1. The appellant before us is the ex-Inspector of Factories under the Government of Orissa. He was taken into service on 14-9-47 and suspended therefrom on 15-10-48 as a result of allegations of official misconduct which form the subject-matter of the present prosecution and of another criminal prosecution in which he has been acquitted. As Inspector of Factories, he had to inspect the various factories and mills in the State of Orissa. For the said purpose, he toured in the District of Koraput from 18-8-48 to 27-8-48 and in Balasore District from 29-9-48 to 30-10-48.
The case against the accused is that in the course of the inspection of the mills in these two districts, he collected bribes from persons connected with some of these mills which he inspected by threatening them with closure of the mills and other penalties, for alleged defects in the working of these mills and by promising to condone those defects if bribes were given.
2. There was a Mill-owners' associabion at Balasore of which, P. W. 12, one Sri Nandi was the Secretary. While the accused was on inspection-tour in the Ealasore District, oral complaints of his alleged misconduct were carried to the District Magistrate, Balasore, on 2-10-48, by P. W. 12, and one Haradhan Khan, since deceased. The District Magistrate, thereupon, arranged for detection at the next anticipated bribe-taking by laying the usual trap, that is, getting three marked hundred-rupee-notes to be passed on as part of the bribe.
On 3-10-48, the accused was camping in the Dak-Bungalow at Basta in Balasore District. In the morning, he inspected a mill, called Mangala Mill of that place. It is alleged, that in. connection with that inspection, he took a bribe of Rs. 450/-and that the three marked one hundred-rupee-notes formed a part of that bribe money according to the plan. On receiving information of this, the authorities proceeded to the Dak Bungalow, where the accused was resting, searched his person and his belongings on the spot and recovered a sum of Rs. 3148/-. He was arrested on the spot and subsequently released on bail on 4-10-48. Inquiry and investigation followed thereupon.
As a result, two prosecutions were launched against him, one for three specific offences of bribe-taking under Section 161 of the Indian Penal Code in connection with three mills in Balaspre District and the other for the offences of criminal misconduct under Section 5(2) of the Prevention of Corruption Act, 11(2) of 1947, as disclosed by his bribe-taking in connection with the inspection of six other mills and by the recovery of Rs. 3148/- from him on 3-10-48 at the search at Basta.
3. The various mills inspected by him in respect of which he is said to have taken bribes and which formed the subject of the two prosecutions may be enumerated as follows :
Name of the Mill and the placeDate of Inspection.Amount of bribes.
District Koraput.1.Laxmivillas Rice Mill, Jayapur.1-8-48Rs. 200/-2.Laxminarayana and Anna-purna Rice Mills, Joypur.23-8-48Rs. 500/-District Balasore.3.Laxminarayana Rice Mill, Bahangabazar.29-9-48Rs. 100/-4.Bajrangabli Rice Mill, Bahanagabazar.29-9-48Rs. 300/-5.Satyanarayan Rice Mill, Khantapada.30-9-48Rs. 300/-6.Jagsdhatri Rice Mill, Khantapada.doRs. 800/-7.Mahabir Rice Mill, Balasore.1-10-48Rs. 510/-8.Chandi Rice Mill, Haladi-pada.3-10-48Rs. 700/-9.Managala Rice Mill, Basta.doRs. 450/-
Out of these nine items of alleged bribe-taking, those with the Jagadhatri Rice Mill of Khantapa-da and Chandi Rice Mill of Haladipada and Mangala Rice Mill of Basta, which are 6, 8 and 9 in the above enumeration, were the subject matter of the separate prosecution for specific offences under Section 161, I. P. C. In that prosecution the accused was acquitted by the trial Magistrate in respect of two items and further acquitted on appeal by the Sessions Judge in respect of the third item relating to Mangala Rice Mill of Basta, which was the subject-matter of the trap-detection.
In respect of this acquittal by the Sessions Judge, the Government filed an appeal to this Court, numbered as Government Appeal No. 1/51. That appeal was also heard along with this appeal and we have come to conclusion in that appeal that there has been no power and valid sanction for the prosecution as required under Section 6 of Act 11(2) of 1947. We have accordingly, confirmed that acquittal on that ground, without expressing any opinion one way or another, as to the merits of the facts alleged therein against the accused.
4. The present case is concerned with the alleged bribe-takings in respect of the other six mills enumerated above and the recovery of Rs. 3148/-from the accused on 3-10-48 as constituting or as an item of evidence indicating criminal misconduct under Sub-section (3) of Section 5 of the Prevention of Corruption Act. The learned Ses. Judge before whom the trial had taken place, had come to the conclusion that the case of the prosecution as to the actual bribe-giving and bribe-taking was made out in respect of items 2, 7 and 5 above, that is, Laxmi-narayan and Annapurna Rice Mills, Joypur; Mahabir Rice Mill, Balasore and Satyanaryan Rice Mill of Khantapada. He was of the opinion that in respect of one of the other three mills, namely. Laxmivilas Rice Mill at Jayapur, no reliance could be placed on the statement of the alleged bribegiver, P. W. 6, and that the story of payment of bribe to the accused in that case was highly suspicious.
As regards the other two mills., viz., Laxminara-yan Rice Mill of Bahanagabazar, and Bajaranga-bali Rice Mill of Bahanagabazar, he was of opinion that though the evidence of the bribe-givers in those two instances lacks corroboration, and that therefore he would be unwilling to base any conviction of the accused on these instances if the prosecution had been for the specific offences under Section 161, I. P. C., he would not reject that evidence relating to those instances from consideration in connection with an offence under Section 5(2) of the Prevention of Corruption Act, 11(2) of 1947, and to prove the corrupt habit alleged.
In respect of the find of Rs. 3148/- with the accused on search on 3-10-48, at the Dak Bungalow, Basta, the accused admitted the recovery; but gave defence-evidence explaining how he happened to have that amount with him at that time. The learned Sessions Judge rejected the defence-evidence and found that his possession of that amount was not satisfactorily explained. On the above findings, relating to the bribe-taking in respect of five rice mills, and the un-explained possession of Rs. 3148/-, the learned Sessions Judge convicted the accused for having committed the offence under Section 5(2) of Act 11(2) of 1947, and sentenced him to Rule I. for four years and to fine of Rs. 5,000/- in default to a further Rule I. for one year. The present appeal by the accused is against that conviction.
5. As a preliminary to the consideration of the case on the merits, it will be useful to notice the provision of Act 11(2) of 1947, the Prevention of Corruption Act, (hereinafter referred to as 'the Act'). This Act was passed, as its preamble says,
'to make more effective provisions for prevention of bribery and corruption of public servants.'
Prior to this Act, the only provisions in the PenalCode relating to these offences by public servantswere Sections 161 and 165. The offences under thesesections were not cognizable, and it was amatter of debate in Courts whether or not a prosecution for offences under those two sections required sanction under Section 197 of the Cr. P. C. orunder Section 270 of the Government of India Act, 1935,-- a debate which was resolved by the decision ofthe Privy Council in 'H. H. B. GILL v. THE KING',AIR 1948 PC 128.
By Act 11(2) of 1947, a new offence called 'criminal misconduct in the discharge of duties by a public servant' was created and was defined in the various clauses of Section 5(1) of the Act. The offences under Sections 161 and 165 of the Indian Penal Code and the new offence of criminal misconduct under Section 5(2) of Act 11(2) of 1947, were made cognizable, but with the safeguard that no police officer, below the rank of Deputy Superintendent of Police shall investigate any such offence without the order of a 1st Class Magistrate, or make any arrest therefor without a warrant (see Sub-sections 3 and 4 of Section 5 of the Act).
It was also provided by B. 6 thereof, that no Court shall take cognizance of any offences under Section 161 or Section 165 of the Indian Penal Code or under Sub-section (2) of Section 5 of the Act, except with the previous sanction of the appropriate authority as specified in that section. In addition to creating a new offence of 'criminal misconduct by public servants', the Act introduced two entirely new features in the administration of criminal justice of the country. By Section 7 thereof, it was provided that when any person is charged with an offence, punishable under Section 161 or under Section 165 of the I. P. C., or under Sub-section (2) of Section 5 of the Act, he shall be a competent witness on his own behalf or on behalf of any other person under joint trial with him. Also two new rules of evidence were introduced by Section 4 and Sub-section (3) of Section 5.
Under Section 4, in a trial for offences under Section 161 or under Section 165 of the I. P. C., once it is proved that an accused person has accepted or obtained or has agreed to accept or obtain for himself or for any other person, any gratification other then legal remuneration, or any valuable thing from any person, the prosecution is relieved from the burden of establishing the other ingredients requisite for a conviction under Sections 161 & 165 of the I. P. C. viz., that the obtaining of the gratification was a motive or a reward for doing or forbearing to do any official act etc. as specified in Section 161 or that the valuable thing was obtained without consideration or for inadequate consideration, as required under Section 165, I.P.C.
In these cases, on proof of the mere fact of obtaining the illegal gratification or the valuable thing from a person, it would appear that the Court has to presume that the other ingredients required under Section 161 or under Section 165, as the case may be, have been made out, unless the contrary is proved by the accused. Similarly, in respect of the new offence created under Section 5(2) of the Act, viz., offence of criminal misconduct by a public servant in the discharge of his duty, sub-s. (3) of Section 5 of the Act provides that where the fact is made out, viz., that the accused person or any other person on his behalf is in possession of pecuniary resources of property disproportionate to his known sources of income for which the accused person cannot satisfactorily account, the Court has to presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty.
The sub-section further provides that a conviction based on such presumption alone, shall not be invalid for that reason. There can be no doubt that these provisions are somewhat drastic; but they have been enacted for combating the oft-ventilated public complaint of growth of corruption amongst public servants in the discharge of their official duties.
6. A review of the above provisions of the Act shows that the sanction of the State Government is necessary under Section 6, before the court could take cognisance of the offence under Section 5(2) thereof. The appellant being a public servant appointed and removable by the State Government, sanction of the State Government is therefore necessary for cognizance of this case. At the very outset, a strenuous argument has been raised by learned counsel for the appellant that the sanction relied on by the prosecution is not valid and legal.
That contention was raised also at the trial and overruled by the learned Judge and has to be dealt with carefully in the present appeal. But it will be convenient to deal with this contention after discussing the merits of the case. I shall accordingly proceed to consider the evidence in the case first. Before doing so, however, it is as well to notice an objection to the frame of the charge in the case, which has been mentioned in the course of arguments, though not strongly urged.
7. The charge framed by the learned Sessions Judge is as follows :
'That you within the period, 14-7-17 to 3-10-48 committed the offence of criminal misconduct in the discharge of your duty as the Factory Inspector by habitually accepting or obtaining illegal gratification (not being legal remuneration) as motive or reward for forbearing to do an official act, that is, not to take steps against persons for their non-compliance with the provisions of the Factory Act and the rules framed thereunder and by being in possession of pecuniary resources and property disproportionate to your known sources of income and thereby committed an offence punishable under Section 5(2) of the Prevention of Corruption Act, 11(2) of 1947, and within the cognizance of this Court, and I hereby direct that you be tried by this Court on the said charge.'
It is urged that this charge is open to objection on the following grounds : (1) The various items of illegal gratification are not specified; (2). The charge covers a period of more then one year and at the trial evidence of six items of bribery has been given. This is opposed to Section 234 of the Cr. P. C. (3) The charge specifies 'being in possession of property disproportionate to your known sources' as an offence by itself, though no such offence has been created by the new Act.
8. So far as the last objection is concerned, it is partly true that Sub-section (3) of Section 5 does not create an offence by itself, but is only in the nature of a rule of evidence as to what constitutes criminal misconduct; but in view of the provisions that on proof of unexplained possession of resources or property disproportionate to known sources of income, a presumption of misconduct is to be made against the accused and a conviction can be based solely on that presumption, it is virtually the creation of a distinct head of the offence of criminal misconduct. Besides, even if it is merely evidentiary, it was quite appropriate that the learned Sessions Judge should have specified on that particular count also in the charge in fairness to the accused, since proof of it, by itself, may lead to serious consequences. The accused can have no grievance in this behalf.
9. As regards the objection that the charge contemplates trial in respect of as many as six items of bribery and the period specified in the charge is over an year, and that it is consequently opposed to the provisions of Section 234 of the Cr. P. C., it has to be appreciated that the trial of the accused in this case is only for the single new offence of criminal misconduct under Sub-section (2) of Section 5 of Act, 11(2) of 1947, and not for specific offences under Section 161 of the Indian Penal Code. It is therefore clear as matter of law that the limitations under Section 234, Cr. P. C. are not applicable to such a case. The offence of criminal misconduct in so far as it consists of bribery or corruption under Clauses (a) and (b) of Section 5 requires for its establishment, proof of habitual bribery or habitual corruption. In order to make out the habit, it is clearly necessary to make out a number of instances of bribery spread over a reasonable period. The Legislature has not, in relation to the proof of the habit required for this new offence, imposed any limit as to the number of instances or the period to be covered as being sufficient or necessary for proof, which it might well have done. We cannot, therefore, hold the charge illegal on that ground.
But it must be recognised that the policy of Section 234, Cr. P. C. is to prevent undue embarrassment and confusion to the accused in the trial by evidence being given of a large number of items spread over a long period. That policy has to be given effect to as far as possible. If, therefore, in any particular case, the Court finds that the prosecution attempts to give evidence of quite a very large number of instances spreading over an unduly long period, in proof of the alleged habitual misconduct, the Court undoubtedly would have the power to require the prosecution to limit itself to a reasonable period of time, in order to prevent abuse of process and harassment to the accused and in order also to prevent any prejudice arising in the mind of the Court by mere allegations of numerous items.
In the present case, out of nine items of bribery which the authorities are said to have found out, on investigation, this trial has been confined to only six items and the other three items which formed the subject-matter of an independent prosecution, have been very rightly omitted from the scope of this trial. These six items, in fact, covered a very short period of less then two months from 18-8-48 to 3-10-48. We do not consider that there was likely to have been any embarrassment or prejudice to the accused in his defence to meet this case and no such prejudice has been suggested to us.
10. The further objection that the actual specific items of bribery that have, in fact, been the subject-matter of evidence in this case, have not been specified in the charge, is probably a somewhat more substantial one. What constitutes the offence of criminal misconduct by public servant under Sub-section (2) of Section 5 of the Act, has been specified in the four clauses of Sub-section (1) of Section 5. These clauses undoubtedly cover a very wide range.
It is ordinarily desirable that prosecution of public servants for offence of criminal misconduct should mention the specific act or acts sought to be relied upon in proof thereof and to state, in cases falling under Clauses (a) and (b), that all or such of the instances as may be held proved, are intended to be relied upon as proof of the habit. While, therefore, there may be some room for legitimate comment against the charge on the ground that the particular items of bribery have not been specified in the charge, we cannot hold that the trial is illegal, having regard to Section 225 of the Cr. P. C., which says :
'That no omission to state the particulars of an offence shall be regarded at any stage of the trial as material, unless the accused was in fact misled by such omission and it has occasioned a failure of justice.'
Though definite particulars of the instances, intended to be relied upon, have not been given, the charge has not contented itself with vaguely referring to the offence of criminal misconduct, but has limited the scope of the enquiry by specifying that the evidence sought to be given is in respect of Clause (a) thereof, viz., by habitually accepting or obtaining illegal gratification, not being legal remuneration, as a motive or reward for forbearing to do an official act, that is, not to take steps against the persons for their non-compliance with the provisions of Factory Act and the rules framed thereunder.
Thus, the accused was put on notice that the trial was to be limited to the range of bribe-taking so specified. It would undoubtedly have been fairer if the specific items of bribery with details had been mentioned in the charge; but we are unable to find that the omission to do so, has, in fact, occasioned any failure of justice in the present case. No prejudice thereby to the accused has been attempted to be shown to us in the course of the arguments. The objections, therefore, as to the frame of the charge are not such as to vitiate the trial.
11. Now proceeding to a consideration of the details of the case, the prosecution in order to substantiate the charge of 'criminal misconduct' under Section 5(2) of the Act, against the appellant has given evidence of :
1. Unexplained disproportion between the pecuniary resources found in possession of the accused and known sources of income, bringing the case under Section 5(3) of the Act.
2. Collection of bribes in the course of inspection of two mills at Joypur in Koraput District and four mills at various places in Balasore District.
Evidence relating to item (1) may be taken up for consideration first. But before doing so it is necessary to notice that on this part of the case the learned Sessions Judge has not given any clear and definite finding. At one stage he appears to have come to the conclusion that the prosecution has failed to make out a disproportion between the pecuniary resources of the accused and his known sources of income, suggesting probably that no case under Section 5(3) of the Act has been made out. Yet he proceeds to discuss the positive evidence given by the accused in defence of that case particularly about the sum of Rs. 3148/- found with the accused at the search on the 3rd October, 1948, and he finds the defence to be unreliable.
Learned Judge uses this conclusion as an important item of circumstantial evidence by way of cor-roboration of the evidence relating to payment of specific items of bribery relating to the mills in Balasore District. Whether this line of reasoning is legitimate is open to question. Hence it becomes necessary to appraise the law and evidence bearing on this aspect of the case independently.
Under Sub-section 3 of Section 5 of the Act, the facts necessary to be considered are : (1) what are the pecuniary resources or property which are in the possession of the accused or of any other persons on his behalf; (2) what are his known sources of income; (3) is item (1) above disproportionate to item (2); (4) if so, has the accused satisfactorily accounted for this disproportionate possession of pecuniary resources or properties? If the disproportionate possession is not satisfactorily accounted for, the Court is bound to draw the presump- tion of 'criminal misconduct' against the accused and the burden then shifts to the accused to prove the contrary.
It is necessary, however, to emphasize that under the section, once the disproportionate possession is made out, the accused has two opportunities viz., one that of satisfactorily accounting for this disproportion and the other of rebutting the presumption of criminal misconduct arising therefrom, if the explanation is found unsatisfactory.
While it may become necessary to take the evidence on all these aspects together at the trial, and the evidence may have to be considered as a whole, the distinction between the two opportunities cannot be lost sight of. The presumption against the accused under this sub-section is not to be drawn until the explanation of the accused for the disproportionate possession and the evidence bearing on it is considered and found unsatisfactory. At that stage of the consideration of the case, the normal principle will apply, viz., that the accused is entitled to the benefit of doubt and that where reasonable explanation is offered, which is acceptable and raises a doubt, that the prosecution has not discharged the burden, though the accused may not have proved the explanation. (See 'REX v. SCHAMA', (1915) 84 LJ KB 396; also 'DR. WOOL-MINGTON V. DIRECTOR OP PUBLIC PROSECUTIONS', 1935 AC 462.)
But where the Court feels justified in drawing the presumption against the accused after a due consideration of the explanation, then the burden is on the accused to displace the presumption of criminal misconduct, always remembering as has been held in 'REX v. CARRBRIANT', (1943) 1 KB 607, that the burden of proof on the accused in such cases is less then that on the prosecution and that it is enough for the accused to make out the truth of his defence in all reasonable probability though not clearly beyond doubt. It is these prin-ciples that have to be kept in view in appreciating the evidence on this part of the case.
(His Lordship considered the evidence relating to the pecuniary resources found in possession of the accused and his known sources of income and proceeded. :)
12-15. On a consideration, therefore, of the evi-dence given in this case on the side of the prosecution, it would appear that the accused has been found in possession of only two items of pecuniary resources, viz., (1) a sum of Rs. 2000/- by way of advance for a car in deposit with the Kishore Transport and (2) a sum of Rs. 3148/- being the amount recovered from him on search at the Basta Dak Bungalow on 3rd October, 1948. The known sources of his income are the salary of Rs. 6045/-and the travelling allowance of Rs. 2155/- during the period of 13 months for which he was in ser-vice. So far as the amount of Rs. 2155/- by way of travelling allowance is concerned, it cannot be assumed that this would have left any substantial margin. It cannot be treated by a Court as a source of legitimate income. Therefore, the only known and legitimate source of income must be taken to be the sum of Rs. 6045/- drawn by way of salary for the pteriod of 13 months, which works out at an average of Rs. 465/- per mensem.
The contention on behalf of the prosecution is that the total pecuniary resources of Rs. 3148/-which the accused was found in possession of at the time of this case are quite disproportionate to his known sources of income, viz., the salary of about Rs. 465/- per mensem for 13 months.
(His Lordship considered the evidence and upholding the contention proceeded :)
I may add, that it has been suggested that the money drawn by way of travelling allowance, is generally known to leave some margin and that it must be taken into consideration. As I have al-ready said, a Court cannot assume that travelling allowance is improperly drawn. But even other-Wise and even if I assume, that some reasonable margin may be available, my conclusion that the pecuniary resources found are disproportionate, would not be affected. It is now necessary to see what explanation the accused has got for the pos-session of these disproportionate pecuniary resources.
16. As regards the sum Rs. 2,000/- given by way of advance to Kishore Transport, the accused has stated in answer to a specific question in this behalf in his examination by the learned Sessions Judge under Section 342, Cr. P. C. that he advanced this money out of his provident fund. But as regards the sum of Rs. 3148/- found on search, the only question that has been put to him by the learned Judge in his examination is : 'On 3-10-48 were you found in possession of a sum Rs. 3148/- while on tour at Basta?' and his answer is : 'It was found.' The question was obviously put to give the accused an opportunity for explanation, but the accused has offered no explanation as such. It must be said, however, that the question of the learned Judge in this behalf is open to the criticism that it was inadequate and that it was so worded that it did not draw the attention of the accused pointedly to this being the opportunity for giving an explanation.
This lacuna, however, cannot be said to have caused any prejudice, because, the accused has, in fact, given positive defence evidence purporting to explain and to cover this item. To confirm the impression that there has been no prejudice it may be noticed that in the connected prosecution, which ended in acquittal, the accused filed a written statement on 4-9-1950 long before the questioning by the trial court in this case, which was on 29-8-1950. The entire present defence as regards this portion of the case has been fully set out in that written statement as I find from P. 8 of the printed record in the connected Government Appeal No. 1 of 1951, disposed of with this appeal.
17. To make out the explanation the defence for these two items of Rs. 2000/- and Rs. 3148/-the accused has given evidence of the following three alleged facts, viz., (1) that shortly after he joined the Orissa Government Service, the accused received a total sum of Rs. 3477-1-0 apart from his salary as provident fund and bonus paid by his previous employer, the Octavious Steel Co. of Calcutta; (2) that a sum of Rs. 324/- was received on 2-10-1943 from D. W. 9 and (3) that a sum of Rs. 2800/- was received on 1-10-48 from D. W. 14 under circumstances to be stated presently.
(His Lordship discussed the evidence and concluded :)
18-20. It must therefore, be taken that the disproportionate possession of Rs. 3148/- found with the accused on 3-10-48 is without any satisfactory explanation. Unless, therefore, the positive defence of the accused for the possession of this amount of Rs. 3148/- is made out, a clear presumption under Section 5 (3) would arise.
21. That defence has now to be considered. The definite case of the accused to account for the possession of the sum of Rs. 31487 is as follows : A sum of Rs. 324/- was the money given to him by D. W. 9 at Balasore as sale price of a jewel and a sum of Rs. 2800/- was given to him by D. W. 14 also at Balasore as part of the sale-price of his old car (and the balance of Rs. 24/- was presumably cash for his expenses). He had placed an order for a gold neck chain with D. W. 13, but when it was ready and brought to him on 26-9-48, he and his wife did not approve of it and were about to return it to the maker who declined to take it back. D. W. 9 a friend who happened to be present at the time, wanted it for his wife and took it from the accused promising to pay the price thereof i.e., Rs. 324/- when the accused was next to go to Balasore four or five days later. Accordingly, this amount was paid by D. W. 9 when the accused was at Balasore.
As regards the amount of Rs. 2800/- the case is as follows : D. W. 14, a person of Basantia, Balasore District, happened to be at Cuttack on or about 20th of September. He saw the old Austin car of the accused and agreed to purchase it for a sum of Rs. 40007-. It was also agreed that the car was to be delivered at Balasore, when the accused was to go there on 1-10-48 on payment of the full price there. The car required some minor repairs and colouring. The accused undertook to get these done and to deliver the car at Balasore on 1-10-48 and take the money. It was as a result of this bargain that the sum of Rs. 2800/- had been paid by D. W. 14 to the accused at Balasore on 1-10-48. (His Lordship discussed the defence evidence and proceeded :)
22-24. I may mention at this stage, that the learned Sessions Judge, in dealing with this portion of the case, has attached some importance to the fact that when the amount was seized from the accused on 3-10-48 in the presence of the S. D. O., P. W. 23, and when P. W. 23 asked him to explain, he did not say a word about the present defence relating to the receipt of Rs. 2800/- from D. W. 14. It has been strenuously argued for the appellant that that evidence was wholly inadmissible, on the authority of 'NAZIR AHMAD v. KING EMPEROR', AIR 1933 P. C. 253 (2).
It has been contended on the other side that the said decision is inapplicable since the seizure and the questioning was not in the course of any investigation under Chapt, XIV of the Cr. P. C., but at an earlier stage. It has been further argued for the appellant that even if it is assumed that the investigation stage had not yet commenced, reliance on a question by a Magistrate and answer thereto otherwise then when recorded under Section 164 Cr. P. C. would be hit by the same fundamental objections, that have been emphasised in AIR 1936 P. C. 253 (2).
I do not wish to express any final opinion on this matter, though, as at present advised, I am inclined to agree with the defence contention as to the in-admissibility of such oral questions and answers. I have considered it safer to exclude from consideration the alleged question and answer, as spoken to by P. W. 23. I wish to make it clear that what I have relied on in coming to my conclusion on this portion of the case, is not the question to and answer ' of the accused, at the time, as spoken to by P. W. 23, but the conduct of the accused in not voluntarily and spontaneously offering this explanation, at the time, and in not asking the authorities for an immediate verification thereof from D. W. 14, by seeing (sic) of the receipt Ext. Z-3 in order to extricate himself from the serious situation in which he found himself when such a suspiciously heavy amount was unexpectedly and suddenly seized from him under a search warrant.
I may also add that this is only one of the various circumstances for coming to the conclusion that I did, on this part of the case. I have therefore no hesitation in coming to the conclusion that the positive defence of the accused to account for the possession of the amount of Rs. 2800/- out of Rs. 3148/- seized from him at Basta on 3-10-48, which amount is still heavy enough to demand explanation, is false.
25. It follows that the presumption of guilt under Section 5 (3) of the Act remains unrebutted.
26. I shall now proceed to consider the material in the case relating to the individual instances of alleged bribe-taking. But before doing so, it is necessary to notice certain common questions that arise with reference to each of these instances.
27. The evidence given as to the modus operandi preliminary to the bribe-taking in each case is to the effect that the accused, on inspection of each of these mills, alleged the existence of certain defects and threatened the responsible individual of each such mill with closure of the mill and prosecution and thereby putting him in fear obtained the various items of bribery-money. It has been argued that this is highly artificial and got-up evidence and that these alleged threats are belied by the various inspection reports of the mills which were submitted by the accused after their inspection and which disclose no major defects at all in respect of which any such serious threats could have been held out so as to put the respective parties in fear.
To substantiate this, various inspection reports have been marked on behalf of the accused as Exts. U series. It may be that these inspection reports do not, on a perusal, disclose any such major defects as were likely to form the basis for the serious threats said to have been held out by the accused. It appears, however, from the dates appearing on these reports and the evidence of D. W. 7 that all these inspection reports Exts. U to U-17 were actually sent to the concerned mills and factories on various dates ranging from 18-10-48 to 29-10-48 from the office of the Director of Industries i. e., long after the arrest of the accused.
So far as the inspection reports of the Balasore mills are concerned, though they purport to have been written up by the accused under dates 29-9-48, 30-9-48 and 1-10-48, the evidence of D. W. 7 as well as the endorsements on these reports show that they were actually received in the office of the Inspector of Factories (Director of Industries) only on 5-10-48, that is, after the arrest and release on bail of the accused. These inspection reports are therefore open to the comment against the accused that they were deliberately written up after the arrest and antedating the same and purporting to show only minor defects.
So far as the mills inspected in the Koraput District are concerned, the inspection reports, relating thereto, are Exts. U-8 to Ext. U-17. They also were despatched to the mills from the office of the Chief Inspector of Factories at about the same time as the reports relating to Balasore Mills, that is between 18-10-48 to 29-10-48. But the endorsement on these reports and the evidence of D. W. 7 indicate that they were received in the office of the Chief Inspector on 29-10-48, that is, a few days prior to the arrest of the accused. If these dates are accepted as genuine, which the learned Sessions Judge was inclined to doubt, it is possible to say in respect of these reports that there could be no question of deliberate fabrication after the accused got into trouble.
But even so, none of these inspection reports can positively make out, that the prosecution story in this behalf is not true. If, as the prosecution alleges, the threats were held out by the accused, and, as a result, the concerned persons paid the bribes, it would also be reasonable to expect that the inspection reports hushed up the existence of any major defects. Therefore, the mere fact that the inspection reports, Ext. U series may not disclose serious defects, they neither disprove the prosecution case, nor help the defence case. It may be noticed at this stage, that Section 26 of the Factories Act of 1934, which was then in force (and which, corresponds to Section 40 of the present Factory Act of 1948) has a provision in the following terms :
'If it appears to the Inspector that any building, or part of a building or any part of the ways, machinery or plant in a factory is in such a condition that it is dangerous to human life or safety, he may serve on the manager of the factory an order in writing prohibiting its use until it has been properly repaired or altered'.
That is a drastic provision and it cannot be said that this power of temporary closure is not capable of abuse. To notice this provision however, is not to say that there is any greater likelihood of such power being abused then the contrary. All that need be said is that while the mere existence of power like that in Section 26 of the Factories Act is not a reason for assuming the probability of the abuse of that power, neither would it be reasonable to treat the inspection reports, Ext U series as disproving generally the prosecution case in this behalf.
The prosecution case, has therefore to be judged with reference to the material in each individual case. But there is one item of evidence which has got to be noticed in this context and which to the extent it goes may be considered to be against the accused. D. W. 7 who is an assistant in the office of the Director of Industries examined on behalf of the accused says in cross-examination as follows :
'The mills have to maintain inspection books wherein the Factory Inspector has to note down the defects in the mills after inspection'.
'The Factory Inspector carries forms for preparing his notes on the spot'.
'According to rules the notes ought to be signed : on the dates of inspection'.
Thus, the system appears to be that the Inspector notes down then and there in the inspection books of the mills the defects he notices on inspection. Thereafter, he prepares his reports on that very day, signs them and sends the same to the office with necessary copies. If this procedure had in fact been followed in the office, the inspection books in the mills would have disclosed what the accused noted down on the spot and if they were summoned for the defence, and were found to tally with Ext. U series, this would have gone some way in throwing doubt on the prosecution case. Their non-summoning may well be a point against the accused.
There is no evidence however whether this procedure which has been spoken to by D. W. 7 has in fact been followed by this Factory Inspector or not. The only inspection book summoned and filed on behalf of the accused is a book in which the inspection reports, Exts. G and G-1 relating to Lax-minarayan rice mills, Joypur have been filed. That book throws no light at all and shows that no such notes on the spot have been made in that mill inspection book. One has, therefore, to depend on the actual evidence relating to such of these instances.
28. One other common question that requires consideration in respect of these six items of bribery, arises from the fact that in such case, the evidence of the threat, the demand and the giving arid taking of the bribe is that of a single witness who is himself the giver of the bribe. The learned Sessions Judge has proceeded to appraise the evidence of each of such witnesses on the footing that he is an accomplice in respect of the offence under Section 161, I. P. C. and that his evidence requires corroboration for acceptance. It has been urged on behalf of the accused that the evidence which has actually been relied upon by the learned Sessions Judge as amounting to corroboration is not in law really such.
On the other side, it has been urged for the prosecution that the learned Sessions Judge applied a wrong standard in appreciating the material evidence relating to these instances. It is urged that the giver of a bribe, in the circumstances alleged in the present case, cannot be said to be an accomplice at all, and also that even if he be held to be such, technically, the incidents adduced in proof of the charge in this case and the circumstances attending thereupon, are such that no corroboration is necessary or can be expected. It is urged for the prosecution that this is a class of cases in which the sole testimony of the bribe-giver is not to be rejected on the ground of want of corroboration.
29. These respective contentions call for a consideration of the following questions : (1) whether the person who gives the bribe, to a public servant, is an accomplice in the offence under Section 161, I. P. C., committed by the bribe-taker public servant; (2) if he is an accomplice whether his evidence stands in need of corroboration; (3) if corroboration is necessary, what is the nature of the evidence required for the purpose.
30. Section 107 of the Indian Penal Code says that : 'a person who intentionally aids the doing of a thing' is an abettor. Illustration (a) to Section 109 of the Penal Code shows that a person who has offered a bribe to a public servant which that public servant has accepted is an abettor in respect of the offence under Section 161 I. P.C. It has, accordingly, been accepted by all the Courts that the voluntary giver of a bribe to gain some advantage is an abettor and hence an accomplice. This is plainly so, on the ground that he intentionally aids the commission of the offence inasmuch as he intends the bribe to be taken and that the giving of the bribe facilitates the taking thereof.
The question that has been raised here is whether when the bribe is given in response to a threat or out of anticipated fear, as is alleged in this case, the bribe-giver can be said to be an accomplice. It is true that in such a case, he is not acting voluntarily. But his act is nonetheless accompanied by the intention that the bribe should, be taken and is hence intentional. It follows that he has intentionally aided or facilitated the taking of the bribe. He is also, therefore, an abettor and hence an accomplice.
An intentional act which is otherwise an offence ceases to be such under Section 95 of the Indian Penal Code only if it is done under compulsion or threats of such a nature which, at the time of the commission, cause reasonable apprehension of death, compulsion or threat under other circumstances-does not operate to absolve an offence. This aspect of the case is fully dealt with in 'QUEEN EMPRESS v. MAGANLAL', 14 Bom 115 and need not be elaborated. The learned Judge has, therefore, approached the evidence in this case, rightly by treating the bribe-giver as an accomplice, though, it is alleged to have been under threats.
31. The next question is whether it is the rule in such cases that their evidence is not to be accepted without any corroboration. Apart from the authority of decided cases, the rule under the Indian Law, in so far as the statutory requirements are concerned, is clear. Section 114, Illustration (b) of the Evidence Act shows that a Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars; and Section 133 of the Evidence Act, shows that an accomplice shall be a competent witness against an accused person; and a conviction upon the uncorroborated testimony of an accomplice is not illegal.
It follows that while, normally, it would be unfair to act on the uncorroborated testimony of an accomplice, whether in a particular case, it is to be accepted without corroboration or not, would depend upon a comprehensive consideration of the accomplice's evidence. If the evidence is trustworthy, and the court finds sufficient reason to believe it, it can be acted upon as the sole basis for conviction. The rule requiring corroboration of the evidence of an accomplice is a rule of practice and prudence and it is so invariably acted upon that it has come to be treated as almost a rule of law as pointed out in 'REX v. BASKERVILLE', (1916) 2 KB 658.
This has since been acted upon by all the Courts, in India, and forms the standard of guidance in appraising accomplice evidence. The Supreme Court has had occasion very recently to consider the implications of the rule in 'REX v. BASKER-VILLE', in relation to the provisions of the Indian Evidence Act. In the unreported judgment in 'Cr. Appeal No. 2 of 1951' in the Supreme Court of India, in 'RAMESWAR, s/o KALAYAN SINGH v. THE STATE OF RAJASTHAN'; their Lordships after referring to the oft-quoted passage from 'BA-SKERVILLE'S CASE', have explained that rule in the following terms :
'That, in my opinion is exactly the law in India so far as accomplices are concerned. The only clarification necessary for purpose of this country is where this class of offence is sometimes tried by a Judge without the aid of a Jury. In these cases, it is necessary that the Judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reason for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case.'
Their Lordships added however that in the particular case before them, the learned High Court Judges were wrong in thinking that they could not as a matter of law, convict without corroboration. These statements of the Supreme Court must now be taken to be law so far as the requirement of corroboration is concerned in its application to the present case. The learned Sessions Judge though he noticed in the earlier portion of his judgment the legal position correctly, when he observed that
'there is no bar to a conviction based on the uncorroborated testimony of an accomplice and as a matter of practice and rule of prudence, Courts need corroboration of statements of accomplices in material particulars'
he has when dealing with the evidence relating to each individual incident, virtually assumed that, unless there is corroboration, there could be no conviction. This is, what he, in terms, said with reference to the two instances relating to Laxmi--narayana Rice Mill and Bajrangabali Rice Mill, both of Bahangabazar. His judgment is therefore open to the criticism that he has considered the rule of corroboration not merely as a rule of caution and prudence, but as being essential for conviction and that he has failed to consider whether the evidence of the bribe-givers, in those cases, was not sufficiently trustworthy to be acted upon.
31A. Next, as regards the nature of corroboration, that is required, it has been contended on behalf of the accused, relying again on the rule in 'REX v. BASKERVILLE', (1916-2 KB 658) that what is required is confirmation as to a material 'circumstance' of the crime and of the identity of the accused in relation to the crime and that evidence in corroboration, must be independent circumstantial testimony which probablises the offence and affects the accused by connecting or tending to connect him with the crime.
Learned counsel for the appellant argues that the corroboration required in the present case, though it need not be in the nature of independent evidence of the fact of receiving the bribe, must be of some circumstances relating to, or, arising out of, the taking of the bribe which probablises its taking, and not the mere giving of it, and that it must be such as implicates the accused directly. With reference to this standard, learned counsel urged that the mere previous statements of bribe-giver-accomplices in the present case that the accused had asked for the bribe, or that they had given the bribe, cannot be treated as corroborative evidence.
The argument has been advanced that the use of previous statements of a witness for corroboration under Section 157 of the Evidence Act, applies only to an ordinary witness, whose credibility is sought to be strengthened thereby, but not to the special class of witnesses who are termed 'accomplices' and whose evidence requires special kind of corroboration for other reasons. This question has also been dealt with in the judgment of the Supreme Court in the recent unreported judgment already referred to, and their Lordships have laid down that :
'Even in the case of accomplices, corroboration afforded by previous statements which come within the scope of Section 157 of the Evidence Act, is legally admissible.'
Their Lordships in considering the very question as to the admissibility of a previous statement of an accomplice for purposes of corroboration, point out that 'the answer to it, is found in Section 157 of the Evidence Act which lays down the law for India' and they state as follows :
'The section makes no exceptions. Therefore, provided the conditions prescribed, that is to say, 'at or about the time' are fulfilled, there can be no doubt that such a statement is legally admissible in India as corroboration.'
It has also been laid down in the above unreported judgment that where corroboration is looked for,
'all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is reasonably safe to be acted upon, and connecting or tending to connect the accused with the offence.'
32. It has further to be mentioned that the decided cases have made a considerable distinction between the nature and degree of corroboration required, with reference to the testimony of bribe-givers in prosecutions of public servants for offences under Section 161 of the I. P. C. Some of the earlier cases adopted a rather strict view and have laid down that both in a case where the bribe-giver volunteered the bribe and induced or persuaded the public servant to accept the bribe, and in a case, where the bribe-giver, gave the bribe in response to a demand by the bribe-taker, either on account of threat or under an apprehension of anticipated harm, the unreliability of the accomplice is the same and the standard and the nature of corroboration required is the same. See 'QUEEN EMPRESS v. MAGANLAL', 14 Bom 115; 'KING EMPEROR v. MALHAR MARTAND', 26 Bom 193 and 'EMPEROR V. EDWARD WILLIAM SMITHER', 26 Mad 1.
This view was based on the ground that bribe-givers are not people of good character and that if such evidence was likely to be accepted without corroboration, men of previously good character would be exposed to charge of receiving bribes without sufficient protection. Later cases, however, while recognizing that a person who gives a bribe either voluntarily or under fear, is guilty of the offence of abetment or of the offence under Section 161, I. P. C., and is therefore an accomplice, for acting on whose evidence it may normally be safe to look for corroboration, have treated this class of accomplice witnesses who act under threats on quite a different footing, as appears from the cases in 'DURGACHARAN v. DOO-KHIRAM', 26 Cal. 925; 'DEO NANDAN PARSHAD V. EMPEROR', 33 Cal 649; 'K. H. BHATTACHAR-JEE v. EMPEROR', Am 1944 Cal 374 and KAMAL-KHAN v. EMPEROR', 59 Bom 488.
In '14 Bom 115' at p. 122, which is a case of bribe-givers, his Lordship Scott J. having regard to the facts of that case, viz., that there was no evidence of conspiracy to ruin the official against whom bribe-taking was alleged stated as follows :
'It must be remembered that in all these cases no presumption arises of a conspiracy to ruin the officer. ..... It must also be remembered that the degree of criminality in their offering money to the officer must, in their eyes, be slight and their fear of punishment equally slight. This is not one of the cases of accomplice-evidence where the accomplice would save his own neck or his own liberty by falsely accusing some third person. He might have saved himself all further trouble by denying all knowledge.'
In a later case, in 59 Bom 486 : AIR 1935 Bom 230, it has been pointed out as follows :
'It is true that Bapu Salieb must be treated as an accomplice, and so must Krishna, Dadu and Na-mu. But in cases of bribery, the persons who pay the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about it. It is not possible to expect absolutely independent evidence about the payment of a bribe, and a distinctionhas to be made between persons who have voluntarily paid a bribe to a public servant in orderto secure some advantage for them-selves, and persons, such as Krishna, Dadu andNamu in this case, who have been compelled,by improper pressure put upon them by a publicservant, to pay a bribe. In cases of this kind,where the payment of the bribe has not beenvoluntary very slight corroboration would besufficient to make the evidence of such personsadmissible against the receiver of the bribe.'
In 'AIR 1944 Cal. 374', it has also been stated as follows :
'It is true in a sense that the person who pays bribe is an accomplice of the person who received the bribe; but the position is essentially different from that of, say, one dacoit deposing regarding the dacoity against his fellow da-coits. In the present case, Kunja Bihari Ghose was not in danger of prosecution. He had nothing to gain by falsely implicating other accused persons. Though technically an accomplice, he was essentially, as the learned Magistrate has pointed out, a victim.'
The result of , a review of the above-mentioned cases, leads to the following conclusion. The giver of the bribe is, in law, an abettor of the offence and therefore, an accomplice, irrespective of whether the giving was voluntary or in response to a demand accompanied by threat or fear. But in the later case, i.e., of bribe giving under threats, whether the evidence of the accomplice is safe to be acted upon, depends on circumstances. In the first place, one must be satisfied that the story of threats is itself reliable and not the outcome of a conspiracy to involve a strict officer in troubles or is motivated by some other personal malice. If, on being so satisfied, the Court considers that the sole testimony of the accomplice is safe to be acted upon, a conviction can be based thereon. In such a case, even if corroboration is considered desirable, a less strict standard of corroboration evidence may be accepted -- as for instance evidence of previous statements and the like.
33. In view of the scope for comment that has been made about the way in which the evidence relating to the specific instances of bribery has been approached by the learned Judge, it is desirable now to deal with that evidence independently.
34. I shall now take up the consideration of the evidence relating to the individual instances of bribery which the prosecution seeks to make out against the accused in order to establish that the accused is guilty of criminal misconduct by way of habitually obtaining illegal gratification for himself. At the outset I may state that the prosecution has given evidence of another item of alleged misconduct other then bribery, viz., the attempt to purchase a Hindusthen-10 motor car through the manager oi a mill, at a price much below the market price. It is unnecessary to notice this evidence, as the charge, in terms refers only to the habitual obtaining of illegal gratification covered by Section 5(1)(A) and not to habitual acceptance of any valuable thing for an inadequate consideration which is covered by Sub-section (B). Besides as the learned Sessions Judge points out the evidence of P. W. 19 in this connection shows that this item is not in fact substantiated.
35. As stated in the earlier part of this judgment, though the charge, has not, in terms, specified what are the various items of bribery, which the prosecution proposes to put forward against the accused, the items actually given in evidence are six, two in the Koraput District and four in the District of Balasore. Those relating to Koraput District may be taken up in the first instance.
36. The accused made an' inspection tour of the Koraput District from 18-8-48 to 27-8-48. Out of the two incidents, relating to Koraput mills, which are given in the evidence, that which relates to Laxmivillas rice mill at Jeypore, may be left out of consideration, inasmuch as the learned Sessions Judge has found that the evidence of P.W. 6 who is the only witness relating thereto, is not only not corroborated, but is unreliable. The other item of Koraput District, relates to the bribe of Rs. 500/-alleged to have been paid by P. W. 2 to the accused on 22-8-48 in connection with two mills of Jeypur. Both these mills were at the time under the management of Nilachala Trading Co. of Jeypur.
As appears from the evidence of P. W. 1, the Managing Director, this company is a private limited company, with an annual turn-over of about fifteen to sixteen lacs of rupees. It is a rice procuring agent for the Government of Orissa in the District. It owned the Laxmi-narayana Rice Mill and had the Annapurna Rice Mill under a lease from the owner thereof, namely, P. W. 32, during the year 1947-48. P. W. 2 is the Assistant Managing Director of the company and P. W. 2 is the Chairman of the Board of Directors of the Company. The case against the accused as regards this item, depends on the evidence of P. W. 2, who was not only the assistant managing director of the company, but was also the manager of the two rice mills.
According to the evidence of a clerk of the Laxmi-narayan Rice Mill, P. W. 4, the accused visited the Laxminarayana Rice Mill on 19-8-48, and inspected the record and its machine. Annapurna Rice Mill does not appear to have been inspected. P. W. 2 the manager, was absent at the time and the accused asked P. W. 4 to send for him and to ask the manager to meet him the next morning at the Dak Bunglow where he was staying. According to P. W. 2, he was informed about it on his return and met the accused at the Dak Bunglow. There, he was told by the accused about several defects in the mill & was threatened with closure of the mill and criminal prosecution, unless he was paid a sum of Rs. 1000/- in order to condone the same. According to the evidence of P. W. 2, he informed the accused that he had to consult the managing director, P. W. 1, and the Chairman, P. W. 3.
After consulting them, and under their instructions, he came back to the accused and bargained with him and got him to agree to receive a sum of Rs. 500/- only. When this amount was agreed to P. Ws. 1 and 3 were informed. P. W. 2 obtained a sum of Rs. 500/- in the company account through the managing director and paid it to the accused on the 22nd of August. The only evidence of the fact of payment is that of P. W. 2. But the prosecution relies on the evidence of P. Ws. 1, 3, 4 and 20, as well as on certain vouchers and account entries, viz., Exts. 1, 1-A. 2, 3 and 3-A, in support of the evidence of P. W. 2. (His Lordship considered the evidence and proceeded :)
There can, therefore, be no doubt that a substantial portion of the evidence of P. W. 2 is corroborated not only by the evidence of P.Ws. 1 & 3, but also by the vouchers Exts. I and I-A and the entries in Exts. 3 and 3-A and in particular by the statements in Ext. 3-A : 'tips to the Factory-Inspector'.
37. The evidence on this part of the case has been attacked by learned counsel for the appellant on various grounds, in the first place, it is a ground for general criticism against the whole of this evidence, that in the investigation of this case, which followed the filing of the F. I. R. none of the witnesses, who speaks to this part of the case, has been examined under Section 161, Cr. P. C. and the account-books now produced have not been seized. According to the evidence of the investigation officer, P. W. 33, the P. I. R. in this case was filed on 24-12-48. He is a member of the C. I.D. police & he took up investigation of the case on or about 11-11-48 on due authorisation. Until he filed the F. I. R. in the case, what he did was merely in the nature of preliminary C. I. D. inquiry for which no case-diary was maintained. But the result of the enquiry was being despatched in enclosure forms from time to time to his superior officers.
It is in the course of this preliminary inquiry that, according to his evidence, he made inquiries from P. Ws. 1, 2 and 3 and also looked into these accounts but he did not record any statement nor did he seize the accounts. This preliminary inquiry appears to have been made in pursuance of Rule 411 of the Orissa Police Manual, Vol. I, which defines 'inquiry' as 'the collection of information prior to investigation'. Rule 432(b) in the same volume, refers to submission of plain paper reports of work done in connection with an inquiry styled 'enclosure'. Rule 412 says :
'the S. P., C. I. D. is responsible to see that, as soon as, in the course of any inquiry under his control, there is reason to suspect the commission of a cognisable offence an information is recorded and a regular investigation is recorded and a regular investigation undertaken under Chapt. XIV, Cr. P. C.'
It would appear from the evidence of P. W. 33 that after the P. I. R. was filed on 24-12-48, and before the formal charge-sheet was filed sometime later, there was a regular investigation and a case-diary was being maintained and he examined a number of witnesses relating to Balasore Mills. But at that stage, he did not examine any of the witnesses concerned with this incident. It is urged that as a result of the witnesses not having been examined in the investigation stage under Section 161, Cr. P. C., or the books not having been seized at that stage, the accused has been denied the opportunity of confronting these witnesses with their previous statements.
The cases in 'PULUKURI KOTTAYYA v. EMPEROR', AIR 1947 PC 67 and 'SHYAMA RAJA-RAM v. EMPEROR', AIR 1949 Nag. 260 have been cited to show the importance of statements of the witnesses, recorded by the police being made available for the defence and of the duty to make the record in a manner to be capable of use. There is undoubtedly considerable force in this comment, especially in view of Rule 412 of the Police Manual, already quoted, which clearly contemplates that when the inquiry stage leads to an information being lodged as has been done in this case, it should be followed up by a regular investigation. The learned Judge has noted in the judgment that the enclosure despatches of these witnesses were made available to the defence, but obviously they could be of no use. The question, however, is whether, the accused can be said to have been prejudiced by this omission.
It is true that when a witness has been examined in the course of the investigation under Section 161, Cr. P. C. and his statement is reduced to writing, the non-availability of such statement for the use of the accused under Section 162, is a serious irregularity. But there is nothing in the Cr. P. C., to indicate that a person not examined at all in the course of the investigation, cannot be cited as a witness for the prosecution at the trial. The fact that a person not so examined is put up at the trial is only material with reference to which the evidence of such a witness would be liable to suspicion and scrutiny. If there is reason to suspect in the present case that these witnesses have in fact been examined in the investigation stage but that their statements are being suppressed, I should have been inclined to exclude their evidence from consideration. But nothing has been elicited from P. W. 33 or anybody else to give room for this suspicion.
(His Lordship further considered the evidence and proceeded :)
38. Taking thus, the evidence as a whole, the evidence of P. W. 2 may be taken to have been amply corroborated. Learned Counsel for the appellant, however, urges strongly that what has been proved in the case, does not amount to any corroboration at all of the evidence of P. W. 2. He urges that what at best is proved is that P. W. 2. has stated a few days prior to the alleged payment that the accused was demanding a bribe and that he took money from the funds of the company on that footing, and that he informed P. W. 1 a few days later that he did pay the money to the accused. It is urged that this, by itself, is not proof of any circumstances which probablises the fact of payment and that at best the evidence only shows that he had made previous statements that not merely the bribe was demanded, but that the same was paid. It is urged that such a previous statement is no corroboration at all.
But, in view of the recent decision of the Supreme Court, already noticed, even the previous state ment of the witness is corroborative evidence and that statement is to the effect that the accused demanded the bribe and that the amount was paid to him.
(His Lordship further discussed the evidence and concluded :)
I have, therefore, no hesitation in agreeing with the learned Judge, when he finds that the taking : of a bribe of Rs. 500/- from P. W. 2 by the accused is made out.
(His Lordship discussed the evidence relating to further items and proceeded :)
39-44. The position regarding Laxminarayan Rice Mill at Bahangabazar, however, to my mind, is different. The incident relating to it is spoken to by P. W. 9, S. R. Agarawal who is the proprietor of the mill itself. The accused visited this mill on 29-9-48. At the time of the inspection, he was residing at Soro which is six miles away. He says that on 29-9-48 while he was at Soro, the manager of the mill Sri K. C. Mandal called him by phone to Bahanga-bazar telling him that the Factory Inspector was waiting for him there, that he took a, truck and went there at 2 P. M. He further says that the manager told him that the Factory Inspector was saying that there were defects and that the mill will be stopped and that there will be criminal prosecution. He thereupon met the Factory Inspector who was then in the mill.
The Factory Inspector asked him to pay Rs. 300/-so that the mill will not be stopped and there will be no prosecution. He pleaded the smallness of the mill and the heaviness of the demand and ultimately the amount was settled at Rs. 100/-. He had the money in his pocket and paid the sum of Rs. 100/- to the accused in ten-rupee-notes and returned to Soro. This witness has been examined by the police and it would appear that a statement under Section 164, Cr. P. C., has also been recorded from him. Presumably, he has given a consistent story. The learned Judge has considered this incident as not having been proved on account of want of corroborating evidence, but has still thought it fit to act upon it by saying that if it is a question of substantive prosecution under Section 161, I. P. C., he would not be prepared to act upon it on account of the absence of corroboration, but that he was prepared to take it into consideration since it is only an item of evidence in a prosecution for criminal misconduct under Section 5(2) of the Prevention of Corruption Act.
Learned Counsel for the appellant has rightly pointed out that this is a distinction without difference. Section 5, Sub-section (a) of the Prevention of Corruption Act, requires proof of habitual obaining of bribe and if the evidence relating to such bribe-taking is not enough for conviction under Section 161, I. P. C., it is difficult to see how the accused can be said to have in fact obtained the bribe on that occasion even for the purpose of making out the habit. If what the learned Judge means is that the evidence though not safe to be acted upon in the absence of corroboration as regards the taking of the bribe, it can be acted upon to show the mere demand of the bribe which by itself, may be relevant, under Section 5 (1) (a) of the Act, the difficulty is that if the evidence of a person, who on his own showing may be taken to be an accomplice, cannot be relied upon for the purpose of payment of a bribe, it would be equally unsafe to rely on it even for the purpose of the demand of the bribe, because, the two really go together so far as the evidence is concerned.
While, therefore, agreeing with this criticism by learned counsel for the appellant of the way in which the learned Judge has dealt with this portion of the case, I cannot help feeling that the learned Judge has treated the question of necessity for corroboration in this case, rather mechanically.
(His Lordship after considering the evidence found that the payment of Rs. 100 as a bribe was made out. His Lordship then proceeded :)
45. Summing up, therefore, the evidence relating to the specific incidents of bribe-taking my finding is that out of the six incidents that have formed the subject-matter of this trial, those which relate to the Laxminarayan Bice Mill of Jeypur and Bajarangaballi Rice Mill of Bahanagabazar must be rejected. Those that relate to Laxminarayan and Annapurna Rice Mills of Jeypur, and Mahabir Rice Mill of Balasore must be taken to be well-' established, the former on the evidence of P. W. 2, well corroborated by the evidence of P. Ws. 1, 3, 4 and 20, Exts. 1, Ha), 2, 3 and 3(a), and even independent of it, and the latter on the evidence of P. W. 6, substantially corroborated by the account entry, Ext. 4, and the evidence of P. W. 7.
I would also hold that the incident relating to Laxminarayan Rice Mill of Bahangabazar is satisfactorily established on the evidence of P. W. 9 inspite of the absence of corroborative evidence. As regards the Satyanarayan Rice Mill Khantapara, while I am not prepared to say that the evidence relating to it is unreliable, I would on the whole, consider it not safe enough to be acted upon in view of lacuna of evidence relating to Ext 14 (e), and would give the benefit tliereof to the accused.
46. The question, then, for consideration, is whether on the findings that I have come to on an independent consideration of evidence, the offence of criminal misconduct by a public servant has been made out. Under Clause (a) of Sub-section (1) of Section 5 of Act II (2) of 1947, what is required to be proved is habitual bribe-taking. What constitutes proof of habit, is not indicated anywhere in the Act, nor in any other legal provision in this behalf. Our attention has been drawn for. an analogy to Russel on Crimes, Vol. I, 1923 Edn, p 247, wherein it is stated :
'a person can be found to be a habitual drunkard, if within twelve months preceding, he has been summarily convicted at least three times for any of the offences specified in relation to drink'
and also to p. 243 thereof, where it is stated for purpose of preventive detention on the ground of habitual criminality
'a person cannot be found to be habitually criminal, unless the person has been at least three times previously convicted of the crime charged'.
These provisions cannot furnish any real analogy for guidance in respect of an offence of habitual bribe-taking under Clause (a), Sub-section (3) of Section 5 of the Act; because, obviously it is not meant that only instances of previous conviction of bribe-taking should be given in evidence, nor is there any particular sanctity attaching to the number three. Neither does Section 110 of the Cr. P. C. which, in its various clauses refers to habitual commission of certain classes of offences furnish any guide, because by that section mere reliable information that a person is a habitual offender in respect of certain specified offence without proof of the actual commission of those crimes, may be enough for action under Section 110 of the Cr. P. C.
The only provision that may afford some guidance is Section 413 of the Indian Penal Code, which provides for enhanced punishment in the case of habitual receiver of stolen property. It has been held with reference to that section that in order that a person may be convicted under it, it must be shown that the offence of 'receiving stolen property' has been committed on different occasions & on different dates, vide, 'QUEEN EMPRESS v. BALU RAM', 19 Cal. 190.
The prosecution has alleged and attempted to give as many as six instances covering a period of about two months, but has according to my finding, satisfactorily established three instances covering that period, but on different occasions. This taken with the finding which I have already arrived at, viz., that the unexplained disproportionate possession of Rs. 2800/- out of Rs. 3148/- seized from the accused at the Basta Dak Bungalow on 3-10-48, raises a presumption of guilt under Section 5 (3), establishes that the accused (appellant) is guilty under Section 5, Sub-section (2) of Act II (2) of 1947, Prevention, of Corruption Act.
47. This conclusion is of course subject to the conclusion which I have to still arrive at as regards the objection relating to the validity of the sanction for this trial, and I now proceed to consider the same.
48. The question raised in this case at the very outset, viz., whether or not the sanction relied on by the prosecution is valid, and which I have reserved, has now to be considered. It may be mentioned that this objection does not appear to have been raised before the committing Magistrate who took cognizance of the case.
A point may well have been raised that this objection should not have been allowed to be raised for the first time at the sessions trial, and that cognizance having been taken by the Magistrate without objection, the commitment is not rendered illegal for any defect in the sanction . See 'QUEEN EMPRESS V. BALGANGADHAR TILAK', 22 Bom 112 and also 'H. H. GILL v. THE KING', AIR 1948 P. C. 128 which hold that once the ban to cognizance has, in fact, been lifted, the further course of the proceedings depends upon the provisions of the Code. This point, however, has not been raised before us and I do not think it right to dispose of this matter without having heard arguments from both sides. I shall therefore proceed to deal with the main question raised.
49. Section 6 of the Act runs as follows :
'No Court shall take cognizance of an offence punishable under Section 161 or Section 165 of the Indian Penal Code or under Sub-section (2) of Section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction (a) in the case of a person who is employed in connection with the affairs of the Federation and is not removable from his office save by or with the sanction of the Central Government;
(b) in the case of a person who is employed in connection with the affairs of a Province and is not removable from his office save by or with the sanction of the Provincial Government or some higher authority, Provincial Government;
(c) in the case of any other person, of the authority competent to remove him from his office.'
50. It is not disputed that the appellant is a person employed in connection with the affairs of the State of Orissa and is not removable from his office except with the sanction of the State Government. By virtue of the above section, therefore, before a court could take cognizance of the offence under Sub-section (2) of Section 5 of the Act, the sanction of the State Government is necessary. The sanction relied on in this case, is Ext. 21, dated 3-11-43 which runs as follows :
'GOVERNMENT OF ORISSA
COMMERCE AND LABOUR DEPARTMENT.
Order NO. 45S1/COM,, Dated 3-11-48.
In persuance of Section 6 of the Prevention of Corruption Act, 1947 (II (2) of 1947), the Governor of Orissa is hereby pleased to accord sanction for prosecution of Sri B. B. Naik, 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 in discharge of official duty.
By order of the Governor,
Sd. V. RAMNATHAN,
Secretary to Government.'
51. The contention raised on behalf of the appellant is that this sanction is not a valid and legal sanction in view of the recent ruling of the Privy Council in 'GOKULCHAND DWARAKADAS v. THE KING', AIR 1948 PC 82. What is relied on is the passage therein stating :
'In their Lordships' view, in order to comply with the provisions of Clause 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, 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 shown on the face of the sanction, the prosecution must prove by extraneous evidence that these facts were placed before the sanctioning authority'.
Learned Counsel for the appellant urges that the sanction on the face of it, does not show what are the facts constituting the offence, with reference to which the sanction has been granted. He also urges that this lacuna has not been supplied by extraneous evidence. On behalf of the State, the learned Advocate-General contends that Ext. 21, is a sufficient compliance with the terms of Section 6 of the Act and that the Privy Council case in AIR 1948 P. C. 82 does not apply to cases of this kind that even if it did, the other evidence shows clearly that all the relevant facts were before the Government by the time they gave the sanction,
52. With reference to these contentions, it is desirable first to consider what were the relevant facts which were before the sanctioning authority and to notice the evidence having a bearing thereon. It may be recalled that the proceedings against the appellant started with a trap laid against him in connection with the anticipated bribe-taking at Basta Dak Bungalow on the oral report of P. W. 2, the Secretary of the Mill-owners' Association and one Haradhan Khan, since deceased, who was then the manager of a mill.
As a result of that trap, there was a search of the appellant on 3-10-48, at Basta Dak Bungalow and a sum of Rs. 3148/- was seised from him including the three marked hundred-rupee notes intended for trapping. He was then arrested and G. R. case No. 932 of 1948 under Section 161, I. P. C. was started againsb him before the Additional District Magistrate, Balasore. He was released on bail on 4-10-48.
The order-sheet of the A. D. M. marked Ext. 22 shows that on 7-11-48 the A. D. M. passed an order directing that the District Magistrate should be moved for obtaining sanction of the Provincial Government under Section 6 of the Prevention of Corruption Act. He also directed the Inspector of Police, Basta, to take up investigation of the case, treating the report of the Prosecuting Inspector as the F. I. R.
Presumably the District Magistrate was moved and he wrote a letter, Ext. 25, dated 8-10-48 to the Chief Secretary to Government of Orissa, in which he informed him that he had received information that the accused had been receiving heavy bribes from mill-owners under threats; that he arranged for a trap-detection, and as a result thereof, one specific case of bribe-taking was found and that the accused was arrested and that on a search on the spot, a heavy sum of Rs. 2698/- in addition to the bribe of Rs. 450/- was seized from his possession. He accordingly asked for the sanction of the Government under Section 6 of the Act as a preliminary to taking congnizance of offences either under Section 181, I. P. C., or Sub-section (2) of Section 5 of the Act.
As appears from the sanction order dated 3-11-48, it was with reference to this letter of the District Magistrate that the sanction was given. Taking these two together, it is fairly clear that the sanction was at least meant for the offences committed, if any, by the possession of a sum of Rs. 2695/- as also for the offence of receiving a bribe of Rs. 450/-.
We have now to gather from other evidence which other facts could have been before the Government by the time the sanction was given and whether such facts were placed before the Government.
(His Lordship considered the evidence and proceeded :)
It is obvious, therefore, that the only information, if at all, which the Government could have had by the date of the sanction, was that relating to the four mills of Balasore, in addition to that which was noted in the letter of the District Magistrate, dated 8-10-48.
There is, however, nothing to show as a fact, that even this information was placed before the responsible authority who had to exercise his judgment for the purpose of granting the sanction. The actual formal investigation report relating to those various mills so far as one can gather from the documents filed in this case is the confidential report, Ext. 20, submitted on 9-11-48 by P. W. 17, which he says in his evidence, he submitted to the G'ovt. This report, which relates only to the Balasore Mills & which would have reached the Government, about a week later then the order of sanction, could not obviously have been before the sanctioning authority.
On behalf of the prosecution, however, it has been contended, that at least so far as the four Balasore Mills are concerned which are in the present prosecution and with respect to which, there was already investigation by P. W. 30 before 3-10-48, the Government must be taken to have had, and in fact had, all the facts before them, by the time they gave the order of sanction. To substantiate this, reliance is placed on Ext. 22 series, (b), (c), (d), and (e) and the evidence of the District Magistrate, P. W. 18. Exts. 22(b), 22(c), 22(d), 22(e), are merely extracts from a file of the Orissa Government Secretariat, showing that the Government received two reports which were put up by the Under-Secretary, Home Department, to the Additional Secretary, Home Department, with the request that the Secretary, Development Department, may also see the same.
The Additional Secretary, Home Department, put it up to the Secretary, Development Department asking whether with reference to the District Magistrate's letter dated 8th October 1948, there is any objection to sanction being accorded. The Secretary, Development Department, makes a note that there is no objection to the sanction being granted, and that the Hon'ble Minister for Commerce and Law has seen the reports separately.
Finally, the note dated 3-11-48 of the Hon'ble Minister noted that the sanction as proposed may be accorded. It is extremely doubtful whether all these Secretariat notes are admissible in evidence and whether they should have been allowed to be exhibited. I am unable to see -- and the learned Advocate-General has been unable to tell us --under what section of the Evidence Act, these interdepartmental Secretariat notes are admissible. They do not come within the purview of Section 35 of the Evidence Act, which relates
'to an entry in any public register stating the fact in issue or relevant facts and made by a public servant in discharge of his official duty.'
Even assuming that they do, it has not been shown to us, that the Hon'ble Minister for Commerce and Law had authority finally to deal with this matter on behalf of and in the name of the Governor --a matter which should have been proved by evidence before the Court. Further, these Secretariat notes only show that the sanction was given on the basis of two reports, one of which may have been the letter of the District Magistrate dated 8-1048. What the other report is, is not known and has not been put in evidence.
To meet this difficulty, the learned Advocate-General relies on the evidence of the District Magistrate, who says that after he sent the letter dated 8th October, asking for sanction of the Government, he was keeping the Government, informed of the developments from time to time, by either phone messages, or by reports and that he kept himself informed by perusal of the case-diaries and that he was very often having telephone talks with the Government.
(His Lordship considered this evidence and proceeded. :)
In these circumstances, there can be no reasonable doubt, that the sanction conveyed under Ext. 21, dated 3-11-48, was based on no other material except that which was contained in the letter of the District Magistrate dated 8-10-48.
53. On this finding, the question arises, whether the sanction is valid and whether there is anything in the Privy Council decision in 'GOKULCHAND DWARKADAS MORARKA v. THE KING', AIR 1948 PC 82, which is relied on, that requires us to hold the sanction in this case to be invalid. We have heard able arguments on this point from the learned senior counsel for the appellant, Shri K. S. Jayaramiyer from the Madras Bar. His contention is that since the prosecution in this case has relied on six instances of bribery, as well as on the seizure of Rs. 3148/- with the accused, as proof of the offence of criminal misconduct, all the facts relating thereto should have been investigated and placed before the sanctioning authority, when asking for the sanction. It is urged that sanction given without knowledge of all tnose facts, is not valid. Stress is laid on the passage in this Privy Council decision which says that
'in order to comply with the provisions of Clause 23, it must be shown that the sanction was given in respect of the 'facts constituting the ofience' '
and also on a later passage :
'Nor, in their Lordships' view, is a sanction given without reference to the 'facts constituting the offence' a compliance with the actual terms of Clause 23'.
It is argued that sanction cannot be said to have been given in respect of all the 'facts constituting, the offence' when facts were still under investigation and could not have been fully placed before the sanctioning authority as shown by the evidence. Reliance is placed on a number of subsequent decisions of the High Court as supporting this view : 'IN RE; SUBBA RAO', AIR 1949 Mad 710; 'J. E. BLYTHE v. THE KING', AIR 1949 Cal 841; 'VA-R1NDMAL v. RADHA KRISHNA', AIR 1949 Ajmer 38; 'KARIM BUX v. REX', AIR, 1950 All 494; 'IN RE : VAJANJI KASTURCHAND', AIR 1950 Mad 450 and 'IN RE; DEVANUGRAHAM', AIR 1951. Mad 255. Stress is particularly laid on the case in. 'AIR 1950 All 494', which seems to indicate that until investigation is completed, sanction cannot be granted.
The question that arises on these contentions, is what exactly the Privy Council intended to convey by the use of the phrase 'the facts constituting the offence'. For the appellant, it is argued that this has reference to all the facts collected during the investigation which are to be relied upon to substantiate the offence. This is said to follow from the passages in the Privy Council judgment, which stress the importance of sanction as a condition precedent and the responsibility of the sanctioning authority arid in particular from the passage :
'Looked ab as a matter of substance, it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case.'
54. Before entering into the discussion that has been raised before us by one side or the other, as to the exact implications of the various passages in this decision in 'GOKULCHAND DWARKADAS MOHARKA v. THE KING', AIR 1943 P. C. 82, it will be helpful to notice what may be taken to be the law in this behalf as understood prior to the Privy Council decision.
55. The question as to whether a sanction which on the face of it, did not show sufficient details of the offence charged, and which has not been proved to relate to such details, is void for vagueness has come up repeatedly before the Courts. As early as in 'IMPERATRIX v. LAKSHMAN SA-KHARAM', 2 Bom 481, the objection to the sanction in that case on the ground of vagueness was overruled, by the Court holding that the direction to prosecute 'the Mahalkari under Section 466 or any other sanction which may seem applicable after further investigation' fully legalizes the trial.
In 'QUEEN EMPRESS v. BAL GANGADHAR TILAK', 22 Bom 112, which related to the prosecution of Sri Bal Gangadhar Tilak, the prosecution was for an offence under Section 121A, I. P. C. in respect of certain articles in the newspaper called 'the Kesari' which required the sanction of the Local Government. Objection was taken that the sanction did not specify the articles but merely said 'certain articles appearing in the said newspaper' and that it was accordingly vague. In overruling this argument the learned trial Judge, Strachey J. said
'It is only necessary to see whether the complaint relates to matters falling within the words 'certain articles appearing in the newspaper'. It is obvious that it does and the order is therefore, complied with.'
In the same case, at a later stage, i.e., when an application for special leave to the Privy Council was made, the Pull Bench of the High Court consisting of Farran C. J., Candy and Strachey JJ., the same point was reagitated, and it was held that there was no substance in it. Their Lordships in refusing to grant leave to appeal said at p. 150 of the report
'Now though the complaint must undoubtedly contain the articles complained of to give information to the accused of the charge against him, there is nothing in the Code to show that the written order to make the complaint -- if written order is required -- must specify the exact article in respect of which the complaint is to be made.'
It may be mentioned that the Privy Council also refused to grant leave to appeal in the same case, and that the a'bove point was also one of the points raised before the Privy Council (See 'BAL GANGADHAR TILAK V. THE QUEEN EMPRESS', 22 Bom 528 to 530).
56. In 'IN THE MATTER OF KALAGAVA BA-PIAH', 27 Mad 54 Bhashyam Iyengar, J. with reference to an offence said to have been committed under Section 162 of the Penal Code, requiring sanction under Section 197, Cr. P. C., overruled an objection that the sanction did not specify the particular municipal contracts in respect of which the prosecution was sanctioned, on the ground that the sanction showed clearly that the prosecution was to be of the accused for having had, while a Municipal Commissioner, an interest in the contracts of the Municipal Council and that that was enough. The learned Judge pointed out by way of analogy that according to Section 195(4), Cr. P. C. (which has been since repealed because sanction itself for that class of offences has been done away with), . it was provided that the sanction may be, in general terms and need not ever name the accused person etc.
In 'CHIDAMBARAM PILLAI v. EMPEROR', 32 Mad 3 the prosecution was under Section 124A, I. P.C. requiring sanction under Section 196, Cr. P. C. The sanction in that case (as appears from the report) stated in general terms the sections under which the institution of criminal proceedings was authorised and also indicated the time when the speeches in respect of which the proceedings were authorised were delivered. Objection that the sanction was void for vagueness was overruled.
In 'GIRWARDHARI LAL v. EMPEROR', 13 Cal W N 1062, in connection with prosecution under Section 161, I. P. C. requiring sanction under Section 197, Cr. P. C. the fact that the sanction did not mention the specific acts of bribery was held not to be sufficient to invalidate the sanction. 'APURBA KRISHNA v. EMPEROR', 35 Cal 141 is a case in which in respect of a prosecution under Section 124A I. P. C., requiring sanction under Section 196, Cr. P. C., the objection that the offending articles have not been specified in the sanction was overruled following 'QUEEN EMPRESS V. BAL GANGADHAR TILAK', 22 Bom 112.
In 'KISHEN SINGH v. THE CROWN', 25 Cr. L. J., 279 (Lah) a prosecution under Section 124A was held valid notwithstanding the fact that the sanction did not specify the utterances of the accused. In 'EMPEROR v. MAHADEV LAXMAN', 43 Bom 147 : AIR 1918 Bom 117 where the prosecution was sanctioned
'for cheating or for such other offence with which it may fat necessary to prosecute them in connection with obtaining money from rayats'
it was held that the sanction was not invalid for vagueness. In 'EMPEROR v. JEHANGIR ARDE-SHIR CAMA', 28 Cr. L. J. 1012 (Bom), on a similar objection, the case in '43 Bom 147', was followed. In 'MAGANLAL RADHAKISHAN v. EMPEROR', AIR 1945 Nag 173, an objection to sanction on the ground that the sanction did not state the particulars of the offence was overruled following 'BA-RINDRA KUMAR v. EMPEROR', 37 Cal 467.
The case in '37 Cal 467' may be taken as the leading case on the question relating to the requirement of sanction and contains the weighty pronouncement of Sir Lawrence Jenkins C. J. That was a case relating to Section 196 Cr. P. C. which prohibits a Court taking cognizance of certain offences specified therein excep't upon a complaint made by the order or under authority of the Provincial Government, which virtually for the present purpose is the same as sanction. His Lordship stated as follows :
'The true implication of Section 196 is that the judgment of the Local Government should be specifically directed to the particular sections in respect of which proceedings are to be taken and that the order or authority should be preceded by and be the result of a deliberate determination that proceedings should be taken in respect of a particular section or particular sections.'
The question that was raised in that case was whether in respect of offences under certain specified sections, viz., 121A, 122, 123 and 124, I.P.C. was valid in respect of an unspecified section viz., 121, I. P. C., as being comprised within a residuary phrase occurring in the sanction, viz., 'or under any other section of the said Code which may be found to be applicable to the said case'. It was held that prosecution under Section 121 was not valid as the above mentioned phrase would amount to delegation.
But the point to be noticed in this case for our present purpose is, that the terms of the sanction in that case quoted at pages 487 and 488 of the report show that only the sections of the offences in respect of which the complaint was to be preferred were specified as well as the persons against whom it was to be preferred and the period and place of the commission of the offences.
But none of the various acts which constituted the offence of conspiracy under Section 121A or the acts which made up the offences under Sections 122, 123 and 124 were at all referred to in the sanction, nor is there any indication that there was any other evidence of the same having been before the sanctioning authority. No objection on any such ground appears to have been taken in the case and the validity of the sanction in respect of the specified sections was taken for granted notwithstanding that no particulars of the said offences were stated in the sanction.
57. In 'RAGHUBAR SINGH v. EMPEROR', AIR 1944 FC 25, the validity of a sanction for initiation of certain criminal proceedings came up before the Federal Court. That case related to a prosecution under Section 104 of the Insurance Act of 1938. Section 107 of that Act provides that the previous sanction of the Advocate-General was necessary for institution of proceedings under the said Act. The sanction in that case given by the Advocate-General was in the following terms :
'In exercise of the powers conferred by Section 107 of the Insurance Act (4 (IV) of 1938), I hereby sanction the institution of proceedings (prosecution) by the Government against : (1) Mr. Shyam Singh Rohatgi, General Manager, and (2) Kun-war Surendra Bahadur Singh Bhadoria, and (3) Kunwar Raghubar Singh, for offences committed against Insurance Law.'
It was contended in that case that the sanction given by the Advocate-General in those very vague and general terms was not valid, that there was nothing to show on the face of the sanction to what possible offences or what possible proceedings whether by reference to sanction or by reference to identifiable facts or reports, the Advocate-General had addressed his mind before giving his sanction. Their Lordships of the Federal Court stated as follows :
'Whilst obviously it is desirable that the sanction should be given in writing and should, on the face of it, indicate reasonably clearly by statement or references to other documents the necessary matters, it is not possible to hold that the sanction requires any particular form of sanction or even that it should be in writing. What is necessary is that if challenged by a defendant or accused person, the plaintiff or prosecutor should be able 'to establish to the satisfaction of the Court that it has jurisdiction to entertain the particular proceedings before it' '.
In view of the obvious vagueness of the sanction which was in question in that case, the Federal Court went into the question whether on the evidence there was material for the satisfaction of the Court that it had jurisdiction to entertain the particular proceedings before it and held that the evidence was inadequate to make out and accordingly held the sanction to be invalid. This case also emphasises the principle that what is required for the validity of the sanction is proof that the sanction was given for the particular offence which the court is asked to take cognizance of, that is to say, sufficient correlation between the sanction and the offence of which cognizance is to be taken.
58. A review of the above cases shows that the Jaw relating to requirements of sanction as understood before 'GOKULCHAND DWARKADAS MO-RARKA v. THE KING', AIR 1948 PC 82, was that sanction was held to be valid notwithstanding that there was no mention of any of the particulars of the offence, provided that it was clear that the Court was asked to take cognizance of and it appeared that it was the result of deliberate determination of the sanctioning authority and did not amount to delegation of its responsibility. As was stated in 'CHIDAMBARAM PILLAI v. EMPEROR', 32 Mad 3 at P. 9, the only question under Section 196, Cr. P. C. is : 'Is the complaint made by order or under authority of Government?' The same may be said of sanction required under other similar provisions.
Apart, therefore, from anything indicating delegation of responsibility or absence of deliberate determination, the question which the Court is concerned with is proof to its satisfaction that the complaint or charge which it is asked to take cognizance of is the one authorised or sanctioned by the appropriate authority. Sufficient correlation between sanction and the charge to that extent has got to be established when the validity of the sanction is challenged.
But the absence of the particulars of the offence from the order of sanction -and absence of proof that such particulars were placed before the sanctioning authority do not, by themselves, invalidate the sanction, if otherwise the required correlation is made out. Nor does proof that the particulars of the offences were still under investigation necessarily make out want of due deliberation, if a sanction is granted at that stage to prosecute a person for a specified alleged offence stating in broad outlines the constituent facts thereof.
It is to be remembered that sanction is an executive act as pointed out by Bhashyam lyengar J. in 'IN THE MATTER OF KALAGAVA BAPIAH' 27 Mad 54, and there is no requirement of law that sanction to prosecute is to be granted only when a prima facie case is made out. Indeed, it is conceivable, for instance, that in respect of a public servant against whom there are persistent reports of corruption, the sanctioning authority may think it desirable in the public interest and in his own interest that his character should be cleared up before Courts, apart from whether a prima facie case is made out or not.
59. It appears to me therefore that the law relating to sanction prior to the Privy Council decision in 'GOKULCHAND DWARKADAS MORAR-KA v. THE KING', AIR 1948 PC 82, was as above indicated.
60. It is contended, however, very strenuously by the learned Counsel for the appellant that this law must now be taken to have been changed by 'GOKULCHAND DWARKADAS MORARKA v. THE KING', AIR 1948 PC 82 & that what is now required for the validity of a sanction is proof that all the facts gathered against the accused and with reference to which he is to be prosecuted have been placed before the sanctioning authority.
It is said that, though it may be that all the evidence which is proposed to be adduced need not be placed before the sanctioning authority, sufficient facts to make out a prima facie case and such other facts as may be relevant to show that the prosecution is expedient or otherwise, should be proved to have been placed before the sanctioning authority to enable it to discharge its responsibility and that this cannot be said to have been done unless the investigation was completed or at any rate has progressed far enough. It appears to me that such a view is not warranted. I cannot agree with the contention of the learned counsel for the appellant that the law in this behalf has been changed by the Privy Council decision in 'MORARKA'S CASE'. In that judgment, their Lordships in express terms state as follows :
'Their Lordships were referred to certain decisions upon the group of sections in the Code of Criminal Procedure, 195 to 199, relating to sanctions. These cases do not appear to lay down any principle inconsistent with the views expressed above, and as the sections of the Code are expressed in language different from that used in Clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, and are directed to different objects, no useful purpose would be served by an examination of the cases'.
The report of this case in '75 Ind App 30' shows that arguments of Counsel for the respondent (Page 35) shows clearly that 'IMPERATBIX v. LAKSHMANAN', 2 Bom 481; 'QUEEN EMPRESS v. BAL GANGADHAR TILAK', 22 Bom 112, In the matter of 'KALAGAVA BAPIAH', 27 Mad 54, and 'EMPEROR v. MAHADEV LAXMAN', 43 Bom 147 and 'RAGHUBAR SINGH v. EMPEROR', AIR 1944 P C 25, were cited before their Lordships which are some of the cases cited which I have reviewed above as indicating the law in this behalf as previously understood. It is clear, therefore, that these decisions were not intended to be overruled.
Indeed, their Lordships say that these cases do not lay down anything contrary to the views expressed by them in this case. This shows that in stating that a sanction must be proved to have been given in respect of 'facts constituting the offence' it was not meant that all the particulars of the offence should be found mentioned in the sanction or proved to have been placed before the sanctioning authority. Their Lordships in 'MORARKA'S CASE' sum up the requirements of sanction in an answer to Mr. Megwa's contention by saying as follows :
'The charge need not follow the exact terms of the 'sanction' though it must not relate to an offence essentially different from that to which the sanction relates'.
That is, what is required is proof of adequate correlation between the sanction and the charge.
61. It may also be further noticed in this connection that in a later case before the Privy Council, i.e., 'H. H. GILL v. THE KING', AIR 1948 P C 128; 'MORARKA'S CASE', (AIR 1948 P C 82) was sought to be used in support of the objection raised as to the validity of the sanction in that case but their Lordships distinguished the case on the facts.
62. In the passage quoted above in 'MORARKA'S CASE', (AIR 1948 P C 82), their Lordships indicate that the objects to which rule 23 of the Cotton Cloth and Yarn (Control) Order is directed as well as the language thereof, are different from those of Sections 195 to 199, Cr. P. C. That difference may now be considered. Rule 23 of the Cotton Cloth and Yarn (Control) Order, 1S45, is as follows :
'No prosecution for the contravention of any of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government'.
Section 6 of the Prevention of Corruption Act, 1947, which adopts the same language as that of section 197, Cr. P. C. is as follows :
'No Court shall take cognizance of an offence punishable under Section 161 or Section 165 of the Indian Penal Code or under Sub-section (2) of Section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction o Central or Provincial Government or other competent authority, as the case may be'.
This difference in language shows that while the latter provision operates only as a bar to the cognizance of the Court, so far as the former is concerned, the bar is interposed at an earlier stage, viz., the institution of the prosecution. Similar provisions are to be found in almost all offences relating to control orders and various classes of offences which consist merely of breach of certain statutory provisions and are made punishable as such. (See 'RAGHUBAR SINGH v. EMPEROR', AIR 1944 P. C. 25, and 'BASDEO AGARWALLA v. EMPEROR', AIR 1945 F. C. 16).
The broad distinction between such offences under the Indian Penal Code or other similar Acts is that the former class of offences are statutory offences by positive law, while the latter offences are offences owing to the essential criminality of the acts constituting the same according to the accepted standards of civilised society.
The distinction is broadly between the 'Malum prohibitum' & 'malum in se'. In the former class, the measure of protection intended to be given by the requirement of 'sanction', may clearly be much greater in order that there may not be vexatious and undue harassment. It is permissible to think that it was this distinction that their Lordships had in view and that therefore, the dicta in 'AIR 1948 P C 82' should be confined to that class of offences, particularly the passage :
'The Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a 'prima facie' case against the person sought which commands itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Looked as a matter of substance, it is plain that the Govern- ment cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without knowledge of the facts of the case'.
This passage which has been very much pressed into service by the learned counsel for the appellant to show that if a sanction is given before investigation was completed or at least the substantial portion thereof and before the result of that investigation is placed before the sanctioning authority the sanction is illegal.
The use of the word 'economic' in the above passage is significant and clearly indicates that in this passage their Lordships had in view offences like breach of Control Orders which are enacted for economic reasons. It is true that the requirement of 'sanction' is not only safeguard against vexatious proceedings, but is meant for protection of public servants etc. who in the strict and impartial discharge of their duties may offend persons and create enemies.
But the safeguard is one for the judgment and responsibility of the authority concerned, and is not open to the scrutiny of the Courts on its merits, except to the extent of showing that there is no deliberate determination or is patently 'mala fide' or amounts to delegation. I have, no doubt, therefore, for all the above reasons, that the extreme contention advanced by the learned counsel for the appellant as to the meaning or the implications of Privy Council decision in 'MORARKA'S CASE', cannot be accepted ex- cept as regards control offences and the like.
63. It is, however, clear that that portion of the judgment in the 'MORARKA'S CASE', (AIR 1948 PC 82) where it stated :
'that it must be proved that the sanction was given in respect of facts constituting the offence charged and that a sanction given without reference to such facts is not a valid compliance'
with the relevant legal provision must be accepted as a proposition applicable to all sanctions under whatever provisions. But, in my opinion, this means nothing substantially different from what had been laid down in the earlier cases relating to sanctions under Sections 196 and 197 of the Cr. P. C., and that those decisions cannot be treated as overruled. To sum up, the requirement of law, as I understood it, is that correlation between the sanction and the offence to be taken cognizance of, in respect of essential facts of the offence, has to be made out. It is not necessary that the particulars of the offence have to be made out. It is not necessary that the particulars of the offence or the essentials of the evidence relating thereto should be set out in the sanction or should be proved to have been placed before the sanctioning authority. It is sufficient that the sanction sets out the offence and the essential factual ingredients thereof in such manner as to indicate that taking cognizance of the charge which is before the Court is authorised.
64. We must now consider whether the sanction in the present case can be said to be invalid with reference to this test. From the above consideration of the legal position, it follows that the mere fact that investigation as regards the case has not been started before the District Magistrate applied for the sanction on 8-10-48 and that no material relating to that portion of the investigation of the case which took place in between the letter of the District Magistrate and the order of sanction by the Government viz., 3-11-48 or the fact that by the date of the sanction, the investigation was not complete, are not sufficient reasons to hold that the sanction has been given only with reference to the letter of the District Magistrate. The sanction, must, therefore, be construed along with the letter.
The District Magistrate's letter, Ext. 25, sets out two matters, viz., CD that according to his information, the accused in the course of his visit to mills in the Balasore district as Inspector of Factories, had been collecting heavy sums as illegal gratification from the Managers or the proprietors of the mills under threat or mischief to the mill-owners; (2) That on the 3rd October, a heavy sum of Rs. 3148/- had been seized from his possession.
The sanction for prosecution in this case for criminal misconduct in discharge of official duty under Sub-section (2) of Section 5, must be taken to be in respect of these two matters. The first of the above is an indication that what the sanctioning authority had in view was the particular factual ingredient of the offence under Section 5(2), set out in Section 5 (1) (a), viz., habitual acceptance of illegal gratification.
The second matter above mentioned in the District Magistrate's letter, Ext. 25, indicates that the sanctioning authority had in mind the ingredients of the offence constituted by the fact of the unexplained possession of pecuniary resources disproportionate to the known sources of income of the accused. It is true that the various instances of the bribery are not referred to in the District Magistrate's letter and indeed could not have been. But it is to be remembered that the prosecution in this case is not for specific offences under Section 131 I. P. C., but only for the offence of criminal misconduct under Sub-section (2) of Section 5. The instances of bribe-taking adduced in this case are only evidence of one of the essential factual ingredients of the offence, viz., habitual bribe-taking.
I have already said that the validity of the sanction cannot be questioned on the ground that the evidence or the particulars are not indicated in the sanction. The sanction, therefore, in the present case cannot be said to have been vitiated by the absence of such particulars. I have, in fact, held in an earlier portion of, the judgment that the absence of these particulars even in the charge in this case, cannot be held to have vitiated the trial.
I have therefore, no doubt that, taking the order of sanction with the letter of the District Magistrate the Court which has been asked to take cognizance of the offence in this case had enough material before it to be satisfied that the offence which it was to take cognizance of, had been sanctioned, viz., the offence of criminal misconduct with the two factual constituents or ingredients viz., (1) habitual bribe-taking, and (2) unexplained and disproportionate possession of pecuniary resources by a public servant. The sanction, in this case, is therefore perfectly valid.
It is true that what the District Magistrate in his letter may have contemplated, was only the ob-taining of bribe with reference to the mill in the Balasore districts and not the mills in the Koraput District. But once the offence of criminal misconduct with the constituent factual ingredients of habitual bribe-taking was properly taken cognizance of, by the Court, it was entitled to allow evidence of all such instances which would be relevant to make out the offence.
65. I have, therefore, come to the conclusion that the objection, as to the validity of the sanction, for prosecution in this case must be overruled.
66. I am, also, bound to add that even if the view taken by me above, as to the interpretation of the recent decision of the Privy Council in 'GO-KULCHAND DWARKADAS v. THE KING', AIR 1948 P. C. 82 is incorrect, the sanction in this case is clearly valid in respect of the unexplained and disproportionate possession of the sum of Rs. 3148/-which has been specifically referred to in the letter of the District Magistrate. I have found, previously that in respect of Rs. 2800/- thereof, there is unexplained disproportion, and that the defence set up by the accused on this portion of the case is false. Under Section 5 Sub-section (3) the Court has, therefore, to presume that the accused person is guilty of criminal misconduct. A conviction based solely on this presumption is not invalid. The conviction in this case, can, therefore, be supported on that ground alone.
This view of the case would be perfectly justified having regard to the circumstances of the case and omitting entirely from consideration, all instances of bribe-taking. If a person, in the position of the accused is found, on a particular day, while in camp in the course of his official duty, to have been in possession of a heavy amount of money like Rs. 2800/- and the same is found to be disproportionate to his known sources of income, and is not satisfactorily explained, but on the other hand, the defence thereof is false, it is clear to my mind, that such a person has to be found guilty of criminal misconduct, provided there has been proper sanction therefor. The in-tendment and purpose of the special legislation by way of Prevention of Corruption Act would be defeated, if the Court hesitated to confirm the conviction even on that sole ground, if need be.
67. The conviction of the accused must accordingly be confirmed. As regards the sentences we consider that a sentence of rigorous imprisonment for two years and a fine of rupees three thousand with one year's R. I. in default would be adequate. We modify the sentence accordingly. With this modification, the appeal is dismissed.
68. I agree.