SURAJPAL SINGH versus THE STATE OF UTTAR PRADESH

2 S.C.R. SUPREME COURT REPORTS

SURAJPAL SINGH •

THE STATE OF UTTAR PRADESH

(B. P. SINHA, c. J., s. K. DAS, .A. K. SARKAR, N. RAJAGOPALA AYYANGAR and J. R. MUDHOLKAR, JJ.)

Criminal Misconduct-Acquittal under one category of criminal misconduct charged-Conviction under another category not charged -Legality of-Presumption, whether creates an offeme-Prevention of Corruption Act, z947 (II of z947), s. 5, sub-ss. (I), (z), (3).

The appellant was Head Constable attached to malkhana where articles seized in connection with excise offences were kept in deposit. The appellant was charged under s. 5(1)(c) read with s. 5(2), Prevention of Corruption Act, 1947, in that he had dishonestly or fraudulently misappropriated or otherwise converted to his use these articles; the charge further stated that sum of Rs. 9,284-1-0 was recovered from him which was disproportionate to his known sources of income. He was acquitted of the charge under s. 5(1)(c) but was convicted under s. 5(2) on the ground that he had failed to account satisfactorily for the possession of Rs. 9,284-1-0 which was disproportionate to his known sources of income.

Held, that the conviction of the appellant under s. 5(2) of the Prevention of Corruption Act, 1947, was illegal. The only charge against the appellant was of criminal misconduct under s. 5(1)(c) of the Act for dishonestly or fraudulently misappro-priating property entrusted to him and of this charge he could have been convicted by invoking the rule of presumption under s. 5(3). But since this was not done and he was acquitted of that charge, he could not be.convicted of criminal misconduct referred to in els. (a), (b) or (d) of s. 5(1) for which he had not been charged. The Courts below had proceeded wrongly on the footing as though sub-s. (2) or sub-s. (3) of s. 5 created .lln offence; the offence which was punishable under s. 5 (2) or which could be founded on the rule of presumption under s. 5(3) was the offence of criminal misconduct of one or more of the cate-gories mentioned in els. (a) to (d) of sub-s. (1) of s. 5.

C. S. D. Swamy v. The State, [1960] I S.C.R. 461, refer-red to.

CRIMINAL APPELLATE JURISDIOTION: Criminal

Appeal No. 169 of 1959.

Appeal by special leave from the judgment and order dated March 27, 1958, of the Allahabad High Court in Criminal Appeal No. 785of1955.

December 7.

Nuruddin Ahmad and Naunit Lal, for the appel-

lant.

Surajpal Singh

G. C. Mathur and 0. P. Lal, for the respondent.

The State of 1960. December 7. Uttar Pradesh was delivered by

The Judgment of the Court

S. K. Das .T·

S. K. DAS, J.-This is an appeal by special leave from the judgment and order of the High Court of Judicature at Allahabad dated March 27, 1958, where-by the said High Court maintained the conviction of the appellant under s. 5(2) of the Prevention of Corruption Act, 1947 (2 of 1947) but reduced the sen-tence of four years' rigorous imprisonment passed on the appellant by the Special Judge, Kanpur, to two years' rigorous imprisonment.

The short facts are these.

The appellant Surajpal

Singh was employed in the Police Department of the Uttar Pradesh Government. He started his service as constable on salary of Rs. 13 per month from August 1, 1930. In 1946 his pay was increased to Rs. 46 per month. He was appointed Head con-. stable on salary of Rs. 50 per month in 1947. He officiated as Sub-Inspector of Police sometime in 1948 and 1949 on salary of Rs. 150 per month. On March 1, 1949, he was reverted to his post of Head constable. Between the dates February 27, 1951, and September 9, 1952, he was posted as Head constable attached to the Sadar Malkhana, Kanpur. The charge against him was that in that capacity he dishonestly or fraudulently misappropriated or otherwise converted to his own use many articles, principally those seized in connection with excise offences kept in deposit in the said Malkhana. These articles included opium, bottles of liquor etc. The charge further stated that sum of Rs. 9,284-1-0 was recovered on search of his house on September 9 and 10, 1952 and this amount was disproportionate to the known sources of income of the appellant. There was an allegation by the prosecution that the acts of dishonest misappro-priation etc. were committed by the appellant in .con-spiracy with two other persons called Bhagawat Smgh and Gulab Singh. Therefore, the charges against the

2 S.C.R. SUPREME COURT R.EPORTS

-x960 _ v. The State of of

appellant were (1) for the offence of conspiracy under

_ s. 120B of the Indian Penal Code; (2) for the offence surajpal Singh under s. 5(1Xc) of the Prevention of Corruption Act, v. 1947, for the acts of dishonest misappropriation or The State of of user, read with s. 5(2) of the said Act; and (3) for an Uttar Pradesh offence under s. 465 of the Indian Penal Code in respect Of particular entry . said to have been forged ~~D~~ in the Register of Properties kept in the Sadar Malkhana.

The learned Special Judge who tried the appellant Bhagawat Singh and Guiab Singh recorded an order of acquittal in respect of the latter two persons. As to the appellant, he was also acquitted of all the charges except the charge under s. 5(2) of the Prevention of Corruption Act. On this charge tlie lea.riled Special Judge recorded an order of conviction, but this was based on the sole ground that the appellant had failed to account satisfactorily for the possession of Rs. 9,284-1-0 which, a.cc0rding to the finding of the learned Special Judge, was disproportionate to the known sources of income of the appellant. It should be noted here that the learned Special Judge held the appellant not guilty of the various acts of dishonest misappro-priation or user alleged against him in respect of the properties kept in the Sadar Malkh~na~

In his appeal to the High Court the appellant urged various grounds, one of which was that he c<;mld not be .convicted on the rule of presumption la.id down in sub-s. (3) of s. 5 of the Prevention of Corruption Act, 1947, when on the only charge of criminal miscon-duct alleged under s. 5(l)(c) of the said Act he had been found not guilty. The High Court repelled this contention and upheld the conviction of the appellant but reduced the sentence.

The principal question before us is whether in the circumstances of this case, the conviction of the appel-lant on the charge under sub-s. (2) of s. 5 of the Pre-vention of Corruption Act, 1947, by invoking the· rule of presumption as laid down .in sub-s. (3) of that sec-tion, is correct.

It is convenient to read here s. 5 of the Prevention

of Corruption Act, 1947, in so far as it is relevant for our purpose.

Sutajpal Singh v. "S. 5(1) public servant is said to commit the The State of offence of criminal misconduct in the discharge of his Uttar Pradesh duty-

( a) if he habitually accepts or obtains or agrees S. K. Das J. to accept or attempts to obtain from any person for himself or for any other person any gratification (other than legal remuneration) as motive or reward such as is mentioned in section 161 of the Indian Penal Code, or

(b) if he habitually accepts or olltains or agrees to

accept or attempts to obtain for himself or for any other person, any valuable thing without considera-tion or for consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be tran-sacted by him, or having any 'connection with the official functions of himself or of any public servant to whom he is subordinate, or· from any person whom he knows to be interested in or related to the person so concerned, or

(c) if he dishonestly or fraudulently misappro-

priated or otherwise converts for his own use any pro-perty entrusted to him or under his control as public servant or allows any other person so to do, or

(d) if he, by corrupt or illegal means or by other-

wise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.

(2) Any public servant who commits criminal

misconduct in the discharge of his duty shall be punishable with imprisonment for term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the Court may, for any special reasons recorded in writing, impose sentence of im-prisonment bf less than one year.

(2A) ........................................................... .

(3) In any trial of an offence punishable under sub-section (2) the fa.ct that the accused person or any

2 S.C.R. SUPREME COURT REPORTS

other person on his behalf is in possession, for which the accused person cannot satisfactorily account, • • of 5 pecuniary resources or property d1sproport1onate to his known sources of income may be proved, and on such proof the court shall presume, unless the con-· trary is proved, that the accused person is guilty of criminal misconduct in the discharge of his offieial duty and his conviction therefor shall not be invalid by reason only that it is based solely on such pre-sumption."

I9[60 ]ura; ·p-l s· ing,. , v. The State of Uttar Pradesh s. K. Das J.

Now, learned Counsel for the appellant has put his argument on the principal question in the following way: he has submitted that he is not in position in an appeal by special leave to go behind tihe finding of fa.ct arrived at by the courts below. Th~ appellant, it appears, gave some explanation with regard to the possession of Rs. 9,284-1-0. That explanation was not, however, accepted by the courts below. Learne"d Counsel has submitted that he does not wish t~ go behind that finding of fact. He has submitted, how-ever, that the scheme of s. 5 of the Prevention of Corruption Act, 1947 is this: sub-s. (1) defines the offence of criminal misconduct in the discharge· of his duties by public servant; the offence can be one or more of four c~tegories mentioned in els. (a), (b), (c) and ( d): sub-s. (2) is the penal sectiop. which states the punishment for the offence of criminal misconduct; and sub-s. (3) lays down rule of presumption and states that no conviction for the offence shall be in-valid by reason only that it is based solely on such presumption. Learned Counsel has pointed out, rightly in our opinion, that the charge against the appellant in the present case referred only to criminal miscon-duct in the discharge of his duty by public servant of the nature mentioned in cl. (c) of sub-a. (1). In other words, the charge against the appellant was that he had dishonestly or fraudulently misappro-priated or otherwise converted for his own use pro-perty entrusted to him etc. It was open to.the learned Special Judge to have convicted the appella~t of that offence by invoking the rule of presumption laid.down in sub-s. (3). He did not, however, do so. On the

r9[6]• contrary, he acquitted the appellant on that charge. S ura; ·p v. 1 5 . sng ca mg m Therefore, learned Counsel has submitted 11" · a1 ·d t ru - 1 o presumption laid down that by in Th• State of sub-s. (3), the appellant could not be found guilty of Utt•• Pradesh any other type of criminal misconduct referred to in els. (a.), (b) or (d) of sub-s. (1) in respect of which there 5· K. Das f. was no charge against the appellant.

We consider that the above argument of learned Counsel for the a. ppellant is correct and must be accepted. This Court pointed out in C. S. D. Swamy v. The State(') that sub-s. (3) of s. 5 of the Prevention of Corruption Act, 194 7 does not create a. new offence but only lays down a. rule of evidence which empowers the Court to presume the guilt of the accused in cer-tain circumstances, contrary to the well known princi-ple of Criminal law that the burden of proof is always on the prosecution and never shifts on to the accused person. In Swamy's case there were charges for the offence of criminal misconduct under two heads, cl. (a) and cl. (d). The trial court held the aecused person in that case not guilty of the offence under cl. (a} but guilty of the offence under cl. (d) by invoking the rule of presumption laid down in sub-s. (3) of s. 5. The dis-tinction between that case and the case under our consideration is this: in Swamy's case there were two charges either of which could be founded on the rule of presumption laid down in sub-s. (3); but in our case there is only one charge of criminal misconduct of which the appellant has been acquitted; therefore, there is no other charge which can be founded on the rule of presumption referred to in sub-s. (3). This is the difficulty with which the respondent is faced in the present case. It appears to us that the learned Special Judge and the High Court proceeded wrongly on the footing as though sub-s; (2) or sub-s. (3) of s. 5 of the Act creates an offence. The offence which is punished under sub;s, (2) or can be founded on the rule of presumption la.id down in sub-s. (3) must be the offence of criminal misconduct of one or more of the categories mentioned in els. (a.) io (d) of sub-s. (1). In the case before us the only category which was 11.lleged against the appellant was that of category (o), (1) [1¢<>] 1 S.C.R. 461,

2 S.C.R. SUPREME COURT REPORTS

namely, dishonest or traudulent misappropriation etc.

namely, dishonest or traudulent misappropriation etc. z96o That charge having failed; there was no other charge 5 .p;-5 . which could be founded on the rule of presumption ura; :. laid down in sub-a. (3). The State

sng

The State of Uttar Pradesh

Learned Counsel for the respondent State has con-Uttar Pradesh tended before us that it was open to the appellate Court to affirm the conviction of the appellant under s. K. Das J. sub-a. (2) of s. 5 by holding him guilty of the offence of criminal misconduct of the category mentioned in cl. (a) or cl. (d) of sub-a. (1). We are unable to accept this contention as correct. The prosecution never alleged that the sum of Rs. 9,284-1-0 was the result of ·the appellant habitually accepting or obtaining illegal gratification etc. The prosecution case was that the sum of Rs. 9,284-1-0 was the result of the dishonest user of property which was entrusted with the appel-lant. It is not open to the appellate Court to affirm the conviction ·of the appellant on an entirely new case never suggested against the appellant at any earlier stage. It is unfortunate that in this case the courts below did not choose to rely on the rule of pre-sumptitm la.id down in sub-s. (3) with reference to the charge under cl. (c) of sub-a. (1) of s. 5. But that mis-fortune cannot now be repaired by evolving out of vacuum as it were new case against the appellant based on cl. (a.) or cl. (d) of sub-s. (1) of s. 5 in support of which no facts were ever alleged or' suggested .. For the reasons· given above, we allow this appeal a.nd set aside the conviction and sentence passed against the appellant.

Appeal allowed .