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PETITIONER: BISWABHUSAN NAIK

       Vs.

RESPONDENT: THE STATE OF ORISSA.

DATE OF JUDGMENT: 07/04/1954

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN MAHAJAN, MEHAR CHAND (CJ) HASAN, GHULAM

CITATION:  1954 AIR  359            1955 SCR   92  CITATOR INFO :  A          1955 SC  41  (11)  R          1959 SC 707  (5)  R          1961 SC1381  (10)  F          1977 SC 786  (9,12,14)

ACT:   Prevention  of Corruption Act, 1947 (II of  1947)  Section 5(1)(2),(3)  and  section  6--  sanction  under  section   6 --Whether   necessary  to  be  in  any  particular   form-No particulars  given  in the charge or  sanction-Legal  effect thereof.

HEADNOTE:    Held,  that it is not necessary for the sanction  for  an offence  punishable under section 5(2) of the Prevention  of Corruption  Act,  1947  (Act  II  of  1947)  to  be  in  any Particular form or in writing or for it to set out the facts in respect of which it is given.  It is, however,  desirable to state the facts on the face of sanction, because when the facts are not set out in the sanction, proof has to be given aliunde  that  sanction was given in respect  of  the  facts constituting the offence charged but an omission to set  out the facts in the sanction is not fatal so long as the  facts can be and are proved in some other way. Where the sanction was confined to section 5(2) of the  Act, it  could  not, under the circumstances of  the  case,  have related  to  anything but clause (a) of sub-section  (1)  of section 5 and therefore an omission to mention clause (a) in the sanction did not invalidate it. under  section 5(3) of the Act all that the prosecution  has to  do  is to show that the accused or some  person  on  his behalf is in possession  of pecuniary resources or  property disproportionate  to  his known sources of  income  and  for which the accused cannot satisfactorily account.  Once  that is established then the Court is bound to presume unless the contrary  is proved, that the accused is guilty of  the  new offence  created by section 5 namely criminal misconduct  in the discharge of his official duty. Held,  also  that  there was no  illegality  either  in  the sanction or in the charge on the ground that no  particulars were given because the offence under section 5(1)(a) of  the

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Prevention of Corruption Act does not consist of  individual acts  of bribe taking as in section 161 I.P. C. but is of  a general character and individual instances are not necessary because  of the presumption which section 5(3) requires  the Court to draw. Gokulchand  Dwarkadas Morarka v. The King (A.I.R. 1948  P.C. 82)  referred to.

JUDGMENT:   CRlMlNAL APPELLATE JURISDICTION: Criminal Appeal No. 33 of 1952. Appeal  under Article 134(1)(c) from the Judgment and  Order dated the 19th February, 1952, of the 93 High Court of Orissa at Cuttack in Criminal Appeal No. 66 of 1950  arising out of the Judgment and Order dated  the  19th September,  1950,  of the Court of the  Additional  Sessions Judge, Cuttack-Dhenkanal, Cuttack, in Sessions Trial No. 9-C of 1950. Nur-ud-Din  Ahmed,  R.  Patnaik and R. C.  Prasad,  for  the appellant. R. Ganapathy lyer, for the respondent. 1954.  April 7. The Judgment of the Court was delivered by  BOSE J. -The appellant was an Inspector of Factories  under the  Government  of Orissa.  ’It was a part of his  duty  to inspect  factories  and mills in the State  of  Orissa.   He toured  the  districts  of Koraput and  Balasore  from  18th August, 1948, to 27th August, 1948, and from 29th September, 1948, to 30th October, 1948, respectively.  The  prosecution case is that he collected bribes from persons connected with some  of the mills he inspected in those districts.   It  is said  that  he  used to threaten to close  their  mills  and impose other penalties for alleged defects unless they  paid him a bribe. On 3rd October, 1948, he was camping at the  Dak Bungalow at Basta  in  the Balasore district.   Because  of  information received against him his person and belongings were searched on  that day and a sum of Rs. 3,148 was recovered  from  him consisting  of  Rs. 450 paid at the time as a trap  and  Rs. 2,698  already  in his possession.  He was arrested  on  the spot but was later released on bail. Departmental  and other proceedings were taken  against  him and he was eventually brought to trial on 29th March,  1950, and  charged  under  section  5(2)  of  the  Prevention   of Corruption  Act (II of 1947) for criminal misconduct in  the shape of habitually accepting illegal gratification.  He was also  separately  charged and  separately  prosecuted  under section  161  of the Indian Penal Code  for  three  specific offences of bribe taking but we are not concerned here  with that  as  he  was  acquitted  on  all  three  counts.   His, conviction  here  is under section 5(2)  alone.   The  trial Court 94 sentenced him to rigorous imprisonment for four years and  a fine of Rs. 5,000.  The High Court upheld the conviction  on appeal  but reduced the sentence to two years and a fine  of Rs. 3,000. The  accused  applied  for a  certificate  to  appeal  under article 134(1)(c) on three points.  The High Court held that two of them were not of sufficient importance to justify the issue  of a certificate-particullarly as one of the two  was covered  by the principle laid down by this Court.   But  it granted  leave on all three as it considered that the  first

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point  was  of importance.  The points  were  formulated  as follows: "(i) whether the view of this Court as to the requirement of sanction  in a case of this kind and the  interpretation  of Morarka’s  case  in A.I.R. 1948 P.C. p. 82 adopted  by  this Court in its judgment are correct; (ii)whether the interpretation of this Court relating to the requirements  as  to  the  corroboration  of  an  accomplice witness  in  a  bribery case with reference  to  the  latest unreported case of the Supreme Court which has been referred to in the judgment and which has since been reported in 1952 S.C.J. p. 46 is correct;                             and (iii)whether  the  law as propounded by  the  decision  now’ sought  to  be  appealed  against  with  reference  to   the considerations that arise in judging the presumptions  under section  5(3)  of  the  Prevention  of  Corruption  Act   is correct." The first point arises in this way.  Four kinds of  criminal misconduct  are  set out in section 5 of the  Prevention  of Corruption  Act.  They are enumerated in clauses  (a),  (b), (c) and (d) of sub-section (1).  The sanction is general and does  not specify which of these four offences  was,  meant. It runs as follows: "    Government of Orissa.               Commerce and Labour Department.            Order No. 4561/Com., dated 3-11-1948. In  pursuance of section 6 of the Prevention  of  Corruption Act, 1947 (II of 1947), the Governor of 95 Orissa is hereby pleased to accord sanction for  prosecution of  Sri  B.  B.  Nayak,  Inspector  of  Factories.   Orissa, employed  in  connection with the affairs  of  the  Province under sub-section (2) of section 5 of the said Act. 2.   Nature of offence committed: Criminal misconduct in discharge of official duty.                         By order of the governor,                Sd./-V. Ramanathan, Secretary to Government. It  was contended that the Privy Council held in  Gokutchand Dwarkadas  Morarka  v. The King(1) that such a  sanction  is invalid.   The High Court rejected this argument.  We  agree with the High Court. The passage of the Privy Council judgment on which  reliance is placed is as follows "In  their  Lordships’  view, in order to  comply  with  the provisions of clause 23 it must be proved that the  sanction was  given in respect of the facts constituting the  offence charged.  It is plainly desirable that the facts should  be’ referred  to  on th; face of the sanction but  this  is  not essential  since clause 23 does not require the sanction  to be in an particular form nor even to be in writing.  But  if the facts constituting the offence charged are not known  on the  face  of the sanction, the prosecution  must  prove  by extraneous evidence that those facts were placed before  the sanctioning authority." The Judgment of the Judicial Committee relates to clause  23 of the Cotton Cloth and Yarn (Control). Order, 1943, but the principles  apply  here.  It is no more  necessary  for  the sanction under the Prevention of Corruption Act to be in any particular  form,  or in writing or for it to  set  out  the facts  in  respect of which it is given than  it  was  under clause   23  of  the  Order  which  their   Lordships   were considering.   The desirability of such a course is  obvious because when the facts are not set out in the sanction proof has to be given

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(1)  A.I.R. 1948 P.C. 82. 96 aliunde  that  sanction was given in respect  of  the  facts constituting  the offence charged, but an omission to do  so is not fatal so long as the facts can be, and are, proved in some other way. The  High Court finds that the facts to which  the  sanction relates  were  duly  placed before  the  proper  sanctioning authority.    We  need  not  consider  the  evidence   about telephone  calls  and  the like because the  letter  of  the District  Magistrate  asking for sanction  (Exhibit  26)  is enough  to  show the facts on which the sanction  is  based. ’It is in these terms: "I have the honour to report that Sri B.B. Nayak,  Inspector of  Factories,  Orissa, in the course of his visit  to  this district   had   been  -visiting  certain  mills,   and   on information received by me that he had been collecting heavy sums as illegal gratification from the Manager or Proprietor of Mills under threat of mischief to the mill owners, it was arranged to verify the truth of this information by  handing over  3  hundred  rupee notes marked  with  my  initials  in presence  of  the  Superintendent of Police  and  two  other respectable gentlemen and millowners, on the evening of  the 2nd October, 1948.  On the 3rd October the Factory Inspector having  actually received the illegal gratification  of  Rs. 45o which sum included the three marked hundred rupee notes, the Prosecuting Inspector seized the marked notes along with a further heavy sum of Rs. 2,698 from his possession. Under  section 6 of the Prevention of Corruption Act,  1947, the  accused  being a public servant in the  employ  of  the Provincial   Government  the  sanction  of  the   Provincial Government  is  necessary prior to taking cognisance  of  an offence  under section 161, Indian Penal Code or  subsection (2) of section 5 of the Act." A  sanction  based  on the facts set out  in  this  letter,. namely  the  information received about  the  collection  of heavy  sums  as bribes and the finding of Rs. 2,698  in  his possession  would  be  sufficient to  validate  the  present prosecution.   It is evident from this letter and  from  the other evidence that the facts placed before the 97 Government  could only relate to offences under section  161 of  the Indian Penal Code and clause (a) of section 5(1)  of the Prevention of Corruption Act.  They could not relate  to clauses  (b)  or  (c).  Therefore,  when  the  sanction  was confined to section 5 (2) it could not, in the circumstances of the case, have related to anything but clause (a) of sub- section (1) of section 5. Therefore, the omission to mention clause (a) in the sanction does not invalidate it. The present prosecution is confined to section 5(1)(a) which runs as follows: "(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." Then  comes  sub-section (3) which sets out a  new  rule  of evidence in these terms: "In any trial of an offence punishable under subsection  (2) the fact that the accused person or any 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

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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 presumption." Therefore,  all  that the prosecution has to do is  to  show that  the  accused,  or some person on  his  behalf,  is  in possession    of    pecuniary    resources    or    property disproportionate  to  his known sources of  income  and  for which the accused cannot satisfactorily account.  Once  that is  established  then the Court has to presume,  unless  the contrary  is proved, that the accused is guilty of  the  new offence created by section 5, namely criminal misconduct  in the discharge of his official duty. 13 98 Now  the accused was found in possession of Rs.  3,148.   He accounted  for  Rs. 450 of that sum by showing that  it  was paid to him at the time as a trap.  He has been acquitted of that  offence, so all he had to account for was the  balance Rs.  2,698.   This is a large sum for a touring  officer  to carry  with him in cash while on tour.  His explanation  was not  considered satisfactory and that is a question of  fact with  which we are not concerned in this Court.   Therefore, all   that   remains  to  be  seen  is  whether   this   was disproportionate to his known sources of income. The  accused is a Government Factory Inspector and  we  were told  that  his salary is only Rs. 450 a  month.   The  High Court  finds  that the total sums drawn by  him  during  his entire period of service of thirteen months was Rs. 6,045 as salary and Rs. 2,155 as travelling allowance.  It also finds that  he owns 0.648 acres of land which brings in no  income worth  the name.  On the expenditure side of  the  accused’s account  the  High  Court finds that he  has  a  substantial family establishment which would not leave him enough margin for  saving such a large sum of money.  No other  source  of income  has been disclosed.  It is evident that  no  touring officer of his status and in his position would require such a large sum of money for his touring purposes even if he was away  from  headquarters for a month.  His  explanation  was considered   unsatisfactory   by   both   Courts   and   was disbelieved.   These  are all questions of fact.   Once  the facts set out above were found to exist and the  explanation of the accused rejected as unsatisfactory, section 5(3)  was at  once attracted and the Court was bound to  presume  (the word used in the section is "shall" and not "may") that  the accused  was guilty under section 5(2), especially  as  this part of the section goes on to say- "and his conviction therefor shall not be invalid by  reason only that it is based solely on such presumption." These  facts alone are enough to sustain the conviction  and we need not consider the other matters.  The High Court  was right  in  holding that the sanction was sufficient  and  in convicting the accused. 99 The third point set out in the certificate of the High Court relates to the absence of particulars in the charge and,  we gathered  from  the  arguments, in  the  sanction.   But  no particulars  need  be set out in the charge in such  a  case because  the offence under section 5(1)(a) does not  consist of individual acts of bribe taking as in section 161 of  the Indian Penal Code but is of a general character.  Individual instances  may  be useful to prove the general  averment  in particular cases but it is by no means necessary because  of the  presumption  which section 5(3) requires the  Court  to

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draw.   There  was  therefore no illegality  either  in  the sanction  or  in  the  charge;  nor  has  the  accused  been prejudiced  because he knew everything that was being  urged against  him and led evidence to refute the facts  on  which the  prosecution relied.  He was also questioned  about  the material  facts  set  out above  in  his  examination  under section  342 of the Criminal Procedure Code and was given  a chance then as well to give such explanation as he wished. The appeal fails and is dismissed.                                          Appeal dismissed.