Case ID: 2500

Judgment:
: Criminal Appeal No. 181 of 1965. Appeal by special leave from the judgment and order	 dated September14	 1965 of the Patna High Court in Criminal Appeal No. 268 of 1962. S.C. Agarwala	 for the appellant. D. Goburdhun	 for the respondent. The Judgment of the Court was delivered by Ramaswami	 J. This appeal is brought	 by special leave	 from the judgment of the Patna High Court dated September 14	 1965 in Criminal Appeal No. 268 of 1962 filed by the appellant against the judgment of the Special Judge	 Santhai Pargangs	 Dumka dated March 31	 1962. In January	 1958 the appellant was employed as a Railway Guard on the Eastern Railway and was posted at Sahibganj Railway Station. On January 18	 1958 Hinga Lal Sinha (P.W. 47) who was in charge of squad of traveling ticket examiners caught hold of Shambu Pada Banerji (P	. W. 54) as he found him working as a bogus traveling ticket examiner in a train. P.W.47 handed Shambu Pada Banerji to Md. Junaid (P.W.48) who was a police officer in charge of Barharwa Railway outpost. A Fard Beyan was recorded on the statement of P.W. 47 and G.R.P. Case No. 12 (1)58 was registered against Shambu Pada Banerji. In connection with the investigation of that case the house of the appellant which was at a distance of 300 yards from Sahebganj Railway station was searched on January 19	 1958 at about 3. p.m. by P.W. 56 along with other police Officers	 Md. Junaid (P.W. 48) and Dharrnadeo Singh (P.W. 57 ). Various articles were recovered from the house of the appellant and a search list (exhibit 5/17) was prepared. A charge sheet was submitted in G.R.P. Case No. 12 (1)58 against the appellant and Shambu Pada Banerji. Both of them were tried and convicted by the Assistant Sessions Judge	 Dumka by a judgment dated June 12	 1961. The appellant flied Criminal Appeal No. 405 of 1961 against his conviction under section 474/466 of the Indian Penal Code. The appeal was allowed by the High Court by its judgment dated September 14	 1962 on the ground that there was no proof that the appellant was in conscious possession of the incriminating articles. During the course of the investigation of G.R.P. Case No. 12 (1)58	 the Investigating Officer (P.W. 56) found a sum of Rs. 51	000 standing to the credit of the appellant in the Eastern Railway Employees ' Co operative Credit Society Ltd.	 Calcutta. He also found the appellant in possession of National Savings Certificates of the value of Rs. 8	000. On August 24	 1958 the Investigating Officer (P.W.56) handed over charge of the investigation of G.R.P. Case No. 12(1)58 to P.W. 46 of Sahebganj Government Railway Police Station. P.W. 46 completed the investigation on February 26	 1958. Since by that time it was found that the appellant was in possession of pecuniary resources disproportionate to his known sources of income it was thought that he had come in possession of these pecuniary resources by committing 414 acts of misconduct as defined in clauses (a) to (d) of sub section (1) section 5 of the Prevention of Corruption Act	 1947 ( Act 2 or 1947 )	 hereinafter referred to as the 'Act '	 and since the investigation of a case under the Act could be carried only in accordance with the provisions of section 5A of the Act	 under the orders of the superior officers	 the case being G.R.P. Case No. 12 (1)58 was split up in the sense that a new case against the appellant being Sahebganj Police Station Case No. 11(2)59 was started upon the first information report of P.W. 46 made on February 26	 1959 to Gokhul Jha (P.W. 45)	 Officer in charge of Sahebganj Police Station. By his order dated February 27	 1959 Sri R.P. Lakhaiyar	 Magistrate First Class	 Sahibganj accepted the recommendation of the Deputy Superintendent of Police that Inspector Madhusudan Haldar	 P.W. 55 may investigate the case. Accordingly Madhusudan Haldhar	 P.W. 55 proceeded to investigate the case and after obtaining sanction of the appropriate authority for prosecution of the appellant submitted a charge sheet on March 31	 1960. Cognizance was taken and the case was transferred to Sri Banerji a Magistrate First Class who committed the appellant and the. two co accused Baldeo Prasad and Mrs. Kamla Mitra to stand trial before the Court of Session. By his judgment dated March 31	 1962	 the Special Judge	 Santhai Parganas convicted the appellant under section 5(2) of the Act and section 411	 Indian Penal Code. The appellant and the other co accused Baldeo Prasad and Mrs. Kamla Mitra were acquitted of the charge of conspiracy under section 120(B) read with sections 379	 411	406 and 420	 Indian Penal Code and section 5(2) of the Act. The Special Judge also acquitted the appellant of the charge under section 474/466	 Indian Penal Code. The matter was taken in appeal to the High Court which by its judgment dated September 14	 1965 set aside the conviction and sentence of the appellant under section 411	 Indian Penal Code and confirmed the conviction of the appellant under section 5(2) of the Act. The High Court	 however	 reduced the sentence of 6 years simple imprisonment and a fine of Rs. 40	000 to 2 years imprisonment and a fine of Rs. 20	000. Section 5 of the Act	 as it stood before its amendment by Act 40 of 1964	 read as follows: "5.(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person	 any gratification (other than legal remuneration ) as a motive or reward such as is mentioned in section 161 of the Indian Penal Code	 or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for 415 any other person	any valuable thing without consideration or for a consideration which he knows to be inadequate	 from any person whom he knows to have been	 or to be or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him	 or having any connection with the official functions of himself or of any public servant to whom he is subordinate	 or from any person whom he knows to be interested in or related to the person so concerned	 or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do	 or (d) if he	 by corrupt or illegal means or by otherwise abusing his position as public servant	 obtains for himself or for any other person any valuable thing or pecuniary advantage. (2) Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term 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. (3) In any trial of an offence punishable under subsection (2) the fact that the accused person or any other person on his behalf is in possession	 for 'which the accused person cannot satisfactorily account	 of pecuniary resources or property disproportionate to his known sources of income 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 in the discharge of his official duty and his conviction therefore shall not be invalid by reason only that it is based solely on such presumption. (4) The provisions of this section shah be in addition W	 and not in derogation of	 any other law for the time being in force	 and nothing contained herein shall exempt any public servant from any proceeding which 416 might	 apart from this section	 be instituted against On December 18	 1964	 Parliament enacted the Anti Corruption Laws (Amendment) Act 1964 (Act No. 40 of 1964) which repealed subs. (3 ) of section 5 of the Act and enlarged the scope Of criminal misconduct in section 5 of the Act by inserting a new clause (e) in section 5(1) of the Act to the following effect: "(e) if he or any person on his behalf is in possession or has	 at any time during the period of his office	 been in possession	 for which the public servant cannot satisfactorily account	 of pecuniary resources or property disproportionate to his known sources of income. " It was in the first place contended on behalf of the appellant that section 5 (3) of the Act was repealed by Parliament while the appeal was pending in	 the High Court and the presumption enacted in section 5 (3 ) of the Act was not available to the prosecuting authorities after the repeal of the sub section on December 18	 1964. The argument was stressed. that it was not open to the High Court to invoke the presumption contained in section 5( 3 ) of the Act in considering the case against the appellant. It was also said that the presumption contained in section 5(3) of the Act was a rule of procedural law and not a rule of substantive law and alterations in the form of procedure are always. retrospective in character unless there is some good reason or other why they should not be. It was therefore submitted that the judgment of the High Court was defective in law as it applied to the present case the presumption contained in section 5(3) of the Act even after its repeal. We are unable to accept the contention put forward on behalf of the appellant as correct. It is true that as a general rule alterations in the	 form of procedure ' are retrospective in character unless there is some good reason or other why they should not be. In James Gardner vs Edward A. Lucas(1)	 Lord Blackburn stated: "Now the general rule	 not merely of England and Scotland	 but	 I believe	 of every civilized nation	 is ex. pressed in the maxim	 Noya constitutio futuris formam imponere debet non prateritis ' prima facie	 any new law that is made affects future transactions	 not past ones. Nevertheless	 it is quite clear that the subject matter of an Act might be such that	 though there were not any express words to shew it	 might be retrospective. For instance	 I think it is perfectly settled that if the Legislature intended to frame a new procedure	 that [1878] III App. Cass.582 at p.603 417 instead of proceeding in this form or that	 you should proceed in another and a different way; clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective	 unless there is some good reason or other why they should not be. Then	 again	 I think that where alterations are made in matters of evidence	 certainly upon the reason of the thing	 and I think upon the authorities also	 those are retrospective	 whether civil or criminal. " In the King vs Chandra Dharma (1)	 Lord Alverstone. C.J. observed as follows: "The rule is clearly established that	 apart from any special circumstances appearing on the face of the statute in question	 statutes which make alterations in procedure are retrospective. It has been held that a statute shortening the time within which proceedings can be taken is retrospective (The Ydun	 1899 p. 236.)	 and it seems to me that it is impossible to give 'any good reason why a statute extending the time within which proceedings may be taken should not also be held to be retrospective. If the case could have been brought within the principle that unless the language is clear a statute ought not to be construed so as to create new disabilities or obligations	 or impose new duties in respect of transactions which were complete at the time when the Act came into force	 Mr. Compton Smith would have been entitled to succeed; but when no new disability or obligation has been created by the statute	 but it only alters the time within which proceedings may be taken	 it may be held to apply to offenses .completed before the statute was passed. That is the case here. " It is therefore clear that as a general rule the amended law relating to procedure operates retrospectively. But there is another equally important principle	 viz. that a statute should not be	 so construed as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending Act came into force (See In re a Debtor(1) and In re Vernazza(3).The same principle is embodied in section 6 of the General Clauses Act which is to the following effect: "6. Effect of repeal. 'Where this Act or any Central Act or Regulation made after the commencement of this Act	 repeals any enactment hitherto made or here (1) (2) [1936] 1 ch. 237. (3) 418 after to be made	 then	 unless a different intention appears	 the repeal shall not . . . . . . . . (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (e) affect any investigation	 legal proceeding or remedy in respect of any such right	 privilege	 obligation	 liability	 penalty	 forfeiture or punishment as aforesaid; and any such investigation	 legal proceeding or remedy may be instituted	 continued or enforced	 and any such penalty	 forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. " The effect of the application of this principle is that pending cases although instituted under the old Act but still pending are governed by the new procedure under the amended law	 but whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure. In the present case	 the trial of the appellant was taken up by the Special Judge	 Santhai Parganas when section 5 (3) of the Act was still operative. conviction of the appellant was pronounced on March 31	 1962 by the Special Judge	 Santhai Parganas long before the amending Act was promulgated. It is not hence possible to accept the argument of the appellant that the conviction pronounced by the Special Judge	 Santhai Parganas has become illegal or in any way defective in law because of the amendment to procedural law made on December 18	 1964. In our opinion	 the High Court was right in invoking the presumption under section 5 (3) of the Act even though it was repealed on December 18	 1964 by the amending Act. We 	accordingly reject the argument of the appellant on tiffs aspect of the case. It was next argued on behalf of the appellant that the statutory safeguards under section 5A of the Act have not been complied with and the Magistrate has not given reasons for entrusting the investigation to a police officer below the rank of Deputy Superintendent of Police. Section 5A of the Act provides as follows: "Notwithstanding anything contained in the Code of Criminal Procedure	 1898	 no police officer below the rank (a) in the presidency towns of Madras and Calcutta	 of an assistant commissioner of police	 419 (b) in the presidency town of Bombay	 of a superintendent of police	 and (c) elsewhere	 of a deputy superintendent of police	 shall investigate any offence punishable Under section 161	 section 165 or section 165A of the Indian Penal B Code or under sub section (2) of section 5 of this Act	 without the order of a presidency magistrate or a magistrate of the first class	 as the case may be	 or make any arrest therefore without a warrant: . . . . . . . In the present case the officer incharge of Sahibganj police station (P.W. 45) filed a petition dated February 27	 1959 (exhibit 1) to the First Class Magistrate upon which the Deputy Superintendent of Police made an endorsement (Ex.1/1) suggesting that Inspector Haldhar may be empowered to investigate the case. The order of the Magistrate is Ex.1/2 and is dated February 27	 1959.The order states: "Inspector Sri M.S. Haldhar is ' allowed to do it". The evidence of P.W. 11 is that he was posted at Sahebganj as a Magistrate from 1956 and used to do the work of the Sub divisional Officer also in his absence. He passed the order (exhibit 1/2) authorising M.S. Haldhar to investigate the case because the Deputy Superintendent of Police used to remain busy with his work and the present case needed a whole time investigation. It was argued on behalf of the appellant that there was nothing in the endorsement of the Deputy Superintendent of Police that he was busy and therefore the inquiry should be entrusted to Sri Haldhar. But the High Court has observed that P.W. 1 was a Magistrate working at Sahibganj for a period of two years prior to the passing to the order in question and he must have known that the Deputy Superintendent of Police could not devote his whole time to the investigation of the case and therefore the Inspector of Police should be entrusted to do the investigation. On this point the High Court has come to the conclusion that the order of the Magistrate was not mechanically passed and the permission of the Magistrate authorising Haldhar to investigate the case was not illegal or improper. In our opinion Counsel on behalf of the appellant has been unable to make good his argument on this point. It was then said that the charge against the appellant under section 5(2) of the Act was defective as there were no specific particulars of misconduct as envisaged under cls. (a) to (d) of section 5 (1) of the Act. It was suggested that the charge was 'defective in as much as it deprived the appellant of the opportunity to rebut the presumption raised under section 5(3) of the Act. .The charge against the appellant reads as follows ': 420 "First That during the period of 1956 to 19th January	 1958 at Sahebganj Police Station Sahebganj G.R.P. and Sahebganj Local	 District Santhai Parganas and at other places	 within and without the said district	 you	 being a public servant viz. Guard of trains in the Eastern Railway of the Railway Department and while holding the said post	 habitually accepted or obtained from persons for yourself gratifications other than legal remuneration as a motive or reward such as mentioned in sec. 161 of the Indian Penal Code	 habitually accepted or obtained for yourself valuable things without consideration or for a consideration which you know to be inadequate from persons having connection with your official function	 habitually	 dishonestly and fraudulently	 misappropriated or otherwise converted for your own use properties entrusted to you or put under your control as a guard of trains or otherwise	 and habitually by corrupt and illegal means	 or by otherwise abusing your position as a public servant obtained for yourself valuable things or pecuniary advantage	 with the result that during the search of your house at Sahebganj aforesaid on 19 1 1958 and during the investigation of the Sahebganj G.R.P.S. Case No. 12 dated 19 1 58 u/s 170 etc. I.P.C.	 you were found	 during the month of Jan. 1958 in possession of cash amount to the extent of Rs. 59	000 and other properties fully described in the appendix No. 1 attached herewith and forming part of this charge [of Sahebganj P.S. Case No. 11(2)59]	 and that the said cash amount and properties are disproportionate to your known sources of income and that you cannot satisfactorily account the possession of the same and that you thereby committed the offenses of criminal misconduct	 under clauses (a) to (b) of section 5(1) of the Prevention of Corruption Act	 1947 (Act II of 1947)	 punishable under Sec. 5(2) of the said Act	 within the cognizance of this Court. . . . . . . . . It was argued that the charge did not disclose the amounts the appellant took as bribes and the persons from whom he had taken such bribes and the appellant had therefore no opportunity to prove his innocence. But	 in our view	 this circumstance does not invalidate the charge	 though it may be a ground for asking for better particulars. The charge	 as flamed	 clearly stated. that the appellant accepted gratification other than legal remuneration and obtained pecuniary advantage by corrupt and illegal. means. The charge	 no doubt	 should have contained better particulars so as to enable the appellant to prove his case. But 421 the appellant never complained in the trial court or the High Court that the charge did not contain the necessary particulars. The record on the other hand disclosed that the appellant understood the case against him and adduced all the evidence which he wanted to place before the Court. Section 225 of the Criminal Procedure Code says "that no error in stating either the offence B or the particulars required to be stated in the charge	 and no omission to state the offence or those particulars	 shall be regarded at any stage of the case as material	 unless the accused was in fact misled by such error or omission	 and it has occasioned a failure of justice. " It also appears that the appellant never raised any objection either before the Special Judge or in the High COurt on the score that the charge was defective and that he was misled in his defence on the ground that no particulars of the persons from whom the bribes were taken were mentioned. We accordingly reject the argument of the appellant on this point. For the reasons expressed we hold that the judgment of the High Court dated September 14	 1965 is correct and this appeal must be dismissed. R.K.P.S. Appeal dismissed.

Summary:
In connection with an investigation in January 1958 relating to another case	 the appellant	 who was employed as a railway guard on the Eastern Railway	 was found in possession of pecuniary resources disproportionate to his known sources of income. As it was thought that he ' had come in possession of these pecuniary resources by committing acts of misconduct defined in clauses (a) 	to (d) of section 5(1) of the Prevention of Corruption Act 2 of 1947	 on the recommendation of the Deputy Superintendent of Police for the area	 an Inspector of Police was appointed by an Order dated 27th February 1959 of the Magistrate	 Ist Class	 Sahibganj	 to investigate the case against the appellant. The Investigating Officer	 upon completion of the investigation and after obtaining sanction of the appropriate authority for prosecution of the appellant	 submitted a charge sheet on March 31	 1960. The Trial Court convicted the appellant under section 5(2) of the Act and s.411 I.P.C. In appeal	 by a judgment dated September 14	 1965	. the High Court set aside the conviction and sentence of the appellant under section 411 I.P.C. but confirmed his conviction under section 5(2) of the Act and reduced the sentence awarded by the Trial Court. On December 18	 1964 Parliament enacted the Anti Corruption Laws (Amendment) Act 40 of 1964 which repealed sub section (3) of section 5 of the. Act and enlarged the scope of criminal misconduct in section 5 by inserting a new clause (e) in section 5(1) of the Act. In appeal to this Court it was contended on behalf of the appellant (i) that section 5(3) of the Act having been repealed while the appeal was pending in the. High Court	 the presumption enacted in section 5(3) was not available to prosecuting authorities after the repeal 'and it was not open to the High Court to invoke the presumption in considering the case against the appellant; the presumption contained in section 5(3) was a rule of procedural law and as alterations in the form of procedure are always retrospective in character	 unless it was provided otherwise	 it was not open to the High Court to apply the presumption in the present case; (ii) that the statutory safeguards under section 5A of the Act had not been complied with as the Magistrate had not given reasons for entrusting the investigation to a Police Officer below the rank of Deputy Superintendent Police; and (iii) that the charge against the appellant under section 5(2) the Act was defective as there were no specific particulars of misconduct as envisaged under clauses (a) to (d) of section 5(1) of the Act	 nothing was stated about the amounts the appellant took as bribes and the 412 persons from whom he had taken such bribes so that the	 appellant had no opportunity to rebut the presumption raised under section 5(3) of the Act and to prove his innocence. HELD: Dismissing the appeal v: (i) The High Court was right invoking the presumption under section 5(3) of the Act .even though it was repealed on December 18	 1964 by the Amending Act. Although as a general rule the amended law relating to procedure operates retrospectively	 there is another equally important principle	 which is also embodied in section 6 of the General Clauses Act	 that a statute should not be so construed 'as to create new disabilities or obligations or impose new duties ties in respect of transactions which were complete at the time the amending Act came into force. The effect of the application of this principle is that pending cases although instituted under the old Act but still pending are governed by the new procedure ' under the amended law	 but whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure. In the present case	 the trial of the appellant was taken up when section 5(3) of the Act was still operative. The conviction of the appellant was pronounced on March 31	 1962 long before the amending Act was promulgated. It Was not therefore possible to accept the contention that the conviction pronounced by the trial Court had become illegal or in any way defective in law because of the amendment to procedural law made on December 18	 1964. [417 G; 418 D] James Gardner v	 Edward A. Lucas	 at p. 603; King V	 Chandra Dharrna	 ; In re a Debtor [1936] .1 Ch.237 and In re Vernazza; ; referred to. (ii) Although the Magistrate 's order on the	 petition filed by the DepUty Superintendent of Police suggesting that the Inspector of Police be empowered to investigate the case does not state any reasons for his granting the permission sought	 the High Court had rightly concluded 'that as the Magistrate was working in the area for a period of two years prior to the passing of the order in question he must have known that the Deputy Superintendent of Police could not devote his whole. time to the investigation of the case and therefore the inspector of Police .should be entrusted to do the investigation. [419 F] (iii) The charge	 as framed	 dearly stated that the appellant accepted gratification other than legal remuneration and obtained pecuniary advantage .by corrupt 	and illegal means. The absence of sufficient particulars could not invalidate the charge though it may be a ground for asking for. better particulars. The appellant never complained in the trial court or the High Court that the charge did not contain the necessary particulars	 he 	 was. misled on that account in his defence. In view this and the provisions of section 225 Cr. P.C. it could not be said that charge was defective. [421 F]