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PETITIONER: RAM CHANDRA PRASAD

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 18/04/1961

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K.

CITATION:  1961 AIR 1629            1962 SCR  (2)  50  CITATOR INFO :  R          1966 SC1418  (10)  R          1988 SC1531  (151)

ACT: Criminal Trial-Corruption Special judge-Territorial  juris- diction-Defect  of,  if  curable-Presumption  as  to  guilt- Whether   procedure   established   by   law-Prevention   of Corruption  Act, 1947 (11 of 1947), ss. 4 and  5(2)-Criminal Law Amendment Act, 1952 (XLVI of 1952), ss. 7, 8 and 10-Code of  Criminal Procedure, 1898 (5 of 1898), ss. 526  and  531- Constitution of India, Arts. 216 and 145(3).

HEADNOTE: The  appellant  accepted  a sum of Rs. 10,000  from  a  con- tractor.   He was chalanned before a Magistrate at  Dhanbad; but on an application by the appellant the High Court trans- ferred   the   case   to   the   Munsif-Magistrate,   Patna. Subsequently,  the  Criminal Law Amendment Act,  1952,  came into  force  which made every offence under  s.  161  Indian Penal Code and S. 5(2) Prevention of Corruption Act  triable only  by  a Special judge for the area within which  it  was committed.   The case of the appellant was forwarded to  the Special  judge at Patna who convicted him both under s.  161 and s. 5(2).  The appellant contended: (1) that the  Special judge  at Patna had no jurisdiction to try the appellant  as the  offence  was committed within the area of  the  Special judge  at Dhanbad and (2) that the provisions regarding  the presumption   contained  in  s.  4  of  the  Prevention   of Corruption Act, 1947, offended Art. 21 of the Constitution. Held,  that the order of conviction could not be quashed  on the   ground  that  the  Special  judge  at  Patna  had   no territorial  jurisdiction to try the case as no  failure  of justice  had been occasioned.  Section 531 Code of  Criminal Procedure  was applicable to trials by Special judges.   The High  Court had also the power under s. 526 of the  Code  to transfer  a case from one Special judge to another, and  the omission  of  a formal order transferring the  case  to  the Special Judge at Patna had not prejudiced the appellant. Held,  further that the procedure laid down by S. 4  of  the Prevention  of Corruption Act, which was enacted by  Parlia- ment,  laid  down  a  procedure  established  by  law.   The question that S. 4 offended Art. 21 of the Constitution  was

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not  a substantial question as to the interpretation of  the Constitution  within the meaning of Art.  145(3) and it  was not necessary to refer it to a Bench of five judges. A.   K.  Gopalan v. The State of Madras, [1950]  S.C.R.  88, followed. 51

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 168  of 1959. Appeal  by special leave from the judgment and  order  dated September  10,  1958, of the Patna High  Court  in  Criminal Appeal No. 580 of 1953. B.   B. Tawakley and R. C. Prasad, for the appellant. A.   K. Dutt and S. P. Varma, for the respondent. 1961.  April 18.  The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.-This appeal, by special leave, is against the order of the Patna High Court dismissing the appellant’s appeal  against  his conviction for offences under  s.  161, Indian  Penal  Code  and  a.  5(2)  of  the  Prevention   of Corruption  Act, 1947 (Act 11 of 1947),  hereinafter  called the Act. The appellant was the Construction Engineer at Sindhri.   R. B. Basu was a contractor living in Calcutta and carrying  on the  business of the company named and styled the  Hindustan Engineering  and  Construction  Company.   The   prosecution alleged, and the Courts below have found, that the appellant accepted the sum of Rs. 10,000 as illegal gratification from Basu at the Kelner’s Restaurant at Dhanbad Railway Station on July 18, 1951. The  Courts disbelieved the appellant’s defence that he  had taken  the envelope containing this amount not knowing  that it  contained  this amount, but knowing  that  it  contained papers relating to Basu’s con. tracts. The contentions raised on behalf of the appellant are: (i)that the provisions regarding the presumption  contained in s. 4 of the Act are unconstitutional; (ii) that the  case was  tried by the Special Judge who had no  jurisdiction  to try it; (iii) that there had been no proper corroboration of the statement of Basu about the accused demanding the  bribe and accepting the amount as illegal gratification. The  Constitutionality of s. 4 of the Act was sought  to  be questioned on the ground that it went against 52 the provisions of Art. 21 of the.  Constitution which reads: "No  person  shall  be deprived, of  his  life  or  personal liberty-except;according to procedure established by law." We  do  not  consider  this question  to  be  a  substantial question of law for the purpose of Art. 145(3), which  lays down  that the minimum number of Judges who are to  sit  for the  purpose  of deciding any case involving  a  substantial question of law as to the interpretation of the Constitution shall be five, in view of it being held that the word  ’law’ in  Art.  21  refers to law made by the State’  and  not  to positive  law.   It has been held in A. K.  Gopalan  v.  The State of Madras (1) that in Art. 21, the word law’ has  been used in the sense of State-made law and not as an equivalent of  law  in  the abstract or  general  sense  embodying  the principles of natural justice, and ’procedure established by law’  means procedure established by law made by the  State, that is to say, by the Union Parliament or the  Legislatures of the States, Section 4 has been enacted by Parliament  and therefore  it  must  be held that what it  lays  down  is  a

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procedure established by law. The appellant was tried by the Special Judge of Patna.   The offence was committed at Dhanbad, in Manbhum District.   The case  was  chalanned to the Magistrate at  Dhanbad.   On  an application by the accused, the High Court transferred it to the Court of the Munsif-Magistrate at Patna.  Subsequent  to this order of transfer, the Criminal Law Amendment Act, 1952 (Act  XLVI of 1952) came into force on July 28,  1952.   The case,  thereafter,  was forwarded to the  Special  Judge  at Patna  in view of s. 10 of the Criminal Law  Amendment  Act. The  contention  for  the appellant is that  there  was  the Special Judge at Manbhum and flat he alone could have  tried this  case.   Section 7 of the Criminal Law  Amendment  Act, reads:               (1) Notwithstanding anything contained in  the               Code  of Criminal Procedure, 1898, or  in  any               other law the offences specified in subjection               (1)  of section 6 shall be triable by  special               Judges only.               (1)   [1950] S.C.R. 88.               53               (2)   Every ’.offence specified in sub-section               (1) of section 6 shall be tried by the special               Judge  for  the  area  within  which  it   was               committed,  or  where there are  more  special               Judges than one for such area, by such one  of               them as may be specified in this behalf by the               State Government.               (3)When  trying any case, a special Judge  may               also  try  any offence other than  an  offence               specified in section 6 with which the  accused               may,  under  the Code of  Criminal  Procedure,               1898, be charged at the same trial." Sub-section  (1)  makes the offences under  s.  161,  Indian Penal  Code  and s. 5(2) of the Act triable  by  a;  special Judge only.  The appellant has been tried by a special Judge appointed under the Act.  His grievance is not with  respect to the competency of the Court which tried him, but is  with respect   to   the  trial  Court   having   no   territorial jurisdiction to try him, as sub-s. (2) of s. 7 provides that such  offences would be tried by the special Judge  for  the area  in  which  the  were  committed.   The  offences  were committed within the territorial jurisdiction of the special Judge at Manbhum and therefore could have been tried by  him alone.  It would therefore appear that the special Judge  at Patna had no jurisdiction to try this case. Sub-section  (3) of s. 8 of the Criminal Law  Amendment  Act reads:               "Save  as provided in sub-section (1) or  sub-               section  (2),  the provisions of the  Code  of               Criminal Procedure, 1898 shall, so far as they               are  not inconsistent with this Act, apply  to               the  proceedings before a special  Judge;  and                             for  the purposes of the said provisions,  the               Court of the special Judge shall be deemed  to               be  a Court of Session trying cases without  a               jury  or without the aid of assessors and  the               person  conducting  a  prosecution  before   a               special Judge shall be deemed to be a  public               prosecutor." It  follows that the  provisions of s. 526 of  the  Criminal Procedure  Code  empowering the High Court to  transfer  any case from a criminal Court subordinate to it (1)  [1950] S.C.R. 88. 54

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to  any other Court competent to try it, apply to  the  case before any special Judge.  If this case had been transferred to  the Court of the Special Judge, Manbhum, on  the  coming into force of the Criminal Law Amendment Act, it would  have been  open to the High Court to transfer the case from  that Court  to the Court of the Special Judge, Patna.   The  case had been transferred from Dhanbad to Patna at the request of the  appellant.  The trial at Patna cannot be said  to  have prejudiced the appellant in any way.  The mere omission of a formal  forwarding  of  this case to the  Special  Judge  at Manbhum and of a formal order of the High Court to  transfer it to the Court of the Special Judge at Patna, have not,  in our opinion, prejudiced the appellant in any way.  When  the case  was taken up by the Special Judge, Patna,  on  October 23,  1952,  the  accused as well as  the  Public  Prosecutor desired de novo trial.  No objection to the jurisdiction  of the  Court to try the case was taken at that time.  Such  an objection  appears  to have been taken at the  time  of  the arguments before the Special Judge and was repelled-by  him. Such an objection was not raised before the High Court  when the  appellant’s appeal was first heard in 1955 or  in  this Court when the State of Bihar appealed against the order  of the  High Court.  All this indicates that the appellant  did not feel prejudiced by the trial at Patna. In  view  of s. 531 of the Code of Criminal  Procedure,  the order of the Special Judge, Patna, is not to be set aside on the ground of his having no territorial jurisdiction to  try this  case, when no failure. of justice has actually  taken place.  It is contended for the appellant that s. 531 of the Code of Criminal Procedure is not applicable to this case in view  of  sub-s. (1) of s. 7 and s. 10 of the  Criminal  Law Amendment  Act.   We  do not agree.   The  former  provision simply  lays  down that such offences shall  be  triable  by special  Judges  and this provision has  not  been  offended against.  Section 10 simply provides that the cases  triable by  a  special  Judge  under  s.  7  and  pending  before  a Magistrate  immediately before the commencement of  the  Act shall be forwarded for trial to the 55 special Judge having jurisdiction over such cases.  There is nothing  in this section which leads to the  non-application of s. 531 of the Criminal Procedure Code. We  are therefore of opinion that the order of  the  special Judge  convicting the appellant cannot be quashed merely  on the  ground that he had no territorial jurisdiction  to  try this case. The  last contention for consideration is whether there  had been proper corroboration of the statement of Basu about the accused  demanding the bribe of Rs. 10,000 and accepting  it on  July 18, 1951, at the Kelner Refreshment  Room,  Dhanbad Railway Station. We may briefly indicate the salient facts deposed to by Basu in  this connection.  The appellant is said to have  visited Calcutta in December 1950, to have gone to Basu’s house  and to have asked him to pay a bribe of Rs. 10,000.  There is no direct  corroboration of this statement by the testimony  of any other witness.  Kanjilal, an employee of Basu, under in. structions  of his master, met the appellant in  May,  1951, enquired  of him whether he would accept the amount  he  had demanded  in December and had not been so far paid, and  got the reply that the amount would be: acceptable.  He conveyed this  information  to Basu.  Nothing was done  till  over  a month  and then too, not to make the payment, but to  inform the authorities. In  June 1951, Basu informed Mr. K. N. Mookerjee, P.  W.  3,

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the   then   Superintendent  of   Police,   Special   Police Establishment,  about the accused’s demanding bribe  and  at his  request delivered the letter, Exhibit 11/1, dated  June 18, to him.  He made mention in this letter about the demand made  in  December  1950,  but  made  no  reference  to  the appellant’s expression of readiness to accept the amount  in the month of May. Mr. Mookerjee took steps for laying the trap and deputed Mr. S. P. Mookerjee, P.W. 1. Kanjilal met the appellant on July 14 and arranged with  him that he would go to Dhanbad railway station when Basu  would also  be reaching there and ’that the money would  be  paid there and that the date of that meeting would be communicated later.  Basu was  told of this arrangement at Calcutta.  He, in his turn,  informed the  authorities.   July  18  was  fixed  for  the  purpose. Kanjilal informed the appellant by telephone on July 16 that the  meeting  would be on the 18th and that  Basu  would  be reaching  Dhanbad by the Toofan Express at about 5 p.m.  The trap arrangements were completed and the trap-party  reached Dhanbad by the Toofan Express on July 18.  Kanjilal  himself went to Sindhri on the morning of July 18 and confirmed  the arrangement  to the appellant.  The appellant  also  reached Dhanbad railway station at about 5p.m. The members of the trap party took their seats at  different tables  in the corners of the Refreshment Room of  Kellner’s Restaurant.   Basu,  with the appellant, reached  there  and occupied   another   table.    Refreshments   were    taken. Thereafter, Basu talked over matters about the contract with the  appellant, moved near him, took out the file  from  his satchel  and  then, after some conversation,  took  out  the envelope  containing the currency notes of the value of  Rs. 10,000 and having its one long edge slit.  This envelope was passed  on  to the appellant.  Basu states that  he  made  a statement  at the time that there were Rs. 10,000, which  he could, not pay to the appellant so far.  The appellant  took the  envelope  and put it in his trouser pocket.   The  trap party,  after  getting the signal that the bribe  money  had been  paid,  surrounded the appellant and got  the  envelope from him. , It was found to contain the very currency  notes whose ’numbers had previously been noted by the  Magistrate, Mr.  Mahadevan. There  is  no verbal corroboration of  Kanjilal’s  statement about the message he conveyed to the appellant either in May or on the telephone or on the morning of the 18th of July. The Courts below have found corroboration of the statements of  Basu from the circumstances that the demand of money  in December  1950  was mentioned in June, 1951, to  Mr.  K.  N. Mookerjee; that the trap must have been laid when Basu  must have been 67 certain  that the appellant would turn up at Dhanbad at  the appointed time and that the appellant’s presence at  Dhanbad railway station could not have been accidental but must have been  the result of previous arrangement.  No infirmity  can be   found  in  this  reasoning.   The  appellant  gave   an explanation  for  his presence at the railway  station  that day.   It  has not been accepted by the  Courts  below.   In fact, the learned counsel for the appellant did not press it for  consideration at the second hearing of the  appeal,  on remand by this Court.  No doubt, the trap arrangements  must have been made when there was a practical certainty that the appellant would turn up at Dhanbad railway station.  Basu is not  expected to mention falsely in the month of  June  that the appellant made a demand of Rs. 10,000 in December  1950.

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Ordinarily, one is not expected to make a complaint of  such a demand after such a long period of time.  The interval  of time seems to have been due possibly to a hope that  matters may  straighten out or that a lower sum might be  acceptable as bribe to pass the pending bills of Basu.  The omission of the  trap witnesses to corroborate Basu’s statement  at  the time of the passing on of the envelope to the appellant, in- forming the appellant of the envelope containing Rs. 10,000, is  really  surprising  when the  party  consisted  of  four persons  who  had  gone  there  for  the  purpose  of  being witnesses  of  the appellant’s accepting the bribe  and  who could therefore be expected to be alert to hear what  passed on  between the appellant and Basu.  The question  here  is, what  did the appellant expect the envelope to contain?   It was no occasion for Basu to personally deliver any bills  or papers concerning the contract business.  Such papers  could have  been  sent in the regular course of  business  to  the appellant’s  office.  The appellant does not appear to  have questioned  Basu  as to what the envelope contained,  as  he would  have  done, if he did not know for  certain  what  it contained.  The appellant’s statement that he understood the envelope to contain bills etc., is not consistent with  his putting the envelope in his 8 58 pocket.   The  envolope is expected to be a fat  one  as  it contained  one hundred Rs. 100 currency notes.  An  envelope containing business papers is not expected to be put in  the trouser  pocket.  One usually carries it in hand, or in  one of the pockets of the coat or bush-shirt one may be  putting on.   When it is held that the appellant must have  gone  to Dhanbad  railway station by arrangement, it becomes  a  moot point, what the purpose of the arrangement was.  Surely,  it could  not have been a mere delivering of certain bills  and papers.   As already mentioned, it could have been  sent  to Sindhri by post or through Kanjilal or any other  messenger. The  purpose of the meeting at Dhanbad railway station  must have  been different.  The appellant has failed  to  mention any purpose which could be accepted as correct. It   is  true  that  the  appellant  was  not   specifically questioned,  when examined under s. 342, Criminal  Procedure Code, with respect to his demanding Rs. 10,000 at  Calcutta, Kanjilal’s  visit to him in May and July and his  telephonic call  and the arrangement and about Basu’s statement at  the time  the  envelope  was passed on to him.  But  we  are  of opinion that this omission has not occasioned any failure of justice.  The appellant fully knew what had been deposed  to by  witnesses  and what had been the case against  him.   He denied  the  correctness  of the  main  allegation  that  he received Rs. 10, 000 as bribe. We are therefore of opinion that the appellant knew when  he took  the envelope from Basu that he was getting Rs.  10,000 as  bribe, which amount he had demanded, and that  therefore the  conviction of the appellant is correct.  The appeal  is therefore dismissed. Appeal dismissed. 59