STATE OF MAHARASHTRA versus KALIAR KOIL SUBRAHMANIAM RAMASWAMY

STATE OF MAHARASHTRA

KALIAR KOIL SUBRAHMANIAM RAMASWAMY

August 8, 1977

[N. L. UNTWALIA AND P. N. SHINGHAL, JJ .]

Constitution of India-Article 20(1)-Wherher 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 .neces-sary to prove that the pro"perty was acquired after the offence was co1nnzitted.

The respondent/accused \Vas an Inspector in Regional Transport Office, Kolhapur. Under search warrant his house was· searched and lot ot pro-perty \vas recovered from his possession. While the matter was still . under investigation, the Prevention of Corruption Act, 1947 was amended by insert-ing clause (e) in sub-section (1) of s. 5, The spCcial Judge, Kolbapur, on 3rd April 1969, held the accused guilty of offences u/cJ. (a), (b), (d) and (e) of sub. s. (1) of s. 5 of Prevention of'Corruption Act 1947 and under s. 161' ancf 165 of IPC and sentenced him to rigorous imprisonment for 3 years and 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 \Vas nothing on the record to show that the accused was in possession or came into possession of any pecuniary resources or p.rppertv 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 196;4, his conviction under that clause was "illegal inasmuch jlS the said clause (e} could not be interpreted as to apply to the possession of the property and resources by the appellant before it \Vas enacted." The accused was accordingly acquit~d by High Crinrt.

The Supreme Court granted speciz.·l leave limited to the queslion \vhether the-acquittal of the accused for the offence under s. 5(1)(c) of the Act \vac; justified? ·

Dismissing the appeal.

HELD: (1) aause (e) of sub-section (I) 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·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 public servant, for \Vhich he coul<l not satisfactorily account, be-came an offence by itself. Such possession was not, however, an offence by itself until December 18, 1964 although there \Vas third sub·section of s. 5 before that date which created 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 e"vidence provided by sub·sec. (3) of s. 5 and inserted new clause (e) in sub-section (1) of s. 5 as one more category of the offence of criminal mi.c;conduct. 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 PO&~ession of pecuniary· resources etc. after the coming into force of the Amendini:t: Ace:. he was enlitled to the protection of clause ( 1) of Article 20 of the Constitu-tion. [277D-FJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. of 1972.

Appeal by Special Leave from the Judgment and Ord;;r 8-10-1971 of the Bombay High Court in Crl. A.No. 1575 of 1969.

dated

M. N. Phadke and M. N. Shroff for the Appe'Jlant.

V. S. Desai, S. B. Wad and (Mrs.) Jayashree Wad for the Res-pondent.

The Judgment of the Court was delivered by

SHINGHAL J.,-Respondent Kaliar Koil Subramaniam Ramas-wamy, who will hereinafter be referred to as the accused, was working as Inspector in the Regional Transport Office, Kolhapur. His house wa·s searched by Inspector R. K. Shukla (P. W. 164) under search warrant issued by magistrate of the First Class under section 96 of the Code of Criminal Procedure on May 17, 1964, and lot of properly was recovered from his possession. That led to an investi-gation into the transactions \.vhich \Vere 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, herein-after refereed to as the Act, was amended by Amending Act No. 40 of 1964, and the following was inserted a< clause (e) in sub-section(!) 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 offioe, been ln possession, for which the public servant cannot satisfactorily account, of pecuniary resources or pro-perty disproportionate to his known source of in-co1nc."

Sub-section (3) of that section was substituted by new sub-section which does not .. however. directly bear on the case before us. There was prolonged investigation in th\.?'. case againsl the accused and charge-sheet \Vns presented in the courl cd' the Spe-cial Judge, Kolhapur, 011 Apd 3, 1969, alleging that the accused was guilty of offences under clauses (a) ,(b) ,(d) and (e) of sub-section ( 1) of section 5 oi the Act read with sub-section (2) of that section, and sections 161 antl 165 of the Penal Code. The Special Judge framed cl1arge against the accused for the commission of those offen-ces, to \Vhich 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),(dl and (e) of sub-section (!) of section 5 o[ the Act and sections 161 and 165 o[ the Penal Code, and sentenced him to rigo-rous imprisonment for 3 years and 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 pro-secution case under section S(l)(a), (b) and (d) o[ the Prevention of Corruption Act, 1947." It also held that as there was nothing

on the record to show that the accus"d 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 (I) could not be so interpreted as to app'Jy to the possession of the property and resources by the appellant be-B fore 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 Secs. 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 convic-tion of the accused for the offence under clause ( e.) of sub-section (I) of section 5 r<md with sub-section (2) of that section cottld be Ufl" held in tbe face of tbe provisions of Article 20 of the Constitutioo, while doing so, it made reference to its judgment in Ramanand Pund-lik Kamat v. State(') where, in almos.t similar circumstances, it had taken the view that the prosecution was not maintainab'Je under that article. In that view of the matter, the High Court allowed the ap-peal by its judgment dated October 8, 1971, and acquitted the, ac-D cused 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 ~ranted by this Court on January 6, 1972, but it was expressly limited to the question whether the acquittal of the accused for the offence under section 5 (l) ( e) of the Act was justified. His acquittal for the offences under clause (a),(b) and (d) of sub-section (l) 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 subcsection (I) 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 fottr clauses which constituted the offence of criminal misconduct un-der sub-section (I) of section 5. The result of the insertion was that mere possession of pecuniary resources or property dispropor-tionate to the known sources of income of public servant, for which he could not satisfactorily account, became an offence by itself. Such possession was not, however, an offence by itself until December 18, 1964 hlthough there was third sub-section of section 5 befo1e 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

(I) Cr. A. No. 1436of1968 decided on 26/27th August, 1971.

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." ·

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 sec-tion 5 which stated the circumstances in which 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 way as not to include possession of pecuniary resources or property acquired before the Act as new kind of offence of criminal misconduct for otherwise there would have been 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. Tlie State(') and Surajpal Singh v. State of U. P., (") that sub-section (3) of section 5 "merely prescrib-ed' rule of evidence for the purpose of proving the offence of crimi-nal misconduct as defined in s. ( 5) (I) 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 s"ction S and inserted the new clause ( e) in sub-section (I) 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 insert-·ed c'lause (e), became an offence on and from December 18, 1964 by virtue of section 6 of the A.mending 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 dis-proportionate to his known sources of income after the coming into fore~ or the Amending Act," he was entitled to the protection of clause ( I ) of Article 20 of the Constitution which provides as fol!0\\,,-

''20(1) No person shall be convicted of auy offence ex-cept for violation of law in force at the time of the com-mission of the act charged as an offence, nor be subjected lo penalty greater than that which might have been inflic-ted under the law in force at the time of the commission of the offence."

So whm there was no law i11 force at the time when the accused was found in possession of disproportionate assets by the search which was made on May 17, 1964, under which his possession could be (l) [1964] 4 S.C.R. 630. 12) [1960] I S.C.R. 461. (J) [1%1] 2 S.C.R. 971.

said to constitute an offence, he was entitled to the protection of c'iause ( 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 liot th"refore 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 sub-section (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 elaus~ (a), b) aud (d) read with sub-section (2), and his acquittal for those offences, and !or the offences under section 161 and 165 of the Penal Code, has become final in view of the limited leave of ap-peal 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 rule of evidence in the form of the earlier sub-section (3) of section 5 was amended by the Legislature and distinct offence was provided by the insertion of clause ( e). This has to be so because the fact re-mains 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 resources or property disproportionate to his known sources of income.

There is thus nothing wrong with the view of the High Court that the accused was entitled to the protection of Article 20 ( 1) of the Constitution imd the appeal i8 dismissed.