that the accused or some 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 is bound to presume unless the
contrary is proved, that the accused is guilty of the new offence created by
section namely criminal misconduct in the discharge of his official duty.
Held, also that there was no illegality
either in the sanction or in the charge on the ground that no particulars were
given because the offence under section 5(1)(a) of the Prevention of Corruption
Act does not consist of individual acts of bribe taking as in section 161 I.P.
C. but is of a general character and individual instances are not necessary
because of the presumption which section 5(3) requires the Court to draw.
Gokulchand Dwarkadas Morarka v. The King
(A.I.R. 1948 P.C. 82) referred to.
CRlMlNAL APPELLATE JURISDICTION: Criminal
Appeal No. 33 of 1952.
Appeal under Article 134(1)(c) from the
Judgment and Order dated the 19th February, 1952, of the 93 High Court of
Orissa at Cuttack in Criminal Appeal No. 66 of 1950 arising out of the Judgment
and Order dated the 19th September, 1950, of the Court of the Additional
Sessions Judge, Cuttack-Dhenkanal, Cuttack, in Sessions Trial No. 9-C of 1950.
Nur-ud-Din Ahmed, R. Patnaik and R. C.
Prasad, for the appellant.
R. Ganapathy lyer, for the respondent.
1954. April 7. The Judgment of the Court was
delivered by 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
18th August, 1948, to 27th August, 1948, and from 29th September, 1948, to 30th
October, 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.
On 3rd October, 1948, he was camping 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.
Departmental and other proceedings were taken
against him and he was eventually brought to trial on 29th March, 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 94 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.
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-particullarly 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
Morarka's case in A.I.R. 1948 P.C. p. 82 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 Supreme
Court which has been referred to in the judgment and which has since been
reported in 1952 S.C.J. p. 46 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 section 6 of the Prevention
of Corruption Act, 1947 (II of 1947), the Governor of 95 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 Province
under sub-section (2) of section 5 of the said Act.
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 Gokutchand Dwarkadas Morarka v. The King(1) that such a sanction is invalid.
The High Court rejected this argument. We agree with the High Court.
The passage of the Privy Council judgment on
which reliance is placed is as follows "In their Lordships' view, in order
to comply with the provisions of clause 23 it must be proved that the sanction
was given in respect of the facts constituting the offence charged. It is
plainly desirable that the facts should be' referred to on the; face of the
sanction but this is not essential since clause 23 does not require the
sanction to be in an particular form nor even to be in writing. But if the
facts constituting the offence charged are not known on the face of the
sanction, the prosecution must prove by extraneous evidence that those facts
were placed before the sanctioning authority." The Judgment of the
Judicial Committee relates to clause 23 of the Cotton Cloth and Yarn (Control).
Order, 1943, but the principles apply here. It is no more 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 (1) A.I.R. 1948
P.C. 82. 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.
The High Court finds that the facts to which
the sanction relates were duly placed before the proper sanctioning authority.
We need not consider the evidence about telephone calls and the like because
the letter of the District Magistrate asking for sanction (Exhibit 26) is
enough to show the facts on which the sanction is based.
'It is in these terms:
"I have the honour to report that Sri
B.B. Nayak, Inspector of Factories, Orissa, in the course of his visit to this
district had been -visiting certain mills, and on information received by me
that he had been collecting heavy sums as illegal gratification from the
Manager or Proprietor of Mills under threat of mischief to the mill owners, it
was arranged to verify the truth of this information by handing over 3 hundred
rupee notes marked with my initials in presence of the Superintendent of Police
and two other respectable gentlemen and mill owners, on the evening of the 2nd
October, 1948. On the 3rd October the Factory Inspector having actually
received the illegal gratification of Rs. 45o which sum included the three
marked hundred rupee notes, the Prosecuting Inspector seized the marked notes
along with a further heavy sum of Rs. 2,698 from his possession.
Under section 6 of the Prevention of
Corruption Act, 1947, the accused being a public servant in the employ of the
Provincial Government the sanction of the Provincial Government is necessary
prior to taking cognisance of an offence under section 161, Indian Penal Code
or subsection (2) of section 5 of the Act." 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 97 Government
could only relate to offences under section 161 of the Indian Penal Code and
clause (a) of section 5(1) 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 (1) of section 5. Therefore, the
omission to mention clause (a) in the sanction does not invalidate it.
The present prosecution is confined to
section 5(1)(a) which runs as follows:
"(1) A public servant is said to commit
the offence of criminal misconduct in the discharge of his duty(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." Then comes sub-section (3) which sets out a new
rule of evidence in these terms:
"In any trial of an offence punishable
under subsection (2) the fact that 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 there for
shall not be invalid by reason only that it is based solely on such
presumption." Therefore, all that the prosecution has to do is to show
that the accused, or some 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.
13 98 Now the accused was found in possession
of Rs. 3,148. He accounted for Rs. 450 of that sum by showing that it was paid
to him at the time as a trap. He has been acquitted of that offence, so all he
had to account for was the balance Rs. 2,698. 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. 6,045 as salary and Rs. 2,155 as travelling 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's account the High Court finds
that he has a substantial family establishment 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 considered
unsatisfactory by both Courts and 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- "and
his conviction there for shall not be invalid by reason only that it is based
solely on such presumption." These facts alone are enough to sustain the
conviction and we need not consider the other matters. The High Court was right
in holding that the sanction was sufficient and in convicting the accused.
99 The third point set out in the certificate
of the High Court relates to the absence of particulars in the charge and, we
gathered from the arguments, in the sanction. But no particulars need be set
out in the charge in such a case because the offence under section 5(1)(a) does
not consist of individual acts of bribe taking as in section 161 of the Indian
Penal Code but is of a general character. Individual instances may be useful to
prove the general averment in particular cases 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 section 342 of the Criminal Procedure Code and was given a
chance then as well to give such explanation as he wished.
The appeal fails and is dismissed.
Appeal dismissed.
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