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PETITIONER: SURAJPAL SINGH

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 07/12/1960

BENCH: DAS, S.K. BENCH: DAS, S.K. SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1961 AIR  583            1961 SCR  (2) 971  CITATOR INFO :  D          1964 SC 464  (13,33)  D          1971 SC 786  (6,15)  RF         1977 SC2091  (5)  RF         1979 SC 602  (6)

ACT: Criminal   Misconduct--Acquittal  under  one   category   of criminal   misconduct  charged--Conviction   under   another category  not  charged--Legality  of--Presumption,   Whether creates  an offence--Prevention of Corruption Act, 1947  (11 of 1947), s. 5, sub-ss. (1), (2), (3).

HEADNOTE: The  appellant was a Head Constable attached to  a  malkhana where  articles  seized in connection with  excise  offences were  kept in deposit.  The appellant was charged  under  S. 5(1)(c)  read  with s. 5(2), Prevention of  Corruption  Act, 1947,   in   that  he  had   dishonestly   or   fraudulently misappropriated  or  otherwise converted to  his  use  these articles; the charge further stated that a sum of Rs. 9,284- 1-0 was recovered from him which was disproportionate to his known  sources  of income.  He was acquitted of  the  charge under  s.  5(1)(c) but was convicted under s.  5(2)  on  the ground that he had failed to account satisfactorily for  the possession  of Rs. 9,284-1-0 which was  disproportionate  to his known sources of income. Held, that the conviction of the appellant under S. 5(2)  of the  Prevention of Corruption Act, 1947, was  illegal.   The only charge against the appellant was of criminal misconduct under S. 5(1)(c) of the Act for dishonestly or  fraudulently misappropriating  property  entrusted  to him  and  of  this charge he could have been convicted by invoking the rule  of presumption under s. 5(3).  But since this was not done  and he  was acquitted of that charge, he could not be  convicted of  criminal misconduct referred to in cls. (a), (b) or  (d) of  s. 5(1) for which he had not been charged.   The  Courts below had proceeded wrongly on the footing as though  sub-s. (2)  or sub-s. (3) of s. 5 created an offence;  the  offence which  was  punishable  under s. 5 (2)  or  which  could  be

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founded  on  the rule of presumption under S. 5(3)  was  the offence  of criminal misconduct of one or more of the  cate- gories mentioned in cls. (a) to (d) of sub-s. (1) of S- 5. C.S. D. Swamy v.. The State, [1960] 1 S.C.R. 461,  refer- red to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 169  of 1959. Appeal  by special leave from the judgment and  order  dated March  27,  1958, of the Allahabad High  Court  in  Criminal Appeal No. 785 of 1955. 972 Nuruddin Ahmad and Naunit Lal, for the appellant. G. C. Mathur and C. P. Lal, for the respondent. 1960.   December 7. The Judgment of the Court was  delivered by S.K. DAS, J.-This is an appeal by special leave from  the judgment  and  order  of the High  Court  of  Judicature  at Allahabad dated March 27, 1958, whereby the said High  Court maintained the conviction of the appellant under s. 5(2)  of the  Prevention  of  Corruption Act, 1947 (2  of  1947)  but reduced  the sentence of four years’  rigorous  imprisonment passed on the appellant by the Special Judge, Kanpur, to two years’ rigorous imprisonment. The short facts are these.  The appellant Surajpal Singh was employed  in  the  Police Department of  the  Uttar  Pradesh Government.   He  started his service as a  constable  on  a salary of Rs. 13 per month from August 1, 1930.  In 1946 his pay  was increased to Rs. 46 per month.  He was appointed  a Head constable on a salary of Rs. 50 per month in 1947.   He officiated as a Sub-Inspector of Police sometime in 1948 and 1949 on a salary of Rs. 150 per month.  On March 1, 1949, he was  reverted  to his post of Head constable.   Between  the dates  February  27,  1951, and September 9,  1952,  he  was posted  as a Head constable attached to the Sadar  Malkhana, Kanpur.  The charge against him was that in that capacity he dishonestly  or  fraudulently misappropriated  or  otherwise converted  to his own use many articles,  principally  those seized in connection with excise offences kept in deposit in the  said Malkhana.  These articles included opium,  bottles of liquor etc.  The charge further stated that a sum of  Rs. 9,284-1-0  was  recovered  on  a  search  of  his  house  on September   9   and   10,   1952   and   this   amount   was disproportionate  to  the  known sources of  income  of  the appellant.  There was an allegation by the prosecution  that the  acts of dishonest misappropriation etc. were  committed by the appellant in conspiracy with two other persons called Bhagawat  Singh  and Gulab Singh.   Therefore,  the  charges against the 973 appellant  were (1) for the offence of conspiracy  under  s. 120B of the Indian Penal Code; (2) for the offence under  s. 5(1)(c)  of the Prevention of Corruption Act, 1947, for  the acts  of  dishonest misappropriation or user, read  with  s. 5(2) of the said Act; and (3) for an offence under s. 465 of the Indian Penal Code in respect of a particular entry  said to  have been forged in the Register of Properties  kept  in the Sadar Malkhana. The  learned Special Judge who tried the appellant  Bhagawat Singh  and  Gulab Singh recorded an order  of  acquittal  in respect of the latter two persons.  As to the appellant,  he was  also  acquitted of all the charges  except  the  charge

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under s. 5(2) of the Prevention of Corruption Act.  On  this charge  the  learned  Special Judge  recorded  an  order  of conviction,  but this was based on the sole ground that  the appellant  had  failed  to account  satisfactorily  for  the possession of Rs. 9,284-1-0 which, according to the  finding of  the learned Special Judge, was disproportionate  to  the known  sources  of income of the appellant.   It  should  be noted here that the learned Special Judge held the appellant not guilty of the various acts of dishonest misappropriation or  user  alleged against him in respect of  the  properties kept in the Sadar Malkhana. In his appeal to the High Court the appellant urged  various grounds, one of which was that he could not be convicted  on the  rule of presumption laid down in sub-s. (3) of s. 5  of the  Prevention  of Corruption Act, 1947, when on  the  only charge  of criminal misconduct alleged under s.  5(1)(c)  of the  said Act he had been found not guilty.  The High  Court repelled  this contention and upheld the conviction  of  the appellant but reduced the sentence. The   principal  question  before  us  is  whether  in   the circumstances of this case, the conviction of the  appellant on the charge under sub-s. (2) of s. 5 of the Prevention  of Corruption Act, 1947, by invoking the rule of presumption as laid down in sub-s. (3) of that section, is correct. It is convenient to read here s. 5 of the Prevention 123 974 of Corruption Act, 1947, in so far as it is relevant for our purpose. "S.  5(1) A public servant is said to commit the offence  of criminal misconduct in the discharge of his duty- (a)if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other   person   any   gratification   (other   than   legal remuneration) as a motive or reward such as is mentioned  in section 161 of the Indian Penal Code, or (b)if he habitually accepts or obtains or agrees to accept or  attempts to obtain for himself or for any other  person, any   valuable   thing  without  consideration  or   for   a consideration  which  he knows to be  inadequate,  from  any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted  or about to be transacted by him, or having any connection with the  official functions of himself or of any public  servant to whom he is subordinate, or from any person whom he  knows to  be interested in or related to the person so  concerned, or (c)if  he dishonestly or fraudulently  misappropriated  or otherwise converts for his own use any property entrusted to him  or under his control as a public servant or allows  any other person so to do, or (d)if  he,  by corrupt or illegal means  or  by  otherwise abusing his position as public servant, obtains for  himself or  for  any other person any valuable  thing  or  pecuniary advantage. (2)Any  public servant who commits criminal misconduct  in the   discharge  of  his  duty  shall  be  punishable   with imprisonment  for  a term which shall not be less  than  one year  but which may extend to seven years and shall also  be liable to fine: Provided  that  the  Court  may,  for  any  special  reasons recorded  in writing’ impose a sentence of  imprisonment  of less than one year. (2A)............................................................ (3) In any trial of an offence punishable under  sub-section

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(2) the fact that the accused person or any 975 other  person on his behalf is in possession, for which  the accused  person cannot satisfactorily account, of  pecuniary resources or property disproportionate to his known  sources of  income may be proved, and on such proof the court  shall presume,  unless  the contrary is proved, that  the  accused person is guilty of criminal misconduct in the discharge  of his  official duty and his conviction therefor shall not  be invalid by reason only that it is based solely on such  pre- sumption." Now, learned Counsel for the appellant has put his  argument on  the  principal  question in the following  way:  he  has submitted  that  the is not in a position in  an  appeal  by special leave to go behind the finding of fact arrived at by the  courts  below.  The appellant, it  appears,  gave  some explanation with regard to the possession of Rs.  9,284-1-0. That  explanation was not, however, accepted by  the  courts below.  Learned Counsel has submitted that he does not  wish to  go behind that finding of fact.  He has submitted,  how- ever,  that  the  scheme  of  s.  5  of  the  Prevention  of Corruption Act, 1947 is this: sub-s. (1) defines the offence of  criminal misconduct in the discharge of his duties by  a public  servant;  the  offence can be one or  more  of  four categories  mentioned in cls. (a), (b), (c) and (d):  sub-s. (2) is the penal section which states the punishment for the offence  of criminal misconduct; and sub-s. (3) lays down  a rule  of presumption and states that no conviction  for  the offence  shall  be invalid by reason only that it  is  based solely  on  such presumption.  Learned Counsel  has  pointed out,  rightly  in our opinion, that the charge  against  the appellant  in  the present case referred  only  to  criminal misconduct in the discharge of his duty by a public  servant of the nature mentioned in cl. (c) of sub-s. (1).  In  other words,  the  charge against the appellant was  that  he  had dishonestly  or  fraudulently misappropriated  or  otherwise converted for his own use property entrusted to him etc.  It was open to the learned Special Judge to have convicted  the appellant   of  that  offence  by  invoking  the   rule   of presumption  laid down in sub-s. (3).  He did not,  however, do so.  On the 976 contrary,  he  acquitted  the  appellant  on  that   charge. Therefore, learned Counsel has submitted that by calling  in aid  the  rule of presumption laid down in sub-s.  (3),  the appellant  could  not be found guilty of any other  type  of criminal  misconduct referred to in cls. (a), (b) or (d)  of sub-s.  (1) in respect of which there was no charge  against the appellant. We  consider that the above argument of learned Counsel  for the appellant is correct and must be, accepted.  This  Court pointed  out in C. S. D. Swamy v. The State (1) that  sub-s. (3)  of s. 5 of the Prevention of Corruption Act, 1947  does not  create  a  new offence but only lays  down  a  rule  of evidence  which empowers the Court to presume the  guilt  of the  accused in certain circumstances, contrary to the  well known principle of Criminal law that the burden of proof  is always on the prosecution and never shifts on to the accused person.  In Swamy’s case there were charges for the  offence of criminal misconduct under two heads, cl. (a) and cl. (d). The  trial court held the accused person’ in that  case  not guilty  of  the  offence under cl. (a)  but  guilty  of  the offence  under cl. (d) by invoking the rule  of  presumption laid  down  in sub-s. (3) of s. 5. The  distinction  between that  case and the case under our consideration is this:  in

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Swamy’s case there were two charges either of which could be founded on the rule of presumption laid down in sub-s.  (3); but  in  our  case  there is only  one  charge  of  criminal misconduct  of  which  the  appellant  has  been  acquitted; therefore, there is no other charge which can be founded  on the rule of presumption referred to in sub-s. (3).  This  is the  difficulty  with which the respondent is faced  in  the present  case.   It appears to us that the  learned  Special Judge and the High Court proceeded wrongly on the footing as though sub-s. (2) or sub-s. (3) of s.   5 of the Act creates an offence.  The offence which is  punished under sub-s. (2) or  can be founded on the rule of presumption laid  down  in sub-s. (3) must be the offence of criminal misconduct of one or  more of the categories mentioned in cls. (a) to  (d)  of sub-s.  (1).  In the case before us the only category  which was alleged against the appellant was that of category (c), (1)  [1960] 1 S.C.R. 461. 977 namely, dishonest or fraudulent misappropriation etc.   That charge having failed, there was no other charge which  could be  founded on the rule of presumption laid down  in  sub-s. (3). Learned  Counsel  for  the respondent  State  has  contended before us that it was open to the appellate Court to  affirm the conviction of the appellant under sub-s. (2) of s. 5  by holding him guilty of the offence of criminal misconduct  of the category mentioned in cl. (a) or cl. (d) of sub-s.  (1). We  are  unable to accept this contention as  correct.   The prosecution never alleged that the sum of Rs. 9,284-1-0  was the   result  of  the  appellant  habitually  accepting   or obtaining  illegal gratification etc.  The prosecution  case was  that  the sum of Rs. 9,284-1-0 was the  result  of  the dishonest  user  of property which was  entrusted  with  the appellant.  It is not open to the appellate Court to  affirm the  conviction  of the Appellant on an  entirely  new  case never suggested against the appellant at any earlier  stage. It is unfortunate that in this case the courts below did not choose to rely on the rule of presumption laid down in  sub- s. (3) with reference to the charge under cl. (c) of  sub-s. (1)  of s. 5. But that misfortune cannot now be repaired  by evolving  out of a vacuum as it were a new case against  the appellant based on cl. (a) or cl. (d) of sub-s. (1) of s.  5 in support of which no facts were ever alleged or suggested. For  the reasons given above, we allow this appeal  and  set aside  the  conviction  and  sentence  passed  against   the appellant.                                         Appeal allowed. 978