IMINAL Appeal No 95 of 1957
Appeal by special leave from the judgment and order dated December 16 1955 of the Allahabad High Court in Criminal Revision No 1403 of 1953 arising out of the Judgment and order dated August 6 1953 of the Court of the Additional Sessions Judge at Meerut in Criminal Appeal No 225 of 1953
H J Umrigar and K L Mehta for the appellant
G C Mathur C P Lal and G N Dikshit for the respondent
April 23
The Judgment of the Court was delivered by IMAM J
The appellant was convicted under section 52 of the Prevention of Corruption Act and under section 161 of the Indian Penal Code and sentenced to one year s rigorous imprisonment on each count
The sentences were made to run concurrently
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 Office 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 98 778 no question that on the facts found the appellant was guilty both under section 52 of the Prevention of Corruption Act and under section 161 of the Indian Penal Code
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 vs The State of Delhi 1 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 is 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 1   1164
779 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 a 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
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 section 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 vs The State1 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 jurisdiction to try the case as the same had been 11957 SCR 678 686 780 pending in the court of Session when the Act came into force
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 section 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 section 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 Rs20 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
 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
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
The appeal is accordingly dismissed
Appeal dismissed


Summary:
These appeals arose out of suits for ejectment instituted in the Revenue Court by the respondent Zamindar against the appellants under section 180 of the U P Tenancy Act 1939 U P I7 Of 1939
His case was that the lands in suit were his sir lands and the appellants trespassed on the same on the basis of a wrong order of the Criminal Court
The case of the appellants was that they were admitted as hereditary tenants by the respondents
There was a previous proceeding under section I45 of the Code of Criminal Procedure between the parties and the Magistrate found possession with the appellants and directed that they should remain in possession till evicted by due process of law
The Revenue Court which tried the suits found that the lands were sir lands of the respondent and the appellants were not hereditary tenants and did not take possession with the consent of the respondent
The Additional Commissioner on appeal and the Board of Revenue on second appeal agreed with these findings of the Revenue Court and dismissed the appeals
The Board negatived the plea of the appellants that the suits were not triable by the Revenue Court
Section 180 of the U P Tenancy Act 1939 provides that a person taking or retaining possession of land without the consent of the person entitled to admit him into occupation and otherwise than in accordance with the provisions of law for the time being in force will be liable to enactment thereunder
In view of the finding of the courts below that the appellants had not taken possession with the consent of the respondent the question was whether they did so by virtue Of section I45 of the Code of Criminal Procedure
Held that the provisions of section I45 of the Code of Criminal Procedure authorised the Magistrate only to declare the actual possession of a party on a specified date and not to give possession or permit any party to take possession
He had no power under that section to decide questions of title or right to possession which a civil court alone could decide
The words  taking  and  retaining  were used by section 180 of the Act in an independent and exclusive sense
The former referred to taking of possession illegally and the latter to taking of possession legally but subsequent retaining of it illegally
Consequently the appellants whose possession had been found 799 to be illegal from the very inception could not be said to retain possession legally so as to be outside the scope of the section
It was also clear that possession in accordance with law such as was contemplated by section 180 of the Act meant possession with lawful title
The provisional Order of the Magistrate with regard to possession irrespective of lawful rights of the parties could not therefore enable the appellants to resist the suit under
section 180 of the Act
Dinomoni Chowdhrani vs Barojo Mohini Chowdhyani 1901 LR 29 IA 24 referred to