Balakrishna Ayyar, J.
1. Between March 1947 and December 1949 the accused was the head establishment clerk in the office of the D.T.O., Waltair. He joined that post in 1938 on a pay of Rs. 100. In December 1S49 he was getting a salary of Rs. 160 besides a dearness allowance of Rs. 33, After making various deductions his net pay amounted to Rs. 121-1-0.
2. Various allegations against the accused having reached the officers above him, the matter was referred to the Special Police Establishment Puri brunch. On 4-12-1949 P. W. 44, an Inspector attached to that Establishment, obtained a search warrant Ex. P. 87, from the Additional District Magistrate, Waltair, and on 5-12-1949 he searched the house of the accused in the presence of the Stationary Sub-Magistrate and some others. At the search silver articles weighing in all 31023 tolas and gold jewellery weighing 121 tolas were found. Besides, there were numerous documents securing mon,ey or money's worth standing some in the name of the accused, some in the name of his wife, some in the name of his son and others in the name of his daughter-in-law. The total of these exceeded Rs. 45,000. in addition documents covering immovable properties of the .estimated value of above Rs. 38,500 were also found.
3. The explanation of the accused in respect of the relatively large resources which the search disclosed he was in possession of, was this:
(1) He had a jutka plying for hire,(2) He had a money lending business,
(3) His wife had a trade in milk, and
(4) He had obtained substantial dowries for himself and his son.
4. The accused was tried by the Assistant Sessions Judge, Viaagapatam under S. 6, Central Act II of 1947 on the following charge:
'That you, being a public servant employed as head establishment clerk, District Transportation officer's office, .B. N. Railway at Waltair, about the period March 1947 to end of 1649 in the discharge of your official duties habitually accepted at or near Waltair--
(1) Rs. 550 from Gonappa Vanjaaadham of Attaraguda,
(2) Rs. 130 from Kill! Narayana of Palasa
(3) Rs. 120 from Mantri Asarayya of Narasimhapuram
(4) Rs. 150 from Jadhu Manikabi of Keonjhar
(5) Rs. 300 from Uppada Atchanna of Gopalapatnam
(6) Rs. 60 from D. Kurmayya of Chillapalem
(7) Rs. 200 from D: Appanna of Phipurupalll, gratifications other than legal remuneration, and also
(8) attempted to obtain Rs. 100 from Padala Jagannadham, Rs. 100 as bribe to have him transferred to the main line, as a motive such as is; mentioned in Section 161, I. P. 0., committed the offence, of criminal misconduct in the discharge of official duty as defined in Section 5(1) (a) of Act II of 1947 and punishable under Section 5(2) of the said- Act and within my cognizance.'
5. It will be noticed that the charge has not been very happily phrased. As it stands it would mean that the accused habitually received Rs. 550/- from Gonappa Vanjanadham (i.e., to' say several sums each of Rs. 550/), that he habitually received Rs. 130 from killl Narayana (i.e., to say several sums each of Rs. 130) and so on. But, apparently what the learned Assistant Sessions Judge meant to say was that the accused habitually accepted bribes and that some instances in which he received bribes were those enumerated lower down. It is clear that, the charge was understood in this sense by both the prosecution and the defence since on no other basis would the evidence adduced on both sides be intelligible.
Incidentally I may remark that if this charge is treated as a charge, of having received seven items of Bribes and of having attempted to receive an eighth item, as was at one stage tentatively suggested, it would Contravene Section 234, Criminal P. C., in two ways, first by including more than 0 three items and next by enlarging, the period beyond the space of twelve months permitted by that section. But this would involve such elementary, mistakes that, I doubt whether the Assistant Sessions Judge Intended that the charge should be so read or whether it was so understood by any body concerned.
6. Section 5(3), Central Act II of 1947, provides that in any trial of an offence punishable under Sub-section (2) the fact that the accused person is in possession of resources disproportionate to his known sources of income, and for which he cannot satisfactorily account, may be proved, and, on such proof, the Court shall presume unless the contrary is proved that the accused person is guilty of criminal misconduct. Dealing with the contentions of the prosecution based on that statutory provision and the answer of the defence thereto Assistant Sessions Judge, observed:
'I am inclined to accept the contention for the defence that the property found in the possession of the accused or in that of the other members of his family and the gold jewels and the silver'. articles seized from the house of the accused could not be said, to be disproportionate to the known sources of income of either the accused or the other members referred to, and that there is a satisfactory explanation in respect of the acquisition of both the movable and immovable properties.'
He also appears to have been of the opinion that it is only the acquisition of assets subsequent to 11-3-1947 on which date Central Act II of 1947 came into force that could be looked into for the purposes of Section 5(3) of the Act. In the view he took of the financial resources the accused was found to be in possession of, he declined to raise any presumption against him under Section 5(3).
7. As regards the seven specific instances enumeratedin the charge, he found that items 1 and 3 had been satisfactorily established, and,
'that the accused had in respect of these twoitems of charge committed the offence of criminal misconduct as defined in Section 5(1) (a) of Act II of 1947 punishable under Sub-section (2) of that section.'
He therefore convicted hint under the above section and sentenced him to suffer rigorous imprisonment for a period of three years.
8. The accused appealed to the Sessions Judge, Vizagapatam who proceeded on the view that he was called upon only to consider whether the conviction in respect of these two items was justified by the evidence on record. He observed,
'I am concerned in this appeal only with thetwo specific instances which were accepted as proved by the lower court.'
9. Before the learned Sessions Judge the prosecution wanted to show that the finding of the Assistant Sessions Judge that the property found in the possession of the accused was not disproportionate to his known sources of Income, was incorrect. But he refused to hear arguments on that point. He observed,
'The learned Special Public Prosecutor sought to Impugn the finding of the trial court with regard to the presumption under Section 5(3) of Act II of 1947. The finding is in favour of the appellant. The defence raised a legal contention that in view of Section 423(1) (b), Cr. P. C., the contention put forth by the learned Public Prosecutor is not tenable in an appeal from a conviction. I agree.'
In respect of the first of the two specific itemshe held that the evidence was contradictory, andthat besides there was no corroboration of thetestimony of the accomplice who is alleged to have paid the bribe. 'As regards the second instance. To support the evidence of P. W. 10 that he had paid a bribe to the accused the prosecution tendered a letter, Ex: P. 13, written by P. W. '11. About that letter the learned Sessions Judge -remarked, ,
'It is an obvious error to treat Ex. P. 13 as apiece of substantive evidence to corroborate anaccomplice. Granting that it is a letter addressed to the appellant, the author of the letter laP. W. 11 and that could be used only by 'the 'writer thereof to refresh his memory and forcontradiction if need be.'
In the end he observed:
'thus, the corroboration relied on by the trialCourt does not obtain.'
and in that view he allowed the appeal and acquitted the accused.
10. The State now seeks to canvass the correctness of this order of acquittal.
11. Central Act II of 1947 Is relatively speaking a new enactment and the case-law on it has not crystallised into any definite pattern. The arguments before me, therefore, covered a wide range of ground, but, I think I am right in saying that the arguments of the learned Public Prosecutor finally boiled down to this: The charge against the accused was not merely that he bad received the particular items of money enumerated in the charge framed by the Assistant Sessions Judge but that' he was habitually accepting bribes. The instances enumerated to the charge were merely intended to be instances of the habit he was accused of. Section 5(3) of the Act permits the prosecution to prove the charge in ft particular manner, viz., by showing that the accused was in possession of financial resources disproportionate to his known sources of income. Once the prosecution establishes that, it will be for the accused to satisfactorily account for his possession of 'those resources. If he is unable to do that the Court shall-presume that he is guilty unless of course the contrary is shown.
The view of the Assistant Sessions Judge that no notice can be taken of property in the possession of the accused before 11-3-1947 when Act II of 1947 became law is not correct. Sub-section (3) of Section 5 begins by stating
'In any trial of an offence punishable under Sub-section (2) the fact that the accused person or any other person, on his behalf is in possession'
and, then goes on to say that such possession, unless satisfactorily explained, shall be sufficient proof of his guilt. The learned Public Prosecutor pointed out that the statute employs the word . 'is'. According to him what the statute requires the Court to do is to look at the resources of the accused at the time he is charged; all the re-sources he is in possession of on that date must be taken into account and not merely part thereof. The statute does not say that the resources he had acquired before the date of the Act shall: not be taken into account.
12. Dealing with the observation of the Assistant Sessions Judge that Act II of 1947 is not retrospective in its operation the learned Public Prosecutor explained that Sub-section (3) of Section 5 does not create any new offence; it only lays down a particular mode of proof and the mode of proof permitted by that sub-section Is available in respect of any prosecution subsequent to the date of the 'Act. According to him even if the prosecution is unable to prove positively that on particular date the accused received a particular sum of money as a bribe from a particular Individual, nonetheless a conviction can be had under Section 5 if the prosecution establishes that the accused was in possession of resources disproportionate to his known sources of Income unless theaccused accounts for the possession of those disproportionate resources - or otherwise establishesthat he Is not guilty.
13. The learned Public Prosecutor went on to say that the presumption created by Section 5(3) of the Act is available for another purpose also. According to him that presumption may be used to corroborate the evidence of an accomplice who has paid a bribe to the accused. In support of his argument he referred to the case in -- 'J. E. Blythe v. The King', AIR 1949 Cal 641 (A). That was a case in which one BJythe who had Joined the British Army in 1931 but. who had subsequently Joined the. Indian Army was prosecuted under Section 5 of Central Act II of 1947. In 1946 Blythe was the Depot Commander in charge of various stores.' The case for the prosecution was that Blythe dishonestly delivered to Bharat Purchasing Company, oil in excess of the quantities to which it was entitled under the release order from 'disposals.'
In order to prove the pecuniary resources in the possession of the accused the prosecution tendered three documents in evidence, Exs. 22, 24 and 6. Ex. 22 was an extract from the account of Blythe with Lloyds Bank and showed that on June 1947 the balance in that account stood at about Rs. 13,000. Ex. 24 showed that Blythe had opened an account with, the imperial Bank in February 1947 with a 'deposit of. Rs. 3000. In March there was a deposit of Rs. 10,850; in April of Rs. 6,000; in May Rs. 12,150 and in June of Rs. 7,200. Ex. 6 represented a rough calculation , made by Blythe of his assets. ' The total value of his assets, came to about Rs. 90,000. The Court observed:
'We find, therefore, that the prosecution has proved in fact that the accused was 'in possession, of pecuniary resources, of which he cannot satisfactorily account for, disproportionate to his known sources of income.' The consequence that will follow from this is that the court shall presume that the accused is guilty of criminal misconduct in the discharge of his official duty unless the contrary is proved.'
In an earlier, portion of the Judgment Section 5(3),of the Act is extracted and the following comment made on it. :
'In the first place, this provision permits theprosecution to prove in these trials a fact, whichwould not be relevant under the Evidence Act.-- the fact that the accused or any body elseon his behalf is in possession of pecuniary resources or property, disproportionate to hisknown sources of income, and that, for suchpossession the accused person cannot satisfactorily account. To prove this fact the prosecution will have In practice, to prove the pecuniaryresources in the possession of the accused; thento prove what is known about his sources of income; and then to prove that the accused person cannot satisfactorily account for this possession.
If the court is satisfied as regards thesethree things and also finds that the property is disproportionate to the sources of income, theprosecution will have proved the fact, whichSection 5(3) gives it the right to prove. Thereupon,It will become' the duty of the court to presume that the accused has committed the offence of criminal misconduct -- but even then, the accused has the right to prove that he has not committed this offence. And if the accused succeeds in proving this, the court shall not make the presumption aforesaid and will declare-him not guilty.'
14. The reply of Mr. Ethiraj on this part of the case may be thus summarised:
(1) Section 5(3) of Central Act II of 1947 itself creates a new offence. Section 4(o), Crl. P. C. defines an 'offence' as 'any act or omission made punishable by any law for the time being in force.' Section 5(3) of Act II of 1947 in ' effect and substance provides that the possession of what may be compendiously but not very accurately described as the possession of disproportionate wealth is 'Criminal misconduct' in a public servant. That it creates a new offence was recognised in the cae reported in -- 'Biswabhusan v. The State', : AIR1952Ori289 (B). At page 293, the following observations- occur:
'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 cart have no grievance in this behalf.' The Assistant Sessions Judge acquitted the accused of this specific, offence. It was not therefore open to the. Sessions Judge in appeal to go into the question of the correctness or otherwise of the acquittal since the correctness of an order of acquittal can be canvassed only before the High Court.
(2) Nor is it permissible for the prosecution to utilise the circumstance that the accused public servant is in possession of disproportionate wealth to corroborate the evidence of any witness who says that on a particular occasion he paid a particular amount as bribe to the accused. The decision in the Orissa case just cited was given in an appeal against a conviction of an ex-inspector of Factories by the Sessions Judge. The accused was found in possession of a sum of Rs. 3148 in cash. The Sessions Judge appears to have taken that circumstance into account in arriving' at a conclusion whether the accused received the particular items of money set out in the charges against him. On that the learned Chief Justice observed, . --.
'Learned Judge uses this conclusion as' an important item of circumstantial evidence by way of corroboration 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.' (3) Section 5(3) of Act II of 1947 creates a new offence, that is to say, it renders punishable something which was not' previously punishable, viz., the. possession of disproportionate wealth. It is not open to the prosecution to seek a conviction under Section 5(3) of the Act by using acts which were committed by the accused prior to the date of Act H of 1947. To do so would be in effect and substance to punish him for something which was not an offence at the time the act was committed and such a course is prohibited by the Constitution.
15. To assess the value of these opposing contentions it is necessary to attempt an analysing of the scope of Section 5 of Act II of 1947. The first sub-section defines criminal misconduct in a public servant as consisting of four categories of conduct. Speaking very generally these are:
(a) the habitual taking of bribes as a motiveor reward, for showing official favour;
(b) the habitual taking of money or money'sworth from persons coming within the sphere of his official influence;
(c) misappropriation of property entrusted tohim or allowing another person to do so and
(d) obtaining money or moneys worth by corrupt or illegal means or by otherwise abusing his official position.
16. Certain things will be noticed about the definition incorporated in Section 5(1). The first is that while Clauses (c) and (d) make particular and individual acts punishable, Clauses. (a) and (b) require that the conduct charged against the accused should be habitual, The second is that instances of conduct which may not be sufficient to prove habit under Clause (a) or Clause (b) would be punishable under Clause (c) or Clause (d) The third point to note is that neither Clause (a) nor Clause (b) really creates any new offence. The acceptance, of a bribe even on a single occasion is made punishable by Section 161 I. P. C. The language of Clause (b) involves a substantial reproduction of Section 165, I. P. C. The principal difference is that' while Sections 181 and 165, I. P. C. make punishable even a single act, Clauses (a) and (b) deal with the habitual commission of such acts.
The first part of Clause (c) is more or less only Section 405, I. P. C. in its application to public servants. But, the latter part of it creates a new . offence because it makes the public servant punishable if he merely allows another person to commit misappropriation of property entrusted to his care. Likewise the earlier part of Clause (d) of Section 5(1) does not create a new offence while the latter part of it does. A public servant who obtains by corrupt or illegal means a pecuniary advantage for himself can always be brought under some section or other of the Penal Code. The addition made by the latter part-of Clause (d) consists in making punishable the obtaining of a pecuniary advantage by abuse of official position.
In other words, conduct which was not previously punishable but which Is made punishable by Act II of 1947 really consists of two matters: (1) allowing some one else to misappropriate property entrusted to or under the control of a public servant, and (2) obtaining a valuable thing or pecuniary advantage by abuse of official position. These two are really the new additions made to the list of offences previously punishable, Sub-section (2) merely provides the punishment for the offence denned in Section 5(1). Sub-section (3) only -lays down a rule of evidence which enables the prosecution to prove more easily than otherwise the various offences defined in Sub-section (1) In a particular manner. That, Sub-section (3) only lays down a rule of evidence is the view taken by Somasundaram J. in Crl. App. No. 703 of. 1951 (Mad) (C) and I respectfully agree with it.
17. Apparently in view of the difficulty of producing proof of specific instances the legislature devised another mode of proof founded on an enquiry into the financial position of the accused on the date on which he is alleged to have transgressed Section 5(1). When it is established that on that date he is in possession of pecuniary resources or property disproportionate to his known sources of income then he will be presumed to Have committed an offence under Section 5 (1), unless he can rebut this presumption by explaining how he came to be in possession of such resources. If his explanation is satisfactory there is an end of the matter. On the other hand, even if it is not it will be still open to him to show that he is not guilty by other evidence or Contentions having a bearing on the charge.
18. Before proceeding further I may dispose of a subordinate contention that Mr. Ethiraj raised. Section 5(3) speaks of the accused person satisfactorily accounting for his pecuniary resources. Mr. Ethiraj asked to whom is this satisfactory account to be furnished and seemed to suggest that this account need not be to the court and that it might be given to some one else, as for instance to the official superior of the accused person or may be even to the investigating officer. I do not think that is the correct view of the matter. Regard being had to the context in which the words occur, regard being also had to the fact that it is the court which is required to presume that he is guilty, I have no doubt that Section 5(3) requires that the accused should satisfactorily account for his possession of disproportionate resources not to some one else but to the court before which he is being tried.
19. The charge under Section 5(1) must refer to some specific period during which the accused is alleged to have committed the offence. The period may be one year, may be two years, may be perhaps a little more, but it cannot be so wide as to amount to an abuse of the process of the court -- Vide the observations of the learned Chief Justice in the Orissa Case, : AIR1952Ori289 (B) already referred to. Now, a public servant may have made money in the past by abusing his Official position or by allowing some one to misappropriate property entrusted to his care or under his control or by otherwise contravening Section 5; nevertheless he may have committed no act punishable under Section 5(1) after Act II of 1947 came into force or during the period covered by the charge actually framed by the court. To say that if the accused cannot satisfactorily account for his possession of disproportionate resources at the time he is indicted he shall be considered guilty would be -- so it -was contended -- -to punish him for something which was not really Included in the charge; he may have been acting with the utmost fidelity and honesty during the period covered by the charge; still by virtue of this presumption he will be liable to be convicted and punished; such could not have been the intention of the legislature. There is force in this argument.
20. To the question whether the, possession of unexplained resources could be used to corroborate the evidence adduced by the prosecution to show that on a particular occasion a particular bribe was received, I do not think it is possible to give a general answer. It seems to me that it would depend upon the circumstances of each case, I shall illustrate any meaning. If in a particular case the evidence shows that a bribe of say Rs. 5000 was paid to the accused on a particular date and that not very long thereafter either his bank balance increased by something like, Rs. 5000 or that he acquired property of the value of about Rs. 5000, that would, be a 'possession of resources' which could be used to corroborate the allegation that the particular sum had been paid as a bribe. If, on the other hand, the resources which are traced to the accused are large and the particular sum he is charged with having received is relatively small, it would not be right to use the possession of those unexplained resources 'to corroborate the fact of payment.
21. The conclusion I have reached is this. The learned Sessions Judge was in error in refusing to permit the prosecution to show that the accused was in possession of resources disproportionate to his known sources of income and that the explanation he gave in relation to it is not satisfactory. The acquittal of the accused based on such a refusal cannot therefore be sustained and the appeal preferred by the accused will have to go back. To avoid doubts and further argument I shall explain what should be done when the case does go back. The prosecution will be allowed to show that the resources in the possession of the accused were disproportionate to his known sources of income and that the explanation he has given about them is unsatisfactory.
At the same time it will be 'open to the accused to show that the explanation he has given is really satisfactory. If he is able to do that then there will be an end of the presumption against him. If he is unable to do that it will still be open to him to secure an acquittal by showing that during the period covered by the charge he has not been guilty of criminal misconduct. It Will be open to him for example to show this by explaining what his financial position was at the commencement of the period covered by the charge, what his financial position was at the end of the period covered by the charge and by giving a full and proper account of the source or his resources during the period. Natifrally some definiteness and precision will be expected in respect of this explanation. It will also be open to him to show that the evidence adduced by the prosecution is untrustworthy or insufficient.
22. In view of the order I propose to make, I shall make no comment on the evidence relating to instances (1) and (3) on which the accused was found guilty by the Assistant Sessions Judge, One point, however, must be made clear. The learned Sessions Judge thought that Rs: P. 13 was receivable in evidence Only to refresh the ' memory of P. W. 11 or to contradict him. That view does not appear to be correct. Ex. P. 13 la relevant in itself as showing the circumstances under which P. W. 10 got employed, and, that in its turn will have a bearing on the question whether the Wrongful act with which the accused was charged in relation to P. W. 10 was only an isolated act or habitual with him.
23. I set aside the order of acquittal made by the learned Sessions Judge and direct that he rehear the appeal in the light of the discussion and the observations already made. The accused will be allowed to remain on ball to the satisfaction of the Sessions Judge.