# STATE OF MAHARASHTRA v. KALIAR KOIL SUBRAHMANIAM RAMASWAMY

- **Citation:** [1978] 1 S.C.R. 274
- **Court:** Supreme Court of India
- **Decided:** 1977-08-08
- **Case number:** Criminal Appeal No. 6 A of 1972
- **Bench:** N. L. Untwalia, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-v-kaliar-koil-subrahmaniam-ramaswamy-7273
- **Pages:** 5

## Headnote

Constitution of India-Article 20(1)-Wherher a person can be convicted
for an act which was not an offence when committed.
Prevention of Corruption ACt 1947-Section 5(1)(e)-Whether, it is .necessary to prove that the pro"perty was acquired after the offence was co1nnzitted.
The respondent/accused \Vas an Inspector in Regional
Transport
Office,
Kolhapur.
Under a search warrant his house was· searched and a lot ot property \vas recovered from his possession.
While the matter
was still . under
investigation, the Prevention of Corruption Act, 1947 was amended by inserting clause (e) in sub-section (1) of s. 5, The spCcial Judge, Kolbapur, on 3rd
April 1969, held the accused guilty of offences u/cJ. (a), (b), (d) and (e) of
sub. s. (1) of s. 5 of Prevention of'Corruption Act 1947 and under s. 161' ancf
165 of IPC and sentenced him to rigorous imprisonment for 3 years and a
fine of Rs. 20,000 /-.
The accused filed an appeal against his conviction and the High Court held
that there was not even one witness who supported the prosecution case under
s. 5(1)(a), (b), (d) of Prevention of Corruption Act, 1947.
The High Court
also held that as there \Vas nothing on the record to show that the accused was
in possession or came into possession of any pecuniary resources or p.rppertv
disproportionate to his known sources of income, after the enactment of Clause
( e) of sub·section ( 1) of s. 5 of the Act by the amending Act of 196;4, his
conviction under that clause was "illegal inasmuch jlS the said clause (e} could
not be interpreted as to apply to the possession of the property and resources
by the appellant before it \Vas enacted." The accused was accordingly acquit~d
by High Crinrt.
The Supreme Court granted speciz.·l leave limited to the queslion \vhether theacquittal of the accused for the offence under s. 5(1)(c) of the
Act
\vac;
justified?
·
Dismissing the appeal.
HELD: (1) aause (e) of sub-section (I) of s. 5 came into existence on
December 18. 1964 by the Amending Act of 1964. It added yet another clause
to the four clauses which constituted the offence of criminal misconduct under
sub·section (1) of s. 5.
The result of the insertion was that mere possession
of pecuniary resources or property disproportionate to be known
sources of
income of a public servant, for \Vhich he coul<l not satisfactorily account, became an offence by itself.
Such a possession was not, however, an offence by
itself until December 18, 1964 although there \Vas a third sub·section of s. 5
before that date which created a rebuttable presumption to Prove offences under
clause (a) to (d) of s. 5(1). (276 F,G. 277A-B]
(2) The Legislature, it appears, thereafter, thought it proper to do away
with the rule of e"vidence provided by sub·sec. (3) of s. 5 and inserted a new
clause (e) in sub-section (1) of s. 5 as one more category of the offence of
criminal mi.c;conduct.
But it cannot be gainsaid that the new offence under
the newly inserted clause (e) became an offence on and from December 18,
1964 by virtue of s. 6 of Amending Act 40 of 1964.
In this view of the
matter, the High Court rightly held that "in the absence of any evidence on
record to show that the appellant acquired or was found to be in PO&~ession of
pecuniary· resources etc.
after the coming into force of the Amendini:t: Ace:.
he was enlitled to the protection of clause ( 1) of Article 20 of the Constitution.
[277D-FJ
\
MAHARASHTRA v. K. K. S. RAMASWAMY (Shinghal, J.)
2 7 5

## Text

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274
STATE OF MAHARASHTRA
v.
KALIAR KOIL SUBRAHMANIAM RAMASWAMY
August 8, 1977
[N. L. UNTWALIA AND P. N. SHINGHAL, JJ .]
Constitution of India-Article 20(1)-Wherher a person can be convicted
for an act which was not an offence when committed.
Prevention of Corruption ACt 1947-Section 5(1)(e)-Whether, it is .necessary to prove that the pro"perty was acquired after the offence was co1nnzitted.
The respondent/accused \Vas an Inspector in Regional
Transport
Office,
Kolhapur.
Under a search warrant his house was· searched and a lot ot property \vas recovered from his possession.
While the matter
was still . under
investigation, the Prevention of Corruption Act, 1947 was amended by inserting clause (e) in sub-section (1) of s. 5, The spCcial Judge, Kolbapur, on 3rd
April 1969, held the accused guilty of offences u/cJ. (a), (b), (d) and (e) of
sub. s. (1) of s. 5 of Prevention of'Corruption Act 1947 and under s. 161' ancf
165 of IPC and sentenced him to rigorous imprisonment for 3 years and a
fine of Rs. 20,000 /-.
The accused filed an appeal against his conviction and the High Court held
that there was not even one witness who supported the prosecution case under
s. 5(1)(a), (b), (d) of Prevention of Corruption Act, 1947.
The High Court
also held that as there \Vas nothing on the record to show that the accused was
in possession or came into possession of any pecuniary resources or p.rppertv
disproportionate to his known sources of income, after the enactment of Clause
( e) of sub·section ( 1) of s. 5 of the Act by the amending Act of 196;4, his
conviction under that clause was "illegal inasmuch jlS the said clause (e} could
not be interpreted as to apply to the possession of the property and resources
by the appellant before it \Vas enacted." The accused was accordingly acquit~d
by High Crinrt.
The Supreme Court granted speciz.·l leave limited to the queslion \vhether theacquittal of the accused for the offence under s. 5(1)(c) of the
Act
\vac;
justified?
·
Dismissing the appeal.
HELD: (1) aause (e) of sub-section (I) of s. 5 came into existence on
December 18. 1964 by the Amending Act of 1964. It added yet another clause
to the four clauses which constituted the offence of criminal misconduct under
sub·section (1) of s. 5.
The result of the insertion was that mere possession
of pecuniary resources or property disproportionate to be known
sources of
income of a public servant, for \Vhich he coul<l not satisfactorily account, became an offence by itself.
Such a possession was not, however, an offence by
itself until December 18, 1964 although there \Vas a third sub·section of s. 5
before that date which created a rebuttable presumption to Prove offences under
clause (a) to (d) of s. 5(1). (276 F,G. 277A-B]
(2) The Legislature, it appears, thereafter, thought it proper to do away
with the rule of e"vidence provided by sub·sec. (3) of s. 5 and inserted a new
clause (e) in sub-section (1) of s. 5 as one more category of the offence of
criminal mi.c;conduct.
But it cannot be gainsaid that the new offence under
the newly inserted clause (e) became an offence on and from December 18,
1964 by virtue of s. 6 of Amending Act 40 of 1964.
In this view of the
matter, the High Court rightly held that "in the absence of any evidence on
record to show that the appellant acquired or was found to be in PO&~ession of
pecuniary· resources etc.
after the coming into force of the Amendini:t: Ace:.
he was enlitled to the protection of clause ( 1) of Article 20 of the Constitution.
[277D-FJ
\
MAHARASHTRA v. K. K. S. RAMASWAMY (Shinghal, J.)
2 7 5
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
6
A
of 1972.
Appeal by Special Leave from the Judgment and Ord;;r
dated
8-10-1971 of the Bombay High Court in Crl. A.No. 1575 of 1969.
M. N. Phadke and M. N. Shroff for the Appe'Jlant.
V. S. Desai, S. B. Wad and (Mrs.) Jayashree Wad for the ResB
pondent.
The Judgment of the Court was delivered by
SHINGHAL J.,-Respondent Kaliar Koil Subramaniam
Ramaswamy, who will hereinafter be referred to as the accused, was working
as Inspector in the Regional Transport Office, Kolhapur.
His house
wa·s searched by Inspector R. K. Shukla (P. W. 164) under a search
warrant issued by a magistrate of the First Class under section
96
of the Code of Criminal Procedure on May 17, 1964, and a lot of
properly was recovered from his possession.
That led to an investigation into the transactions \.vhich \Vere found to have been
made.
by him and the members of his family.
While the matter was
still
under investigation, the Prevention of Corruption Act, 1947, hereinafter refereed to as the Act, was amended by Amending Act
No.
40 of 1964, and the following was inserted a< clause (e) in
subsection(!) of section 5.-
" ( e) if he or any person on his behalf is in possession or
has, at any time during the period of his offioe, been
ln possession, for which the public servant cannot
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satisfactorily account, of pecuniary resources or pro-
,.,.
E
perty disproportionate to his
known
source of inco1nc."
Sub-section (3) of that section was
substituted by a new subsection which does not .. however. directly bear on the case
before
us.
There was a prolonged investigation in th\.?'. case againsl
the
accused and a charge-sheet \Vns presented in the courl
cd' the Special Judge, Kolhapur, 011 Apd 3, 1969, alleging that the accused was
guilty of offences under clauses (a) ,(b) ,(d) and (e) of sub-section
( 1) of section 5 oi the Act read with sub-section (2) of that section,
and sections 161 antl 165 of the Penal Code.
The Special
Judge
framed a cl1arge against the accused for the commission of those offences, to \Vhich the accused pleaded not guilty.
The Special Judge convicted the accused under section 5 (2)
of
the Act as he held that he had committed offences under clauses (a) ,
(b),(dl and (e) of sub-section (!) of section 5 o[ the Act
and
sections 161 and 165 o[ the Penal Code, and sentenced him to
rigorous imprisonment for 3 years and a fine of Rs. 20,000/-.
The
accused filed an appeal against his conviction and the High Court
found that there was "not even one witness who supported the prosecution case under section S(l)(a), (b) and (d) o[ the Prevention
of Corruption Act, 1947." It also held that as
there was
nothing
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276
SUPREME COURT REPORTS
[1978) 1 s.c.Jt.
on the record to show that the accus"d was in possession or came
into possession of any pecuniary resources or property disproportionate
to his known sources of income after the
enactment of clause ( e)
of sub-section ( 1) of section 5 of the Act by the Amending Act of
1964, his prosecution under that clause was "illegal inasmuch as the
said sub-section of section 5 (I) could not be so interpreted as to app'Jy
to the possession of the property and resources by the appellant before it was enacted."
The High Court examined the transactions in
jaggery and sewing machines also, and held further that it could "not
see how the said acts of the appellant constitute offences
either
under Secs. 161 and 165 of the Indian Penal Code or under Section
5(1)-(a),(b) and (d) of the Prevention of Corruption Act, 1947."
It therefore proceeded to examine the question whether the conviction of the accused for the offence under clause ( e.) of sub-section (I)
of section 5 r<md with sub-section (2) of that section cottld be Ufl"
held in tbe face of tbe provisions of Article 20 of the Constitutioo,
while doing so, it made a reference to its judgment in Ramanand Pundlik Kamat v. State(') where, in almos.t similar circumstances, it
had
taken the view that the prosecution was not maintainab'Je under that
article.
In that view of the matter, the High Court allowed the appeal by its judgment dated October 8, 1971, and acquitted the,
accused altogether without examining the voluminous evidence
which
had been led by the prosecution to prove that he was in possession of
pecuniary resources or property disproportionate to his known sources
of income.
The State of Maharashtra felt aggrieved against the judgment of
the High Court and applied for special leave,
Leave was
~ranted
by this Court on January 6, 1972, but it was expressly limited to
the question whether the acquittal of the accused for the offence under
section 5 (l) ( e) of the Act was justified.
His acquittal for
the
offences under clause (a),(b) and (d) of sub-section (l) of section
5 of the Act and sections 161 and 165 of the Penal Code therefore
became final and is not open to challenge before us.
We have reproduced clause ( e) of subcsection (I) of section 5 of
the Act which came into existence on December 18, 1964 by the
Amending Act of 1964. It added yet another clause to the fottr
clauses which constituted the offence of criminal misconduct under sub-section (I) of section 5.
The result of the insertion was
that mere possession of pecuniary resources or property disproportionate to the known sources of income of a public servant, for which
he could not satisfactorily account, became an offence by itself. Such
a possession was not, however, an offence by itself until December
18, 1964 hlthough there was a third sub-section of section 5 befo1e
that date which read as follows,-
"In any trial of an offence punishable under sub-section
(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
(I) Cr. A. No. 1436of1968 decided on 26/27th August, 1971.
MAHARASHTRA V. K. K. S. RAMASWAMY (Shing/ui/, /.)
277
proved, and on such proof the court shall presume, unless
A
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."
·
As is obvious, that sub-section provided an additional mode
of
proving the offence punishable under sub-section. (2) for which the
accused person was on trial, but the mode of proof was necessarily
correlated to clauses (a),(b)(c) and (d) of sub-section (1) of section 5 which stated the circumstances in which a public servant could
be said to commit the offence of criminal misconduct in the discharge
of his duty.
When the matter came up for consideration by
this
Court in Sajjan Singh v. State of Punjab (1), it was thought proper
to construe section 5 (3) in such a way as not to include possession
of pecuniary resources or property acquired before the Act as a new
kind of offence of criminal misconduct for otherwise there would have
been a breach of the fundamental right under Article 20(1)' of the
Constitution.
It was therefore held, with reference to the earlier
decisions in C. S. D. Swamy v. Tlie State(') and Surajpal Singh v.
State of U. P., (") that sub-section (3) of section 5 "merely prescribed' a rule of evidence for the purpose of proving the offence of criminal misconduct as defined in s. ( 5) (I) for which an accused person is
already under trial." It is therefore well settled that sub-section (3)
did not constitute an offence by itself.
It appears that the Legislature thereafter thought it proper
to
do away with the rule of evidence provided by sub-section (3) of
s"ction S and inserted the new
clause ( e) in sub-section (I)
of
section 5 as one more category of the offence of criminal misconduct.
But it cannot be gainsaid that the new offence, under the newly insert-
·ed c'lause (e), became an offence on and from December 18, 1964
by virtue of section 6 of the A.mending Act 40 of 1964.
In this view
of the matter, the High Court rightly held that "in- the absence
of
any evidence on record to show that the appellant acquired or was
found to be in possession of pecuniary resources or property
disproportionate to his known sources of income after the coming into
fore~ or the Amending Act," he was entitled to the protection
of
clause ( I ) of Article 20 of the
Constitution which provides as
fol!0\\,,-
''20(1) No person shall be convicted of auy offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected
lo a penalty greater than that which might have been inflicted under the law in force at the time of the commission of
the offence."
So whm there was no law i11 force at the time when the accused was
found in possession of disproportionate assets by the search
which
was made on May 17, 1964, under which his possession could be
(l) [1964] 4 S.C.R. 630.
12) [1960] I S.C.R. 461.
(J) [1%1] 2 S.C.R. 971.
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SUPREME COURT REPORTS
[1978] 1 S.C.R.
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said to constitute an offence, he was entitled to the protection
of
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c'iause ( 1) of Article 20 and it was not permissible for the trial court
to convict him of an offence under clause (e) of sub-section (1)
of
section 5 as no such clause was in existence at the relevant time. The
accused could liot th"refore be said to have committed an
offence
under clause (e) of sub-section (1) of section 5 read with sub-section
( 2) of that section.
It may be that the act of possession of pecuniary resources
or
property disproportionate to the known sources of income
of
the
accused led to the presumption of commission of an offence
under
clauses (a), (b) or (d) of sub-section (1) of section 5 of the Act,
or any of those clauses, and it was permissible for the prosecution
to take the benefit of sub-section (3) of section 5, as it stood before
its substitution by Amending Act No. 40 of 1964 for the purpose of
establishing his guilt with reference to one or the other of those clauses,
but as the accused has been acquitted of the offences under elaus~
(a), b) aud (d) read with sub-section (2), and his acquittal
for
those offences, and !or the offences under section 161 and 165
of
the Penal Code, has become final in view of the limited leave of appeal referred to above, it is not permissible for counsel for the appellant
State to contend that the protection of Article 20( 1) of the Constitution .
should not have been given merely because what was once a rule of
evidence in the form of the earlier sub-section (3) of section 5 was
amended by the Legislature and a distinct offence was provided
by
the insertion of clause ( e).
This has to be so because the fact remains that the newly added offence under clause (e) was not
in
existence at the time when the accused was found to be in possession,
for himself or any person on his behalf, of pecuniary resources
or
property disproportionate to his known sources of income.
There is thus nothing wrong with the view of the High Court that
the accused was entitled to the protection of Article 20 ( 1) of
the
Constitution imd the appeal i8 dismissed.
P.H.P.
Appeal dismis.ed.
\ ).