minal Appeal No 109 of 1967
Appeal by special leave from the judgment and order dated May 4 1967 of the Patna High Court in Criminal Appeal No 455 of 1965
Debobrata Mookherjee and P K Ghosh for the appellant
D P Jha for the respondent
565 The Judgment of the Court was delivered by Hegde J
In this appeal by special leave Mr Debabrata Mookherjee 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 under section 4 of the Prevention of Corruption Act has been wrongly construed by the High Court as well as the trial court and 3 the sanction granted under section 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
PW 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 PW 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 5th 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 PW 4 that unless he paid him the said sum by March 14 1964 he appellant would remove PW 4 s name from the sick list
After this talk when PW 4 was going out of the hospital he met a person by name Babu
He complained to Babu about the behavior 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 PW 17 Inspector of Special Police Establishment met PW 4 in his house and ascertained from him all that had happened
Thereafter PW 4 met PW 17 again at the railway station as desired by the latter
From there both of them went to the district Dak bungalow where PW 17 recorded the complaint of PW 4
The same day PW 17 obtained from the First Class Magistrate an order under section 5A of the Prevention of Corruption Act
Thereafter PW 4 produced before PW 17 a five rupee currency note in the presence of panch witnesses
PW 17 noted the number of the currency note in question prepared a memorandum in respect of the same got it attested by the panch witnesses and thereafter returned the said currency note to PW 4 to be given to the appellant in case he made any further demand for bribe
After these preliminaries were over PW 4 went to the appellant along with the panch witnesses
There when PW 4 asked for the certificate the appellant repeated his earlier demand
Then PW 4 gave him the currency note in question
This was seen by the panch 566 witnesses
Immediately signal was given to PW 17 who came to the hospital and
asked the appellant to produce the five rupee note received by him from PW 4
At this stage the appellant became extremely nervous
He admitted that PW 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 under section 161 IPC and section 52 read with section 51d of the Prevention of Corruption Act
The plea of the appellant was that PW 4 and his wife were doing odd jobs in his house PW 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 some
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 under section 161 IPC as will as section 52 of the Prevention of Corruption Act
They have given good reasons in support of the findings 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 5A of the Prevention of Corruption Act PW 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 PW 17 on the 12th was under section 5A of the Prevention of Corruption Act Therein it is true he had only asked for permission to lay a trap
It must be remembered that the permission given was one under section 5A 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 State of Madhya Pradesh vs Mubarak Ali
An investigation is one and indivisible
 All steps taken by PW 17 to ascertain the truth of the complaint made by PW 4 alleging that the appellant was attempting to obtain bribe from him come within the expression investigation  under section 41 of the Code of Criminal Procedure Investigation  includes all the proceedings 1 1959 2 SCR201
567 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 5A of the Prevention of Corruption Act was explained by this Court in H N Rishbud and Inder Singh vs State of Delhi  and State of Uttar Pradesh vs Bhagwant Kishore Joshi2
Section 5A 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 PW 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 Rome 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 sanie
Before permitting PW 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 earned 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 5A was to see that the investigation of offenses punishable under sections 161 165 or 165A IPC as well as those under section 5 of the Prevention of Corruption Act should be done ordinarily by officers of the rank of deputy superintendent or above N4 doubt section 5A also provides for an alternative procedure
An officer below the rank of deputy superintendent can investigate those offenses 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 offenses
But exigencies of administrative convenience may require I that some of those 1  2  568 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 in State of Madhya Pradesh vs Mubarak Ali  that the statutory safeguards under section 5A must strictly be complied with for they are
conceived in public interest and were provided as a guarantee against frivolous and vexatious proceedings
A magistrate can not 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 on the face of it disclose the reasons for giving permission
The order giving permission under section 5A in this case does not give any reason
On the application submitted by PW 17 the learned magistrate merely ordered Permission granted
PW 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 5A 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 leveled against the appellant is established by satisfactory 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 Munnalal vs State of Uttar PradeSh2 and State of Uttar Pradesh vs Bhagwant Kishore Joshi3
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 proceed to termination the invalidity of the preceding investigation does not vitiate the result unless the miscarriage of justice has been caused thereby See Rishbud and Inder Singh vs State of Delhi4
We next take up the question as to the scope of section 4 of the Prevention of Corruption Act
As mentioned earlier the appel 1 2  3  4 1955 1 SCR 1150
569 lant admits the fact that he received a sum of Rs 5 from PW 4 on March 14 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 under section 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
It is not necessary to go into this question in any great detail as the question is no more res Integra
In CI Emden vs
State of UP I this Court held that the presumption under section 4 arose when it was shown that the Accused had received the stated amount and that the said amount Was not legal remuneration
The word gratification  in section 41 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 theraising 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 under section 41
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 valuable thing
This clause his reference to the offence punishable under s 165 of the Code and there is no doubt that one of the essential ingredients of the said offence is that the valuable things should have been received by the accused without consideration or for a not be suggested that the relevant clause in section 41 1  570 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 knows 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 41 it would be unreasonable to hold 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  as 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 Maharashtra1 and again in V D Jhangan vs State of Uttar Pradesh2
It was next contended that to discharge the burden placed on the appellant under section 4 all that he has to do is to offer a reasonable explanation the burden placed on him by section 41 being somewhat analogous to that Placed on an accused under section 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 or not
But under s 41 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 when after Considering the matters before it the court either believes it to exist or con 1 ATR 2  571 siders 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 then he cannot be said to have proved the contrary
In Dhanvantrai Balwantrai vs State of Maharashtra  this Court considered the nature of the proof required to be given by  the accused under section 4 I
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 under section 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 prob able
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 2
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 by PW 1 the chief medical officer under section 61 of the Prevention of Corruption Act is invalid as he was not the authority competent to remove the appellant from his office and hence the prosecution is vitiated
Section 61 to the extent it is material for our present purpose reads  No court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code or Under sub section 2 or sub section 3A 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 1 AIR 1964 SC 575
L7 Sup
CI68 12 2  572 This Court has laid down in R R Chari vs State of UP1 as well as in several other decisions that no court can validly take cognizance of any of the offenses mentioned in section 61 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 case is invalid then the appellant is entitled to be acquitted
PW I 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 PW 1 was competent to grant previous sanction under section 6 1 of the Prevention of Corruption Act
PW 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 PW 1 in coming to the conclusion that the sanction granted is valid
In our opinion those courts erred in 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 PW 1 was competent to remove the appellant from his 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 PW I as competent to grant the sanction 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 HI officer
From that publication it is further seen that F only class I and II officers are designated as gazetted officers
In support of his contention that he was a gazetted officer the ap pellant relied on the Railway Board s letter No PC60PS 5MH3 dated 2 3 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 PW 1 was competent to remove him 1  573 from service
In view of appendix 3 8 of the Indian Railways Establishment Code Vol
III 4th re print dated 26 7 1962 we may take it that PW 1 was the head of the department to which the appellant belongs
The next question is whether the head of his department was competent to remove the appellant from his service
As per r 134 of the Indian Railway Establishment Code pub lished 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 Reprint 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 under section 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 Vlll
 Our attention has not been invited to any rules made under section 47 e of the Indian Railways Act 1890 or any other statutory rules
Hence we are proceeding on the basis that the aforementioned r 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 1 II and III appended to the Rules
Rule 1707 sets out 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 railways
As regards them provision is made in Sch
From that Schedule it is seen that though a head of the Department can impose on Class III officers 574 censure as well as some other punishments detailed therein he is not competent to impose on them the punishment of removal from service compulsory retirement or dismissal from service
Those punishments as seen from the Schedulecan be imposed on them only by thE appointing authority or any other higher authority
PW 1 is not shown to be the appointing authority
On the material before us it is not possible to come to the conclusion that PW 1 was competent to grant sanction under section 6 1of 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
VPS Appeal allowed


Summary:
The appellant was an assistant medical officer in a railway hospital at Gaya
Though he had certain privileges ordinarily available to gazetted officers he was only a non gazetted Class III officer
He was convicted for offenses tinder section 161 IPC and section 5 2 read with section 5 I d of the Prevention of Corruption Act 1947
The complaint that he had received illegal gratification was investigated into by an Inspector of Police
The Inspector obtained permission from a First Class Magistrate for laying a trap investigated into the case and later after the entire investigation was over he obtained permission from the Magistrate to investigate into the case
The sanction to prosecute required under section 61 of the Act was granted by the Chief Medical Officer who was the bead of the department
The conviction was challenged on the following grounds  1 The investigation was without authority of law because under section 5A the Inspector could not have investigated without the prior permission of a Magistrate of the First Class 2 The permission granted by the Magistrate did not meet the requirements of law because it was given casually and without applying his mind to the question as to whether there was any need for departing from the normal rule laid down in the section namely that such cases should ordinarily be investigated by an officer of the rank of Dy
Superintendent of Police or above and there should be good reasons before a Magistrate accords permission to officers below that rank 3 The presumption under section 4 that the appellant had accepted the sum a motive or reward should not be drawn unless the prosecution proved that the amount was paid as a bribe 4 The presumption was rebutted by the appellant s explanation that what was paid to him was the return of a loan and 5 the sanction to prosecute granted by the Chief Medical Officer was invalid as lie was not the authority competent to remove him
HELD  1 There is no basis for the contention that any portion of  the investigation was done without authority by law
567 D
Investigation under section 41 Cr
PC is one and indivisible and includes all the steps taken by the Inspector to ascertain the truth of the complaint alleging that the appellant was attempting to obtain a bribe
Laying a trap is a part of the investigation and a permission given under section 5A of the Prevention of Corruption Act enables the officer concerned not only to lay a trap but also to further investigate
The fact that the Inspector of Police obtain the two permissions one for laying a trap and 564 another for investigating the case does not affect the earlier order as the second permission was wholly superfluous
566 G H 567 B D 2 The order giving permission to
the Inspector did not give any reasons and there is thus a violation of section 5A
But an illegality committed in the course of an investigation does not vitiate the result of a trial unless there was a miscarriage of justice
In the present case the legality of the investigation was not challenged in the trial court and prejudice to the appellant was neither pleaded nor established
568 C D F G
3 The presumption under section 4 arises when it is shown that the accused had received the stated amount and that the said amount was not legal remuneration
569 D
4 The words unless the contrary is proved  in section 41 show that the presumption was to be rebutted by proof and not by a bare explanation which is merely plausible
The burden testing on the accused will however be satisfied if he establishes his case by a mere preponderance of probability and it is not necessary for him to prove it beyond reasonable doubt
In the present case the appellant s plea was not accepted by the trial court and the High Court and hence it must be held that he had not discharged the burden placed on him
571 C E
State of MP vs Mubarak Ali  H N Rishbud and Inder Singh vs State of Delhi 1955 1 SCR 1150 State of UP vs Bhagwant Kishore Joshi AIR  Munnalal vs State of UP   C 1
Emden vs State of UP   Dhanvantrai Balwantrai Desai vs State of Maharashtra AIR and V D Jhangan vs State of UP   followed
5 Under section 61 c of the Prevention of Corruption Act the appellant could not be prosecuted without the previous sanction of the authority competent to remove him
Oral evidence of the officer giving sanction cannot be relied on for deciding the validity of the sanction
The Court must be satisfied by reference to the rules on the subject
Schedule 11 to the 1961 Rules relating to discipline and appeal of railway servants makes provision for the punishment of railway servants employed in zonal railways
Under the Schedule I a head of a department was not competent to impose on Class III officers the punishment of removal from service
That punishment could only be imposed by an appointing authority or any other higher authority
Under r 134
the authorities competent to make first appointments to non gazetted posts are the General Manager
the Chief Administrative Officer or a lower authority to whom he may delegate power but the power has not been delegated to heads of departments
Therefore the Chief Medical Officer was neither the appointing authority nor was he competent to
remove the appellant from his Office
Hence he was also not competent to grant the sanction for prosecuting the appellant
D 573B C H574A B
R R Chari vs State of UP 19631 SCR 121 followed