# Gokulchand Dwarkadas Morarka v. Th< King (A.LR. 1948 P.C

- **Citation:** [1955] 1 S.C.R. 92
- **Court:** Supreme Court of India
- **Decided:** 1952-02-19
- **Case number:** Criminal Appeal No. 33 of 1952
- **Bench:** Mehr Chand Mahajan C.J, VIVIAN BosE, Ghulam Hasan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gokulchand-dwarkadas-morarka-v-th-king-a-lr-1948-p-c-1219
- **Pages:** 8

## Headnote

[1955]
Prevention of Corruption Act, 1947 (II of 1947)-Section 5(1),
(2), (3) and section ~anction under section 6--Whether necessary
to be in any particular form-No particu~ars given in the charge or
sanction-Legal effect thereof.
Held, that it is not necessary for the sanction for
an offence
punishable under section 5(2) of the Prevention of Corruption Act,
1947 (Act II of 1947)
to be in any particular form or in writing or
t
for it to set out the facts in respect of which it is given. It is, how~
c;ver,
Qesirable to state
the facts on the face of sanction, because
when the facts are not set out in the sanction, proof has to be given
aliunde that sanction was given in respect of the facts constituting . .L
the offence charged but an omission to set out the facts in the
sanction is not fatal so long as the facts can be and are proved in
some other way.
'
.Where the sanction was confined to section 5(2) of the Act, it
could not,
under the circumstances
of the case, have related
to
anything but clause (a) of sub-section (1) of section 5 and therefore
an omission to mention clause (a) in the sanction did not invalidate it.
·
Under section 5(3) of the Act all that the prosecution has to do
is to show that the accused or some per~on 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 is bound
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.
Held, also that there was no illegality either in the sanction
or in the charge on the ground that no particulars were given
because the offence under section 5(1)(a) of the Prevention of
Corruption Act does
not consist of individual acts of bribe taking
as in section 161 I.P.C. but is of a general character and individual
instances are not necessary because of the presumption which section 5(3) requires the Court to draw.
Gokulchand Dwarkadas Morarka v. Th< King (A.LR. 1948 P.C.
82) referred to.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 33 of 1952.
Appeal under Article 134(1)(c) from the Judgment .f
and Order dated the 19th February, 1952, of the
'
J
-
f
•
, .
S.C.R.
SUPREME COURT REPORTS
93
High Court of Orissa at Cuttack in Criminal Appeal
No. 66 of 1950 arising out of the Judgment and Order
<lated the 19th September, 1950, of the Court of . the
Additional
Sessions
Judge,
Cuttack-Dhenkanal, Cuttack, in Sessions Trial No. 9-C of 1950.
Nur-ud-Din Ahmed, R. Patnaik and R. C. Prasad,
for the appellant.
R. Ganapathy Iyer, for the respondent.
1954.
April ':J.
The Judgment of the Court was
delivered by
BosE J.-The
appellant
was
an
Inspector of
Factories under the Government of Orissa. It was a
part of his duty to inspect factories and mills in the
State of Orissa. He toured the districts of Koraput
and Balasore from
18th August, 1948, to 27th August,
1948,
and from 29th September, 1948, to 30th October,
1948, respectively.
The prosecution
case
is
that he
collected bribes from persons connected with some of
the mills he inspected in those districts. It is said that
he used
to
threaten to close their mills and impose
other penalties for
alleged
defects
unless
they paid
him a bribe.
-<
On 3rd October, 1948, he was camping at the Dak
Bungalow at
Basta in the
Balasore district.
Be.cause
of information received
against him his
person and
belongings were searched on that
day and a sum of
Rs. 3,148 was recovered from him consisting of Rs. 450
paid at the time as a trap and Rs. 2,698 already in his
possession. He was arrested on the spot but was later
released on bail.
•
Departmental and other proceedings were taken
.,. >- against him and he was eventually brought to trial on
29th March, 1950, and charged under section 5(2) of
the Prevention of Corruption Act (II of 1947) for
criminal misconduct in the shape of hab

## Text

1954
. . APril 7•
92
..
SUPREME COURT REPORTS
BISWABHUSAN NAIK
ti.
THE STATE OF ORISSA.
[MEHR CHAND MAHAJAN C.J., VIVIAN BosE
and GHULAM HASAN JJ.]
[1955]
Prevention of Corruption Act, 1947 (II of 1947)-Section 5(1),
(2), (3) and section ~anction under section 6--Whether necessary
to be in any particular form-No particu~ars given in the charge or
sanction-Legal effect thereof.
Held, that it is not necessary for the sanction for
an offence
punishable under section 5(2) of the Prevention of Corruption Act,
1947 (Act II of 1947)
to be in any particular form or in writing or
t
for it to set out the facts in respect of which it is given. It is, how~
c;ver,
Qesirable to state
the facts on the face of sanction, because
when the facts are not set out in the sanction, proof has to be given
aliunde that sanction was given in respect of the facts constituting . .L
the offence charged but an omission to set out the facts in the
sanction is not fatal so long as the facts can be and are proved in
some other way.
'
.Where the sanction was confined to section 5(2) of the Act, it
could not,
under the circumstances
of the case, have related
to
anything but clause (a) of sub-section (1) of section 5 and therefore
an omission to mention clause (a) in the sanction did not invalidate it.
·
Under section 5(3) of the Act all that the prosecution has to do
is to show that the accused or some per~on 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 is bound
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.
Held, also that there was no illegality either in the sanction
or in the charge on the ground that no particulars were given
because the offence under section 5(1)(a) of the Prevention of
Corruption Act does
not consist of individual acts of bribe taking
as in section 161 I.P.C. but is of a general character and individual
instances are not necessary because of the presumption which section 5(3) requires the Court to draw.
Gokulchand Dwarkadas Morarka v. Th< King (A.LR. 1948 P.C.
82) referred to.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 33 of 1952.
Appeal under Article 134(1)(c) from the Judgment .f
and Order dated the 19th February, 1952, of the
'
J
-
f
•
, .
S.C.R.
SUPREME COURT REPORTS
93
High Court of Orissa at Cuttack in Criminal Appeal
No. 66 of 1950 arising out of the Judgment and Order
<lated the 19th September, 1950, of the Court of . the
Additional
Sessions
Judge,
Cuttack-Dhenkanal, Cuttack, in Sessions Trial No. 9-C of 1950.
Nur-ud-Din Ahmed, R. Patnaik and R. C. Prasad,
for the appellant.
R. Ganapathy Iyer, for the respondent.
1954.
April ':J.
The Judgment of the Court was
delivered by
BosE J.-The
appellant
was
an
Inspector of
Factories under the Government of Orissa. It was a
part of his duty to inspect factories and mills in the
State of Orissa. He toured the districts of Koraput
and Balasore from
18th August, 1948, to 27th August,
1948,
and from 29th September, 1948, to 30th October,
1948, respectively.
The prosecution
case
is
that he
collected bribes from persons connected with some of
the mills he inspected in those districts. It is said that
he used
to
threaten to close their mills and impose
other penalties for
alleged
defects
unless
they paid
him a bribe.
-<
On 3rd October, 1948, he was camping at the Dak
Bungalow at
Basta in the
Balasore district.
Be.cause
of information received
against him his
person and
belongings were searched on that
day and a sum of
Rs. 3,148 was recovered from him consisting of Rs. 450
paid at the time as a trap and Rs. 2,698 already in his
possession. He was arrested on the spot but was later
released on bail.
•
Departmental and other proceedings were taken
.,. >- against him and he was eventually brought to trial on
29th March, 1950, and charged under section 5(2) of
the Prevention of Corruption Act (II of 1947) for
criminal misconduct in the shape of habitually accepting illegal gratification. He was also separately charged
and separately prosecuted under section 161
of
the
Indian Penal Code for three specific offences of bribe
taking but we are not concerned here with that as he
"'t was
acquitted on all three counts. His conviction
here is under section 5(2) · alone.
The trial Court
1954
Biswabhusan
Naik
v.
The State of
Orisso,
1954
Biswabhtuiin
Naik
·v.
The Sta it •f
-Orissd.
llo;t J.
94
SUPREME COURT REPORTS
[19551
sentenced him to rigorous imprisonment for four years
and a fine of Rs. 5,000. The High Court upheld the
conviction on appeal
but reduced the sentence to two
years and a fine of Rs. 3,000.
r
The accused
applied for
a certificate to appeal
under article 134 ( 1) ( c)
oh three points. The High
Court held that two of them were not of sufficient importance to justify the issue of a certificate particu-
'~
larly as one of the two was covered by the principle
•'
laid down by this
Court. But it granted leave on all
three as it considered that the first point was of importance. The points were formulated as follows:
"(i) whether the view of this
Court as to the
requirement of sanction in a case of this kind and the
interpretation of Morarka's
case
in A.LR. 1948 P.C.
p. 82 adopted
by this Court in its judgment are
-'--
correct ;
(ii) whether the interpretation of this Court relating to the requirements as to the corroboration of an
accomplice witness in a bribery case with
reference to
the latest unreported case of the Supreme Court which
has been referred to in the judgment and
which has
since been reported in 1952 S.C.J, p. 46 is correct;
,..
and
(iii) whether the law as propounded by the decision
now sought to be appealed against with reference to
the considerations that arise in judging the presumptions under section 5(3) of the Prevention of Corruption Act is correct."
The first point arises in this way. Four kinds of
criminal misconduct
are
set
out in section 5 of the -1..
Prevention of
Corruption Act.
They are
enumerated
in clauses (a), (b), (c) and (d) of sub-section (1).
The
sanction is general and dt>es hOt specify which of these
.four offences was meant. it runs as follows:
Government of Orissa.
Commerce and Labour Department.
Order No. 4561/Com., dated 3-11-1948.
ln pursuance of section 6 of the Prevention
Corruption Act, 1947 (II of 1947), the Governor
of .f
of
·-
-
'
'-\ s.c.R.
SUPREME COURT REPORTS
95
Orissa
1s hereby pleased to accord sanction for prosecution of
Sri. B. B. Nayak,
Inspector of Factories,
Orissa, employed in connection with the affairs of the
Province under sub-section (2) of section 5 of the said
Act.
2. Nature of offence committed:
Criminal misconduct m discharge of official
duty.
By order of the Governor,
Sd./-V. Rainanathan,
Secretary to Government."
It was contended that the Privv Council held m
Gokulchand Dwarkadas Morarka v.
The King(1), that
such a sanction is invalid. The High Court rejected
~ this argument.
We agree with the High Court.
The passage of the Privy Council judgment on which
reliance is placed is as follows :
"In their Lordships' view, in order tq comply with
the provisions of clause 23 it must be proved that the
sanction was given in respect of the
facts· <;onstituting
the offence charged. It is plainly desirable that the
facts should be referred to on the face of the sa,p.ction
but this is not essential since clause 23 does not require
the sanction to be in any particular form nor even to
be in writing. But if the facts constituting the offence
charged are not known on the face of the sanction, the
prosecution must prove by extraneous
evidence that
those facts
were placed before the sanctioning authority."
The Judgment of the Judicial Committee relates to
) , clause 23 of the Cotton Cloth and Yarn (Control)
Order, 1943, but the principles apply here. It 1s no
more necessary for the sanction under the Prevention
of Corruption Act to be in any particular form, or m
writing or for it to set out the facts in respect of which
it is given than it was under clause 23 of the Order
which their Lordships were considering. The desirability
of such
~ course is obvious . because when the facts
), are not ·set out in the sanction proof has to be given
(1) A.T.R. 1948 P.C. 82.
1954
Biswabhusatl
Naik
.
.
v.
The State of
Orissa.
Bose].
1954
Biswablru.ran
Naik
v.
•
TlieStau of
Orissa.
96
SUPREME COURT REPORTS
t1.955) r
aliunde that sanction was given in respect 6f the facts
constituting
the~ offen'ce ch,arged, but an omission to do
so i~ ·not fatal so-long as the facts can be, and are,
pioved in some .other way.
Th<! High Court finds that the facts to which the·
sanctioh relates were duly placed before the proper
sanctioning authority. We need not consider the evidehee <l\iout telephone calls and the like because the
letter of- the
Distri~t Magistrate asking for ~anction
(Exhibit 25) is. enough to show the facts on which the
sanction is based. It is in these terms:
''I have the honour· to report that ~ri B. B. Nayak,
Inspector of Factories, Orissa,
in ~he---coutse ·of his
visit to this district had been visiting certain mills, and,
on information recejved by me that he .had been col-.
lecting heavy sums a~ illegal gratification from the
~
Manager or Propiietor of Mills under threat of thischief
to the mill owners, it was arranged to verify the truth
of this information by handing over 3 hundm;I rupee
notes
marked
with my , initials m presence of the
Superintendent of Police and two other respectable
gentlemen and niillowners, on the evening of the 2nd
October,
1948.
On the 3rd October the
Factory
,,Inspector having actually received the illegal gratification of Rs. 450 which sum included the three marked
hundred rupee notes,
the Prosecuting Inspector seized
the marked notes alohg with ·a further heavy sum of
Rs. 2,698 from his possession .
. . . . . . . . . . . . . . . . . .
: ..................... .
Under section 6 of the Prevention
of Comwtion
\ "
Act,
1947, the accused ~eing a public, servant in the
employ of th~ Provincial . Government the sanction of
..(
the Provincial
Gove~nrnent is necessary prior ~o taking--
cognisance of' ap offence under section 161, II)dian
P~nal Code or sub-section (2) of section 5 of the Act."
A sanction based on the facts set out in this letter,
nam~ly the information received
about the collection
of heavy sums as bribes and .the finding of Rs. 2,698 in
his possession w?uld be sufficient to validate the present
r
,prosecution. It is evident from this letter and from
-it
the other evidence that the facts placed before the
\
I
-
-
S.C.R.
Sl]PREME COURT REPORTS
97
Government could only relate to offences under section 161, of the Indian Penal Code and clause (a) of
section 5(1) of the Prevention of Corruption Act. They
could not relate to clauses (b) or (.c).
Therefore, when
the sanction was confined to section 5 (2) it could not,
in the circumstances of the case, have
related to anything but
clause (a) of sub-section (1) of section 5.
Therefore, the omission to mention clause (a) in the
sanction does not invalidate it.
The present prosecution is confined to section 5(1)(a)
which runs as follows :
"(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 1s
mentioned in section
161 of the Indian Penal
Code."
Then comes sub-section (3) which sets out a new rule
of evidence in these terms :
"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 therefor shall not be invalid by reason only
that it is based solely on such presumption."
Therefore, all that the prosecution has to do is to
show that the accused, or some person on his behalf,
1s
m
possession
of pecuniary resources
or property
disproportionate to his known sources of income and
for which the accused cannot satisfactorily account.
Orice that is established then the Court has to presume,
unless the contrary is
proved, that the accused
1s
guilty of the new offence created by section 5, namely
criminal misconduct in the discharge of his official duty.
1954
Biswabhusarr
Naik
v.
The State of
Orissa.
Bose].;
v.:,
Thi Stat1 ef
Oriss•:
Bos•J.
98
SUPREME COURT REPORTS
[1955]
Now the accused was found in possession of Rs. 3,148.
He accounted for Rs. 450 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. 2,698. 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 1s whether this was disproportionate to his
known sources of income.
The accused is a Government Factory Inspector and
we were told ihat his salary is only Rs. 450 a month.
The High Court finds that the , total sums drawn by
him
during his entire period of service of thirteen
months was
Rs.
6,045
as
salary and
Rs. 2,155
as
tra veiling allowanc~. It also finds that he owns 0.648
acres of land which brings m no mcome worth the
name. On the expenditure side of the accused's account
the High Court finds that he has a substantial family
establishment which would
not leave him enough
margin for saving such a large sum of money. No
other source of income has been .disclosed. It is evident
that no touring officer of his status and in his position
would require such a large sum of money for his touring. purposes even if he was away from headquarters
for
a month. His explanation was considered unsatisfactory by both Courts and was disbelieved. These
are all questions of fact. Once the facts set out above
were found to exist and the explanation of the accused
rejected
as
unsatisfactory, section 5(3)
was at once
attra~ted 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 5(2),
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
High Court was right in holding that the sanction was
sufficient and in convicting the accused.
\
t
l
..
r
S.C.R~··-··sUPREl\IE COURT REPORTS
. 99
The thir~ "point set out in the certificate of the High
Court relates to the , absence ()f particulars in the
charge and, we gathered from the arguments, . in the
sanction._ But no particulars need be set out in the
charge in such a case because the offence under section 5(1 )(a) does not consist of indi vid ualacts of bribe
taking as in sectionJ61 of the Indian Penal Code but
is of a general , character. Individual instances may
be useful to prove the general averment in particular
cases but it is by no means necessary because of the
presumption which section 5(3) requires the Court to
draw. There was therefore no illegality either in , the
sanction or in the charge ; nor has the accused been
prejudiced because he knew everything that was being ·
urged against him and led evidence to refute the facts
on which the prosecution i:elied. He was also questioned about the material facts set out above in his
examination under section 342 of the Criminal Procedure Code and was given a chance then ·as well to
give such explanation as he wished.
• The appeal fails and i~ dismissed. '
Appeal dismissed .
SHANK.AR SITARAM SONTAKKE AND
ANOTHER
v.
BALKRISHNA SITARMI SONTAKKE AND.
OTHERS.
[l\IEHR CHAND l'llAHAJAN C.J., VIVIAN BosE and
GHULAM HASAN JJ.].
Coosent decree-Legal effect thereof-Compromise not vitiated
-by fraud, misreprese·ntation, misunderstanding or mistake-Decree
pas3ed thereon-Whether operates as res iudicata......:. Civil Procedure -
Code-( Act V of 1908)--0rder II, rule 2(3)-Relinquishment of·
claim in a prior suit-Sttbsequent suit barred in respect of the claim
so omitted.
·
It is well settled that a consent decree is as binding upon the
parties thereto as a. decree passed by invitum... Where a com pro~
misa is round not to be vitiated by fraud, misrepresentation,
'954
Biswabkusan
Naik
v.
The State of ·
01issa.
Bose].
I954
..