Munna Lal Vs. State of Uttar Pradesh
[1963] INSC 103 (17 April 1963)
17/04/1963 WANCHOO, K.N.
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION: 1964 AIR 28 1964 SCR (3) 88
CITATOR INFO:
R 1964 SC 33 (25) R 1968 SC1292 (7) R 1971
SC1525 (13) R 1973 SC 913 (14) RF 1992 SC 604 (125)
ACT:
Prevention of Corruption--Investigation by an
officer not authorised by the Act--No miscarriage of justice--Irregularity, if
vitiates trial--Sanction obtained to prosecute four cases-Judge split up the
four cases into seven--Facts and amounts involved in the new three, cases
same--Sanction if covers all the seven cases--Prevention of Corruption Act,
1947 (2 of 1947), ss. 5, 5A--Code of Criminal Procedure, 1898 (Act 5 of 1898),
s. 239.
HEADNOTE:
The appellant was the cashier of the
Municipal Board Hardwar. He was in charge of the cash and it was his duty to
see that funds above Rs. 4,000/- were deposited 'in the treasury or the
Imperial Bank. On audit it was found that money received by the Board totaling
Rs. 52,144/-was not deposited as required by the rules. On complaint by the
Chairman of the Board, a Sub-Inspector of Police investigated the case and a
case was registered under s. 409 of the Indian Penal Code, But this case was
withdrawn and the accused discharged on the ground that it was covered .by s. 5
(2) of the Prevention of Corruption Act.
Thereafter investigation was conducted by an
officer as required by s. 5A of the Act. But this investigation consisted of
this that the duly authorised investigating officer went through the papers of
the earlier investigation and decided to file a fresh prosecution on the basis
of the earlier investigation. Sanction was obtained for (2) of the Act.
Subsequently the four cases, in which the appellant and his brother were
jointly charged were split up into 7 cases. In the three new cases only the
appellant was tried. The Trial Judge found the appellant guilty unders 5 (2)
read with s. 5 (1) of the Act and sentenced him to undergo imprisonment and to
pay fine.
On appeal to the High Court, it upheld the
conviction but reduced the sentence and. set aside the sentence of fine.
The appellant appealed to this Court with
special leave.
The following points were urged in the appeal
before this Court. Firstly, it was urged that the investigation 89 irregular
and not in accordance. ,with s. 5A of the Act in as much as the investigation
was not conducted by a person authorised by that section. Secondly, it was
contended that sanction was obtained only for the first four cases and no
sanction was obtained for the three new cases (after splitting up the four) out
of which the present appeals have arisen.. It was further contended that the
sanction was not with respect to s. 5 (1) (C) or' the Act though it was under
s. 5 (2)of the Act and therefore it was insufficient to confer ,jurisdiction on
the Special Judge to try the appellant under s. 5 (1) (c) read with s. 5 (2) of
the Act.
Held that s. 5A is mandatory and not
directory and an investigation conducted in violation thereof is illegal.
But this illegality wilt not vitiate the
results of the trial unless it is shown that it has brought about a miscarriage
of justice; neither does it affect the competence or jurisdiction of the court
to try the case.
In the present appeals it is not shown that
there has been miscarriage of justice as a result of the illegal investigation.
H.N. Rishbud & Inder Singh v. State of
Delhi, [1955] I S.C.R. 1150 followed State of Madhya Pradesh v. Mubarak All
[1959] Supp. 2 S.C.R. 201 distinguished.
The mere fact that in view of the provisions
of s. 239 of the Code of Criminal Procedure, 1898, the Special Judge thought it
necessary to separate the trial of the appellant with respect to certain items
for which there was sanction would not mean that these cases had no sanction
behind it. The sanction of the original four cases would cover these three
cases also.
The allegations made in the sanction show
that the sanctioning authority had s. 5 (1) (c) in mind because the sanction
speaks of misappropriation and embezzlement of the 'money of the' Board and
misappropriation and embezzlement is only to be found in s. 5 (1) (c). As the
words of the sanction stand they would cover a case of misappropriation or
conversion to Ins own case by the appellant himself or by allowing others to do
so. The sanction is sufficient for the purpose of giving jurisdiction to the
Special Judge to take cognizance of the cases out of which the present appeals
have arisen.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal Nos. 102404 of 1961, 90 Appeals by special leave from the judgment and
order dated December 21, 1960 of the Allahabad High Court in Criminal Appeals
Nos. 737,738 and 744 of 1960.
Frank Anthony and P.C. Agarwala, for the
appellant.
G.C.Mathur and C.P. Lal, for the respondent.
1963. April 17. The Judgment of the Court was
delivered by WANCHOO J.--These are three appeals by special leave against the
judgment of the Allahabad High Court. It will be convenient to dispose them of
together, though they arise out of three different trials before the Special
Judge, Saharanpur under s. 5 (2) of the Prevention of Corruption Act, No. 2 of
1947, (hereinafter referred to as the Act), as the appellant is the same in all
the appeals.
The brief facts necessary for present purposes
are these. Munnalal was the cashier of the Municipal Board of Hardwar and had
been working as such since 1932. He was in charge of the cash and it was his
duty to see that whenever the funds in his possession exceeded Rs. 4,000/- they
were deposited in the treasury or the Imperial Bank at Roorkee.
In 1949 there was an audit of the accounts of
the Board and on May 24, 1949, the auditor found that the money received by the
Board from April 20, 1949, to May 23, 1949, totalling Rs. 52,144/- had not been
deposited in the treasury or the Imperial Bank at Roorkee. The matter was then
reported to the Chairman of the Board, who called Munnalal and took his
explanation as to the alleged embezzlement. It is said that the appellant
admitted that he had spent some of the money in the .marriage of his daughter
and some was used in his shop and Rs. 10,000/to 'Rs. 11,000/-had been given to
the Executive Officer and the remainder was at his house. The appellant 91 was
asked to make good the loss immediately but failed to do so. Thereupon the
appellant was suspended and the matter was handed over to the police for
investigation.
The police registered a case under s. 409 of
the Indian Penal 'Code and after investigation prosecuted the Executive Officer
as well as the appellant and his brother who was the Assistant Cashier at the
relevant time. The case was transferred by the High Court to a magistrate in
Meerut;
but that case was not proceeded with as an
application was made to withdraw it on the ground that the case was covered by
s. 5 (2) of the Act. So the magistrate discharged the three accused of that
case. Thereafter necessary sanction was given for prosecution under s. 5 (2) of
the Act and four prosecutions were launched against the appellant and his
brother. The Special Judge, however, took the view that the joint trial of the
appellant and his brothers was not possible with respect to some of the moneys
said to have been embezzled. He therefore ordered that there should be three
separate trials of the appellant alone with respect to certain moneys in
addition to the four trials of the appellant and his brother with respect to
the remainder.
That is how seven trials took place. In the
present appeals we are not concerned with the other accused, namely, the
brother of the appellant, as he was acquitted. We arc also not concerned with
four of the trials; we arc only concerned with three trials with respect to
three sums of money in these three appeals. Appeal No. 102 is concerned with a
sum of Rs. 1623/4/-, received between April 14, 1949 and May 23, 1949 and not
accounted for; appeal No. 103 is concerned with a sum of Rs. 9611-9-6 received
between April 20, 1949 and May 24, 1949 and not accounted for; and appeal No.
104 is concerned with a sum of Rs. 43087/-/3 received between April 20, 1949
and May 24, 1949 and not accounted for.
92 The case of the prosecution was that these
sums were received by the appellant during the period mentioned above and had
not been deposited either in the treasury or in the Imperial Bank at Roorkee as
required by the rules. The appellant practically admitted the receipt of the
money except a few items which were also found by the Special Judge to have
been received by him. He also admitted that his duty was to deposit any sums
above Rs. 4,000/- in the Imperial Bank or the treasury at Roorkee. He was
however inconsistent in his defence as to what he did with the moneys which he
had undoubtedly received. He first tried to prove that he had deposited the
amounts., In the alternative his case was that a practice had been prevailing
for many years in the office of the Board under which the Executive Officer and
other employees of the Board used to take advances from the cashier from time
to time by sending slips and the cashier was utilised as a banker for all
officers and servants of the Board, including the Executive Officer. Though
these sums were supposed to be returned to the cashier (appellant) in the
beginning of the next month when pay was drawn by those who had taken these
unauthorised advances, in actual fact this did not always happen. The result of
these advances which were sometimes of large amounts was that the money could
not be deposited in the treasury according to the rules as these advances were
being constantly made to the officers and servants of the Board. The appellant
therefore contended that he had not converted the money to his own use and had
advanced the same to the officers and servants of the Board according to the
practice prevalent for a number of years and that such advances were even made
to the highest officer of the Board, namely, the Executive Officer, and that
the officers all knew of this practice and also knew that moneys were not being
deposited in the Bank or the treasury at Roorkee as required by rules.
93 The Special Judge held on the evidence
that it was proved that the moneys which were the subject matter of the charge
(except for two items) had been received by the appellant. He also held that
except for certain items, the appellant had dishonestly or fraudulently
misappropriated or otherwise converted to his own use the property entrusted to
him or under his control as a public servant or allowed any other person so 'to
do. He therefore found the appellant guilty under s. 5 (2) of the Act read with
s. 5 (1) (c) thereof. The Special Judge sentenced the appellant to five years'
rigorous imprisonment in the cases from which appeals Nos. 102 and 103 arise
but ordered the sentences to run concurrently. He also sentenced the appellant
in the case from which appeal No. 104 arises to five years' rigorous
imprisonment and a fine of Rs. 42,000/-. The sentence in this case was
apparently not made concurrent.
The appellant filed three appeals before the
High Court which were heard together. The High Court agreed with the
conclusions of the Special .Judge and upheld the conviction of the appellant in
the three cases. In view however of the practice to which reference has been
made above and which was proved to the hilt and in view also of the fact that
these cases had taken almost 11 years to be disposed of, the High Court reduced
the sentences in the three cases to two years' rigorous imprisonment and made
them all concurrent.
It also set aside the sentence of fine as it
was of the view that though the appellant was guilty he had not converted the
money to his own use but had advanced most of it to the officers and servants
of the Board. The present appeals by special leave are against these judgments
of the High Court in the three appeals. ' Two points have been urged on behalf
of the appellant and it is said that in view of those points the trial was
illegal and should be .quashed. In the first place it is urged that the
investigation was 94 irregular and not in accordance with s. 5A of the Act.
Section 5A lays down that no police officer
below the rank of a Deputy Superintendent of Police shall investigate any
offence punishable under the Act outside the presidency towns without the order
of a magistrate of the first class.
What happened in this case was that originally
the entire investigation was done by a sub-inspector of police and there arter
the case under ss. 409/406 of the Indian Penal Code was instituted against the
appellant, his brother and the Executive Officer. That case was later withdrawn
and it was thereafter that sanction was granted for the prosecution of the
appellant and his brother under s. 5 (2) of the Act and investigation was made
as required by s. 5-A. But the evidence shows that this investigation merely
consisted of this that the duly authorised investigating officer went through
the papers of the earlier investigation and decided to file four prosecutions
as already indicated on the basis of the earlier investigation. It does appears
from these facts that though the letter of s. 5A of the Act was complied with
its spirit was not, for in reality there was no investigation by the officer
authorised under that section and the real investigation was by a sub-inspector
of police who was never authorised. In H.N. Rishbud & Inder Singh v. The
State of Delhi (1), this Court held that "s. 5A is mandatory and not
directory and an investigation conducted in violation thereof is illegal".
This Court further held that "if
cognizance is in fact taken on a police reporting breach of a mandatory
provision relating to investigation, the results which follow cannot be set
aside unless the illegality in the investigation can be shown to have brought
about a miscarriage of justice".
It was further held that "an illegality
committed in the course of an investigation does not affect the competence and
the jurisdiction of the court for trial and where cognizance of the case has in
fact been taken and the case has proceeded to [1955] 1 S. C. R. 1150.
95 termination the invalidity of the
preceding investigation does not vitiate the result unless miscarriage of
justice has been caused thereby". In view of this decision, even if there
was irregularity in the investigation and s. 5A was not complied with in
substance, the trials cannot be held to be illegal unless it is shown that
miscarriage of justice has been caused on account of the illegal investigation.
Learned counsel for the appellant has been
unable to show us how there was any miscarriage of justice in these cases at
all due to the irregular investigation. As a matter of fact on the alternative
case put forward by the appellant, the substance of the prosecution case was
practically admitted by him and he merely pleaded certain mitigating
circumstances. Learned counsel for the appellant however drew our attention to
the State of Madhya Pradesh v. Mubarak Ali. (1) In that case an objection was
taken before the trial began before the Special Judge that the investigation
had been carried on in breach of s. 5A of the Act. The matter went before the
High Court and it directed that in order to rectify the defect and cure the
illegality in the investigation, the Special Judge should have ordered the Deputy
Superintendent of Police to carry on the investigation himself while the case
remained pending in the court of the Special Judge. That order of the High
Court was brought in appeal to this Court, and the appeal was dismissed. This
case in our opinion is of no assistance to the appellant, for there the
objection was taken at the earliest stage before the trial began and it was in
those circumstances that the trial was stayed till proper investigation was
completed and a proper report made thereafter for the prosecution of the
accused of that case.
In the present cases no objection was taken
at the trial when it began and it was allowed to come to an end. In these
circumstances the ratio of Mubarakali's case (1) cannot apply and the decision
in Rishbud's case (2) would apply. The appellant therefore cannot say that the
trial was (1) [1959] supp. 2 S.C.R. 201. (2) [L955] 1 S. C.R. 1150 96 vitiated
unless he can show that an.V, prejudice was caused to him on account of the
illegal or irregular investigation.
We have not already remarked that no such
thing has been shown in this case; nor was it possible 10 show any such thing
in view of the alternative defence taken by the appellant. We therefore reject
this contention.
The next contention that has been urged is
that there was no proper sanction in these cases and this is based on the fact
that only four cases were filed before the Special Judge with of course proper
sanction; but these cases were split up into seven and the argument is that
there was no sanction for the remaining three cases, and two of the present
appeals namely Nos. 102 and 103 are out of these split-up cases. It is also
urged that the sanction was not with respect to s. 5 (1) (c) of the Act though
it was under s. 5 (2) of the Act and therefore it was insufficient to confer
jurisdiction on the Special Judge to try the appellant under s. 5(1)(c) read
with s. 5 (2). We are of opinion that there is no force in either of these
contentions. It is true that the Special Judge split up the four cases before
him into seven; but it is not disputed that the amounts involved in the three
new cases which the Special Judge had directed for splitting up due to the
difficulty of joint trial were with respect to amounts which were included in
the four cases filed before him and with respect to which there was sanction.
The mere fact that in view of the provisions of s. 239 of the Code of Criminal
Procedure the Special Judge thought it necessary to separate the trial of
Munnalal with respect to certain items for which there was sanction would not
mean that these cases which were directed by the Special Judge to be split up
for that reason had no sanction behind it. The sanction of the original four
cases would cover these three cases also which were split out of the original
four cases.
97 As to the argument that there was no
sanction for prosecution under s. 5 (1) (c), it is clear that there is no force
in it. The sanction says that the appellant had received money and
misappropriated it by not crediting the same into the treasury and embezzled it
and was therefore guilty of criminal misconduct and liable to prosecution under
ss. 409/406 and s 5 (2)of the Act. The allegations made clearly show that the
sanctioning authority had s. 5 (1) (e) in mind because the sanction speaks of
misappropriation and embezzlement of the moneys of the Board and
misappropriation and embezzlement is only to be found in s. 5 (1) (c). It is
argued however that s. 5 (1) (c)speaks of misappropriation or otherwise
conversion to his own use any property- entrusted to him or under his control
by a public servant for himself. It also speaks of a public servant allowing
any other person to do so. But the sanction seems to show as if the appellant
was to be prosecuted for converting the property to his own use.
There is in our opinion no substance in this
argument, for the sanction speaks of misappropriation and embezzlement and
there is nothing in the words to imply that this was only with reference to
conversion by the appellant to his own use. As the words of the sanction stand
they would cover a case of misappropriation or conversion to his own use by the
appellant himself or by allowing others to do so. We are therefore of opinion
that the sanction was sufficient for the purpose of giving jurisdiction to' the
Special Judge to take cognizance of the cases out of which these appeals have
arisen.
This brings us to the merits of the three
appeals. So far as this is concerned, learned counsel for the appellant has not
urged--and, in our opinion, rightly--that the convictions are unjustified. The
only question that he has urged is that in view of the established facts that
the appellant was using the Board's money in order to advance it to the
officers 98 and servants of the Board beginning with the highest officer of the
Board, namely, the Executive Officer and that the evidence as found by the High
Court does not seem to establish that there was any conversion of the moneys by
the appellant to his own use, this is a case in which the appellant was more
sinned against than sinning. It is conceded that as the appellant was the
cashier it was his duty in law to follow the rules with respect to the custody
of the cash of the Board entrusted to him and if he did not do so he would be
guilty. But it is urged that when the highest officer of the Board, namely, the
Executive Officer was himself taking out money from the funds of the Board by
sending slips to the cashier and other officers and servants of the Board were
doing the same thing and this was well known, presumably also to the Chairman
of the Board, it is not just that the appellant should be made to suffer when
he was obliging the officers and servants of the Board and might even have felt
compelled to grant the demands of the Executive Officer and other officers and
servants of the Board, for he was serving under some of them. We must say that
the evidence discloses, a scandalous state of affairs which was allowed to go
on and even the highest officer of the Board, namely, the Executive Officer,
was cognizant of this state of affairs and was himself a party to it. The
appellant's case further was that even the Chairman knew about it and was at
times party to it and this may also be not incorrect. In these circumstances
there is force in the contention on behalf of the appellant that he was more
sinned against than stoning and that the misappropriation took place because he
had to oblige these officers and servants of the Board or otherwise incur their
displeasure which he could hardly do. So it is urged on behalf of the appellant
that as he has already been in jail for more than ten months in the
circumstances that punishment along with the fact that the trial had been
prolonged for eleven years since 1949 should 99 be sufficient punishment for
him. Ordinarily this Court does not interfere in the matter of sentence in
appeals under Art. 136 but we think in the circumstances disclosed in the
present appeals when the officers and servants of the Board including the
highest officer were behaving as if the moneys of the Board were their private
property and the misappropriation took place mainly because the appellant was
obliging these officers and servants of the Board, that the sentence already
undergone by the appellant would meet the ends of justice. We ought to add that
Mr. Mathur who appeared for the respondent State did not feel justified--and we
think rightly-in pressing for the confirmation of the reduced sentence passed
by the High Court in appeal. We therefore dismiss the appeals with the
modification that the sentence m each case is reduced to the period already
undergone. The appellant, if on bail, shall be discharged from his bail bonds
in respect of these appeals.
Appeals dismissed.
Sentence reduced.
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