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PETITIONER: DIN DAYAL SHARMA

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 23/04/1959

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER KAPUR, J.L.

CITATION:  1959 AIR  831            1959 SCR  Supl. (2) 776  CITATOR INFO :  F          1974 SC 765  (5)

ACT: Criminal   Trial-Bribery  and  criminal   misconduct-Accused committed to Court of Session-Law amended making such  cases triable by Special judge-Sessions Judge, if has jurisdiction to  continue  trial-Investigation by  officer  below  Deputy Superintendent  of Police-Whether trial  vitiated-Prevention of  Corruption Act, 1947 (II Of 1947), s.  5-A-Criminal  Law (Amendment) Act, 1952 (46 of 1952), S. 10.

HEADNOTE: The  appellant  was committed to the Court  of  Session  for trial of  offences  under s. 5(2) Prevention  of  Corruption Act, 1947 and s.    161   Indian   Penal   Code.     Shortly thereafter, the Criminal Law (Amendment) Act, 1952 came into force.  An Assistant Sessions judge tried the appellant  and convicted  him  of  the  offences  charged.   The  appellant contended  that the trial was vitiated as the  investigation had  been made by a police officer below the rank of  Deputy Superintendent  of  Police and that the  Assistant  Sessions judge had no jurisdiction to try the case as it was  triable by a Special Judge. Held that, the Assistant Sessions judge had jurisdiction to 777 try  the case.  Section 10 of the Criminal  Law  (Amendment) Act, 1952 transferred only cases pending before  Magistrates to Special judges but did not transfer cases which had  been committed  to  Court  of Session before the  Act  came  into force. Asgarali Nazarali Singaporewalla v. The State, [1957] S.C.R. 678, relied on. Held  further that, the conviction was not vitiated  by  the investigation having been made by an officer below the  rank of  a  Deputy Superintendent of Police.  If the  matter  had been urged before the Courts at an early stage it would have had  to take steps to get the illegality cured  by  ordering fresh  investigations.   But  the  appellant  could  not  be permitted  to  raise  the questions  whether  the  objection regarding investigation had been taken at the earliest stage as the question had not been raised in the Courts below. H.N. Rishbud v. The State of Delhi, [1955] 1 S.C.R. II50,

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relied on.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: CRIMINAL Appeal No. 95  of 1957. Appeal  by special leave from the judgment and  order  dated December  16, 1955, of the Allahabad High Court in  Criminal Revision  No. 1403 of 1953, arising out of the Judgment  and order  dated August 6, 1953, of the Court of the  Additional Sessions Judge at Meerut in Criminal Appeal No. 225 of 1953. H.   J. Umrigar and K. L. Mehta, for the appellant. G.   C.  Mathur,  C.  P.  Lal and G.  N.  Dikshit,  for  the respondent. 1959.  April 23.  The Judgment of-the Court was delivered by IMAM,  J.-The appellant was convicted under s. 5(2)  of  the Prevention of Corruption Act and under s. 161 of the  Indian Penal Code and sentenced to one year’s rigorous imprisonment on each count.  The sentences were made to run concurrently. On  the  facts  found  by the  courts  below  the  appellant accepted   Rs.  20/-  as  illegal  gratification  from   one Malekchand  who had applied for allotment of a  house.   The appellant was employed at that time as a clerk in the office of  the District Relief and Rehabilitation  Office,  Meerut. The aforesaid sum of money was accepted by the appellant  as bribe with a view to getting a house allotted to Malekchand. There can be 98 778 no  question  that, on the facts found,  the  appellant  was guilty  both under s. 5(2) of the Prevention  of  Corruption Act and under s. 161 of the Indian Penal Code. The  first point taken was that the investigation had  taken place  by  a  police  officer  below  the  rank  of   Deputy Superintendent  of Police.  Consequently, the  investigation had  taken place in contravention of the provisions  of  the Prevention  of  Corruption  Act.   The  conviction  of   the appellant  was  therefore vitiated.  This  point  was  taken before  the  Additional  Sessions Judge who  had  heard  the appeal  of  the  appellant  against  his  conviction.    The Additional  Sessions  Judge referred to a  decision  of  the Calcutta  High Court which supported the submission made  on behalf of the appellant.  He also referred to a decision  of the  Allahabad  High  Court  to  the  contrary  effect.   He followed,  as  he was bound to follow, the decision  of  the Allahabad  High  Court.  The decision of this Court  in  the case of H. N. Rishbud and Inder Singh v. The State of  Delhi (1)  does not support the submission made by Mr. Umrigar  on behalf of the appellant.  He, however, referred to a passage in  the aforesaid cited decision at page 1164 to the  effect that  where a breach of a mandatory provision is brought  to the  knowledge of the court at a sufficiently  early  stage, the  court,  while not declining cognizance, would  have  to take the necessary steps to get the illegality cured and the defect  rectified  by  ordering such  investigation  as  the circumstances  of  the case may call for.  It has  not  been shown  to’ our satisfaction that the attention of the  trial court  was  drawn  at an early stage to any  breach  of  the provisions  of the Prevention of Corruption Act.  There  had been  an enquiry before commitment to the Sessions.   It  is clear  that  during these proceedings before  commitment  no objection was raised that the investigation had taken  place by a police officer below the rank of Deputy  Superintendent

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of  Police  in  contravention  of  the  provisions  of   the Prevention  of Corruption Act.  The decision of  this  Court was given on December 14, 1954, and the High Court  judgment in the present case was delivered on (1)  [1955] 1 S.C.R. 1150, 1164. 779 December 16, 1955.  No point was taken before the High Court to  the  effect that the investigation had been made  by  an officer below the rank of Deputy Superintendent of Police in contravention  of  the  provisions  of  the  Prevention   of Corruption Act.  Such an objection should have been taken if the  appellant  was prepared to establish  before  the  High Court  that the objection had been taken at  a  sufficiently early  stage and that in view of the decision of this  Court in  the case cited the trial court ought not have  proceeded with  the  trial unless the defect had  been  removed.   The decision of this Court in the case cited is clear,  however, that  generally a conviction is not vitiated  because  there had  not been strict compliance with the provisions  of  the Prevention of Corruption Act in the matter of  investigation by a police officer.  As to whether the objection was  taken at  a  sufficiently early stage is a question  of  fact  and ought to have been raised in the High Court as the  decision of this Court in the case cited had been delivered something like  a  year before.  As this point in this  form  was  not raised before the High Court we cannot allow it to be raised at this stage. It was next contended that the Assistant Sessions Judge  who tried the case had no jurisdiction to try the case as it was triable by a Special Judge only.  It is clear, however, that the  case had been committed to the Court of Session  before the  Criminal  Law (Amendment) Act, 1952, came  into  force. Under  s. 10 of this Act all cases pending before the  Court of  a Magistrate were transferred to the Court of a  Special Judge.   Section  10  did not  purport  to  transfer  cases, pending  in the Court of Session at the commencement of  the Act,  to  the Court of the Special Judge.  In  the  case  of Asgarali  Nazarali  Singaporewalla v.  The  .State(1),  this Court  observed  "The cases which were  pending  before  the courts  of  sessions did not require to  be  so  transferred because  they would be tried by the procedure  obtaining  in the  courts of sessions and nothing further required  to  be done."  It seems clear to us, therefore, that the  Assistant Sessions Judge had jurisdiction to try the case as the  same had been (1)[1957] S.C.R. 678, 686. 780 pending  in  the  court of Session when the  Act  came  into force. The  third contention raised was that the courts  below  had not correctly appreciated the nature, extent and the quantum of proof required for raising the presumption under s. 4  of the Prevention of Corruption Act.  The High Court’s judgment does  not  show  that  that Court  in  any  way  raised  any presumption under s. 4 against the appellant.  The following passage  from  the  High Court’s judgment  would  make  this clear: " It was next contended that the evidence on the record does not satisfactorily prove that the sum of Rs.20 was  received by  the applicant as illegal gratification.  The finding  on this  point is a finding of fact.  I have gone  through  the judgment of both the courts below and I see no  satisfactory reason  to disagree with the concurrent finding of both  the courts on this point.  There is ample evidence on behalf  of the prosecution to the conclusion that the sum of Rs. 20 was

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paid  by Malekchand to the applicant on his demand in  order to  secure the allotment of a house.  There does not  appear any satisfactory reason why Malekchand should have paid  Rs. 20 to the applicant to procure wheat for him." There  is, therefore, no question of any  presumption  being raised against the appellant.  On the contrary, his  defence that  he  had  taken the sum of Rs. 20  from  Malekchand  to purchase  wheat  for him was  disbelieved  and  Malekchand’s evidence that he had taken this money in order to secure  an allotment  of  a house for Malekchand was  accepted.   There appears to be no substance in the point raised.  It  was  next  urged that the matter  of  sentence  may  be considered.   The  incident  took  place  in  1951  and  the appellant has been on bail and it would not be desirable  to send  him  back  to  jail.   The  sentence  of  one   year’s imprisonment  for  corruption by a  public  servant  cannot, however, be considered as unduly severe. The appeal is accordingly dismissed. Appeal dismissed. 781