BISWABHUSAN NAIK versus THE STATE OF ORISSA.

. . APril 7•

.. BISWABHUSAN NAIK

THE STATE OF ORISSA. [MEHR CHAND MAHAJAN C.J., VIVIAN BosE and GHULAM HASAN JJ.]

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

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, how~ c;ver, Qesirable 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 . .L 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 invali-date it. · Under section 5(3) of the Act all that the prosecution has to do is to show that the accused or some per~on on his behalf is in pos-session of pecuniary resources or property disproportionate to his known sources of income and for which the accused cannot satis-factorily 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 Prevention of Corruption Act does not consist of individual acts of bribe taking as in section 161 I.P.C. but is of general character and individual instances are not necessary because of the presumption which sec-tion 5(3) requires the Court to draw.

Gokulchand Dwarkadas Morarka v. Th< King (A.LR. 1948 P.C. 82) referred to. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 33 of 1952. Appeal under Article 134(1)(c) from the Judgment .f and Order dated the 19th February, 1952, of the

S.C.R. SUPREME COURT REPORTS

High Court of Orissa at Cuttack in Criminal Appeal No. 66 of 1950 arising out of the Judgment and Order <lated the 19th September, 1950, of the Court of . the Additional Sessions Judge, Cuttack-Dhenkanal, Cut-tack, in Sessions Trial No. 9-C of 1950.

Nur-ud-Din Ahmed, R. Patnaik and R. C. Prasad, for the appellant.

R. Ganapathy Iyer, for the respondent.

1954. April ':J. The Judgment of the Court was delivered by

BosE J.-The appellant was an Inspector of Factories under the Government of Orissa. It was 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 bribe.

On 3rd October, 1948, he was camping at the Dak Bungalow at Basta in the Balasore district. Be.cause of information received against him his person and belongings were searched on that day and sum of Rs. 3,148 was recovered from him consisting of Rs. 450 paid at the time as 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 accept-ing 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 "'t was acquitted on all three counts. His conviction here is under section 5(2) · alone. The trial Court

Biswabhusan Naik v. The State of Orisso,

Biswabhtuiin Naik ·v. The Sta it •f -Orissd. llo;t J.

sentenced him to rigorous imprisonment for four years and fine of Rs. 5,000. The High Court upheld the conviction on appeal but reduced the sentence to two years and fine of Rs. 3,000.

The accused applied for certificate to appeal under article 134 ( 1) ( c) oh three points. The High Court held that two of them were not of sufficient im-portance to justify the issue of certificate particu-larly 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 point was of im-portance. The points were formulated as follows: "(i) whether the view of this Court as to the requirement of sanction in case of this kind and the interpretation of Morarka's case in A.LR. 1948 P.C. p. 82 adopted by this Court in its judgment are correct ;

(ii) whether the interpretation of this Court relat-ing to the requirements as to the corroboration of an accomplice witness in 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 presump-tions under section 5(3) of the Prevention of Corrup-tion Act is correct."

The first point arises in this way. Four kinds of criminal misconduct are set out in section 5 of the -1.. Prevention of Corruption Act. They are enumerated in clauses (a), (b), (c) and (d) of sub-section (1). The sanction is general and dt>es hOt 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.

of .f of

ln pursuance of section 6 of the Prevention Corruption Act, 1947 (II of 1947), the Governor

'-\ s.c.R.

Orissa 1s hereby pleased to accord sanction for pro-secution 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 m discharge of official

duty.

By order of the Governor, Sd./-V. Rainanathan, Secretary to Government."

It was contended that the Privv Council held m Gokulchand Dwarkadas Morarka v. The King(1), that such 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 tq comply with the provisions of clause 23 it must be proved that the sanction was given in respect of the facts· <;onstituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sa,p.ction but this is not essential since clause 23 does not require the sanction to be in any 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 autho-rity."

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 1s no more necessary for the sanction under the Prevention of Corruption Act to be in any particular form, or m 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 ~ course is obvious . because when the facts ), are not ·set out in the sanction proof has to be given

1954 Biswabhusatl Naik . . v. The State of Orissa. Bose].

1954 Biswablru.ran Naik v. • TlieStau of Orissa.

t1.955) r

aliunde that sanction was given in respect 6f the facts constituting the~ offen'ce ch,arged, but an omission to do so i~ ·not fatal so-long as the facts can be, and are, pioved in some .other way. Th<! High Court finds that the facts to which the· sanctioh relates were duly placed before the proper sanctioning authority. We need not consider the evi-dehee <l\iout telephone calls and the like because the letter of- the Distri~t Magistrate asking for ~anction (Exhibit 25) is. enough to show the facts on which the sanction is based. It is in these terms:

''I have the honour· to report that ~ri B. B. Nayak, Inspector of Factories, Orissa, in ~he---coutse ·of his visit to this district had been visiting certain mills, and, on information recejved by me that he .had been col-. lecting heavy sums a~ illegal gratification from the Manager or Propiietor of Mills under threat of thischief to the mill owners, it was arranged to verify the truth of this information by handing over 3 hundm;I rupee notes marked with my , initials m presence of the Superintendent of Police and two other respectable gentlemen and niillowners, on the evening of the 2nd October, 1948. On the 3rd October the Factory ,,Inspector having actually received the illegal gratifica-tion of Rs. 450 which sum included the three marked hundred rupee notes, the Prosecuting Inspector seized the marked notes alohg with ·a further heavy sum of Rs. 2,698 from his possession . . . . . . . . . . . . . . . . . . . : ..................... . Under section 6 of the Prevention of Comwtion Act, 1947, the accused ~eing public, servant in the employ of th~ Provincial . Government the sanction of the Provincial Gove~nrnent is necessary prior ~o taking--cognisance of' ap offence under section 161, II)dian P~nal Code or sub-section (2) of section 5 of the Act." sanction based on the facts set out in this letter, nam~ly the information received about the collection of heavy sums as bribes and .the finding of Rs. 2,698 in his possession w?uld be sufficient to validate the present ,prosecution. It is evident from this letter and from the other evidence that the facts placed before the

Sl]PREME COURT REPORTS

Government could only relate to offences under sec-tion 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 any-thing 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) 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 him-self or; for any other person, any .gratification (other than legal remuneration) as motive or reward such ,-as 1s mentioned in section 161 of the Indian Penal Code."

Then comes sub-section (3) which sets out new rule of evidence in these terms :

"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 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 presumption."

Therefore, all that the prosecution has to do is to show that the accused, or some person on his behalf, 1s m possession of pecuniary resources or property disproportionate to his known sources of income and for which the accused cannot satisfactorily account. Orice that is established then the Court has to presume, unless the contrary is proved, that the accused 1s guilty of the new offence created by section 5, namely criminal misconduct in the discharge of his official duty.

Biswabhusarr Naik v. The State of Orissa. Bose].;

v.:, Thi Stat1 ef Oriss•: Bos•J.

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 trap.. He has been acquitted of that offence, so all he had to account for was the balance Rs. 2,698. This is large sum for touring officer to carry with him in cash while on tour. His explanation was not considered satisfactory and that is question of fact with which we are not con-cerned in this Court. Therefore, all that remains to be seen 1s whether this was disproportionate to his known sources of income. The accused is Government Factory Inspector and we were told ihat his salary is only Rs. 450 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 tra veiling allowanc~. It also finds that he owns 0.648 acres of land which brings m no mcome worth the name. On the expenditure side of the accused's account the High Court finds that he has substantial family establishment which would not leave him enough margin for saving such 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 large sum of money for his tour-ing. purposes even if he was away from headquarters for month. His explanation was considered un-satisfactory 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 attra~ted 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 rea-son only that it is based solely on such presumption." These facts alone are enough to sustain the convic-tion 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.

S.C.R~··-··sUPREl\IE COURT REPORTS

The thir~ "point set out in the certificate of the High Court relates to the , absence ()f 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 case because the offence under sec-tion 5(1 )(a) does not consist of indi vid ualacts of bribe taking as in sectionJ61 of the Indian Penal Code but is of 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 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 i:elied. He was also question-ed about the material facts set out above in his examination under section 342 of the Criminal Pro-cedure Code and was given chance then ·as well to give such explanation as he wished.

Biswabkusan Naik v.

The State of · 01issa. Bose].

• The appeal fails and i~ dismissed. '

Appeal dismissed .

SHANK.AR SITARAM SONTAKKE AND ANOTHER v. BALKRISHNA SITARMI SONTAKKE AND. OTHERS.

[l\IEHR CHAND l'llAHAJAN C.J., VIVIAN BosE and GHULAM HASAN JJ.].

Coosent decree-Legal effect thereof-Compromise not vitiated -by fraud, misreprese·ntation, misunderstanding or mistake-Decree pas3ed thereon-Whether operates as res iudicata......:. Civil Procedure -Code-( Act V of 1908)--0rder II, rule 2(3)-Relinquishment of· claim in prior suit-Sttbsequent suit barred in respect of the claim so omitted. ·

It is well settled that consent decree is as binding upon the parties thereto as a. decree passed by invitum... Where com pro~ misa is round not to be vitiated by fraud, misrepresentation,