# SURAJPAL SINGH • v. THE STATE OF UTTAR PRADESH

- **Citation:** [1961] 2 S.C.R. 971
- **Court:** Supreme Court of India
- **Decided:** 1958-03-27
- **Case number:** CRIMINAL APPELLATE JURISDIOTION: Criminal Appeal No. 169 of 1959
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sarkar, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/surajpal-singh-v-the-state-of-uttar-pradesh-1929
- **Pages:** 7

## Headnote

Criminal Misconduct-Acquittal under one category of criminal
misconduct charged-Conviction under another category not charged
-Legality of-Presumption, whether creates an offeme-Prevention
of Corruption Act, z947 (II of z947), s. 5, sub-ss. (I), (z), (3).
The appellant was a Head Constable attached to a malkhana
where articles seized in connection with excise offences were
kept in deposit. The appellant was charged under s. 5(1)(c)
read with s. 5(2), Prevention of Corruption Act, 1947, in that he
had dishonestly or fraudulently misappropriated or otherwise
converted to his use these articles; the charge further stated
that a sum of Rs. 9,284-1-0 was recovered from him which was
disproportionate to his known sources of income. He was acquitted
of the charge under s. 5(1)(c) but was convicted under s. 5(2) on
the ground that he had failed to account satisfactorily for the
possession of Rs. 9,284-1-0 which was disproportionate to his
known sources of income.
Held, that the conviction of the appellant under s. 5(2) of
the Prevention of Corruption Act, 1947, was illegal. The only
charge against the appellant was of criminal misconduct under
s. 5(1)(c) of the Act for dishonestly or fraudulently misappropriating property entrusted to him and of this charge he could
have been convicted by invoking the rule of presumption under
s. 5(3). But since this was not done and he was acquitted of
that charge, he could not be.convicted of criminal misconduct
referred to in els. (a), (b) or (d) of s. 5(1) for which he had not
been charged. The Courts below had proceeded wrongly on the
footing as though sub-s. (2) or sub-s. (3) of s. 5 created .lln
offence; the offence which was punishable under s. 5 (2) or which
could be founded on the rule of presumption under s. 5(3) was
the offence of criminal misconduct of one or more of the categories mentioned in els. (a) to (d) of sub-s. (1) of s. 5.
C. S. D. Swamy v. The State, [1960] I S.C.R. 461, referred to.
CRIMINAL
APPELLATE
JURISDIOTION:
Criminal
Appeal No. 169 of 1959.
Appeal by special leave from the judgment and
order dated March 27, 1958, of the Allahabad High
•
Court in Criminal Appeal No. 785of1955.
December 7.
z960
Surajpal Singh
v.
The State of
Uttar Pradesh
S. K. Das .T·
972
SUPREME COURT REPORTS
[1961)
Nuruddin Ahmad and Naunit Lal, for the appellant.
G. C. Mathur and 0. P. Lal, for the respondent.
1960.
December 7.
The Judgment of the Court
was delivered by
S. K. DAS, J.-This is an appeal by special leave
from the judgment and order of the High Court of
Judicature at Allahabad dated March 27, 1958, whereby the said High Court maintained the conviction of
the appellant under s. 5(2) of the Prevention of
Corruption Act, 1947 (2 of 1947) but reduced the sentence of four years' rigorous imprisonment passed on
the appellant by the Special Judge, Kanpur, to two
years' rigorous imprisonment.
The short facts are these.
The appellant Surajpal
Singh was employed in the Police Department of the
Uttar Pradesh Government. He started his service as
a constable on a salary of Rs. 13 per month from
August 1, 1930. In 1946 his pay was increased to
Rs. 46 per month. He was appointed a Head con-
. stable on a salary of Rs. 50 per month in 1947. He
officiated as a Sub-Inspector of Police sometime in
1948 and 1949 on a salary of Rs. 150 per month. On
March 1, 1949, he was reverted to his post of Head
constable. Between the dates February 27, 1951, and
September 9, 1952, he was posted as a Head constable
attached to the Sadar Malkhana, Kanpur. The charge
against him was that in that capacity he dishonestly or
fraudulently misappropriated or otherwise converted
to his own use many articles, principally those seized
in connection with excise offences kept in deposit in
the said Malkhana. These articles included opium,
bottles of liquor etc. The charge further stated that
a sum of Rs. 9,284-1-0 was recovered on a search of
his house on September 9 and 10, 1952 and this
amount was disproportionate to the known so

## Text

2 S.C.R. SUPREME COURT REPORTS
971
SURAJPAL SINGH
•
v.
THE STATE OF UTTAR PRADESH
(B. P. SINHA, c. J., s. K. DAS, .A. K. SARKAR,
N. RAJAGOPALA AYYANGAR and
J. R. MUDHOLKAR, JJ.)
Criminal Misconduct-Acquittal under one category of criminal
misconduct charged-Conviction under another category not charged
-Legality of-Presumption, whether creates an offeme-Prevention
of Corruption Act, z947 (II of z947), s. 5, sub-ss. (I), (z), (3).
The appellant was a Head Constable attached to a malkhana
where articles seized in connection with excise offences were
kept in deposit. The appellant was charged under s. 5(1)(c)
read with s. 5(2), Prevention of Corruption Act, 1947, in that he
had dishonestly or fraudulently misappropriated or otherwise
converted to his use these articles; the charge further stated
that a sum of Rs. 9,284-1-0 was recovered from him which was
disproportionate to his known sources of income. He was acquitted
of the charge under s. 5(1)(c) but was convicted under s. 5(2) on
the ground that he had failed to account satisfactorily for the
possession of Rs. 9,284-1-0 which was disproportionate to his
known sources of income.
Held, that the conviction of the appellant under s. 5(2) of
the Prevention of Corruption Act, 1947, was illegal. The only
charge against the appellant was of criminal misconduct under
s. 5(1)(c) of the Act for dishonestly or fraudulently misappropriating property entrusted to him and of this charge he could
have been convicted by invoking the rule of presumption under
s. 5(3). But since this was not done and he was acquitted of
that charge, he could not be.convicted of criminal misconduct
referred to in els. (a), (b) or (d) of s. 5(1) for which he had not
been charged. The Courts below had proceeded wrongly on the
footing as though sub-s. (2) or sub-s. (3) of s. 5 created .lln
offence; the offence which was punishable under s. 5 (2) or which
could be founded on the rule of presumption under s. 5(3) was
the offence of criminal misconduct of one or more of the categories mentioned in els. (a) to (d) of sub-s. (1) of s. 5.
C. S. D. Swamy v. The State, [1960] I S.C.R. 461, referred to.
CRIMINAL
APPELLATE
JURISDIOTION:
Criminal
Appeal No. 169 of 1959.
Appeal by special leave from the judgment and
order dated March 27, 1958, of the Allahabad High
•
Court in Criminal Appeal No. 785of1955.
December 7.
z960
Surajpal Singh
v.
The State of
Uttar Pradesh
S. K. Das .T·
972
SUPREME COURT REPORTS
[1961)
Nuruddin Ahmad and Naunit Lal, for the appellant.
G. C. Mathur and 0. P. Lal, for the respondent.
1960.
December 7.
The Judgment of the Court
was delivered by
S. K. DAS, J.-This is an appeal by special leave
from the judgment and order of the High Court of
Judicature at Allahabad dated March 27, 1958, whereby the said High Court maintained the conviction of
the appellant under s. 5(2) of the Prevention of
Corruption Act, 1947 (2 of 1947) but reduced the sentence of four years' rigorous imprisonment passed on
the appellant by the Special Judge, Kanpur, to two
years' rigorous imprisonment.
The short facts are these.
The appellant Surajpal
Singh was employed in the Police Department of the
Uttar Pradesh Government. He started his service as
a constable on a salary of Rs. 13 per month from
August 1, 1930. In 1946 his pay was increased to
Rs. 46 per month. He was appointed a Head con-
. stable on a salary of Rs. 50 per month in 1947. He
officiated as a Sub-Inspector of Police sometime in
1948 and 1949 on a salary of Rs. 150 per month. On
March 1, 1949, he was reverted to his post of Head
constable. Between the dates February 27, 1951, and
September 9, 1952, he was posted as a Head constable
attached to the Sadar Malkhana, Kanpur. The charge
against him was that in that capacity he dishonestly or
fraudulently misappropriated or otherwise converted
to his own use many articles, principally those seized
in connection with excise offences kept in deposit in
the said Malkhana. These articles included opium,
bottles of liquor etc. The charge further stated that
a sum of Rs. 9,284-1-0 was recovered on a search of
his house on September 9 and 10, 1952 and this
amount was disproportionate to the known sources of
income of the appellant. There was an allegation by
the prosecution that the acts of dishonest misappropriation etc. were committed by the appellant in .conspiracy with two other persons called Bhagawat Smgh
and Gulab Singh. Therefore, the charges against the
'
2 S.C.R. SUPREME COURT R.EPORTS
973
-x960
appellant were (1) for the offence of conspiracy under
_
s. 120B of the Indian Penal Code; (2) for the offence surajpal Singh
under s. 5(1Xc) of the Prevention of Corruption Act,
v.
1947, for the acts of dishonest misappropriation or
The State of
user, read with s. 5(2) of the said Act; and (3) for an Uttar Pradesh
offence under s. 465 of the Indian Penal Code in
.
~~D~~
respect Of a particular entry said to have been forged
in the Register of Properties kept in the Sadar
Malkhana.
The learned Special Judge who tried the appellant
Bhagawat Singh and Guiab Singh recorded an order of
acquittal in respect of the latter two persons. As to
the appellant, he was also acquitted of all the charges
except the charge under s. 5(2) of the Prevention of
Corruption Act. On this charge tlie lea.riled Special
Judge recorded an order of conviction, but this was
based on the sole ground that the appellant had failed
to account satisfactorily for the possession of Rs.
9,284-1-0 which, a.cc0rding to the finding of the learned
Special Judge, was disproportionate to the known
sources of income of the appellant. It should be noted
here that the learned Special Judge held the appellant
not guilty of the various acts of dishonest misappropriation or user alleged against him in respect of the
properties kept in the Sadar Malkh~na~
In his appeal to the High Court the appellant urged
various grounds, one of which was that he c<;mld not
be .convicted on the rule of presumption la.id down in
sub-s. (3) of s. 5 of the Prevention of Corruption
Act, 1947, when on the only charge of criminal misconduct alleged under s. 5(l)(c) of the said Act he had
been found not guilty. The High Court repelled this
contention and upheld the conviction of the appellant
but reduced the sentence.
The principal question before us is whether in the
circumstances of this case, the conviction of the appellant on the charge under sub-s. (2) of s. 5 of the Prevention of Corruption Act, 1947, by invoking the· rule
of presumption as laid down .in sub-s. (3) of that section, is correct.
It is convenient to read here s. 5 of the Prevention
ia3
z960
Sutajpal Singh
v.
The State of
Uttar Pradesh
S. K. Das J.
974
SUPREME COURT REPORTS
[1961]
of Corruption Act, 1947, in so far as it is relevant for
our purpose.
"S. 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 olltains or agrees to
accept or attempts to obtain for himself or for any
other person, any valuable thing without consideration or for a consideration which he knows to be
inadequate, from any person whom he knows to have
been, or to be, or to be likely to be concerned in any
proceeding or business transacted or about to be transacted by him, or having any 'connection with the
official functions of himself or of any public servant
to whom he is subordinate, or· from any person whom
he knows to be interested in or related to the person
so concerned, or
(c) if he dishonestly or fraudulently misappropriated 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 bf less than one year.
(2A) ........................................................... .
(3) In any trial of an offence punishable under
sub-section (2) the fa.ct that the accused person or any
'·
•
2 S.C.R. SUPREME COURT REPORTS
975
other person on his behalf is in possession, for which
I960
the accused person cannot satisfactorily account, of 5
·p-l s· ,
•
•
ura; a
ing,.
pecuniary resources or property d1sproport1onate to
v.
his known sources of income may be proved, and on
The State of
such proof the court shall presume, unless the conUttar Pradesh
· trary is proved, that the accused person is guilty of
criminal misconduct in the discharge of his offieial
s. K. Das J.
duty and his conviction therefor shall not be invalid
by reason only that it is based solely on such presumption."
Now, learned Counsel for the appellant has put his
argument on the principal question in the following
way: he has submitted that he is not in a position in
an appeal by special leave to go behind tihe finding of
fa.ct arrived at by the courts below.
Th~ appellant,
it appears, gave some explanation with regard to the
possession of Rs. 9,284-1-0. That explanation was not,
however, accepted by the courts below. Learne"d
Counsel has submitted that he does not wish t~ go
behind that finding of fact. He has submitted, however, that the scheme of s. 5 of the Prevention of
Corruption Act, 1947 is this: sub-s. (1) defines the
offence of criminal misconduct in the discharge· of his
duties by a public servant; the offence can be one or
more of four c~tegories mentioned in els. (a), (b), (c)
and ( d): sub-s. (2) is the penal sectiop. which states the
punishment for the offence of criminal misconduct;
and sub-s. (3) lays down a rule of presumption and
states that no conviction for the offence shall be invalid by reason only that it is based solely on such
presumption. Learned Counsel has pointed out, rightly
in our opinion, that the charge against the appellant
in the present case referred only to criminal misconduct in the discharge of his duty by a public servant
of the nature mentioned in cl. (c) of sub-a. (1). In
other words, the charge against the appellant was
that he had dishonestly or fraudulently misappropriated or otherwise converted for his own use property entrusted to him etc. It was open to.the learned
Special Judge to have convicted the appella~t of that
offence by invoking the rule of presumption laid.down
in sub-s. (3). He did not, however, do so. On the
976
SUPREME COURT REPORTS
[1961)
r96•
contrary, he acquitted the appellant on that charge.
S
·p 1 5 .
h Therefore, learned Counsel has submitted that by
ura; a
sng
11"
·
·d
h
- 1
f
v.
ca mg m a1
t e ru e o presumption laid down in
Th• State of
sub-s. (3), the appellant could not be found guilty of
Utt•• Pradesh any other type of criminal misconduct referred to in
els. (a.), (b) or (d) of sub-s. (1) in respect of which there
5· K. Das f.
was no charge against the appellant.
We consider that the above argument of learned
Counsel for the a. ppellant is correct and must be
accepted. This Court pointed out in C. S. D. Swamy
v. The State(') that sub-s. (3) of s. 5 of the Prevention
of Corruption Act, 194 7 does not create a. new offence
but only lays down a. rule of evidence which empowers
the Court to presume the guilt of the accused in certain circumstances, contrary to the well known principle of Criminal law that the burden of proof is always
on the prosecution and never shifts on to the accused
person. In Swamy's case there were charges for the
offence of criminal misconduct under two heads, cl. (a)
and cl. (d).
The trial court held the aecused person
in that case not guilty of the offence under cl. (a} but
guilty of the offence under cl. (d) by invoking the rule
of presumption laid down in sub-s. (3) of s. 5. The distinction between that case and the case under our
consideration is this: in Swamy's case there were two
charges either of which could be founded on the rule
of presumption laid down in sub-s. (3); but in our case
there is only one charge of criminal misconduct of
which the appellant has been acquitted; therefore,
there is no other charge which can be founded on the
rule of presumption referred to in sub-s. (3). This is
the difficulty with which the respondent is faced in
the present case. It appears to us that the learned
Special Judge and the High Court proceeded wrongly
on the footing as though sub-s; (2) or sub-s. (3) of
s. 5 of the Act creates an offence. The offence which
is punished under sub;s, (2) or can be founded on the
rule of presumption la.id down in sub-s. (3) must be
the offence of criminal misconduct of one or more of
the categories mentioned in els. (a.) io (d) of sub-s. (1).
In the case before us the only category which was
11.lleged against the appellant was that of category (o),
(1) [1¢<>] 1 S.C.R. 461,
•
•
•
•
2 S.C.R. SUPREME COURT REPORTS
977
namely, dishonest or traudulent misappropriation etc.
z96o
That charge having failed; there was no other charge 5 .p;-5 .
,.
which could be founded on the rule of presumption
ura; :.
sng
laid down in sub-a. (3).
The State of
Learned Counsel for the respondent State has conUttar Pradesh
tended before us that it was open to the appellate
Court to affirm the conviction of the appellant under s. K. Das J.
sub-a. (2) of s. 5 by holding him guilty of the offence
of criminal misconduct of the category mentioned in
cl. (a) or cl. (d) of sub-a. (1).
We are unable to accept
this contention as correct. The prosecution never
alleged that the sum of Rs. 9,284-1-0 was the result of
·the appellant habitually accepting or obtaining illegal
gratification etc. The prosecution case was that the
sum of Rs. 9,284-1-0 was the result of the dishonest
user of property which was entrusted with the appellant. It is not open to the appellate Court to affirm
the conviction ·of the appellant on an entirely new
case never suggested against the appellant at any
earlier stage. It is unfortunate that in this case the
courts below did not choose to rely on the rule of presumptitm la.id down in sub-s. (3) with reference to the
charge under cl. (c) of sub-a. (1) of s. 5.
But that misfortune cannot now be repaired by evolving out of a
vacuum as it were a new case against the appellant
based on cl. (a.) or cl. (d) of sub-s. (1) of s. 5 in support
of which no facts were ever alleged or' suggested ..
For the reasons· given above, we allow this appeal
a.nd set aside the conviction and sentence passed
against the appellant.
Appeal allowed .