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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: KALIAR KOIL SUBRAHMANIAM RAMASWAMY

DATE OF JUDGMENT08/08/1977

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. UNTWALIA, N.L.

CITATION:  1977 AIR 2091            1978 SCR  (1) 274  1977 SCC  (3) 525

ACT: Constitution of India-Article 20(1)-Whether a person can  be convicted  for  an  act  which  was  not  an  offence   when committed. Prevention  of Corruption Act 1947-Section  5(1)(e)-Whether, it  is  necessary to prove that the  property  was  acquired after the offence was committed.

HEADNOTE: The   respondent/accused  was  an  Inspector   in   Regional Transport  Office,  Kolhapur.  Under a  search  warrant  his house was searched and a lot of property was recovered  from his   possession.    While  the  matter  was   still   under investigation,  the Prevention of Corruption Act,  1947  was amended by inserting clause (e) in sub-section (1) of s.  5, The  special  Judge, Kolhapur, on 3rd April 1969,  held  the accused  guilty of offences u/cl. (a), (b), (d) and  (e)  of sub. s. (1) of s. 5 of Prevention of Corruption Act 1947 and under  s. 161 and 165 of IPC and sentenced him  to  rigorous imprisonment for 3 years and a fine of Rs. 20,000/-. The  accused filed an appeal against his conviction and  the High  Court  held that there was not even  one  witness  who supported the prosecution case under s. 5(1)(a), (b), (d) of Prevention  of  Corruption Act, 1947.  The High  Court  also held  that as there was nothing on the record to  show  that the accused wag in possession or came into possession of any pecuniary  resources  or property  disproportionate  to  his known  sources of income, after the enactment of clause  (e) of sub-section (1) of s. 5 of the Act by the amending Act of 1964, his conviction under that clause was "illegal inasmuch as the said clause (e) could not be interpreted as to  apply to  the  possession  of the property and  resources  by  the appellant   before   it  was  enacted."  The   accused   was accordingly. acquitted by High Court. The  Supreme  Court  granted special leave  limited  to  the question  whether  the  acquittal of  the  accused  for  the offence under s. 5(1)(e) of the Act was justified ? Dismissing the appeal, HELD  : (1) Clause (e) of sub-section (1) of s. 5 came  into existence on December 18, 1964 by the Amending Act of  1964. It  added  yet  another clause to  the  four  clauses  which constituted  the offence of criminal misconduct  under  sub-

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section  (1) of s. 5. The result of the insertion  was  that mere   possession   of  pecuniary  resources   or   property disproportionate  to be known sources of income of a  public servant, for which he could not satisfactorily account,  be- came  an  offence  by itself.  Such a  possession  was  not, however,  an  offence  by itself  until  December  18,  1964 although  there was a third sub-section of S. 5 before  that date  which  created  a  rebuttable  presumption  to   prove offences under clause (a) to (d) of s. 5(1). [276 F,G, 277A- B] (2)The  Legislature,  it appears, thereafter,  thought  it proper to do away with the rule of evidence provided by sub- sec.  (3)  of  s. 5 and inserted a new clause  (e)  in  sub- section  (1) of s. 5 as one more category of the offence  of criminal misconduct.  But it cannot be gainsaid that the new offence  under  the  newly inserted  clause  (e)  became  an offence on and from December 18, 1964 by virtue, of s. 6  of Amending  Act 40 of 1964.  In this view of the  matter,  the High Court rightly held that "in the absence of any evidence on  record to show that the appellant acquired or was  found to  be in possession of pecuniary resources etc.  after  the coming  into force of the Amending Act’ he was  entitled  to the protection of clause (1) of Article 20 of the  Constitu- tion. [277D-F]  275

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal No. 6  of 1972. Appeal  by_ Special Leave from the Judgment and Order  dated 8-10-1971  of the Bombay High Court in Crl.  A.No.  1575  of 1969. M.   N. Phadke and M. N. Shroff for the Appellant. V.   S.  Desai, S. B. Wad and (Mrs.) Jayashree Wad  for  the Respondent. The Judgment of the Court was delivered by SHINGHAL J.,-Respondent Kaliar Koil Subramaniam,  Ramaswamy, who  will  hereinafter be referred to as  the  accused,  was working  as  Inspector  in the  Regional  Transport  Office, Kolhapur.  His house was searched by Inspector R. K.  Shukla (P.   W. 164) under a search warrant issued by a  magistrate of the First Class under- section 96 of the Code of Criminal Procedure  on  May  17,  1964, and a  lot  of  property  was recovered from his possession.  That led to an investigation into the transactions which were found to have been made. by him  and  the members of his family.  While the  matter  was still under investigation, the Prevention of Corruption Act, 1947,  hereinafter, referred to as the Act, was  amended  by Amending Act go. 40 of 1964, and the following was  inserted as Clause (e) in subsection (1) of section 5.-               (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 satisfactorily               account,  of pecuniary resources  or  property               disproportionate  to his known source  of  in-               come."- Sub-section (3) of that section was          substituted  by a now sub-section which does not, however, directly bear  on the case before us. There  was a prolonged investigation in the case  againstthe accused and a charge-sheet was presented in the court of the Special Judge, Kolhapur, on April 3, 1969, alleging that the

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accused was guilty of offences under clauses (a),(b),(d) and (e) of sub-section (1)   of  section 5 of the Act read  with subsection (2) of that section, and sections 161 and 165  of the  Penal Code.  The Special Judga framed a charge  against the  accused for the commission of those offences, to  which the accused pleaded not guilty. The  Special Judge convicted the accused under section  5(2) of  the Act as he held that he had committed offences  under clauses (a),   (b)(d) and (e) of sub-section (1) of  section 5 of the Actand     sections 161 and 165 of the Penal  Code, and sentenced him torigorous imprisonment for 3 years and  a fine of Rs. 20,000/-.The      accused   filed   an    appeal against  his conviction and the High Court found that  there was "not even one witness who supported the prosecution case under  section  5(1)(a), (b) and (d) of  the  Prevention  of Corruption  Act,  1947."  It also held  that  as  there  was nothing 276 on the record to show that the accused was in possession’ or came into possession of any pecuniary resources or  property disproportionate  to his known sources of income  after  the enactment  of clause (e) of sub-section (1) of section 5  of the  Act by the Amending Act of 1964, his prosecution  under that clause was "illegal inasmuch as the said sub-section of section 5 (1) could not be so interpreted as to apply to the possession  of the property and resources by  the  appellant before  it  was  enacted."  The  High  Court  examined   the transactions  in jaggery and sewing machines also, and  held further  that  it could "not see how the said  acts  of  the appellant constitute offences either under Sees. 161 and 165 of  the Indian Penal Code or under Section 5(1)-(a),(b)  and (d) of the Prevention of Corruption Act, 1947." It therefore proceeded to examine the question whether the conviction  of the  accused  for the, offence, under clause  (c.)  of  sub- section  (1) of section 5 read with sub-section (2) of  that section  could  be upheld in the face of the  provisions  of Article  20 of the Constitution, while doing so, it  made  a reference  to  its  judgment in Ramanand  Pundlik  Kamat  v. State(1)  where,  in almost similar  circumstances,  it  bad taken  the  view that the prosecution was  not  maintainable under  that article.  In that view of the matter,  the  High Court  allowed the appeal by its judgment dated  October  8, 1971, and acquitted the accused altogether without examining the   voluminous  evidence  which  had  been  led   by   the prosecution to prove that he was in possession of  pecuniary resources or property disproportionate to his known  sources of income. The State of Maharashtra felt aggrieved against the judgment of the High Court and applied for special leave.  Leave  was granted  by  this  Court  on January 6,  1972,  but  it  was expressly limited to the, question whether the acquittal  of the accused for the offence tinder section 5 (1) (e) of  the Act  was  justified.  His acquittal for the  offences  under clause  (a),(b) and (d) of sub-section (1) of section  5  of the Act and sections 161 and 165 of the Penal Code therefore became final and is not open to, challenge before us. We have reproduced clause (e ) of subsection (1) of  section 5 of the Act which came into existence on December 18,  1964 by the Amending Act of 1964.  It added yet another clause to the  four clauses which constituted the offence of  criminal misconduct  tinder sub-section (1) of section 5. The  result of  the  insertion  was that mere  possession  of  pecuniary resources or property disproportionate to the known  sources of  income  of  a public servant, for  which  he  could  not satisfactorily account, became an offence by itself.  Such a

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possession  was  not, however, an offence  by  itself  until December 18, 1964 although there was a third sub-section  of section 5 before that date which read as follows,-               "In  any trial of an offence punishable  under               sub-section (2) the  fact  that  the   accused               person or any other person on his   behalf  is               in  possession  for which the  accused  person               can- not satisfactorily account, of  pecuniary               resources or property disproportionate to  his               known sources of income may be               (1)  Cr.  A. No.1436  of 1968 decided  on               26/27th August, 1971.               277               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 therefore shall not be               invalid by reason only that it is based solely               on such presumption." As is obvious, that sub-section provided an additional  mode of proving the offence punishable under sub-section (2)  for which the accused person was on trial, but the mode of proof was necessarily correlated to clauses (a),(b) (c) and (d) of sub-section (1) of section 5 which stated the  circumstances in  which  a  public servant could be  said  to  commit  the offence of criminal misconduct in the discharge of his duty. When  the matter came up for consideration by this Court  in Sajjan  Singh v. State of Punjab (1), it was thought  proper to  construe  section 5(3) in such a way as not  to  include possession  of  pecuniary  resources  or  property  acquired before  the  Act  as  a now  kind  of  offence  of  criminal misconduct  for otherwise there would have been a breach  of the   fundamental   right  under  Article   20(1)   of   the Constitution.  It was therefore held, with reference to  the earlier  decisions  in C. S. D. Swamy v. The  State.(2)  and Surajpal  Singh v. State of U. P(3) that sub-section (3)  of section  5  "merely prescribed a rule of  evidence  for  the purpose  of  proving the offence of criminal  misconduct  as defined in s. (5) (1) for which an accused person is already under trial." It is therefore well settled that  sub-section (3) did not constitute an offence by itself. It appears that the Legislature thereafter thought it proper to do away with the rule of evidence provided by sub-section (3)  of section 5 and inserted the, new clause (e)  in  sub- section (1) of section 5 as one more category of the offence of criminal misconduct.  But it cannot be gainsaid that the, new offence., under the newly inserted clause (e), became an offence on and from December 18, 1964 by virtue of section 6 of the Amending Act 40 of 1964.  In this view     of     the matter, the High Court rightly held that "in the absence  of any  evidence on record to show that the appellant  acquired or was    found  to be in possession of pecuniary  resources or property disproportionate to his known sources of  income after the coming in to   force of the Amending Act," he  was entitled  to the protection of clause (1) of Article  20  of the Constitution which provides as follows,-               "20(1)  No  person shall be convicted  of  any               offence except for violation of a law in force               at  the  time  of the commission  of  the  act               charged  as an offence, nor be subjected to  a               penalty  greater  than that which  might  have               been  inflicted under the law in force at  the               time of the commission of the offence." So  when  there was no law in force, at the  time  when  the

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accused  was found in possession of disproportionate  assets by  the search which was made on May 17, 1964,  under  which his possession could be (1)  [1964] 4 S.C.R. 630. (2)  [1960] 1 S.C.R. 461. (3)  [1961] 2 S.C.R. 971. 2 78 said  to  constitute  an offence, he  was  entitled  to  the protection   of  clause  (1) of Article 20 and  it  was  not permissible for the trial court to convict him of an offence under clause (e) of sub-section (1) of section 5 as no  such clause. was in existence at the relevant time.  The  accused could  not  therefore be said to have committed  an  offence under  clause (e) of sub-section (1) of section 5 read  with sub-section (2)     of that section. It may be that the act of possession of pecuniary  resources or property disproportionate to the known sources of  income of  the accused led to the presumption of commission  of  an offence  under clauses (a),(b) or (d) of sub-section (1)  of section  5 of the Act, or any of those clauses, and  it  was permissible  for  the  prosecution to take  the  benefit  of subsection  (3)  of  section  5,  as  it  stood  before  its substitution by Amending Act No. 40 of 1964 for the  purpose of establishing his guilt with reference to one or the other of  those clauses, but as the accused has been acquitted  of the  offences under clauses (a), b) and (d) read  with  sub- section  (2), and his acquittal for those offences, and  for the  offences under section 161 and 165 of the  Penal  Code, has  become  final in view of the limited  leave  of  appeal referred to above, it is not permissible for counsel for the appellant  State to contend that the protection  of  Article 20(1) of the Constitution should not have been given  merely because what was once a rule of evidence in the form of  the earlier  sub-section  (3) of section 5 was  amended  by  the Legislature  and  a  distinct offence was  provided  by  the insertion of clause (e).  This has to be so because the fact remains  that the newly added offence under clause  (e)  was not  in existence at the time when the accused was found  to be  in possession, for himself or any person on his  behalf, of  pecuniary resourcesor property disproportionate  to  his known sources of income. There  is  thus  nothing wrong with the  view  of  the  High Courtthat  the  accused was entitled to  the  protection  of Article  20(1)  of  the  Constitution  and  the  appeal   is dismissed. P.H.P. Appeal dismissed. 279