# NANI GOPAL MITRA v. THE S;I'ATE OF BIHAR

- **Citation:** [1969] 2 S.C.R. 411
- **Court:** Supreme Court of India
- **Decided:** 1968-10-15
- **Bench:** J. C. Shah, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nani-gopal-mitra-v-the-s-i-ate-of-bihar-4508
- **Pages:** 11

## Headnote

....
Prevention of Corruption Act 2 of 1947 s. 5(1), (2) and (3)-
After conviction of appellant under s. 5 (2) and before hearing of appeal
by High Court, s. 5(3) repealed-If presumption ins. 5(3) could be invoked an appeal.
S. SA-Magistrate not gtv1ng reasons for
pernlltt1ng Officer other
C
than D.S.P. to investigate-If non-contpliance with section.
D
E
F
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H
Particulars-Insufficient porticulars given
in the
charge-Appellant
not complaining at trial or before High Court-Effect of.
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 s. 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 Ordi:r dated 27th February 1959 of the Magistrate, 1st 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 s. 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 s. 411 J .P .C. but confirmed
his conviction under s. 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(Amendment) Act 40 of 1964 which repealed sub-section (3) of s. 5
of the; Act and enlarged the scope of criminal misconduct in s. 5 by
inserting a new clause (e) in s.
5(1)
of the Act.
In appeal
to
this Court it was contended on behalf of the appellant (i) that s. 5(3)
of the Act having been repealed while the appeal was pending in the
High Court, the presumption enacted in s. 5 (3) was not available to
the 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 iri s. 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 s. 5A of the Act had not beeo
complied with as the Magistrate had not given reasons for entrusting the
investigation to a Police Officer below ·the rank of Deputy Superintendent
of Police; and (iii) that the charge against the appellant under s. 5(2)
of the Act was defective1 as .there were no specific particulars of mis90n".
duct as envisaged under clauses (a) to (d) of s. 5(1) df the Act, nothing
was stated about the amounts the appellant took as bribes and · the
'
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SUPREME COURT R.llPORTS
[1969] 2 S.C.R.
persons from whom he had taken such bribes so that the appellant had
A
no opportunity to rebut the presumption raisecl under s. 5 ( 3) of the
Act and to prove his innocence.
HEW :
Dismissing the appeal :
(i) The High Court was right
invoking
the
presumption
under
s. 5(3) of the Act even though it was repealed on December 18, 1964
by the Amending Act.
B
Although as a general rule the amended law relating to procedure
operates retrospectively, there is another equally important
principle,
which is also embodied in s. 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 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 institute

## Text

A
NANI GOPAL MITRA
v.
THE S;I'ATE OF BIHAR
October 15, 1968
B
(J. C. SHAH AND V. RAMASWAMI, JJ.]
....
Prevention of Corruption Act 2 of 1947 s. 5(1), (2) and (3)-
After conviction of appellant under s. 5 (2) and before hearing of appeal
by High Court, s. 5(3) repealed-If presumption ins. 5(3) could be invoked an appeal.
S. SA-Magistrate not gtv1ng reasons for
pernlltt1ng Officer other
C
than D.S.P. to investigate-If non-contpliance with section.
D
E
F
G
H
Particulars-Insufficient porticulars given
in the
charge-Appellant
not complaining at trial or before High Court-Effect of.
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 s. 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 Ordi:r dated 27th February 1959 of the Magistrate, 1st 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 s. 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 s. 411 J .P .C. but confirmed
his conviction under s. 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 s. 5
of the; Act and enlarged the scope of criminal misconduct in s. 5 by
inserting a new clause (e) in s.
5(1)
of the Act.
In appeal
to
this Court it was contended on behalf of the appellant (i) that s. 5(3)
of the Act having been repealed while the appeal was pending in the
High Court, the presumption enacted in s. 5 (3) was not available to
the 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 iri s. 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 s. 5A of the Act had not beeo
complied with as the Magistrate had not given reasons for entrusting the
investigation to a Police Officer below ·the rank of Deputy Superintendent
of Police; and (iii) that the charge against the appellant under s. 5(2)
of the Act was defective1 as .there were no specific particulars of mis90n".
duct as envisaged under clauses (a) to (d) of s. 5(1) df the Act, nothing
was stated about the amounts the appellant took as bribes and · the
'
412
SUPREME COURT R.llPORTS
[1969] 2 S.C.R.
persons from whom he had taken such bribes so that the appellant had
A
no opportunity to rebut the presumption raisecl under s. 5 ( 3) of the
Act and to prove his innocence.
HEW :
Dismissing the appeal :
(i) The High Court was right
invoking
the
presumption
under
s. 5(3) of the Act even though it was repealed on December 18, 1964
by the Amending Act.
B
Although as a general rule the amended law relating to procedure
operates retrospectively, there is another equally important
principle,
which is also embodied in s. 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 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 s. 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 DJ
Jame• Gardner v. Edward A. Lucas, [1878) 3 AC. 582 at p, 603;
King v. Chandra Dharma, [1905) 2 K.B. 335; In re a Debtor [19361 1
Ch. 237 and Jn re Vernazza; [1960] A.C. 965; referred to.
(ii) Although the Magistrate's order on the ]>Otition filed by
the
Deputy Superintenden.t 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 Supcrintendent 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 Fl
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(iii) The charge, as framed, clearly 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 dharge 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
G
particulars, be
was misled on that account in his defence.
In vie\v of
this and the provisions of s. 225 Cr. P.C. it could not be said that the
charge was defective. [421 Bl
CRIMINAL
APPELLATE
}URIS!>ICTION:
Criminal Appeal
No. 181of1965.
Appeal by special leave from the judgment and order, dated
September 14, 1965 of the Patna High Court in Crin:iinal Appeal
No. 268 of 1962.
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NANI GOPAL v. BIHA:R (Ramaswami, J.)
413
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, 1~65
in Criminal Appeal No. 268 of 1962 filed by the appellant agamst
the judgment of the Special Judge, Santhal Parganas, 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 travelling ticket examiners caught
hold of Shambu Pada Banerji (P.W. 54) as he found him working
as a bogus travelling ticket examiner in a train. P. W. 4 7 banded
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
r.w. 56 along with other police officers, Md. Junaid (P.W. 48)
and Dharmadeo Singh (P.W. 57). Various articles were recovered
from the house of the appellant and a search list (Ex. 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 filed
Criminal Appeal No. 405 of 1961 against his conviction under
s. 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 NationaJ. Savings
Certifi_catc:s of the value of Rs. 8,000. On August 24, 1958 the
Im:es!Igatmg Officer (P.W. 56) handed over charge of the investigatmn of G.~.P. Case: No. 1~(1)58 to P.W. 46 of Sahebganj Govefll!Dent Railway Pohce 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 kn?wn sources of in~ome it was thought that be
had come m possession of these pecumary resources by committing
414
SUPREME COURT REPORTS
(1969] 2 S.C.R.
acts of ·misconduct as defined in clauses (a) to ( d) of sub-s. ( 1)
of s. 5 of the Prevention of Corruption Act, 1947 (Act 2 of 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 s. 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
tl!e sense !hat 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 oil. 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, Santhal Parganas convicted the appellant under s. 5(2) of
the Act and s. 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 s. 120 (B) read with
ss. 379, 411, 406 and 420, Indian Penal Code ands. 5(2) of the
Act.
The Special Judge also acquitted the appellant of the charge
under s. 4 7 4/ 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 s. 411, Indian Penal· Code and confirmed the conviction of
the appellant under s. 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
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NANI GOPAL v. BIHAR (Ramaswami, !.)
any other person, any valuable thing wit,hout
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 therefor shall not be invalid by reason only
tha! it is based solely on such presumption.
( 4) The provisions of this section shall be in addition to, and not in derogation of, any other law for 1;b.e
time being in force, and .nothing contained herein shall
exempt any public servant from any proceeding whkh
415
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SUPREME COURT REPORTS
(1969] 2 S.C.R.
might, apart from this section, be instituted against
11im."
A
On December 18 1964, Parliament enacted the Anti-Corruption
Laws ( Amendme~t) Act 1964 (Act No. 40 of 1964) which
repealed sub-s. (3) of s. 5 of the Act and enlarged the scope of
criminal misconduct in s. 5 of the Act by inserting a new clause
B
( e) in s. 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 inc
come."
It was in the first place contended on behalf of the appellant
that s. 5 (3) of the Act was repealed by Parliament while the
appeal was pending in the High Court and the presumption enacted in s. 5 ( 3) of the Act was not available to the prosecuting
authorities after the repeal of the sub-section on December 18,
D
1964. The argument was stressed that it was not open to the
High Court to invoke the presumption contained in s. 5 (3) of
the Act in considering the case against the appellant. It was also
said that the presumption contained in s. 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
E
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 s. 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
F
character unless there is some good reason or other why they
should not be. In James Gardner v. Edward A. Lucas('), Lord
Blackburn stated :
"Now the general rule, not merely of England and
Scotland, but, I believe, of every civilized nation, is expressed 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 t~at,. thou15h there were not .any
express words to shew 11, 11 might be retrospective.
For instance, I think it is perfectly settled that if the
Legislature intended to frame a new
procedure, that
(I) fl878] IJl App. Cas. 582 at p. 603.
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NANI GOPAL v. BJHAR (Ramaswami, J.)
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 v. Chandra
Dharma('), 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 re.trospective (The Ydun, 1899 p. 236.), and
it seems to me that it is impossible tQ 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 tliat 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 -0nly alters the time within which proceedings may
be taken, it may be held to apply to offences 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(')
and In re Vernazza('). The same principle is embodied in s. 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-
(!) [1905} 2 K.B. 335.
(2) [1936] l Ch. 237.
(3) [1960} A.C. 965.
418
SUPREME COURT REPORTS
[1969] 2 S.C.R.
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 Jaw,
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,
Santhal Parganas when
s. 5(3) of the Act was still operative. The conviction of the
appellant was pronounced on March 31, 1962 by the Special
Judge, Santhal 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,
Santhal Parganas has become illegal or in any way defective in
law because of the amendment to procedural law made on December 18,
1964. Jn our opinion, the High Court was right in
invoking the presumption nnder s. 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 thls aspect of the case.
It was next argued on behalf of the appellant that the statutory safeguards under s. 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 SA 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,
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NANI GOPAL v. BIHAR (Ramaswami, J.)
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
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 therefor without a warrant :
,,
In the present case the officer-incharge of Sahibganj police station
(P.W. 45) filed a petition dated February 27, 1959 (Ex. 1) to
the First Class Magistrate upon which the Deputy Superintendent
of Police made an endorsement (Ex.Ill) 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 : "lnspP..ctor Sri M. S. Haldhar is allowed to
do it". The evidence of P.W. 1 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
(Ex. 1/2) authorising M. S. Haldhar to investigate the case be- ·
cause the Deputy Superintendent of Police used to remain busy
with his work and the present case needP.,d 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
s. 5 (2) of the Act was defective as there were no specific particulars of misconduct as envisaged under els. (a) to ( d) of s. 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 s. 5 ( 3) of the Act.
The charge
against the appellant reads as follows :
420
SUPREME COURT REPORTS
[1969} 2 S.C.R.
"First-That during the period of 1956 to 19th
January, 1958 at Sahebganj Police Station Sahebganj
G.R.P. and Sahebganj Local, District Santhal Parganas
and at other places, within and without the said district,
you, being a public servant viz. Guard of trains in ~e
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 connectio,n. with your
official function, habitually, dishonestly and fraudulently,
misappropriated or otherwise converted for your own
use properties entrusted to you or put under your con- .
trol 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 offences of criminal misconduct, under clauses (a) to (b) of s. 5 ( 1)
of the Prevention of Corruption Act, 194 7 (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 framed,
clearly stated
that the appellant accepted gratification other than legal reinune'
ration 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
A
. .,
B
c
D
•• .1
G
•
•
H
.A
B
...
c
D
•
•
NANI OOPAL v. BIHAR (Rama.swami, J.).
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 discloSl'.d 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
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.
RK.P.S .
Appeal dismissed.