minal Appeal No 834 of 1965
Appeal by special leave from the judgment and order dated October 19 24 1964 of the Bombay High Court in Criminal Appeal No 1330 of 1964
A section R Chari R Nagaratnam Vineet Kumar and Shyamala Pappu for the appellant
Debabrata Mukherjee H R Khanna and section P Nayar for the respondent
The Judgment of the Court was delivered by Sikri J
This is an appeal by special leave against the judgment and order of the High Court of Judicature at Bombay dismissing the appeal of the appellant against the conviction recorded by the Special Judge for Greater Bombay
The appellant was convicted by the Special Judge under section 52 read with section 5 1 1  a X d and section 5 3  of the Prevention of Corruption Act 1947 11 of 1947 hereinafter referred to as the Act and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs 125000  in default of payment of fine to suffer further rigorous imprisonment for one year
The Special Judge further directed that the amount of fine be recovered from the properties seized
The following charge was framed against the appellant  That you while functioning as a Income tax Officer from about 1st April 1947 to November 1954 at Jalgaon Dhulia Godhra and Mahansa b as Inspector of Income tax from November 1954 to January 1958 at Surat and Broach c as Incometax Officer from January 1958 to the end of November 1961 at Bhavnagar Dhulia Amraoti and Ratnagiri habitually accepted or obtained and habitually agreed to accept or attempted to obtain gratification other than legal remuneration and obtained for yourself pecuniary advantage by corrupt and illegal means or by otherwise abusing your position as a public servant with the result that during the said period you came in possession of assets of the value of about Rs 201080 which were disproportionate to your known sources of income for which you could not satisfactorily account and you thereby committed the offence of criminal misconduct punishable under subs
2 read with section 1 a d  3 of section 5 of Act IT of 1947 the Prevention of Corruption Act 1947 and within the cognizance of this Court
 238 The case of the prosecution before the Special Judge was that the appellant was habitually corrupt and wherever he was posted he used to develop personal contacts with the assessees whose cases were pending before him and in his talk with them he tried to impress upon them that they were likely to be heavily taxed he used to create a favourable psychological background and taking advantage of the same tried to screw out money from them if the assessee did not accept his proposal or proved to be smarter he used to harass him by various methods
The prosecution sought to establish the charge against him under section 51a of the Act by leading evidence of five instances i He obtained from the witness Gopaldas an amount of Rs 3000 as a loan and subsequently converted it as his personal gratification for finalising income tax cases of his firm
ii He demanded an illegal gratification  Rs 10000 from the witness Gopaldas to show him were pending before him
iii He attempted to obtain bribe from PW 7 Motilal Bansgopal whose income tax proceedings were pending before him
iv He atempted to obtain bribe from the assessee PW 9 Somchand Khimji whose income tax proceedings were pending before him
v He also made a demand of bribe of Rs 400 to Rs 500 from PW 93 Gulabdas Kisondas Bhatia of Dharanyaon
Before the Special Judge the prosecution also relied on the presumption arising under section 53 of the Act as the accused was found to be in possession of assets worth about Rs 201080 which were disproportionate to his known sources of income
The learned Special Judge in a very detailed and lengthy judgment held that it was not proved that the appellant had obtained Rs 3000 from Gopaldas representing that he wanted the amount as a hand loan for taking delivery of the car
He further held that it was not proved that the appellant demanded bribe of Rs 10000 from him as a motive for doing him favour in the disposal of his wealth tax cases
Regarding PW 7
Motilat Bansgopal
the Special Judge held that the accused had entertained a corrupt motive in asking the assessee PW 7to see him at his residence and this circumstance could be considered against him in considering the charge for the offence of 239 habitually being corrupt
Regarding Somchand PW 9 the Special Judge held that the appellant had made an implied demand of bribe and had a guilty conscience
Regarding Gulabdas he held that the allegation regarding demand of bribe from PW 93 Gulabdas had not been proved
He summarised
the findings thus Thus out of specific instances the prosecution has established only two and it has been proved that the accused had made an implied demand of bribe from PW 9 Somchand and he had also asked PW 7 Motilal to come to his residence in connection with the delay in filing the return
The second instance though does not establish any demand of bribe as such it does prove the proclivity of the mind of the accused and a corrupt tendency and would support the prosecution version He further held that the two instances proved will not themselves be sufficient to prove habit of bribe taking and the question is whether considering all the matters before the court it can be held that the accused is guilty of criminal misconduct and if yes of what category He further held that the appellant could be convicted on the strength of presumption arising under section 5 3
The High Court repelled the contention of the appellant that no presumption arose under section 5 3 of the Act because no specific instances had been held to be proved and at any rate they did not amount to an offence
The High Court distinguished the cases of R section Pandit vs State of Bihar1 and Surajpal Singh vs The State of Uttar Pradesh2
The High Court further observed that the trial Judge had accepted the evidence regarding two instances while it was prepared to accept the instance involving Gopaldas also
The High Court generally agreed with the finding regarding disproportionate assets and disbelieved the explanation offered by the appellant
Before we deal with the merits of the case we shall taker up two preliminary points raised by the learned counsel for the appellant Mr Chari
He urged that as sanction had not been given for prosecuting the appellant the whole trial was bad
He said that the search of the appellant s house took place on November 4 1961 and on June 27 1962 he was dismissed  from service by the Commissioner of Income tax
On July 30 1962 charge sheet was filed in the court of Special Judge
On 1 1963 Suppl
2 SCR 652
2  240 September 21 1962 the appellant submitted an appeal to the President of India and the President was pleased to convert the order of dismissal into one of the removal
The learned counsel contends that I pending the appeal the appellant should have been deemed to be in service and therefore deemed to be in service on July 30 1962
A similar point was raised before the Special Judge and he repelled the contention in the following terms  For requiring a sanction to be taken before taking cognizance of an offence against a person he must be in actual employment of the State
A mere right of appeal will not invest him with that status
Moreover a person may have right of appeal but he may not exercise the same and may not file the appeal
It is purely within his discretion and the act of taking cognizance which is the course of law would not be made dependent upon such arbitrary and discretionary alternatives held by a person
 The Special Judge also referred to rule 23 of the Central Civil Services Classification Control and Appeal Rules 1957 and the explanation thereto in which it is stated  In this rule the expression member of a Central Civil Service  includes a person who has ceased to be a member of the service
 This explanation was also relied on before us
Regarding the explanation the learned Special Judge came to the conclusion that the explanation was restricted to that particular rule for giving the dismissed servant a right to prefer an appeal
We agree with the conclusion of the learned Special Judge
Section 6 of the Act reads as follows  Previous sanction necessary for prosecution
1 No Court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code Act 45 of 1860 or under sub section 2 of section 5 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 Union and is not removable from his office save by or with the sanction of the Central Government of the Central Government
241 b in the case of a person who is employed in connection with the affairs of a State and is not removable from the office save by or with the sanction of the State Government of the State Government c in the case of any other person of the authority competent to remove him from his office
2 Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub section 1 should be given by the Central or State Government or any other authority such sanction shall be given by that Government or authority which would have been competent to remove the public ser vant from his office at the time when the offence was alleged to have been committed
 It seems to us that the person must be employed in connection with the affairs of the Union in sub cl
a and with the affairs of the State in sub cl
b The case of the appellant would be covered in sub cl
a because he had been employed in connection with the affairs of the Union
But the sub section contemplates that the person must be employed in connection with the affairs of the Union and not that he was employed with the affairs of the Union
The policy underlying section 6 and similar sections is that there should not be unnecessary harassment of public servants
But if a person ceases to be a public servant the question of harassment does not arise
The fact that an appeal is pending does not make him A public servant
The appellant ceased to be a public servant when the order of dismissal was passed
There is no force in the contention of the learned counsel and the trial cannot be held to be bad for lack of sanction under section 6 of the Act
The other preliminary point which the learned counsel raised was that the charge was defective
We have already set out the charge
It is true that there are no instances given in the charge
But as the charge is of habitually accepting the
bribe it is no necessary that the various instances should have been mentioned
It was expressly so held by this Court in Biswabhusan Naik vs The State of Orissa1
This Court overruled a similar point in the following words But no particulars need be set out in the charge in such a case because the offence under section 51 a does not consist of individual acts of bribe as in section 161 of the Indian Penal Code but is of a general character
Individual instances may be useful to prove 1 19551 SCR92
2 807 Sup CI71 242 the general averment in particular cases but it is by no means necessary because of the presumption which section 53 requires the Court to draw
 This Court accordingly held in that case that there was no illegality in the charge
We accordingly hold that the charge in this case was not illegal
We may now deal with the merits of the case
This is an appeal by special leave and as there are concurrent findings of fact we do not ordinarily go into questions of fact
But we allowed Mr Chari to take us through the relevant evidence both oral and documentary in order to show whether the concurrent findings were vitiated in any respect
He has not been able to point out any circumstances which may lead us to differ from the concur rent findings
It is true that as far as the case of Gopaldas is concerned the High Court differed from the Special Judge and held that the allegations were proved
The learned counsel has taken us in detail through the material relevant to this witness and we are inclined to agree with the conclusion arrived at by the High Court
But apart from that the concurrent findings regarding PW 7 Motilal and PW 9 Somchand and the presumption arising under section 53 are sufficient to sustain the conviction recorded against the appellant
The learned counsel urged before us that if the prosecution fails to establish any of the offences mentioned in section 5 1 a to 5 1 d the question of assets being found disproportionate to the known sources of the accused becomes irrelevant
A number of cases were referred to us but we are unable to agree with this proposition because we are bound by the ruling to the contrary given by this Court
In Biswabhusan Naik vs State of Orissa1 after referring to section 51a and section 53 Bose J speaking for the Court observed  Therefore all that the prosecution has to do is to show that the accused or some person on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income and for which the accused cannot satisfactorily account
Once that is established then the Court has to presume unless the contrary is proved that the accused is guilty of the new offence created by section 5 namely criminal misconduct in the discharge of his official duty 1 19551 1 SCR 92
243 Then the Court proceeded to deal with the facts thus Now the accused was found in possession of Rs 3148 
He accounted for Rs 430 of that sum by showing that it was paid to him at the time as a trap
He has been acquitted of that offence so all he had to account for was the balance Rs 2698 
This is a large sum for a touring officer to carry with him in cash while on tour
His explanation was not considered satisfactory and that is a question of fact with which we are not concerned in this Court
Therefore all that remains to be seen is whether this was disproportionate to his known sources of income
 Then the Court referred to the findings regarding his total emoluments drawn and the small piece of land owned by him and observed Once the facts set out above were found to exist and the explanation of the accused rejected as unsatisfactory section 53 was at once attracted and the Court was bound to presume the word used in the section is shall  and not may  that the accused was guilty under section 52 especially as this part of the section goes on to say and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption These facts alone are enough to sustain the conviction and we need not consider the other matters
 The conviction therefore of Biswabhushan Naik in that case solely proceeded on the presumption as in the earlier part of the judgment it was observed that he was separately charged and separately prosecuted under section 161 of the Indian Penal Code for three specific offences of bribe taking but was acquitted on all the counts and his conviction was only under section 5 2 alone
Similarly in CSD Swamy vs The State Swamy s conviction was sustained only on the presumption
The appellant Swamy in that case was put up on trial on charges under sections 51 a and 5 1 d of the Act
Payments of particular sums by way of bribe were not proved against him
But the High Court holding that the appellant s bare statements from the dock un supported by any other acceptable evidence could not satisfactorily account for the large deposits standing to his credit in 1  244 his bank accounts raised the presumption under section 5 3 of the Act and held him guilty of criminal misconduct in the discharge of his official duty under section 5 1 d of the Act
It was contended before this Court that the charge relating to specific instances of bribery having failed the contrary presumption under section 53 of the Act should have been established
This Court repelled the argument in the following words  The finding of the High Court and the court below is that the prosecution had failed to adduce sufficient evidence to prove those particular facts and circumstances of criminal misconduct within the meaning of section 5 1  a of the Act but the failure to bring the charge home to the accused under section 5 1  a does not necessarily lead to the legal effect contended for
As soon as the requirements of sub section 3 of section 5 have been fulfilled the Court will not only be justified in making but is called upon to make the presumption that the accused person is guilty of criminal misconduct within the meaning of section 5 1 d
If there is evidence forthcoming to satisfy the requirements of the earlier part of sub section
3 of section 5 conviction for criminal misconduct can be had on the basis of the presumption which is a legal pre sumption to be drawn from the proof of  facts in the earlier part of the sub section
3 aforesaid
That is what has been found by the courts below against the accused person
Hence the failure of the charge under cl
a of sub section
1 of section 5 does not necesarily mean the failure of the charge tinder section 51d
 It will be noticed that while Bose J in Biswabhushan Naik vs State of Orissa1 held that once the presumption applies the accused was guilty of the new offence created by section 5 namely
criminal misconduct in the discharge of his official duties without specifying any of the sub clausesSinha J as he then was
held that the offence under  section 5 1 d was made out
It is not necessary to decide in this case which is the correct way of putting the matter because whichever reasoning is adopted the case of the appellant fails
The case of Surajpal Singh vs State of Uttar Pradesh2 does not assist the appellant
It is true that as laid down by this Court section 53 does not create a new offence
But this does not mean that if the prosecution fails to prove the specific 1  2 1961 2 SCR971
245 charges the presumption under section 53 cannot be applied
in Surajpal s case what happened was that the only charge against Surajpal was of criminal misconduct under section 51c of the Act
But since he was acquitted of the charge it was held that he could not be convicted
of criminal misconduct referred to in cls
a b or d of section 51 of the Act for which he had not been charged
R section Pandit vs State of Bihar1 also does not assist the appellant
It is true that it was held in that case section 53 does not create a separate offence but lays down only a rule of evidence and marks a departure from the well established principle of criminal jurisprudence that onus is always on the prosecution to bring home the guilt to the accused
But it does not follow from this that if the prosecution has failed to prove specific instances it cannot rely on the presumption
The learned counsel contended that if this is the law the prosecution need not allege any specific instance at all and could come to Court only alleging that the accused had assets disproportionate to his known sources of income
This point does not arise in this case and is not likely to arise again because the Act has since been amended and the act of possessing pecuniary resources or property disproportionate to known sources of income for which the public servant cannot satisfactorily account has been made into a separate offence
Therefore we need not consider this example given by the learned counsel
Accordingly we hold that the appellant in this case had pecuniary resources and property disproportionate to his known sources of income and that both the High Court and the learned Special Judge rightly held that the presumption arose under section 5 3
We may mention that the learned counsel tried to show that the assets were not too disproportionate but nothing has been shown which would entitle us to set aside the concurrent findings on this aspect of the case
The learned counsel then said that a fine of Rs 125000 has been levied and the appellant has already undergone sen tence of about four months
He said that the appellant is now on bail and it would be hard on him if we send him back to jail
He further said that the investigation began somewhere in 1961 the trial began in 1963 and the expenses of thetrail and the printing of the records has cost the appellant a great deal 1 1963 Supp 2 SCR 652 246 and further that the State has kept Rs 125000 out of the seized amount for recovery of the fine
The learned council for the respondent drew our attention to section 52 which provides that any public servant who commits criminal miscounduct in the discharge of his duty shall be punishable with imprisonment which shall not be less than one year but which may extend to seven Years and shall also be liable to fine provided that the court may for any special reasons recorded in writing impose a sentence of imprisonment of less than one year
It seems to us that in view of the facts mentioned by the learned counsel for the appellant it will meet the ends of justice if the sentence is reduced to one already undergone maintaining the sentence of fine
In the result the appeal is allowed to the extent that sentence of three year s rigorous imprisonment is altered to imprisonment already undergone
His bail bonds shall stand cancelled
VPS Sentence modified


Summary:
The appellant who was an income tax Officer was dismissed from service and against the order of dismissal he filed an appeal to the President of India
Meanwhile he was charged under the Prevention of Corruption Act 1947 with the offence of habitually accepting bribes
Five instances were offered by the prosecution in evidence against him to prove the charge
The trial court accepted the evidence regarding two instances and convicted the appellant under section 52 read with sections 51d and 53 of the Act drawing the presumption under section 53 before its amendment in 1964 against him on the ground that he was in possession of assets disproportionate to his known sources of income
He was sentenced to rigorous imprisonment for three years and to pay a fine of Rs 125000  to be recovered from the properties siezed from him
The High Court accepted the evidence regarding one more instance and confirmed the conviction and sentence
In appeal to this Court HELD  1 The trial is not bad for lack of santcion under section 6 of the Act
The appellant ceased to be a public servant when the order of dismissal was passed
The fact that an appeal was pending would not make him a public servant
Sanction is necessary only when the person is employed in connection with the affairs of the Union and not when he was employed
241 D F 2Since the charge was one of habitually accepting bribes it was not necessary that specific instances of taking bribe should be given in the charge
241 G Biswabhusan Naik vs State of Orissa   followed
3 The appellant had property disproportionate to his known sources of income and the presumption under section 53 of the Act was rightly drawn against him
Failure to establish any of the offences in section 51 a to d is irrelevant for sustaining a conviction based on the presumption
Biswabhusan Naik vs State of Orissa  and C SD Swamy vs State   followed
Surajmal Singh vs State of Uttar Pradesh 1961 2 SCR 971 and R section Pandit vs State of Bihar 1963 Supp
2 SCR 652 referred to and explained
245 C 4 In view of the fact that the appellant had undergone the sentence for about four months and a large fine was imposed on him the ends of justice would be met if the sentence is reduced to one already undergone while maintaining the sentence of fine
246 B C 237