Din Dayal Sharma Vs. The State of
Uttar Pradesh [1959] INSC 48 (23 April 1959)
IMAM, SYED JAFFER KAPUR, J.L.
CITATION: 1959 AIR 831 1959 SCR Supl. (2) 776
CITATOR INFO :
F 1974 SC 765 (5)
ACT:
Criminal Trial-Bribery and criminal
misconduct-Accused committed to Court of Session-Law amended making such cases tribal
by Special judge-Sessions Judge, if has jurisdiction to continue
trial-Investigation by officer below Deputy Superintendent of Police-Whether
trial vitiated-Prevention of Corruption Act, 1947 (II Of 1947), s. 5-A-Criminal
Law (Amendment) Act, 1952 (46 of 1952), S. 10.
HEADNOTE:
The appellant was committed to the Court of
Session for trial of offences under s. 5(2) Prevention of Corruption Act, 1947
and s. 161 Indian Penal Code. Shortly thereafter, the Criminal Law (Amendment)
Act, 1952 came into force. An Assistant Sessions judge tried the appellant and
convicted him of the offences charged. The appellant contended that the trial
was vitiated as the investigation had been made by a police officer below the
rank of Deputy Superintendent of Police and that the Assistant Sessions judge
had no jurisdiction to try the case as it was triable by a Special Judge.
Held that, the Assistant Sessions judge had
jurisdiction to 777 try the case. Section 10 of the Criminal Law (Amendment)
Act, 1952 transferred only cases pending before Magistrates to Special judges
but did not transfer cases which had been committed to Court of Session before
the Act came into force.
Asgarali Nazarali Singaporewalla v. The
State, [1957] S.C.R. 678, relied on.
Held further that, the conviction was not
vitiated by the investigation having been made by an officer below the rank of
a Deputy Superintendent of Police. If the matter had been urged before the
Courts at an early stage it would have had to take steps to get the illegality
cured by ordering fresh investigations. But the appellant could not be
permitted to raise the questions whether the objection regarding investigation
had been taken at the earliest stage as the question had not been raised in the
Courts below.
H.N. Rishbud v. The State of Delhi, [1955] 1
S.C.R. II50, relied on.
CRIMINAL APPELLATE JURISDICTION: CRIMINAL
Appeal No. 95 of 1957.
Appeal by special leave from the judgment and
order dated December 16, 1955, of the Allahabad High Court in Criminal Revision
No. 1403 of 1953, arising out of the Judgment and order dated August 6, 1953,
of the Court of the Additional Sessions Judge at Meerut in Criminal Appeal No.
225 of 1953.
H. J. Umrigar and K. L. Mehta, for the
appellant.
G. C. Mathur, C. P. Lal and G. N. Dikshit,
for the respondent.
1959. April 23. The Judgment of-the Court was
delivered by IMAM, J.-The appellant was convicted under s. 5(2) of the
Prevention of Corruption Act and under s. 161 of the Indian Penal Code and
sentenced to one year's rigorous imprisonment on each count. The sentences were
made to run concurrently.
On the facts found by the courts below the
appellant accepted Rs. 20/- as illegal gratification from one Malekchand who
had applied for allotment of a house. The appellant was employed at that time
as a clerk in the office of the District Relief and Rehabilitation Office,
Meerut.
The aforesaid sum of money was accepted by
the appellant as bribe with a view to getting a house allotted to Malekchand.
There can be 98 778 no question that, on the
facts found, the appellant was guilty both under s. 5(2) of the Prevention of
Corruption Act and under s. 161 of the Indian Penal Code.
The first point taken was that the
investigation had taken place by a police officer below the rank of Deputy
Superintendent of Police. Consequently, the investigation had taken place in
contravention of the provisions of the Prevention of Corruption Act. The
conviction of the appellant was therefore vitiated. This point was taken before
the Additional Sessions Judge who had heard the appeal of the appellant against
his conviction. The Additional Sessions Judge referred to a decision of the
Calcutta High Court which supported the submission made on behalf of the
appellant. He also referred to a decision of the Allahabad High Court to the
contrary effect. He followed, as he was bound to follow, the decision of the
Allahabad High Court. The decision of this Court in the case of H. N. Rishbud
and Inder Singh v. The State of Delhi (1) does not support the submission made
by Mr. Umrigar on behalf of the appellant. He, however, referred to a passage
in the aforesaid cited decision at page 1164 to the effect that where a breach
of a mandatory provision is brought to the knowledge of the court at a
sufficiently early stage, the court, while not declining cognizance, would have
to take the necessary steps to get the illegality cured and the defect
rectified by ordering such investigation as the circumstances of the case may
call for. It has not been shown to' our satisfaction that the attention of the
trial court was drawn at an early stage to any breach of the provisions of the
Prevention of Corruption Act. There had been an enquiry before commitment to
the Sessions. It is clear that during these proceedings before commitment no
objection was raised that the investigation had taken place by a police officer
below the rank of Deputy Superintendent of Police in contravention of the
provisions of the Prevention of Corruption Act. The decision of this Court was
given on December 14, 1954, and the High Court judgment in the present case was
delivered on (1) [1955] 1 S.C.R. 1150, 1164.
779 December 16, 1955. No point was taken
before the High Court to the effect that the investigation had been made by an
officer below the rank of Deputy Superintendent of Police in contravention of
the provisions of the Prevention of Corruption Act. Such an objection should
have been taken if the appellant was prepared to establish before the High
Court that the objection had been taken at a sufficiently early stage and that
in view of the decision of this Court in the case cited the trial court ought
not have proceeded with the trial unless the defect had been removed. The
decision of this Court in the case cited is clear, however, that generally a
conviction is not vitiated because there had not been strict compliance with
the provisions of the Prevention of Corruption Act in the matter of
investigation by a police officer. As to whether the objection was taken at a
sufficiently early stage is a question of fact and ought to have been raised in
the High Court as the decision of this Court in the case cited had been
delivered something like a year before. As this point in this form was not
raised before the High Court we cannot allow it to be raised at this stage.
It was next contended that the Assistant
Sessions Judge who tried the case had no jurisdiction to try the case as it was
triable by a Special Judge only. It is clear, however, that the case had been
committed to the Court of Session before the Criminal Law (Amendment) Act,
1952, came into force.
Under s. 10 of this Act all cases pending
before the Court of a Magistrate were transferred to the Court of a Special Judge.
Section 10 did not purport to transfer cases, pending in the Court of Session
at the commencement of the Act, to the Court of the Special Judge. In the case
of Asgarali Nazarali Singaporewalla v. The .State(1), this Court observed
"The cases which were pending before the courts of sessions did not
require to be so transferred because they would be tried by the procedure
obtaining in the courts of sessions and nothing further required to be
done." It seems clear to us, therefore, that the Assistant Sessions Judge
had jurisdiction to try the case as the same had been (1)[1957] S.C.R. 678,
686.
780 pending in the court of Session when the
Act came into force.
The third contention raised was that the
courts below had not correctly appreciated the nature, extent and the quantum
of proof required for raising the presumption under s. 4 of the Prevention of
Corruption Act. The High Court's judgment does not show that that Court in any
way raised any presumption under s. 4 against the appellant. The following passage
from the High Court's judgment would make this clear:
" It was next contended that the
evidence on the record does not satisfactorily prove that the sum of Rs.20 was
received by the applicant as illegal gratification. The finding on this point
is a finding of fact. I have gone through the judgment of both the courts below
and I see no satisfactory reason to disagree with the concurrent finding of
both the courts on this point. There is ample evidence on behalf of the
prosecution to the conclusion that the sum of Rs. 20 was paid by Malekchand to
the applicant on his demand in order to secure the allotment of a house. There
does not appear any satisfactory reason why Malekchand should have paid Rs. 20
to the applicant to procure wheat for him." There is, therefore, no
question of any presumption being raised against the appellant. On the
contrary, his defence that he had taken the sum of Rs. 20 from Malekchand to
purchase wheat for him was disbelieved and Malekchand's evidence that he had
taken this money in order to secure an allotment of a house for Malekchand was
accepted. There appears to be no substance in the point raised.
It was next urged that the matter of sentence
may be considered. The incident took place in 1951 and the appellant has been on
bail and it would not be desirable to send him back to jail. The sentence of
one year's imprisonment for corruption by a public servant cannot, however, be
considered as unduly severe.
The appeal is accordingly dismissed.
Appeal dismissed.
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