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PETITIONER: MUNNA LAL

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 17/04/1963

BENCH: WANCHOO, K.N. BENCH: 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 totalling 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  of   Police investigated the case and a case was registered under s. 409 of the Indian Penal Code,  But this case was withdrawn   and the   accused  discharged  on  the  ground  that    it   was covered  .by  s. 5 (2) of the Prevention of Corruption  Act.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

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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.

JUDGMENT: 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,

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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 notconcerned 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

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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

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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 therearter  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 Duputy    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

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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 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

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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

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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. 100