REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1052 OF 2002

State of Maharashtra ..Appellant

Versus

Krishnarao Dudhappa Shinde  ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay High Court. By the impugned judgment the High Court set aside the

judgment of the trial Court, and directed acquittal of the respondent.

2. Background facts in a nutshell are as follows:

The respondent a government servant was Inspector of Police at the time

when a raid was conducted in his house on 28.12.1971.  He was convicted for

offence punishable under Section 5(1)(e) of the Prevention of Corruption Act,

1947 (in short the ‘Act’) and was sentenced to under minimum sentence of one

year and was directed to pay a fine of Rs.2,50,000/-. The only point which was

examined by the High Court was whether the respondent could be convicted

for acquisition of wealth disproportionate to his known sources of income prior

to 1964 i.e. from the date of inception of service on 29.5.1944 till the date of

raid  under Section 5(1)(e)  which came into force only on 18.12.1964.  The

High  Court  was  of  the  view  that  any  acquisition  of  wealth  said  to  be

disproportionate to his known sources of income prior to 1964 could not be

taken into account since prior to 1964 the same was not an offence. Reliance

was placed by two judgments  for the purpose one of  this  Court  in  State of

Maharashtra v.  Kaliar Koli Subramaniaum Ramaswamy (1977 (3) SCC 525),

and  the other of the Bombay High Court in Ramanand Pundalik Kamat v. State

of Maharashtra (ILR 1973 Bom 1066).  

3. The primary stand of learned counel for the appellant is that the scope

and ambit of Section 5(1)(e) of the Act has been lost sight of.  

4. Learned  counsel  for  the  respondent  on  the  other  hand  supported  the

judgment.  

5. Section 5(1)(e) of the Act reads as follows:

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“5. Criminal misconduct  in discharge of official duty:1. A  public  servant  is  said  to  commit  the  offence  of criminal misconduct..

(e) if he, or any person on his behalf is in possession or has at any time during the period of his office, been in possession  for  which  the  public  servant  cannot satisfactory account  of pecuniary resources or  property disproportionate to his known sources of income.”    

6. A three-Judge Bench of this Court in Sajjan Singh v. State of Punjab

(1964(4) SCR 630) noted as follows:

“12.  Mr Lall contends that when the section speaks of the accused being in possession of pecuniary resources or  property  disproportionate  to  his  known  sources  of income only  pecuniary  resources  or  property  acquired after the date of the Act is  meant.  To think otherwise, says  the  learned  counsel,  would  be  to  give  the  Act retrospective  operation  and  for  this  there  is  no justification. We agree with the learned counsel that the Act  has  no  retrospective  operation.  We  are  unable  to agree  however  that  to  take  into  consideration  the pecuniary resources or property in the possession of the accused  or  any  other  person  on  his  behalf  which  are acquired before the date of the Act is in any way giving the Act a retrospective operation.

13. A statute cannot be said to be retrospective ‘because a part  of the requisites  for its  actions is  drawn from a time  antecedent  to  its  passing?  (Maxwell  on Interpretation  of  Statutes,  11th  Edn.,  p.  211;  see  also State of Bombay v.  Vishnu Ramchandran). Notice must be taken in this connection of a suggestion made by the learned counsel that in effect sub-section 3 of Section 5 creates a new offence in the discharge of official  duty,

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different  from  what  is  defined  in  the  four  clauses  of Section 5(1). It is said that the act of being in possession of  pecuniary  resources  or  property  disproportionate  to known sources of income, if  it  cannot be satisfactorily accounted for, is said by this sub-section to constitute the offence of criminal misconduct in addition to those other acts mentioned in clauses a, b, c and d of Section 5(1) which constitute the offence of criminal misconduct. On the basis of this contention the further argument is built that  if  the  pecuniary  resources  or  property  acquired before  the  date  of  the  Act  is  taken  into  consideration under sub-section 3 what is in fact being done is that a person  is  being  convicted  for  the  acquisition  of pecuniary  resources  or  property,  though  it  was  not  in violation of a law in force at the time of the commission of such act of acquisition. If this argument were correct a conviction  of  a  person  under  the  presumption  raised under Section 5(3) in respect of pecuniary resources or property  acquired  before  the  Prevention  of  Corruption Act  would  be  a  breach  of  fundamental  rights  under Article  20(1)  of  the  Constitution  and  so  it  would  be proper for the court to construe Section 5(3) in a way so as not  to  include  possession  of  pecuniary resources  or property acquired before the Act for the purpose of that sub-section. The basis of the argument that Section 5(3) creates a new kind of offence of criminal misconduct by a public servant in the discharge of his official duty is however unsound. The sub-section does nothing of the kind.  It  merely  prescribes  a  rule  of  evidence  for  the purpose of proving the offence of criminal misconduct as defined in Section 5(1) for which an accused person is already under trial. It was so held by this Court in C.D.S. Swamy v.  State and again in  Surajpal Singh v.  State of U.P.. It is only when a trial has commenced for criminal misconduct by doing one or more of the acts mentioned in clauses a, b, c and d of Section 5(1) that sub-section 3 can  come  into  operation.  When  there  is  such  a  trial, which necessarily must be in respect of acts committed after the Prevention of Corruption Act came into force, sub-section  3 places in  the hands  of  the  prosecution  a

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new mode of proving an offence with which an accused has already been charged.

14. Looking at the words of the section and giving them their plain and natural meaning we find it impossible to say  that  pecuniary  resources  and  property  acquired before the date on which the Prevention of Corruption Act  came into  force  should  not  be  taken  into  account even if in possession of the accused or any other person on  his  behalf.  To  accept  the  contention  that  such pecuniary resources or property should not be taken into consideration  one  has  to  read  into  the  section  the additional word “if acquired after the date of this Act” after  the  word  “property”.  For  this  there  is  no justification.

15. It may also be mentioned that if pecuniary resources or property acquired before the date of commencement of the Act were to be left out of account in applying sub- section 3 of Section 5 it would be proper and reasonable to  limit  the  receipt  of  income  against  which  the proportion is to be considered also to the period after the Act. On the face of it  this would lead to a curious and anomalous position by no means satisfactory or helpful to the accused himself. For, the income received during the years previous to the commencement of the Act may have  helped  in  the  acquisition  of  property  after  the commencement of the Act. From whatever point we look at  the  matter  it  seems  to  us  clear  that  the  pecuniary resources  and  property  in  possession  of  the  accused person or any other person on his behalf have to be taken into  consideration  for  the  purpose  of  sub-section  3  of Section 5,  whether  these were acquired before or  after the Act came into force.”

7. The view expressed by the High Court is apparently in conflict with

the view expressed by this Court in Sajjan Singh’s case (supra).  

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8. Learned counsel for the respondent submitted that even if the accused

has no case on the legal question raised on facts the respondent was bound

to succeed. We find that the High Court did not examine the other aspects

and only dealt  with the applicability of Section 5(1)(e) of the Act on the

factual position highlighted above.  While we set aside the order of the High

Court so far as it relates to the scope and ambit of Section 5(1)(e) of the Act,

we remit the matter to it for considering the other aspects which according

to learned  counsel for the respondent were in issue before the High Court in

appeal filed by the accused person.  Since the matter is pending since long

we request the High Court to take up the matter at an early date and make an

effort to dispose of the same within a period of four months from the date of

receipt of our judgment.  

9. The appeal is allowed to the aforesaid extent.   

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, February 05, 2009

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