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PETITIONER: HARNAM SINGH

       Vs.

RESPONDENT: THE STATE OF HIMACHAL PRADESH

DATE OF JUDGMENT21/11/1974

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. BHAGWATI, P.N.

CITATION:  1975 AIR  236            1975 SCR  (2) 823  1975 SCC  (3) 343

ACT: Code  of Criminal Procedure, 1898, Section 431-"every  other appeal",  meaning  of-Abatement  of  appeals  on  death   of accused-Provision for continuance of appeal from sentence of fine  after  death of accused-Composite  order  of  sentence combining substantive imprisonment with fine, if appeal from sentence of fine. Constitution  of India, 1950, Article  136-Criminal  Appeal- widow of the deceased appellant, if can be brought on record as legal representative of deceased appellant.

HEADNOTE: In September 1967, the appellant was working as a Patwari in Halqua  Pali.   On the 19th of that month one  N  asked  for copies  of the revenue record.  The appellant said that  the copies  will  Dot be supplied unless a hush-payment  of  Rs. 30/- was made.  N borrowed Rs. 30/- from a friend and on the 20th  he  lodged  his  complaint  with  the  Anti-corruption Department.   Sub-Inspector  K. obtained permission  from  a Mandi  Magistrate to investigate the offence and laid  trap. The  raiding party went to the appellant’s office where  the complainant  N is alleged to have given the marked  currency notes  of  Rs. 30/- to the appellant.   ’The  appellant  was prosecuted before the Special Judge who rejected his defence that  the sum of Rs. 30/- was not found from his person  but was  found from a residential room where it was  planted  by the complainant.  The Special Judge convicted the  appellant under  section  5)1)(d)  read  with  Section  5(2)  of   the Prevention  of Corruption Act as also under sec. 161 of  the Penal   Code,   and  sentenced  him   to   suffer   rigorous imprisonment  for two years and to pay a fine of Rs.  300/-. The  High Court to which he preferred an  appeal,  confirmed the  conviction but reduced the substantive sentence to  one year. This appeal was by special leave granted under Article 136 of the Constitution.  During the pendency of this appeal the  appellant died and his widow was brought on the  record as his legal representative. It  was  contended  that (i)  the  substantive  sentence  of imprisonment  imposed on the appellant came to an  end  with his  death  and  therefore  the appeal  in  regard  to  that sentence stands abated; (ii) So far as the sentence of  fine is concerned, since the deceased appellant was not sentenced

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to  pay  a  fine  only out was  punished  with  a  composite sentence of imprisonment and fine, the appeal would abate as regards  the  fine also and (iii) at any rate, even  if  the sentence of fine could be set aside. the order of conviction and substantive sentence must remain. Allowing the appeal, HELD  (i)  and  (ii) Chapter XXXI of the  Code  of  Criminal Procedure,  1898,  called "of Appeals"  contains  provisions governing  appeals.   Section  431 of the  Code  inter  alia provides  that  every appeal under section 411  A,  sub-sec. (2), or section 417 shall finally, abate on the death of the accused and every other appeal under the Chapter (except  an appeal  from a sentence of fine) shall finally abate an  the death of the appellant.  By "every other appeal, is meant an appeal other than one against an order of acquittal that  is to  say,  an appeal against an order of conviction.   It  is true  that an appeal from a composite order of  sentence  is ordinarily    directed   against   both   the    substantive imprisonment and the fine.  But, such an appeal does not for that  reason cease to be an appeal from a sentence of  fine. It is something more not less than an appeal from a sentence of  fine only and it is significant that  the  parenthetical clause of section 431 does not contain the word "only".   To limit  the  operation  of the exception  contained  in  that clause so as to take away from its purview appeals  directed both  against  imprisonment  and fine is to  read  into  the clause 824 the word "only" which is not there and which by no technique of interpretation may be read there.  All that is  necessary is  that a sentence of fine should have been imposed on  the accused  and  the  appeal filed by him  should  involve  the consideration  of  the  validity  of  that  sentence.    The deceased appellant’s widow who was brought on the record  as his   legal  representative  is,  therefore,   entitled   to prosecute the appeal, because the sentence of fine  directly affects the property which would devolve on her on the death of her husband. [826C-827F] (iii)     Tee  appellate  court,  while  dealing  with   the validity  of  the  sentence of fine  has  to  determine  the primary   question   whether  the   conviction   itself   is sustainable.    Once   the  appellate  court   reaches   the conclusion that the conviction is unsustainable, it must set aside   the  conviction  and  the  sentence  or   sentences, following  upon the order of conviction; it  cannot  merely set aside the sentence of fine and permit the conviction and the  substantive  sentence to remain.  If this be  the  true interpretation  of section 431. there is no reason  why  the same  principle ought not to be extended to criminal  appeal filed   in  the  Supreme  Court  under  Art.  136   of   the Constitution. [828B-F] Bondada  Gajapathy Rao v. State of Andhra Pradesh  [1964]  7 S.C.R.  251, distinguished Vidya Devi v. State, A.I.R.  1957 All,.  20 and V. Govindaraja & Ors. v. State of  Mysore  AIR 1962 Mysore 275 not approved. It is impossible to uphold the judgment of the High Court on merits.  The High Court held that. in spite of the fact that two  witnesses  had  turned hostile and had  no  regard  for truth,  their evidence "firmly corroborated the evidence  of the   aforesaid  partisan  witnesses".   It   is   extremely difficult  to  appreciate how the evidence  of  the  hostile witnesses  could  corroborate the evidence of  the  partisan witnesses  that  the accused accepted the bribe.   What  the High  Court had to find was whether on the evidence it  war, established that the accused had accepted the bribe from the

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complainant.   There  are a number  of  circumstances  which would  render it unsafe to accept the prosecution  evidence. Having taken the view that the state of affairs disclosed by the  manner  of investigation was not commendable  and  that there  was  "sufficient  misbehaviour" on the  part  of  the prosecution agency, the learned Judge should have approached the evidence with greater caution.  His failure to do so has resulted in, gross injustice, for, the evidence on which the conviction is based is wholly unworthy of acceptance. [829G; 830D; 831D-E].

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 68  of 1971. Appeal by Special leave from the Judgment & Order dated  the 18th December 1969/7th January, 1970 of the Delhi High Court (Himachal Bench) in Crl.  A. No. 20 of 1969. S. B. Wad, for the appellant. Vikram Chand Mahajan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by CHANDRACHUD,  J.-This  appeal by special leave  is  directed against  a judgment dated January 7, 1970 of the Delhi  High Court (Himachal Bench, Simla).  This appellant Harnam  Singh died  during  the pendency of the appeal, this Court  by  an order  dated  February  26, 1972 allowed  his  widow  to  be substituted in his place as his legal representative. There is nothing new in the story of bribe taking which form the  theme of this appeal, except perhaps the way  the  High Court  bear the story and drew a moral.  In September,  1967 Harnam Singh was working as a Patwari in Halqa Pali.  On the 19th of that mont 825 Nitya  Nand asked for copies of the revenue record.   Harnam Singh  said that the copies will not be, supplied  unless  a hush-payment of Rs. 30 was made.  Nitya Nand borrowed Rs. 30 from  a  friend  Chet  Ram and on the  20th  he  lodged  his complaint   with   the   Anti-Corruption-Department.     Sub Inspector  Kewal  Ram  obtained  permission  from  a   Mandi Magistrate  to  investigate the offence and laid  the  trap. The raiding party went to Harnam Singh’s office where  Nitya Nand  is alleged to have given the marked currency notes  of Rs. 30 to Harnam Singh. The  Special Judge Mandi, Kulu and Lahaul  Spiti  Districts, rejected the defence of Harnam Singh that the sum of Rs.  30 was  not  found  from  his  person  but  was  found  from  a residential  room  where it was planted by  the  complainant Nitya Nand.  The learned Judge convicted Harnam Singh  under section 5)1)(d) read with section 5(2) of the Prevention  of Corruption Act as also under section 161 of-the Penal  Code, and  sentenced him to suffer rigorous imprisonment  for  two years and to pay a fine of Rs. 300.  The High Court of Delhi confirmed  the,  conviction  but  reduced  the   substantive sentence to one year. Learned  counsel for the State of Himachal Pradesh, who  are respondents   to  the  appeal,  has  raised  a   preliminary objection to the right of the appellant’s widow to prosecute the  appeal.  He contends that the substantive  sentence  of imprisonment  imposed on the appellant Harnam Singh came  to an end with his death and therefore the appeal in regard  to that  sentence  stands abated.  As regards the  sentence  of fine, it is contended that since the deceased appellant  was not  sentenced  to pay a fine only but was punished  with  a composite  sentence  of imprisonment and  fine,  the  appeal

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would abate as regards the sentence of fine also.  According to  the learned counsel this Court may, at the highest,  set aside  the sentence of fine if it finds that  the  appellant need  not have been asked to pay a fine.  But the  order  of conviction and the substantive sentence must remain and  the legality  or  propriety of that order cannot any  longer  be questioned in view of the death of the appellant. On  the other hand, Mr. Wad who has usefully assisted us  as an  amicus curiae contends that section 431 of the  Code  of Criminal  Procedure,  1898  which deals  with  Abatement  of "Appeals" has no application to appeals filed in the Supreme Court; that such appeals ought in the matter of abatement be governed  by principles of justice and equity; that even  on the  assumption  that  section 431  applies,  the  appellant having  been  sentenced  to pay a fine,  the  appeal  cannot abate: and that if the sentence of fine cannot be  sustained on  the ground that the conviction itself is bad, the  order of conviction must also go. These  contentions require an examination of section 431  of the Code which reads thus               "431.   Every appeal under section 411A,  sub-               section  (2),  or section  417  shall  finally               abate  on the death of the accused, and  every               other  appeal  under this Chapter  (except  an               appeal from a sentence of fine) shall  finally               abate on the death of the appellant." 826 The  appeal  before us was filed by  special  leave  granted under  Article 136 of the Constitution and is neither  under section  411A(2) nor under section 417 nor under  any  other provision  of Chapter XXXI of the Code.  Plainly  therefore, section 431 has no application, and the question whether the appeal abated on the death of the appellant is not  governed strictly  by  the terms of that section.  But,  in  the  in- terests of uniformity, there is no valid reason for applying to  appeals under Article 136 a set of rules different  from those which government appeals under the Code in the  matter of  abatement.  It is therefore necessary to find  the  true meaning and scope of the provision contained in section 431. Chapter  XXXI of the Code of 1898, called "of Appeals"  con- tains provisions governing appeals.  The Chapter opens  with section 404 which provides that no appeal shall he from  any judgment or order of a Criminal Court except as provided for by the Code or by any other law for the time being in  force and  ends  with section 431 which. deals with  abatement  of appeals.   Section 411A(2) provides for appeals to the  High Court  from orders of acquittal passed by the High Court  in the exercise of its original criminal jurisdiction.  Section 417  deals with appeals to the High Court from  original  or appellate orders of acquittal passed by Courts other than  a High  Court.   By section 43 1,  appeals  against  acquittal filed under section 41 1 A (2) of section 417 finally  abate on  the death of the accused.  Dead persons are  beyond  the processes of human tribunal and recognising this, the  first limb of section 431 provides that appeals against acquittals finally  abate  on  the  death  of  the  accused.   Where  a respondent  who has been acquitted by the lower court  dies, there is no one to answer the charge of criminality, no  one to defend the appeal and no one to receive the sentence.  It is  of the essence of criminal trials that  excepting  cases like  the  release of offenders on probation,  the  sentence must  follow  upon a conviction.   Section  258(2),  section 306(2) and section 309(2) of the Code provide, to the extent material,  that where the Magistrate or the  Sessions  Judge finds  the accused guilty and convicts him he shall,  unless

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he  proceeds  in accordance with the provisions  of  section 562, pass sentence on the accused according to law. Every other appeal under Chapter XXXI, except an appeal from a  sentence  of  fine, finally abates on the  death  of  the appellant.  By "every other appeal" is meant an appeal other than  one against an order of acquittal, that is to say,  an appeal against an order of conviction.  Every-appeal against conviction  therefore  abates on the death  of  the  accused except an appeal from a sentence. of fine.  An appeal from a sentence of fine is excepted from the all prevasive rule  of abatement  of criminal appeals for the reason that the  fine constitutes  a liability on the estate of the  deceased  and the  legal representatives on whom the estate  devolves  are entitled  to ward off that liability.  By section 70 of  the Penal  Code  the fine can be levied at any time  within  six years after the passing of the sentence and if the  offender has been sentenced for a longer period than six years,  then at any time previous to the expiration of that period;  "and the death of                             827 the  offender  does  not discharge from  the  liability  any property which would, after his death, be legally liable for his  debts".   The  fact that the offender  has  served  the sentence  in  default of payment of fine is not  a  complete answer  to the right of the Government to realise  the  fine because under the proviso to section 386(1) (b) of the  Code the  court  can,  for, special reasons  to  be  recorded  in writing, issue a warrant for realising the fine even if  the offender  has  undergone the whole of  the  imprisonment  in default  of  payment  of fine.  The sentence  of  fine  thus remains outstanding though the right to recover the fine  is circumscribed by a sort of a period of limitation prescribed by section 70, Penal Code. The narrow question which then requires to be considered  is whether an  appeal  from a  composite  order  of  sentence combining the substantive imprisonment with fine is for  the purposes  of section not an appeal from a sentence of  fine. It is true that an appeal from a composite order of sentence is   ordinarily  directed  against  both  the,   substantive imprisonment and the fine.  But, such an appeal does not for that  reason cease to be an appeal from a sentence of  fine. It is something more not less than an appeal from a sentence of  fine only and it is significant that  the  parenthetical clause of section 431 does not contain the word "only".   To limit  the  operation  of the exception  contained  in  that clause so as to take away from its purview. appeals directed both  against  imprisonment  and fine is to  read  into  the clause  the word "only" which is not there and which, by  no technique  of interpretation may be read there.   The  plain meaning of section 431 is that every criminal appeal  abates on  the  death  of  the accused "except  an  appeal  from  a sentence of fine".  The section for its application requires that the appeal must be directed to the sentence of fine and that it must, be directed to that sentence only.  If by  the judgment  under appeal a sentence of fine is imposed  either singularly   or   in   conjunction  with   a   sentence   of imprisonment,  the  appeal against conviction  would  be  an appeal from a sentence of fine within the meaning of section 431.   All  that  is necessary is that a  sentence  of  fine should have been imposed on the accused and the appeal filed by  him should involve the consideration of the validity  of that sentence. It is difficult to discern any principle behind the contrary view.  The reason of the rule contained in the exception  is that a sentence of fine operates directly against the estate

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of the deceased and therefore the legal representatives  are entitled  to clear the estate from the liability Whether  or not the sentence of fine is combined with any other sentence can make no difference to the application of the principle. The  appeal filed by the accused Harnam Singh in this  Court was thus an appeal from a sentence of fine, involving as  it did  the consideration as regards the legality or  propriety of that sentence.  The deceased appellant widow who has been brought  on  the  record  as  his  legal  representative  is accordingly entitled to prosecute the appeal. Counsel  for the State Government thought it anomalous  that whereas after the death of an appellant the court would have no power 828 to  deal  with  an  appeal  against  an  order  by  which  a substantive sentence only is imposed, the court should  have the  power to set aside the conviction and the  sentence  of imprisonment  even  after the death of an  appellant  merely because  a  sentence of fine is also imposed  on  him.   The answer to this difficulty is that by section 431 an  express exception is carved out in favour of appeals from a sentence of fine.  Such  appeals  are  saved from  the  general  rule contained in section 431 that all criminal appeals abate  on the  death  of the accused.  In an appeal  from  a  judgment imposing a sentence of fine either by itself or long with  a sentence  of imprisonment, the legality or propriety of  the sentence of fine necessarily involves an examination of  the validity  of the order of conviction.  The sentence  follows upon  the conviction and the validity of the two is  inter- connected.   The  appellate court, while  dealing  with  the validity  of  the  sentence of fine, has  to  determine  the primary   question   whether  the   conviction   itself   is sustainable.   If  it  holds  that  the  conviction  is  un- sustainable,  it  must  set aside  the  conviction  and  the sentence   or   sentences  following  upon  the   order   of conviction; it cannot merely set aside the sentence of  fine and  permit the conviction and the substantive  sentence  to remain.   The  sentence of the fine becomes illegal  if  the conviction  is  wrong.   If  the  conviction  is  wrong,  no sentence  at all can be imposed on the accused.   Therefore, once  the  appellate court reaches the conclusion  that  the conviction  is unwarranted, that finding must be  given  its full  effect  by setting aside the conviction and  all  such sentences  as  are founded on the order of  conviction.   We find it impossible to agree with the submission of the State Government  that even after finding that the  conviction  is illegal, the court must only set aside the sentence of  fine permitting  the  illegal  conviction  and  the   substantive sentence  founded  upon it to remain.  That would  be  truly unjust and anomalous. If this be the true interpretation of section 431, there  is no reason why the same principle ought not to be extended to criminal  appeals filed in this Court under Article  136  of the  Constitution.   Accordingly the widow of  the  deceased appellant  who has been brought on the record of the  appeal as  his  legal representative is entitled  to  continue  the appeal  as  the  sentence’  of  fine  directly  affects  the property  which  would devolve on her on the  death  of  her husband. In  Gondada Gajapathy Rao v. State of Andhra Pradesh(),  the appellant  was  convicted by the High Court under  section 302, Penal Code and was sentenced to imprisonment for  life. He  filed an appeal in this Court by special leave but  died during  the pendency of the appeal.  His sons  and  daughter applied  for  substitution  as  his  legal   representatives

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contending that the conviction of their father had  resulted in his removal from Government service and if the conviction were set aside the estate will be able to claim the  arrears of salary from the date of conviction till the date (if  his death.    This   Court   declined  to   permit   the   legal representatives  to continue the appeal on the  ground  that the claim on the strength of which they sought permission to continue  the  appeal  was too remote.   This  decision  is, distinguishable (1)  [1964] 7 S.C.R. 251. 829 as  the  appeal was not from a sentence of fine and  as  the interest  of  the  legal  representatives  was  held  to  be contingent and not direct.  Even if the conviction were  set aside,   the   legal   representatives   would   not    have automatically got the arrears of salary due to their father. In  the, view we have taken the decisions of  the  Allahabad High  Court  in Vidya Devi vs.’ State(1) and of  the  Mysore High Court in V. Govindrajalu & Ors. VS. State of  Mysore(2) must be held to be wrong in so far as the point of abatement is  concerned.  The Allahabad High Court took the view  that an appeal from a composite order of sentence would abate  as regards the sentence of imprisonment but may be continued by the  legal representatives as regards the sentence of  fine. This  bisection of the appeal, as pointed out by us, is  not justified  by the language of section 431 and would lead  to unjust  and anomalous results.  The Mysore decision  assumed without any discussion that an appeal from a composite order of  sentence abates partially.  The High Court  having  held that  the conviction of accused No. 3 in that case, who  had died  during the pendency of the appeal, was  justified  the question  did  not  arise  in sharp  focus  whether  if  the conviction was bad the order of conviction and the  sentence of imprisonment could be allowed to remain. An  amendment  to  section 431 was  suggested  in  the  Bill introduced in the Parliament by a private Member, Shri K. V. Raghunatha  Reddy.  The main object of the amendment was  to provide  a machinery whereby the children or the members  of the family of a convicted person who dies during the  appeal could  challenge  the conviction and get rid  of  the  odium attaching to the family as a result of the conviction.   The Law  Commission  of India by its  Forty-First  Report  (Sep- tember,  1969,  Vol. 1, pp. 279 to 281) found  the  proposed amendment  "  eminently  sound"  and  recommended  that  the amendment  be made with certain modifications.   Accordingly section 394 of the Code of Criminal Procedure, 1973 has made a  provision that "where the appeal is against a  conviction and sentence of death or of imprisonment, and the  appellant dies  during  the pendency of the appeal, any  of  his  near relatives  may,  within  thirty days of  the  death  of  the appellant,  apply  ’to  the Appellate  Court  for  leave  to continue  the  appeal; and if leave is granted,  the  appeal shall  not abate", ’near relative means a  parent,,  spouse, lineal descendant, brother or sister. Turning  to the merits of the case we find it impossible  to uphold  the judgment of the High Court.  The main  witnesses examined  by  the  prosecution in support of  its  case  the complainant Nitya Nand the Investigating Officer, Kewal Ram, the Head Constable Jai Ram and the two Panchas Sital  Prasad and Lok Bandhu.  At the outset of its judgment of two and  a half pages the High Court observes               "I  am  firm  in  my  finding  that  PW-1  the               complainant, Shri Kewal Ram, the Investigating               Officer, and Jai Ram, the Head-Constable,  are               partisan  witnesses.   The  state  of  affairs

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             disclosed  by the manner of the  investigation               in this case is not very commendable.,,               (1)   A.I.R. 1957 All. 20.               (2)   A.I.R. 1962 Mysore 275. 830 The  Panchas Sital Prasad and Lok Bandhu turned hostile  and their  evidence  could  not  be  pressed  in  aid  by   the. prosecution.  The High Court, however, held that in spite of the fact that these two witnesses had turned hostile and had no regard for truth, their evidence "firmly corroborated the evidence of the aforestated partisan witnesses".  We find it extremely difficult to appreciate how the evidence of  these hostile  witnesses  could corroborate the  evidence  of  the partisan witnesses that the accused accepted the bribe.  The corroboration  which  the  High Court  seems  to  have  been impressed  with is, as is stated by the High  Court  itself, that when the preliminary Panchnama wig prepared the Panchas were  present,  that the three marked  currency  notes  were supplied  by the complainant Nitya Nand and that the  number of  those  notes were noted in  the  preliminary  Panchnama. What the High Court had to find was whether on the  evidence it  was established that the accused had accepted the  bribe from the complainant.  Unfortunately’ the High Court has not discussed the various aspects of the evidence which, in  our opinion, is wholly unsatisfactory. There are a large number of circumstances which would render it   unsafe  to  accept  the  prosecution   evidence.    The Investigating  Officer,  Kewal Ram, took  an  almost  unholy interest  in  the case.  The complaint which Nitya  Nand  is alleged  to have made to the Anti Corruption Department  was written  by  Kewal  Ram in his own  hand.   Kewal  Ram  then obtained  permission from the Magistrate to investigate  the case  by misleading the, Magistrate.  Under section 5  A  of the  Prevention  of Corruption Act  the  particular  offence could  not have been investigated by a police officer  below the  rank of, a Deputy Superintendent of Police  without  an order  of  the  Magistrate  of  the  First  Class.   In  his application for permission to investigate the offence  Kewal Ram stated that there was no gazetted police officer in  the unit  and  therefore  he may be  allowed  to  undertake  the investigation.   The  evidence  shows  that  the   immediate superior  of  Kewal Ram, Inspector Amar Singh,  was  at  the relevant   time  in  charge  of  the  Anti-Corruption   unit functioning at Mandi.  Kewal Ram obtained the permission  to investigate the offence without disclosing this fact to  the Magistrate.   The  two Panchnamas neither mention  the  time when they were made nor the place where they were made.  The usual precaution of applying anthracene powder to the marked notes  was not taken.  The Panchas and the  Police  officers took their position at a spot from which they could  neither see  nor  hear  what  was happening in  the  office  of  the accused.   The two Panchas, who ultimately  turned  hostile, were  previously known to the complainant Nitya Nand.   Head Constable Jai Ram procured an affidavit of the  Panch  Sital Prasad  in  an  unsuccessful  attempt to  bind  him  to  the Statements contained in the Panchnama.  Above all there is a serious discrepancy in the evidence as to whether the marked notes  were  found in a jacket worn by the  accused  or  the pocket of his shirt. The accused examined himself as a witness in support of  his own  case  but the High Court has not even referred  to  his evidence. 831 Considering the broad probabilities of the case the evidence of  the  accused  ought  to be  preferred  to  that  of  the

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witnesses. examined by the prosecution.  Nitya Nand  planted the amount in a part of the residential house of the accused and made a pretence of having given it to the accused. In  the  concluding portion of its judgment the  High  Court observes :  "I,  however,  find  that there has  been  sufficient  mis- behaviour  on  the part of the prosecution  agency  in  this case.   I  cannot understand how an affidavit  was  obtained from PW-1.  No doubt the witness resiled while he was in the witness-box  from  the  statement made  to  the  police  and explained  how the affidavit had been obtained from him  but then  the fact remains that Shri Jai Ram who was  having  no authority  whatsoever  took  Shri  Sital  Parshad  before  a Magistrate and obtained an affidavit.  That circumstance  by itself  would  not have been a mitigating  circumstance  but Harnam Singh is losing the service for ever and will provide a sound example to those working in his situation that they, can  suffer  in the same way.  His losing of  service  is  a mitigating circumstance." Having taken the view that the state of affairs disclosed by the  manner  of investigation was not commendable  and  that there  was  sufficient  misbehaviour  on  the  part  of  the prosecution agency, the learned Judge should have approached the evidence with greater caution.  His failure to do so has resulted  in gross injustice for, we find that the  evidence on  which  the  conviction is based is  wholly  unworthy  of acceptance. Learned counsel appearing for the, appellant argued that the violation of section 5A of the Prevention of Corruption  Act has  caused  prejudice to the accused and  has  resulted  in miscarriage  of  justice.  Were it necessary we  would  have upheld  this contention because the order giving  permission to Kewal Ram to investigate the offence gives no reasons and the  illegality committed has resulted in a  miscarriage  of justice.  Kewal Ram misled the Magistrate into granting  the permission and he had himself more than a personal  interest in  the case which he sought permission to investigate.   It is,  however,  unnecessary  to pursue this point  as  it  is impossible to uphold the conviction on merits. In,  the result we allow the appeal and set aside the  order of conviction, the substantive sentence as also the sentence of  fine.  Fine, if paid, shall be refunded to the widow  of the deceased appellant, who has prosecuted the appeal. V.M.K..                               Appeal allowed. 832