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DIn Dayal Sharma Vs. the State of Uttar Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1959SC831; 1959CriLJ1120; [1959]Supp(2)SCR776
ActsIndian Penal Code (IPC), 1860 - Sections 161
AppellantDIn Dayal Sharma
RespondentThe State of Uttar Pradesh
Cases ReferredAsgarali Nazarali Singaporewalla v. The State
Excerpt:
.....be sustained - objection to be raised at early stage - supreme court not to deal with new facts - high court's decision of conviction of appellant upheld by supreme court. - indian penal code, 1890 section 34: [dr.arijit pasayat & asok kumar ganguly, jj] held, section is based on principle of joint liability. common intention amongst participants is an essential element. proof of some overt act by every participant is not necessary. sections 34 & 300: common intention appellant along with others alleged to have killed deceased by assaulting him by axe and sword - incident alleged to have taken place out of enmity - appellant having no enmity with deceased was neither armed nor had done any overt act held, mere fact that he was in company of accused who were armed would not be..........any presumption being raised against the appellant. on the contrary, his defence that he had taken the sum of rs. 20 from malekchand to purchase wheat for him was disbelieved and malekchand's evidence that he had taken this money in order to secure an allotment of a house for malekchand was accepted. there appears to be no substance in the point raised. 7. it was next urged that the matter of sentence may be considered. the incident took place in 1951 and the appellant has been on bail and it would not be desirable to send him back to jail. the sentence of one year's imprisonment for corruption by a public servant cannot, however, be considered as unduly severe. 8.the appeal is accordingly dismissed. 9. appeal dismissed.
Judgment:

Imam, J.

1. The appellant was convicted under s. 5(2) of the Prevention of Corruption Act and under s. 161 of the Indian Penal Code and sentenced to one year's rigorous imprisonment on each count. The sentences were made to run concurrently.

2. On the facts found by the courts below the appellant accepted Rs. 20/- as illegal gratification from one Malekchand who had applied for allotment of a house. The appellant was employed at that time as a clerk in the office of the District Relief and Rehabilitation Officer, Meerut. The aforesaid sum of money was accepted by the appellant as bribe with a view to getting a house allotted to Malekchand. There can be no question that, on the facts found, the appellant was guilty both under s. 5(2) of the Prevention of Corruption Act and under s. 161 of the Indian Penal Code.

3. The first point taken was that the investigation had taken place by a police officer below the rank of Deputy Superintendent of Police. Consequently, the investigation had taken place in contravention of the provisions of the Prevention of Corruption Act. The conviction of the appellant was therefore vitiated. This point was taken before the Additional Sessions Judge who had heard the appeal of the appellant against his conviction. The Additional Sessions Judge referred to a decision of the Calcutta High Court which supported the submission made on behalf of the appellant. He also referred to a decision of the Allahabad High Court to the contrary effect. He followed, as he was bound to follow, the decision of the Allahabad High Court. The decision of this Court in the case of H. N. Rishbud and Inder Singh v. The State of Delhi : 1955CriLJ526 does not support the submission made by Mr. Umrigar on behalf of the appellant. He, however, referred to a passage in the aforesaid cited decision at page 1164 to the effect that where a breach of a mandatory provision in brought to the knowledge of the court at a sufficiently early stage, the court, while not declining cognizance, would have to take the necessary steps to get the illegality cured and the defect rectified by ordering such investigation as the circumstances of the case may call for. It has not been shown to our satisfaction that the attention of the trial court was drawn at an early stage to any breach of the provisions of the Prevention of Corruption Act. There had been an enquiry before commitment to the Sessions. It is clear that during these proceedings before commitment no objection was raised that the investigation had taken place by a police officer below the rank of Deputy Superintendent of Police in contravention of the provisions of the Prevention of Corruption Act. The decision of this Court was given on December 14, 1954, and the High Court judgment in the present case was delivered on December 16, 1955. No point was taken before the High Court to the effect that the investigation had been made by an officer below the rank of Deputy Superintendent of Police in contravention of the provisions of the Prevention of Corruption Act. Such an objection should have been taken if the appellant was prepared to establish before the High Court that the objection had been taken at sufficiently early stage and that in view of the decision of this Court in the case cited the trial court ought not have proceeded with the trial unless the defect had been removed. The decision of this Court in the case cited is clear, however, that generally a conviction is not vitiated because there had not been strict compliance with the provisions of the Prevention of Corruption Act in the matter of investigation by a police officer. As to whether the objection was taken at a sufficiently early stage is a question of fact and ought to have been raised in the High Court as the decision of this Court in the case cited had been delivered something like a year before. As this point in this form was not raised before the High Court we cannot allow it to be raised at this stage.

4. It was next contended that the Assistant Sessions Judge who tried the case had no jurisdiction to try the case as it was triable by a Special Judge only. It is clear, however, that the case had been committed to the Court of Session before the Criminal Law (Amendment) Act, 1952, came into force. Under s. 10 of this Act all cases pending before the Court of a Magistrate were transferred to the Court of a Special Judge. Section 10 did not purport to transfer cases, pending in the Court of Session at the commencement of the Act, to the Court of the Special Judge. In the case of Asgarali Nazarali Singaporewalla v. The State : 1957CriLJ605 , this Court observed 'The cases which were pending before the courts of sessions did not require to be so transferred because they would be tried by the procedure obtaining in the courts of sessions and nothing further required to be done.' It seems clear to us, therefore, that the Assistant Sessions Judge had us, therefore, that the Assistant Sessions Judge had jurisdiction to try the case as the same had been pending in the court of Session when the Act came into force.

5. The third contention raised was that the courts below had not correctly appreciated the nature, extent and the quantum of proof required for raising the presumption under s. 4 of the Prevention of Corruption Act. The High Court's judgment does not show that that Court in any way raised any presumption under s. 4 against the appellant. The following passage from the High Court's judgment would make this clear :

'It was next contended that the evidence on the record does not satisfactorily prove that the sum of Rs. 20 was received by the applicant as illegal gratification. The finding on this point is a finding of fact. I have gone through the judgment of both the courts below and I see no satisfactory reason to disagree with the concurrent finding of both the courts on this point. There is ample evidence on behalf of the prosecution to the conclusion that the sum of Rs. 20 was paid by Malekchand to the applicant on his demand in order to secure the allotment of a house. There does not appear any satisfactory reason why Malekchand should have paid Rs. 20 to the applicant to procure wheat for him.'

6. There is, therefore, no question of any presumption being raised against the appellant. On the contrary, his defence that he had taken the sum of Rs. 20 from Malekchand to purchase wheat for him was disbelieved and Malekchand's evidence that he had taken this money in order to secure an allotment of a house for Malekchand was accepted. There appears to be no substance in the point raised.

7. It was next urged that the matter of sentence may be considered. The incident took place in 1951 and the appellant has been on bail and it would not be desirable to send him back to jail. The sentence of one year's imprisonment for corruption by a public servant cannot, however, be considered as unduly severe.

8.The appeal is accordingly dismissed.

9. Appeal dismissed.


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