# P}i::er (P) Ltd. JJomhay v. 17u worl.:eme1J Gajendragadkar, J

- **Citation:** [1963] Supp. 2 S.C.R. 652
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Criminal Appeal No. 46 of 1961
- **Bench:** S. J. Imam, K. SUBBA RAo, N: RAJAGOPALA AYYANGAR andj. R. MUDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-i-er-p-ltd-jjomhay-v-17u-worl-eme1j-gajendragadkar-j-2795
- **Pages:** 17

## Headnote

Criminal Trial-Sanction for prosecution-Validity a/-
Defective charge-Particulars of person.• from whom bribes
taktn not mentioned-Point not mentioned in courts below, not
also menlioned in special leave petition or statement of C01JeNot allowed to be raised-Prevention of Corruption Act, 1947
(Act II), BB. 5, 6-Conatitution of buUa,Art.136.
The appellant was convicted under sub.section (I) read
with sub-section (3) of s. 5 of the Prevention of Corruption
Act, 1~)47, ancl sentenced to rigoro11~ imprisonment for thrf"..e
years. The High Court confirmed the conviction and sentences
-·
2 S.C.R.
SUPREME COURT REPORTS
653
passed on him. He came to this court by special leave. It
was contended that the mnction given by the Government for
his prosecution was illegal on the ground that the sanctioning
authority had not before it all the relevant facts constituting
the offence for which •anction was asked for before giving it,
the sanction was givtn for prosecuting the appellant under
sub-section (2) read with sub-section (3) but he was convic.tcd
for a different offence under sub-section (1) of s. 5 read with
sub-section (3) and the sanction was given under sub-section
(3) of s. 5 which lays down only a rule of evidence on a wrong
assumption that the said sub-section created an offence. It
was also contended that the charge was defective o.s it did not
disclose the amounts appellant had taken as bribes and also
persons from whom he had taken them. On account of this,
the appellant was not given an opportunity to prove his innocence.
Htld, that there wa5 no merit in the contention of the
appellant that sanction was invalid. The orde1s issued by
the government show that the sanction
for prosecution was
given after considering all the relevant facts necessary to satisfy the mind of the sanctioning authority. The first information report and the letter of the Superintendent of Police gave
all the necessuy facts to satisfy the mind of the sanctioning
authority that the appellant was habitua Uy receiving gratification other than legal
gratification and by
cormpt and
illegal means or by otherwise abusing his position as public
servant, he had obtained for ' himself pecuniary advantage
within the meaning of s. 5 (1) (d) of the Act. The contention of the appellant that sanction was given under s. 5 (2)
and not under s. 5 (1) is based upon a misapprehension of the
scope of the said sub-sections. Although the sanction refers
. to sub-section (2), in effect it must be deemed to relate to subsection ( 1) read with the sub-section (2), ber.ause the expression
ucriminal miscondurt" in sub-section (2) takes in the defini ..
tion of criminal
miscondui:t. The third contention is also
basec! on a n1isrca<ling of the sanction. The sanction was
given under sub-section (2)
read
with
sub-section (3)
nf
s. 5 of the Act. The
phraseology used
indicates
the
consciousness on
the
part
of
the
sanctioning
authority that sub-section
(3) is not a separate offence but
is only a supporting provision to the substantive offence, under
sub-section ( 1) and (2). Sub-section (3) does not create a
separate offence. It only lays down a rule of evidence; It
marks a departure from the. well-established principle of
criminal jurisprudence that onus is always on the prO!lecution to
bring home the guilt to the accused. When sanction is given
nduer sub-section (2) read with sub-section (3), it only means
1962
R. S. Pandit
..
Statr of Riliar
1962
R.S. Pandit
v.
Sta11 ef Bilw
654 SUPREME COURT REPORTS [1963] SUPP.
that on the facts disclosed, a case has been made out for drawing a presumption of guilt against the appellant. Section 6 of
the Act docs not require the sanction to be given in a particular form. Though the sanction orders ex facie do not disclo;e the facts, the documents which are exhibited in the case
give all the necessary relevant facts constituting the offence
of criminal misconduct.
It is true that the charge should have contained better
particulars so as to enable t

## Text

1962
P}i::er (P) Ltd.
JJomhay
v.
17u worl.:eme1J
Gajendragadkar, J,
1962
652 SUPRJ<:ME COURT REPORTS [1963] SUPP.
holidays which are granted by the appellant to the
respondents should be reduced from those sanctioned
under the Negotiable Instruments Act to 16 every
year.
The result is, both the appeals are allowed.
Appeal No, 625 of 1962 succeeds and the change
proposed to be made by the appellant according to
the notice of change served by it on the respondents
is allowed to be made, subject to the decision of the
Tribunal on the question. remitted to it. Appeal
No.626of1962 is also substantially allowed and the
number of paid holidays in a year is raised from
10 to 16. In the circumstances of this case, there
would be no order as to costs.
A ppeala aUowed.
R. S. PANDIT
"·
STATE OF BIHAR
(S. J. IMAM, K. SUBBA RAo, N: RAJAGOPALA
AYYANGAR andj. R. MUDHOLKAR, JJ.)
Criminal Trial-Sanction for prosecution-Validity a/-
Defective charge-Particulars of person.• from whom bribes
taktn not mentioned-Point not mentioned in courts below, not
also menlioned in special leave petition or statement of C01JeNot allowed to be raised-Prevention of Corruption Act, 1947
(Act II), BB. 5, 6-Conatitution of buUa,Art.136.
The appellant was convicted under sub.section (I) read
with sub-section (3) of s. 5 of the Prevention of Corruption
Act, 1~)47, ancl sentenced to rigoro11~ imprisonment for thrf"..e
years. The High Court confirmed the conviction and sentences
-·
2 S.C.R.
SUPREME COURT REPORTS
653
passed on him. He came to this court by special leave. It
was contended that the mnction given by the Government for
his prosecution was illegal on the ground that the sanctioning
authority had not before it all the relevant facts constituting
the offence for which •anction was asked for before giving it,
the sanction was givtn for prosecuting the appellant under
sub-section (2) read with sub-section (3) but he was convic.tcd
for a different offence under sub-section (1) of s. 5 read with
sub-section (3) and the sanction was given under sub-section
(3) of s. 5 which lays down only a rule of evidence on a wrong
assumption that the said sub-section created an offence. It
was also contended that the charge was defective o.s it did not
disclose the amounts appellant had taken as bribes and also
persons from whom he had taken them. On account of this,
the appellant was not given an opportunity to prove his innocence.
Htld, that there wa5 no merit in the contention of the
appellant that sanction was invalid. The orde1s issued by
the government show that the sanction
for prosecution was
given after considering all the relevant facts necessary to satisfy the mind of the sanctioning authority. The first information report and the letter of the Superintendent of Police gave
all the necessuy facts to satisfy the mind of the sanctioning
authority that the appellant was habitua Uy receiving gratification other than legal
gratification and by
cormpt and
illegal means or by otherwise abusing his position as public
servant, he had obtained for ' himself pecuniary advantage
within the meaning of s. 5 (1) (d) of the Act. The contention of the appellant that sanction was given under s. 5 (2)
and not under s. 5 (1) is based upon a misapprehension of the
scope of the said sub-sections. Although the sanction refers
. to sub-section (2), in effect it must be deemed to relate to subsection ( 1) read with the sub-section (2), ber.ause the expression
ucriminal miscondurt" in sub-section (2) takes in the defini ..
tion of criminal
miscondui:t. The third contention is also
basec! on a n1isrca<ling of the sanction. The sanction was
given under sub-section (2)
read
with
sub-section (3)
nf
s. 5 of the Act. The
phraseology used
indicates
the
consciousness on
the
part
of
the
sanctioning
authority that sub-section
(3) is not a separate offence but
is only a supporting provision to the substantive offence, under
sub-section ( 1) and (2). Sub-section (3) does not create a
separate offence. It only lays down a rule of evidence; It
marks a departure from the. well-established principle of
criminal jurisprudence that onus is always on the prO!lecution to
bring home the guilt to the accused. When sanction is given
nduer sub-section (2) read with sub-section (3), it only means
1962
R. S. Pandit
..
Statr of Riliar
1962
R.S. Pandit
v.
Sta11 ef Bilw
654 SUPREME COURT REPORTS [1963] SUPP.
that on the facts disclosed, a case has been made out for drawing a presumption of guilt against the appellant. Section 6 of
the Act docs not require the sanction to be given in a particular form. Though the sanction orders ex facie do not disclo;e the facts, the documents which are exhibited in the case
give all the necessary relevant facts constituting the offence
of criminal misconduct.
It is true that the charge should have contained better
particulars so as to enable the appellant to prove his case, but
the appellant never complained that the charge did not contain
the necessary parliculars. The
record disclosed that the
appellant understood the case · against him and adduced all the
evidence which he wanted to place before the court. The
appellate court could have set aside the conviction if the defect
in the charge had occasioned a failure of justice but the
appellant did not raise any objection either before the Special
Judge or in the High Court on the score that the charge was
defective and he was misled in his defence on the ground that
no particulars of the persons from whom the bribes were taken
were mentioned.
No such objection was taken in the statement of the c:ase. The objection was merely an after-thought
and could not be allowed to be raised at the time of argument.
Gol<uk/r.and Dwarkadas Morar/ca v. The King, (1948)
L. R. 75 I. A. 30, Bi&wabhuahan Naik v. State of Ori.aa, A.I.R.
1953 S. C. 359, Madan Mohan Singh v. State of Uttar Pradtsh,
A. I. R. 1954 S. C. 637 andJaswalll Singh v. State of Punjab,
A. I. R. 1958 S. C. 124, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 46 of 1961.
Appeal by special leave from the judgment and
order dated September 20, 1960 of the Patna High
Court in Criminal Appeal No. 32 of 1958.
N. O. Ohatt.e.rjee, R. K. Garg, D. P. Singh,
8. O. Agarwal and M. K. Ramamurthi, for the
appellant.
8. P. Varma, for the respondent.
'
-
2 S.C.R.
SUPREME COURT REPORTS
655
1962. December 4. The Judgment of the
Court was delivered by
SUBBA RAO, J.-This Appeal by Special Leave
is preferred against the Judgment of the High Court
of.Judicature at Patna confirming the conviction of
the appellant under s. 5 of the Prevention of Corruption Act by the Special Judge, Bhagalpur.
The facts may be briefly stated. The appellant
joined Government service in 1942 as a teacher in
the Reformatory School, Hazaribagh, on a pay of
Rs. 125/-. In 1945 he became a lecturer in Mechanics
in Sabour Agricultural "College, in which he served
till November 30, 1949 in the scale of Rs. 125 to
250/-
till
August
1947
and
from September
1947
to
November
1949
in
the scale of
Rs. 200 to 450/-. In December 1949 he became
Mechanical Assistant Engineer at Sabour and continued to hold that office till August 31, 1952. During
that period he was drawing salary with ·five advance
increments in the scale of Rs. 220 to Rs. 750/-. Then
he was reverted to the post of lecturer in mechanics
in the A~icultural College in the scale of Rs. 200 to
Rs. 450/-. It would be seen that his salary was only
ranging between Rs. 125/- and Rs. 300/-. He had
two wives and had three children by them. ;'\dmittedly ·his family was not in affluent circumstances, and
his wives did not bring him any fortune.
During
the year 1951-52 his Bank account and other evidence
showed that he came into possession of a sum of
Rs. 66,832/7 /3.
The case of the prosecution is that during the
years 1950 and 1952 the Government introduced a
scheme called •Grow More Food Scheme' subsidized
by it. Under that" scheme pumping sets were purchased by the Government and supplied to agricul'.
turists on payment of 50 per cent of the cost incurred
by the Government. The appellant had a hand in
1'62
R.S. Pandit
••
State of Bihm
Subba Rao, J.
1962
R.S. Pandit
v.
SltJlt of Billar
·'·11Jiba Ran, J.
656 SUPREME COURT REPORTS [1963] SUPP.
the purchase of sets and in the distribution of the
same to various agriculturists. In that connection
he had the opportunity to make money on both
ends i.e. when they were purchased and when they
were distributed. The appellant took an illegal
gratification during the implementation of the said
scheme. On l\1:arch 25, 1957 and April II, 1957
the Supdt. of Police obtained the sanction of the
Government of Bihar, Development Department, for
prosecuting the appellant under s. 5(2), read with
clause (3) of s. 5 of the · Prevention of Corruption
Act, 1947 (Act II of 1947), hereinafter called the
Act.
On obtaining the sanction the appellant was
put on trial before the Special Judge, Bhagalpur, for
an offence punishable under s. 2 read with sub-ss. (1)
and (3) of s. 5 of the Act.
The Special Judge, on a
consideration of the evidence, found in the light of
the presumption laid down in s. 5(3) of the Act that
the accused was taking "illegal gain out of his
economic position" in the scheme during the year
1051-52. On that finding the learned Judge convicted the appellant under Sub·s. (I) read with Sub-s.(3),
of s. 5 of the Act, and sentenced him to undergo
rigorous imprisonment for three years, and to pay a
fine of Rs. 500/-.
On appeal the High Court
accepted the finding of the Special Judge and confirmed the conviction and the sentence passed on him.
Hence the appeal.
Learned Counsel for the appellant contended
-
that the sanction given by the Government was illegal
for three reasons :-
1.
The sanctioning authority had not before
it all the relevant facts constituting the
offence for which sanction was asked for
-~
before giving the sanction.
2.
The sanction was given for prosecuting the
appellant under snb-s. (2) read with sub·s.3
2 $.C.R.
SUPREME COURT REPORTS
65i
of s. 5 of the Act,
whereas he was
convicted for a different offence tmder s11h·
s. (I) of s. 5 read with sub-s. (3).
3.
The sanction was given under sub-s. (3) of
s. 5 which lays down
only a rule
of evidence on a wrong assumption that
the said sub·section creates an offence.
As the argument turned upon the scope of the
sanction and the manner in which it was given it
will be necessary to read it in extenso :
"Government of Bihar Development Depart·
ment ...... Patna, April 11, 1957.
No. 1186D. Whereas the Governor of Bihar
has considered the facts stated in the }', I. R.
and the letter No. ll!l5/CR, dated l'vfarch 26,
1957 of the Superintendent of Police, Bhagal·
pur, addressed to the Secretary to Government
of Bihar, Development Department (copies
enclosed) through the Commissioner, Bhagalpur
Division.
And whereas the Governor of Bihar has
reasons to believe, on a consideration of the
facts mentioned in the aforesaid documents that
Shri Ram Sagar Pandit Lecturer (now under
suspension) · Sabour
Agricultural
College,
Bhagalpur has committed offences under clause
(2) read with clause (3) of section 5 of the
Prevention of Corruption Act 194 7 (II of 194 7).
-
Now, therefore, the Governor of Bihar in
pursuance of the provision laid down in section
5 of the said Act, 194 7 is pleased to accord
sanction to the prosecution of the aforesaid
l'Jiri Ram S11-gar Pandit under the said section,
1962
-·-
R. S. Pandit
v.
Stat< of llihar
Subba Rttfl, J.
19f2
R. S. PIUliit
••
Stale ef BU..r
!irU.b1 ltn, J.
658 SUPREME COURT REPORTS [1963) SUPP.
A copy each of the letter of the Supdt. of
Police Bhagalpur and the F .I .R. of the case i:s
attached herewith •
By order of the Governor of Bihar
Sd/· H. N. Thakur
Joint Secretary to Government."
It appears that on May 7, 1957, the Supdt. of
Police sent another letter to the Secretary of the
Government of Bihar under s. 197 of the Criminal
Procedure Code as well.
On receipt of that letter
sanction was granted on June 25, l 957, in the follow·
ing terms:-
"No. 2250-D.
"Whereas the Governor of Bihar has consi ·
dered the facts stated in the F.I.R. and the letter
No. ll95 Cr. Dated March 25, 1957, of the
Supdt. of Police, Bhagalpur addressed to the
Secretary to the Government of Bihar Develop·
ment Dept. (copy enclosed)
through
the
Commissioner Bhagalpur Division and whereas
the Governor of Bihar has reasons to believe
on the consideration of the facts mentioned .in
the aforesaid documents, that Shri Ramsagar
Pandit, Lecturer (now under suspension) Sabour
Agricultural College, Bhagalpur has committed
offences under clause (2) read with clause (3) of
section 5 of the Prevention of Corruption Act
1947 (Act II of 1947).
Now, therefore, in partial modification of
the sanction accorded in Govt. Order No. 1136 D
dated April ll, 1957, the Governor of Bihar,
in pursuance of the. provisions laid down
in s. ( 6) of the said Act and under s, 197 of
Criminal Procedure Code, is pleav.d to accord
2 S.C.R.
SUPREME COURT REPORTS
659
sanction to the prosecution of the aforesaid
Shri Ram Sagar Pandit under the said sanction.
A copy each of the letter of the Supdt. of
Police, Bhagalpur, and the First Information
Report of the case is attached herewith.
By order of the Governor of Bihar
(Sd) H.N. Thakur, 25.6.57
Joint Secretary to Government,
Govt; of Bihar, Development Deptt."
The said sanctions show that the sanctioning
authority has considered the facts stated in the First
Information Report and the letter No. 1195 Criminal,
dated 25.3.1957 written by the Supdt. of Police. The
First Information Report was lodged by the SubInspector of Police. It was written by the said Sub
Inspector of the Officer Incharge, Kotwali Police
Station. That lt:ttcr in detail gives the financial
position of the appellant, his meagre resources, large
Bank balances and his possession of other funds. It
also narrates how during the years 1950 and l!l52
huge quantities of pumping sets worth Rs. 58 or 59
lakhs were"purchased by the Agricultural Department
of the State of Bihar, how the accused wa~ in charge
of the scheme of purchase and distribution of the
same to various agriculturists and how he was in a
position to take illegal gratification. It further
states that the
accus_ed
was reported to
have
committed some acts of commission and omission by
showing favours to different firms. It concludes with
an averment that the accused committed the offence
of criminal misconduct as defined in s. 5 (2) of the
Prevention of Corruption Act, 194 7, and was liable
to be punished tinder sub-s. (2) read with sub·s. (3)
of s. 5 of the Act. The letter written by the Superin.
tendent of Police to the Secretary to the Govt. of
Bihar, Development Department gives again in datail
the said facts. It also gives the appellant's inadequate
r,con.omic resources and the disproportionately lar~e
1962
R. S. Pandit
v.
Stal1 of BihoT
Subba Rao, I
1962
••
S!•l1 ef llih«r
660 SUPREME COURT REPORTS [1963) SUPP.
amounts found in his possession. It also states that
after the enquiry had started he withdrew the entire
money from the Banks and disposed of the car, which
he had purchased earlier. The letter further discloses
that huge amounts of commission were debited in the
account books of various firms against the agents who
received orders for the supply of the pumping sets to
Agricultural Department, Bihar. It particularises that
one Baidyanath Saran, Proprietor of Messrs. Seekers
and Co., Patna, stated that he had paid a sum of
Rs. 400 to the accused as illegal gratification in
respect of the supply of the pumping sets as demanded by him. The explanation offered by the accused
for coming into possession of such large amounts is
also· given which appears, on the face of it, to be
unacceptable. The letter on the said facts purports
to draw the conclusion (a) that the accused was
receiving money by corrupt and illegal means by
abusing his position as a public servant; (b) that he
was in possession of pecuniary resources, disproportiona'te to his known resources bf income which he
was unable to explain and (c) that the accused had
committed an offence, punishable
under sub·
section (2) read with sub-section (3) of s. 5 of the Act.
The Supdt. of Police, for the aforesaid reasons
requested the Government to give sanction under s. 6
of the Prevention of Corruption Act ands. 197 of the
Cr. P. Code for the prosecution of the appellant under
s. 5 (2) and (:!) of the Act in a proper criminal Court
of law. The First Information Report and the letter
give all the necessary facts to satisfy the mind of the
sanctioning authority that the appellant was habitually receiving gratification other than legal gratification within the meaning ofs. 5 (1) (a) of the Act,
and that he by his corrupt and illegal means or
otherwise was abusing his position as public servant
to obtain fur himself pecuniary advantage within
the meaning of s. 5 (I) ( d) of the Act.
The orders
issued by the Government show· that it gave the
sanction under sub·s. (2), read with sub-s (3) ofs. 5
2 S.C.R.
SUPREME COURT REPORTS
661
of the Act, after considering the facts disclosed in the
said two documents.
It is therefore clear that the learned counsel is
not right in his contention that all the relevant facts
necessary to satisfy the mind of the sanctioning
authority were not placed before it.
The second contention,
name] y that the
sanction was given under s. 5 (2) but not under s. 5 ( l)
is based upon a misapprehension of the scope of the
said sub-sections.
Sub-section
(1)
describes the
ingredients of the offence .of criminal misconduct.
Sub-section (2) is the penal section, that is the section
which imposes punishment for such a criminal misconduct. The sanction refers to sub-s. (2) which is
the provision that makes criminal misconduct punishable. The sanction ex-hypothesi must have reference
only to criminal misconduct as defined in sub-s. (1).
The sanction, therefore, though in terms it refers to
ss. (2), in effect must be deemed to relate to sub-s. ( 1)
read with sub-s (2), for the expression criminal misconduct in sub-s.(2) takes in the definition of criminal
misconduct. The second contention therefore has no
merits
Nor are there any merits in the third contention either. lt is said that the sanction was given
to prosecute
the
appellant
f9r
committing an
offence under sub-s. (3) of s. 5 of the Act.
On that
assumption it is contended that sub-s. (3) is only a
rule of evidence and docs not deal with an offence.
This is ag::iin based upon a misreading of the sanction.
The sanction was given under sub-s. (2) read
with sub-s. (3) of s. 5 of the Act. The phraseology
used indicates the consciousness on the part of the
sanctioning authority that sub-s. (:!) is uol a sqpr;itc
offence but it is only a supporting provision to the
substantive offence under sub-ss, 1 & 2.
Sub-s. (3)
docs not create a separate offence. It only lays down
1962
R. S. l'aniit
v.
State •f .8ih.r
Subba Bio, J,
1962
11. S. Pandit
••
Sta 16 of Bihar
Su/J/Jollao, J,
662 SUPREME COURT REPORTS [1963) SUPP.
a rule of evidence which marks a departure from the
well-established principle of C..'riminalJurisprudence
that onus is always on the Prosecution to bring home
the guilt to the accused. Under this provision in
the circumstances mentioned therein the Court shall
presume unle11s the contrary is proved that the accused person is guilty of Criminal misconduct in the
discharge of his official duty. When the sanction
is given under sub-s. (2) read with sub-s. (31 it only
means that on the facts disclosed in the said two
documents, a case has been made out for drawing
a presumption of guilt against the appellant.
Now we shall proceed to refer to the decisions
cited at the Bar. The leading case on the subject
is that of the Judicial Committee in "Gokulahand
Dwarkadas Morarka v. The Kiny". (1)
Reliance
is placed upon the following passage in the judgment:-
"In order to comply with the provisions of
Cl. 23, it must be proved.that the sanction was
given in respect of the facts constituting the
offence charged. It is plainly desirable that
the fact should be referred to on the face of
the sanction, but this is not essential since
Cl. 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 shown on the face of the sanction,
the prosecution must prove by extraneous
evidence that those facts were placed before
the sanctioning authority."
Section 6 of the Act also does not require the
sanction to be given in a particular form.
The
principle expressed by the Privy Council, namely
that the sanction should be given in respect of tlic
facts constituting the offence charged equally applies
to the sanction under s. 6 of the Act. In the present
(I) A. I. R. 19411 P. C. 83;75 I. A. 30,
2 S.C.R.
SUPREME COURT REPORTS
663
case all the facts constituting the offence of mis·
conduct with which the appellant was charged were
placed before'
the
Government.
The second
principle, namely, that the facts should be referred
to on the face of the sanction and if they do not so
appear, the prosecution must prove them by extraneous evidence, is certainly sound having regard
to the purpose of the requirements of a sanction.
In the present case though the sanction ex-facie does
not disclose the facts, the documents which are exhibited in the case give all the necessary relevant facts
constituting the offence of criminal mis-conduct.
This Court in Biswabhusan Naik v. The State of
Orissa (1) rejected a contention similar to that now
raised before us. There the sanction given under
s. 6 of the Act referred only to sub-s. (2) of s. 5 of
the Act and it did not specify which of the four
offences mentioned ins. 5(1) was meant.
This Court
adverting to a similar contention observed "It was
evident from the evidence that the facts placed
before the Government could only relate to offences
under s. 101 of the Indian l'enal Code and clause
(a) of s. 5 (1) of the l'revention of Corruption Act.
They could not relate to cl. (b) or (c), when the
sanction was confined to s. 5 (2) it could not, in the
circumstances of the case, have related to any·
thing but cl. (a) of sub-s. (1) ofs. 5. Therefore the
omission to mention cl. (a) in the sanction did not
invalidate it."
The aforesaid. two decisions therefore answer
the first two contentions of the learned counsel.
Nor docs the decision in 'Madun Molta.n Sing/,
v. &tute of Utk1r J>mrksl'' (') help the appellant.
It is stated thcrciu the burden of proving that the
requisite sanctiou has been obtained rests on the
prosecution <m<l such burden includes proof that the
sanctioning authority had given the sanction in re·
fercnce to the facts on which the proposed prosecution
(IJ A.I.R. 1951 S.C. 359. (2) A.I.R. l!IM S.C. 637 \Vol. 41).
1962
R. S. Pondil
••
Stile nf Biluzr
Subb1 R101 J.
R. S. Pandit
v.
Slate qf Biliar
Subia Rao, J.
664 SUPREME COURT REPORTS [1963) SUPP.
was to be based; and these facts may appear on the
face of the sanction or may be proved \>y extraneous
evidence."
The proposition so stated is unexceptionable. In the present case not only the sanction discloses
that the sanctioning authority has considered the
documents placed before it, but the documents so placed give all the necessary facts constituting the l)ffence
of criminal mis·conduct.
Reference is made to the decision in the case
of Jaswant Singh v. State of Punjab. (1)
There
this court held that after the sanction was granted
for the prosecution
in respect of one offence,
cognizance could not be taken m respect of another
offence in respect of which there was no sanction.
In that case sanctiOn was granted to prosecute
•
Jaswant Singh Patwari for accepting an illegal
gratification of Rs. 50/- from one Pal Singh but a
charge was framed for his habitual acceptance of
illegal gratification. This court held that the
prosecution for the offence under s. 5 (I) (b) was
valid but the offence of habitually receiving illegal
gratification could not be taken cognizance of and
the prosecution for that offence was void for want of
sanction. This decision is relied upon in support of
the contention that the letter of the Supdt. of Police
only disclosed a specific act of bribery. This decision has no relevance to the question now raised
before us.
In the present case the sanction was given
for prosecuting the appellant for criminal misconduct
under s. 5 (1) (a) and 5 (1) (d) of the Act. On the
basis of the said sanction a charge was framed
against the appellant for his having habitually
accepted gratification other than remuneration and
obtained for himself pecuniary advantage by corrupt
and illegal means or by otherwise abusing his
p(.)sition as public servant and thereby committed
the offence of criminal mis-conduct, an offence
punishable under sub·s. (2) read with sub-ss. (1) & (3)
of s. 5 of Act II of 1 !H 7. All the facts necessary
(I) A,I.R. W!iU ~.C. 124.
-
2 s.c.R.
SUPREME COURT REPORTS
665
therefore to sustain a prosecution under sub-s. (1) (a)
and (d) were placed before the sanctioning authority
and after having obtained the sanction the appellant
was charged in respect of the said offence. This decision therefore does not help tl1c appellant. For the
aforesaid reasons we hold that there are no merits in
either of the three contentions raised to invalidate
the sanction.
Lastly it is suggested that the charge h defective
inasmuch as it has deprived the appellant of his
opportunity to rebut the presumption raised under
sub-s. (3) of s. 5 of the Act.
The charge reads :-
·'I, Bralundev Narain, Special Judge, Bhagalpur
hereby charge you
Ram Sagar Pandit as
follows:-
That during the period of the years HJ51
aml
!!JG~, at Sabour P.S. .l\fofassil and at
llhagalpur
Town, P.S.
Kotwali, District
Bhagalpur,
you, being a public servant vi~,
Mcchauical Assistant Engineer, Sabour Agricultural College habitually accepted gratification other than legal remuneration and obtained
for yourself pecuniary advantage by corrupt
and illegal means or by otherwise abusing your
position as public servant with the result that
during the said period you came in possession
of a sum of about Rs. li2,000
which was
disproportionate to your known resources of
Income and which you could uot satisfactorily
account and you thereby committed the offence
of criminal misconduct, an offence punishable
under sub-section 2 read with sub-sections .I and
;; of s. ::i uf Act II <Jf 1947 the Prevention of
Corruption Act HJi7 aud within my cognizance
and I hereby direct you he tried hy tltis court on
the said charge."
.1962
II. S. Pandit
v •
.State of Bihar
SubbaRao, I.
666 SUPREME COURT REPORTS [1963] SUPP.
I9U
Sub-section (3) of s. 5 is :-
R. S. Pandit
v.
Stale of Brlwr
Subba Rao, J.
"In any trial of an offence punishable under
sub-s
(~). 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 is based solely on such
presumption."
This section does not incorporate a separate
head of offence. It is only a rule of evidence: If
the accused is in possession of pecuniary resources for
which he cannot satisfactorily account, there will be
a presumption unless the contrary is proved that the
accused person is guilty of criminal misconduct; But
this presumption can only apply when there is a
specific charge of criminal
misconduct visualised
under one or the other of clauses (a) to (d) of s. 5.
To illustrate, if there is a charge that an accused has
taken a bribe of Rs. 10,000 from a complainant as a
reward, the prosecution can rely upon the presumption by establishing that the accused was in
possession of pecuniary resources or property disproportionate to his known-sources of income: But
the presumption so raised in the circumstances mentioned in the sub-section can be rebutted by the
accused in two ways, (I) by adducing evidence to
prove that he came into possession of the said
resources in a lawful manner and (2) though he has
failed to explain the circumstances under which he
came intq possession of the said resources, by proving
by other evidence that he did not take any illegal
gratification. The presumption raised under sub-s. (3)
2 S.C.R.
SUPREME COURT REPORTS
667
cannot obviously prevent an accused from proving
his innocence in respect of the specific charge levelled
against him. On this legal position it is contended
that as the charge docs not disclose the amounts he
took as bribes and the persons from whom he had
taken, the appellant was not given an opportunity to
prove his innocence. But in our view this circum·
stance 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
habitually accepted gratification other than legal
remuneration and obtained pecuniary advantage by
corrupt and illegal means.
The charge contains
allegations making out an offence under s. 5 (1) of the
Act.
The charge no doubt should have contained
better particulars so as to enable the appellant to
prove his case but the accused never complained that
the charge did not contain the necessary particulars.
The record discloses that the accused understood the
case against him and adduced all the evidence which
hto 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 missled by such error or omission, and it ~as
occasioned a failure of justice.'
That apart the appellate Court could have set
aside the conviction if the defect in the charge had
occasioned a failure of justice but the appellant did
not raise 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 brilx..'S were taken were mentioned.
Nor such an objection has been taken in the special
''ave petition, nor in the statement of the case. This
1962
R. S. Pandit
y,
Slate of Bi/tar
Suhba Rflo, J.
1962
R. S. Pandit
v.
Stale of Bihru
Subba Rao, /.
1961
December, .f.
668 SUPREME COURT REPORTS [1963) SUPP.
objection is an afterthought and cannot be allowed
to be raised at this stage of the proceedings.
The appeal fails and is dismissed.
PURSHOTTAMDAS THAKURDAS
v.
COMMISSIONER OF INCOME-TAX, .l:IOMBAY
(S. K. DAS, J. L. .KA.PUlt, A. K.
SARKAU,
M. HIDAYATULLAH and RAGHUBAR DAYAL, JJ.)
Income Tax-Advance payment of tax-Dividena income
deducted from total income-If allowable-" lJeductiM of incometax at the time of payment", Mcm1iny of-Company paying
t"" on <livirlend-Paymcnt of dividencl lo sliare-lwlder-IVhetlwr
fa,i.· 1lcduclctl at the ti1nc of z1ayntent-Indian, Income-tax ,,J.ct,
11122 (II of liJ2:!), •s. JU, IS, 11!-A, 19-B.
'l'hc asscsscc .subn1ittcd his e:;timate of inco1uc for advance
paymeut of tax under '· IG-A, in which he did not include his
dividend income. The Income-tax Ofliocr held that under
s. 18-A(2) the assessec was bound to indnde in his estimate,
and to pay advance super· tax, on his dividend income. Since
titat was not done a11d the advance tax paid was Jess than 00%,
of the lax determined on regular assessment, he levied penal
interest under s. 13-A(6) in respect of the supcr·-tax payable on
the dividend income. The assessee contended (i) that the
dividend income was income in respect of which provision \Vas
made under s. 18 for "deduction of income-tax at the time of
payment" and as such s. 18-A was not applicable to it, and (ii)
that since s. 18(5) was applicable to dividend income the penal
provisions of s .. 18-A(6) were not attracted.
llcld, (per Das, Kapur and Hidayatullah, .J.J., S.u'k'il' aud
!Jayal,JJ., ,[i.,-.1<H11g) that •· IC(5) read with ss.
16(~) and
49-B provid•d for the "deduction uf income-tax at the time of
payment" in respect of dividend income and therefore s. 1 a.A
did not app1y to such inco1ne.
A shareholder's right to the
dividend arises upon its declaration.
Under the legal fiction