Sailendranath Bose vs The State of Bihar

Hegde, J.—In this appeal by special leave, Mr. Debobrata Mookherjea learned Counsel for the Appellant advanced the following

contentions: (1) the investigation conducted in this case was without the authority of law, (2) the nature of the onus u/s 4 of the Prevention of

Corruption Act hag been wrongly construed by the High Court as well as the trial court, and (3) the sanction granted u/s 6 of the Prevention of

Corruption Act is invalid in law as the authority who granted the same had no competence to do so.

The facts leading upto this appeal are these: The Appellant was an Assistant Medical Officer in the Railway Hospital at Gaya in the year 1964.

P.W. 4 Doman Ram was a khalasi working under the Inspector of Works, Eastern Railway, Gaya. On March 2, 1964, as he was suffering from

dysentery and stomach pain he was sent to the Appellant along with a sick note for treatment. The case of P.W. 4 was that when he went to the

Appellant for treatment the Appellant demanded and received from him Rs. 2 as illegal gratification for treating him. Thereafter he was treated by

the Appellant on the 5tb, 7th, 9th and 12th of that month. By the 12th he had completely recovered and therefore he wanted to rejoin duty and for

that purpose he requested the Appellant to give him a fitness certificate For issuing him that certificate the Appellant demanded Rs. 5 as bribe and

he further told P.W. 4 that unless he paid him the said sum by March 14, 1964, he (Appellant) would remove P.W. 4''s name from the sick list.

After this talk, when P.W. 4 was going out of the hospital he met a parson by name Babu. He complained to Babu about the behaviour of the

Appellant. The said person told him that he would meet him again on March 14, 1964, but on March 14, Mr. A.C. Das, P.W. 17, Inspector of

Special Police Establishment, met P.W. 4 in his house and ascertained from him all that had happened. Thereafter P.W. 4 met P.W. 17 again at

the railway station as desired by the latter. From there both of them went to the district Dak bungalow where P.W. 17 recorded the complaint of

P.W. 4. The same day P.W. 17 obtained from the First Class Magistrate an order u/s 5-A of the Prevention of Corruption Act. Thereafter, P.W.

4 produced before P.W. 17 a five-rupee currency note in the presence of Panch witnesses. P. W. 17 noted the number of tie currency note in

question, prepared a memorandum in respect of the same, got it attested by the panch witness and thereafter returned the said currency note to

P.W. 4 to be given to Appellant in case he made any further demand for bribe. After these preliminaries were over P.W. 4 went to the Appellant

along with the panch witnesses. There when P.W. 4 asked for the certificate, the Appellant repeated his earlier demand. Then P.W. 4 gave him the

currency cote in question. This was seen by the panch witnesses. Immediately signal was given to P.W. 17 who came to the hospital and asked the

Appellant to produce the five rupee note received by him from P.W. 4. At this stage the Appellant became extremely nervous. He admitted that P.

W. 4 had paid him Rs. 5 but that according to him was a return of the loan given to him by the Appellant. He produced the currency note in

question. After investigation the Appellant was charged u/s 161 I.P.C. and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption

Act.

The plea of the Appellant was that P.W. 4 and his wife were doing odd jobs in his house; P. W. 4 was a drunkard and hence was always in

need, he used to often borrow from him (Appellant), he had borrowed Rs. 5 from him one days prior to the date of the trap and he returned that

amount on that day. The Appellant examined some witnesses in support of that plea.

The trial court as well as the High Court accepted the prosecution evidence rejected the defence version and convicted the Appellant both u/s

161 I.P.C. as well as Section 5(2) of the Prevention of Corruption Act. They have given good reasons in support of the landings of fact reached

by them. As this Court does not go into questions of fact except under exceptional circumstances, Mr. Mookherjea primarily confined himself to

the legal issues arising in the case.

His first contention was that the investigation held in this case was without the authority of law and hence the Appellant is entitled to be

acquitted. He urged that in view of Section 5-A of the Prevention of Corruption Act, P.W. 17 who was only an Inspector of police could not have

investigated the case without the prior permission of a Magistrate of the First Class; on March 12, 1964 he merely applied for and obtained from a

First Class Magistrate permission to lay a trap; the permission to investigate the case was obtained by him only on the 21st, but by that time the

entire investigation was over ; hence there was no valid investigation. The application made by P.W. 17 on the 12th was u/s 5-A of the Prevention

of Corruption Act. Therein, it is true, he had only asked for permission to lay trap. It must be remembered that the permission given was one u/s 5-

A. A permission under that provision is a permission to investigate the case. Laying the trap is a part of the investigation. It is so laid down by this

Court in The State of Madhya Pradesh Vs. Mubarak Ali, An investigation is one and indivisible. All steps taken by P.W. 17 to ascertain the truth

of the complaint made by P.W. 4 alleging that the Appellant was attempting to obtain bribe from him, come within the expression ''investigation''

u/s 4(1) of the Code of Criminal Procedure. ''Investigation'' includes all the proceedings under the Code for the collection of evidence conducted

by a police officer or any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. The scope of the expression

''investigate'' found in Section 5-A of the Prevention of Corruption Act was explained by this Court in H.N. Rishbud and Inder Singh Vs. The

State of Delhi, and The State of Uttar Pradesh Vs. Bhagwant Kishore Joshi, Section 5-A. does not contemplate two sanctions, one for laying the

trap, and another for further investigation. Once an order under that provision is made that order covers the entire investigation. A permission given

under that provision enables the officer concerned not only to lay a trap but also to hold further investigation. There is no doubt that P.W. 17 was

under a mistaken impression that he should obtain two permissions, one for laying the trap and another for investigating the case. Evidently because

of that he applied for a second permission some days after the trap was laid. But that permission was wholly superfluous and the same does not

affect the validity of the earlier order. Hence there is no basis for the contention that any portion of the investigation in this case was done without

the authority of law.

It was next urged that before granting the permission the learned Magistrate did not apply his mind to the question whether there was any need

for granting the same. Before permitting P.W. 17 he should have first ascertained whether any officer of the rank of Deputy Superintendent or

above was not immediately available to investigate the case, and whether there was any other reason for departing from the normal rule laid down

by the legislature, namely, that cases of this nature should be investigated by officers of the rank of Deputy Superintendent of Police or above. It

was further contended on behalf of the Appellant that the learned Magistrate made the order casually; he gave no reason in support of his order

and hence the permission granted does not meet the requirements of the law.

The object of the legislature in enacting Section 5-A was to see that the investigation of offences punishable under Sections 161, 165 or 165-A,

I. P. C. as well as those u/s 5 of the Prevention of Corruption Act should be done ordinarily by officers of the rank of Deputy Superintendent or

above. No doubt Section 5-A also provides for an alternative procedure. An officer below the rank of Deputy Superintendent can investigate

those offences if he obtains the previous permission of a First Class Magistrate. The legislature proceeded on the basis that except for good

reasons the Magistrate would not accord permission for officers below the rank of a Deputy Superintendent to investigate those offences. But

exigencies of administrative convenience may require that some of those cases have to be investigated by officers below the rank of Deputy

Superintendents. For that reason it was provided that in such circumstances the permission of a Magistrate of the First Class should be obtained.

This Court has laid down The State of Madhya Pradesh Vs. Mubarak Ali, that the statutory safeguards u/s 5-A must strictly be complied with for

they awe conceived in public interest and were provided as a guarantee against frivolous and vexatious proceedings. A Magistrate cannot

surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at the stage of granting

permission. He must also be satisfied that there is reason owing to exigencies of the administrative convenience to entrust a subordinate officer with

the investigation. It is further observed therein that it is desirable that the order giving the permission should ordinarily in the face of it disclose the

reasons for giving permission. The order giving permission u/s 5-A in this case does not give any reason. On the application submitted by P.W. 17

the learned Magistrate merely ordered ""Permission granted"" P.W. 17 did not mention in his application any special reason for permitting him to

investigate the case unless we consider the statement in the application. ""Today is the date fixed for issuing the fit certificate after receiving a bribe

money of Rs. 5 from him"" as impliedly a ground in support of his application. It is surprising that even after this Court pointed out the significance of

Section 5-A in several decisions there are still some Magistrates and police officers who continue to act in a casual manner. It is obvious that they

are ignorant of the decisions of this Court. But the legality of the investigation held in this case does not appear to have been challenged in the trial

court. The charge levelled against the Appellant is established by satisfactory evidence and therefore all that we have now to see is whether the

accused was prejudiced by the fact that investigation of this case was made by an officer below the rank of a Deputy Superintendent, as laid down

by this Court in Munna Lal Vs. State of Uttar Pradesh, . No prejudice was pleaded much less established. An illegality committed in the course of

an investigation does not affect the competence and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and

the case has proceeded to termination the invalidity of the preceding investigation does not vitiate the result unless the miscarriage of justice has

been caused thereby, see H.N. Rishbud and Inder Singh Vs. The State of Delhi, ).

We next take up the question as to the scope of Section 4 of the Prevention of Corruption Act. As mentioned earlier, the Appellant admits the

fact that he received a sure of Rs. 5 from P.W. 4 on 14th March 1964. Once that fact is admitted by him, the court has to presume unless the

contrary is proved by the Appellant that he accepted the sum in question as a motive or reward for issuing the fit certificate. Mr. Mookherjea''s

contention was that the presumption in question does not arise"" unless the prosecution proves that the amount in question was paid as a bribe. He

urged that the presumption u/s 4 arises only when the prosecution proves that the Appellant had received any gratification (other than legal

remuneration) or any valuable thing from any person"". He laid stress on the word gratification and according to him the word gratification can only

mean something that is given as a corrupt reward. If this contention of Mr. Mookherjea is correct then the presumption in question would become

absolutely useless. If is not necessary to go into this question in any great detail as the question is no more res Integra. In C.I. Emden Vs. State of

Uttar Pradesh, this Court held that, the presumption u/s 4 arose when it was shown that the accused had received the stated amount and the said

amount was not legal remuneration. The word gratification in Section 4(1) was given its literal dictionary meaning of satisfaction of appetite or

desire, it could not be construed to mean money paid by way of a bribe.

The court further observed:

If the word gratification is construed to mean money paid by way of a bribe then it would be futile or superfluous to prescribe for the raising of the

presumption. Technically it may no doubt be suggested that the object which the statutory presumption serves on this construction is that the court

may then presume that the money was paid by way of a bribe as a motive or reward as required by Section 161 of the Code. In our opinion this

could not have been the intention of the Legislature in prescribing the statutory presumption u/s 4(1). In the context we see no justification for not

giving the word ''gratification'' its literal dictionary meaning.

There is another consideration which supports this construction. The presumption has also to be raised when it is shown that the accused person

has received any valuable thing. This clause has reference to the offence punishable u/s 165 of the Code; and there is no doubt that one of the

essential ingredients of the said offence is that the valuable thing should have been received by the accused without consideration or for a

consideration which he knows to be inadequate. It cannot be suggested that relevant clause in Section 4(1) which deals with the acceptance of any

valuable thing should be interpreted to impose upon the prosecution an obligation to prove not only that the valuable thing has been received by the

accused but that it has been received by him without consideration or for a consideration which he known to be inadequate. The plain meaning of

this clause undoubtedly requires the presumption to be raised whenever it is shown that the valuable thing has been received by the accused

without anything more. If that is the true position in respect of the construction of this part of Section 4 (1) it would be unreasonable to held that the

word gratification in the same clause imports the necessity to prove not only the payment of money but the incriminating character of the said

payment. It is true that the Legislature might have used the word money or consideration at has been done by the relevant section of the English

statute; but if the dictionary meaning of the word gratification fits in with the scheme of the section and leads to the same result as the meaning of

the word valuable thing mentioned in the same clause, we see no justification for adding any clause to qualify the word gratification''; the view for

which the Appellant contends in effect amounts to adding a qualifying clause to describe gratification.

The same view was taken by this Court in Dhanvantrai Balwantrai Desai Vs. State of Maharashtra, and 8gain in V.D. Jhangan Vs. State of Uttar

Pradesh, .

It was next contended that to discharge the burden placed on the appellate order Section 4 all that he has to do is to offer a reasonable

explanation, the burden placed on him by S. 4(1) being somewhat analogous to that placed on an accused u/s 114 of the Evidence Act. This

branch of the law is also well settled by the decisions of this Court. Section 114 of the Evidence Act provides that the court may presume the

existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public

and private business, in their relation to the facts of the particular case. Under that provision the court is not bound to draw any presumption of

fact: It is within its discretion to draw a presumption of fact; It is within its discretion to draw a presumption or not. But u/s 4(1) the court is bound

to draw the presumption mentioned therein. The presumption in question will hold good unless the accused proves the contrary. In other words,

the burden of proving the contrary is squarely placed on the accused. A fact is said to be proved when after considering the matters before it the

court either believes it to exist or considers its existence was so probable that a prudent man ought under the circumstances of the particular case

to act upon the supposition that it exists. The proof given by the accused must satisfy the aforementioned conditions. If it does not satisfy those

conditions that he cannot be said to have proved the contrary. In Dhanvantrai v. Stale of Maharashtra AIR l964 S.C. 575 this Court considered

the nature of the proof required to be given by the accused u/s 4(1). Therein this Court held that the burden resting on the accused person in such a

case would not be as light as that placed on him u/s 114 of the Evidence Act and the same cannot be held to be discharged merely by reason of

the fact that the explanation offered by him is reasonable and probable. It must further be shown that the explanation is a true one. The words

unless the contrary is proved which occur in that provision make it clear that the presumption has to be rebutted by proof and not by a bare

explanation which is merely plausible. The same view was taken by this Court in V.D. Jhangan Vs. State of Uttar Pradesh, . But at the same time it

was mentioned in that decision that the burden resting on the accused will be satisfied if the accused person establishes his case by a

preponderance of probability and it is not necessary for him to establish his case by the test of proof beyond reasonable doubt. In other words, the

nature of the burden placed on him is not the same as that placed on prosecution which must not only prove its case but prove it beyond

reasonable doubt. In the instant case the evidence adduced by the Appellant in support of his plea was not accepted by the trial court as well as

the High Court. Hence it must be held that he had not discharged the burden placed on him by law.

This takes us to the last point urged by Mr. Mookherjea namely that the sanction to prosecute granted P.W. 1, the Chief Medical Officer, u/s

6(1) of the Prevention of Corruption Act is invalid as he was cot the authority competent to remove the Appellant from his office and hence the

prosecution is vitiated. Section 6(1), to the extent it is material for our present purpose, reads:

No court shall take cognizance of an offence punishable u/s 161 or Section 164 or Section 165 of the Indian Penal Code, or under Sub-section

(2) or Sub-section (3-A) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction,

(a)....

(b)....

(c) in the case of any other person of the authority competent to remove him from his office.

This Court has laid down in R.R. Chari Vs. State of U.P., as well as in several other decisions that no court can validly take cognizance of any

of the offences mentioned in Section 6(1) of the Prevention of Corruption Act without the previous sanction of the authority competent to remove

from office the accused. Without a valid sanction the court had no jurisdiction to try the case. Hence, if the sanction accorded in this ease is invalid

then the Appellant is entitled to be acquitted.

P.W. 1 deposed that the Appellant was a class III officer and that he could have been appointed or dismissed by the Deputy Agent Personnel

who is subordinate to him. Therefore he (P.W. 1) was competent to grant previous sanction u/s 6(1) of the Prevention of Corruption Act. P.W.

1''s assertion that the Appellant could have been removed from his office either by the Deputy Agent Personnel or by himself was challenged in his

cross-examination. The trial court as well as the High Court have relied on the oral evidence of P.W. 1 in clamming to the conclusion that the

sanction granted is valid. In our opinion those courts erred and relying on oral evidence in deciding the validity of the sanction granted. Hence, we

asked the learned Counsel for the Respondent to satisfy us with reference to the rules on the subject that P. W. 1 was competent to remove the

Appellant from bis office. For this purpose we granted him several adjournments. Though our attention has now been invited to some rules, those

rules do not establish that P.W. 1 was competent to grant the section in question.

It was contended on behalf of the Appellant that he was a gazetted officer and therefore he could be removed only by the Railway Board. This

contention does not appear to be correct. As seen from the Government of India, Ministry of Railways'' publication under the title ""authorised

scales of pay"", the Appellant is a class III officer. From that publication it is further seen that only class I and II officers are designated as gazetted

officers. In support of his contention that he was a gazetted officer, the Appellant relied on the Railway Board''s letter No. PC/60/PS-5/ MH-3,

dated 2nd March. 1962. Paragraph 4 of that letter-the only relevant paragraph for our present purpose says that an assistant surgeon after five

years service shall hold the honorary gazetted rank and shall be entitled to the usual privileges granted to gazetted officers in matters such as

passes, allotment of quarters. This letter merely indicates that the officers mentioned therein are entitled to certain privileges which are ordinarily

available to gazetted officers. We are unable to read that letter as raising the rank of the Appellant to that of a gazetted officer. Therefore we

proceed on the basis that the Appellant was a non-gazetted officer But the question still remains whether P.W. 1 was competent to remove him

from service. In view of appendix 38 of the Indian Railway Establishment Code, Vol. II (4th re-print dated 26th July, 1962), we may take it that

P. W. 1 was the head of the department to which the Appellant belongs. The next question is whether the bead of his department was competent

to remove the Appellant from his service.

As per Rule 134 of the Indian Railway Establishment Code published in 1959 authorities competent to make first appointment to non-gazetted

posts in the Indian Railways are the General Manager, the Chief Administrative Officer or lower authority to whom he may delegate power. There

is no evidence to show that this power has been delegated to the heads of the department. No provision in the Indian Railway Establishment Code,

1959 prescribing the authorities competent to remove from office a class III officer was brought to our notice. But the prefatory note to Vol. I of

the Code says, ""The revised Chapter XVII and revised Appendices I and XII will be printed later for inclusion in this edition. Till such times these

are printed, the rules and provisions contained in Chapter XVII and Appendices IV and XVIII in the 1951 Edition (Re-print) as amended from

time to time shall continue to apply"".

In 1961 new rules relating to discipline and appeal of railway servants other than employed in the railway protection force have been

published. Rule 1701 says, ''Without prejudice to the provisions of any law, for the time being in force, relating to the conduct of Government

servants, or to the rules made u/s 47(e) of the Indian Railways Act, 1890 (9 of 1890), the conduct of railway servants shall be governed by the

rules contained in Appendix VIII"". Our attention has not been invited to any rules made u/s 47(e) of the Indian Railways Act, 1890 or any other

statutory rules. Hence we are proceeding on the basis that the aforementioned Rule 1701 governs the present case. Rule 1705 says that the

authorities who are competent to place a railway servant under suspension and to impose penalties on him are specified in the Schedules I, II and

III appended to the Rules. Rule 1707 sets cut the various punishments that may be imposed on a railway servant which includes removal from

service as well as dismissal from service. Schedule I deals with railway servants employed in the Railway Board''s office, the Research, Design and

Standard Organisation, the Railway Staff College, Baroda, the Advanced Permanent Way Training School, Poona, the Railway Service

Commission, the Railway Rates Tribunal, the Railway Liaison Office and all other railway offices which are not enumerated above. Schedule I

does not apply to the case of railway servants employed in the zonal railway. As regards them, provision is made in Schedule II. From that

Schedule it is seen that though a head of the Department can impose on Class III officers censure as well as some other punishments detailed

therein, he is not competent to impose on them the punishments of removal from service, compulsory retirement or dismissal from service. Those

punishments, as seen from the Schedule, can be imposed on them only by the appointing authority or any other higher authority. P.W. 1 is not

shown to be the appointing authority. On the material before us it is not possible to come to the conclusion that P.W.I was competent to grant

sanction under 6(1) of the Prevention of Corruption Act.

We accordingly allow this appeal and set aside the conviction of the Appellant. He is on bail. His bail bond stands cancelled.