Biswabhusan Naik vs The State Of Orissa

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 33 of 1952

Decision Date: 7 April 1954

Coram: Vivian Bose, Mehar Chand Mahajan, Ghulam Hasan

Biswabhusan Naik filed a petition against the State of Orissa that was heard by the Supreme Court of India on 7 April 1954. The judgment was delivered by a bench consisting of Justice Vivian Bose, Justice Mehar Chand Mahajan and Justice Ghulam Hasan. The petitioner is identified as Biswabhusan Naik and the respondent as the State of Orissa. The case is reported in the official law reports as 1954 AIR 359 and 1955 SCR 92. Subsequent citations of the decision appear in 1955 SC 41 (11), 1959 SC 707 (5), 1961 SC 1381 (10) and 1977 SC 786 (9, 12, 14). The judgment concerns the Prevention of Corruption Act, 1947 (Act II of 1947), specifically sections 5(1)(2), 5(1)(3) and section 6. The central question before the Court was whether a sanction issued under section 6 of the Act needed to be in any particular form, whether the charge or sanction required detailed particulars, and what legal effect, if any, arose from the absence of such particulars. The appeal was filed as Criminal Appeal No. 33 of 1952, under Article 134(1)(c), challenging the judgment and order dated 19 February 1952.

The Court held that a sanction for an offence punishable under section 5(2) of the Prevention of Corruption Act does not have to be in any specific form, nor is it necessary that it be in writing or set out the factual basis for which the sanction is given. Although it is desirable that the sanction state the relevant facts on its face, the omission of such facts is not fatal provided that the facts can be proved by other means. In the present case, the sanction was confined to section 5(2) and, under the circumstances, could relate only to clause (a) of sub‑section (1) of section 5; therefore, the failure to mention clause (a) in the sanction did not invalidate it. Regarding section 5(3), the prosecution need only demonstrate that the accused, or a person on his behalf, possessed pecuniary resources or property disproportionate to his known sources of income and that the accused could not satisfactorily account for them. Once this is established, the Court must presume, unless the contrary is proved, that the accused is guilty of the offence of criminal misconduct in the discharge of official duty created by section 5. The Court further observed that there was no illegality in either the sanction or the charge on the ground that no particulars were given, because the offence under section 5(1)(a) is of a general character and does not require depiction of individual acts of bribery as in section 161 of the Indian Penal Code. The decision referred to the earlier case of Gokulchand Dwarkadas Morarka v. The King (AIR 1948 PC 82) for support.

In the criminal appeal numbered 66 of 1950 before the High Court of Orissa at Cuttack, the matter arose from the judgment and order dated 19 September 1950 delivered by the Additional Sessions Judge of Cuttack‑Dhenkanal in Sessions Trial No 9‑C of 1950. The appellant was represented by counsel Nur‑ud‑Din Ahmed, R. Patnaik and R. C. Prasad, while the respondent was represented by counsel R. Ganapathy Iyer. The judgment of the High Court was delivered on 7 April 1954 by Justice Bose. The appellant had been employed as an Inspector of Factories in the Government of Orissa, and his official duties required him to inspect factories and mills throughout the State. He conducted inspections in the districts of Koraput from 18 August 1948 to 27 August 1948, and in Balasore from 29 September 1948 to 30 October 1948. The prosecution alleged that during these inspections he extorted bribes from individuals connected with several mills, threatening to close the mills or impose penalties for alleged defects unless the bribes were paid. On 3 October 1948 the appellant was staying at the Dak Bungalow in Basta, Balasore, when information was received leading to a search of his person and belongings. The search uncovered a sum of Rs 3,148, comprising Rs 450 that was paid to him at the time as a trap and Rs 2,698 that was already in his possession. He was arrested at that time, subsequently released on bail, and departmental as well as other proceedings were instituted against him. The criminal trial commenced on 29 March 1950, where he was charged under section 5(2) of the Prevention of Corruption Act (II of 1947) for habitually accepting illegal gratification. He faced separate charges under section 161 of the Indian Penal Code for three specific instances of taking bribes, but he was acquitted on those three counts, leaving only the conviction under section 5(2). The trial court sentenced him to rigorous imprisonment for four years and imposed a fine of Rs 5,000. On appeal, the High Court upheld the conviction but reduced the term of imprisonment to two years and the fine to Rs 3,000.

Following the High Court’s decision, the appellant applied for a certificate to appeal to the Supreme Court under article 134(1)(c) of the Constitution, raising three points of law. The High Court held that two of the points did not possess sufficient importance to merit the issuance of a certificate, particularly because one of those points was already covered by a principle previously laid down by this Court. Nevertheless, the High Court granted leave on all three points, deeming the first point to be of sufficient importance. The points formulated by the appellant were: (i) whether the view of this Court on the requirement of sanction in cases of this nature and the interpretation of the decision in Morarka’s case reported in A.I.R. 1948 P.C. p. 82, as adopted by this Court, are correct; (ii) whether the interpretation of this Court regarding the requirements for corroboration of an accomplice witness in a bribery case, with reference to the latest unreported Supreme Court case later reported in 1952 S.C.J. p. 46, is correct; and (iii) whether the law as propounded by the decision now sought to be appealed, concerning the considerations applicable to the presumptions under section 5(3) of the Prevention of Corruption Act, is correct.

The Court considered three questions that the accused had raised in his application for a certificate of appeal under article 134(1)(c). The first question concerned whether the Court’s earlier view on the requirement of sanction in cases of this kind and the interpretation of the Morarka decision reported in A.I.R. 1948 P.C. p. 82 were correct. The second question asked whether the Court’s interpretation of the law relating to the corroboration of an accomplice witness in a bribery case, as drawn from a recent unreported Supreme Court decision later reported in 1952 S.C.J. p. 46, was correct. The third question queried whether the legalprinciple advanced by the decision now sought to be appealed, with regard to the presumption under section 5(3) of the Prevention of Corruption Act, was correct.

The first question was examined by referring to the four categories of criminal misconduct enumerated in section 5 of the Prevention of Corruption Act. These categories appear in clauses (a), (b), (c) and (d) of sub‑section (1). The sanction that had been issued was described as general and did not specify which particular offence among the four was intended. The sanction took the following form: “Government of Orissa. Commerce and Labour Department. Order No. 4561/Com., dated 3‑11‑1948. In pursuance of section 6 of the Prevention of Corruption Act, 1947 (II of 1947), the Governor of Orissa is hereby pleased to accord sanction for prosecution of Sri B. B. Nayak, Inspector of Factories, Orissa, employed in connection with the affairs of the Province under sub‑section (2) of section 5 of the said Act. 2. Nature of offence committed: Criminal misconduct in discharge of official duty. By order of the governor, Sd./‑V. Ramanathan, Secretary to Government.”

The accused contended that the Privy Council in Gokutchand Dwarkadas Morarka v. The King had held such a sanction to be invalid. The High Court rejected that contention, and the present Court agreed with the High Court. The Court quoted the relevant passage of the Privy Council judgment: “In their Lordships’ view, in order to comply with the provisions of clause 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 facts should be referred to on the face of the sanction but this is not essential since clause 23 does not require the sanction to be in a particular form nor even to be in writing. But if the facts constituting the offence charged are not known on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority.”

The Court observed that the judgment of the Judicial Committee concerned clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, yet the principles articulated therein were applicable to the present situation. Accordingly, the Court held that the sanction under the Prevention of Corruption Act need not be in any particular form, need not be in writing, and need not set out the facts on which it is based, just as clause 23 did not impose such a requirement. The Court noted that while it is desirable for a sanction to specify the relevant facts, the absence of such specification is not fatal, provided that the prosecution can prove, by other evidence, that the sanction was issued in reference to the facts constituting the offence charged, as indicated in A.I.R. 1948 P.C. 82.

It was held that the failure to set out the factual basis of the sanction within the sanction document itself would not make the sanction invalid, provided that the same facts could be proved by some other means. The High Court observed that the material facts to which the sanction referred had indeed been properly placed before the appropriate sanctioning authority. Consequently, the Court decided that it was unnecessary to examine the evidence relating to telephone calls or other communications, because the letter submitted by the District Magistrate requesting sanction, identified as Exhibit 26, sufficiently disclosed the factual foundation of the sanction. The letter was quoted in full and read as follows: “I have the honour to report that Sri B.B. Nayak, Inspector of Factories, Orissa, in the course of his visit to this district had been – visiting certain mills, and on information received by me that he had been collecting heavy sums as illegal gratification from the Manager or Proprietor of Mills under threat of mischief to the mill owners, it was arranged to verify the truth of this information by handing over three hundred rupee notes marked with my initials in the presence of the Superintendent of Police and two other respectable gentlemen and mill‑owners, on the evening of the 2nd October, 1948. On the 3rd October the Factory Inspector, having actually received the illegal gratification of Rs 45o, which sum included the three marked hundred‑rupee notes, the Prosecuting Inspector seized the marked notes along with a further heavy sum of Rs 2,698 from his possession. Under section 6 of the Prevention of Corruption Act, 1947, the accused being a public servant in the employ of the Provincial Government, the sanction of the Provincial Government is necessary prior to taking cognisance of an offence under section 161, Indian Penal Code or subsection (2) of section 5 of the Act.”

The Court explained that a sanction grounded on the facts narrated in the above letter – namely the information concerning the collection of large sums as bribes and the discovery of Rs 2,698 in the accused’s possession – would be adequate to support the present prosecution. The Court found that, when read together with the other evidence, the facts presented to the Government could only pertain to offences punishable under section 161 of the Indian Penal Code and to clause (a) of section 5(1) of the Prevention of Corruption Act. The Court noted that the facts could not be linked to clauses (b) or (c) of that provision. Accordingly, because the sanction had been confined to section 5(2), it could, under the circumstances, be said to relate only to clause (a) of sub‑section (1) of section 5. The Court therefore concluded that the omission of any reference to clause (a) in the language of the sanction did not render the sanction void. The prosecution, as framed, was limited to section 5(1)(a), which is worded as follows: “(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Indian Penal Code.”

Sub‑section (3) of the provisions introduces a distinct evidential rule. It provides that in any trial for an offence punishable under sub‑section (2), the prosecution may prove that the accused, or any person acting on his behalf, possesses pecuniary resources or property that is disproportionate to his known sources of income and that the accused cannot satisfactorily account for such possession. When such proof is established, the Court is required to presume, unless the contrary is proved, that the accused is guilty of criminal misconduct in the discharge of his official duty. The provision further states that a conviction based solely on this presumption shall not be invalidated on that ground. Consequently, the prosecution’s task is limited to demonstrating the existence of disproportionate assets or cash in the accused’s possession and the accused’s inability to provide a satisfactory explanation. Upon fulfillment of this requirement, the Court must draw the statutory presumption of guilt concerning the newly created offence of criminal misconduct under section 5, unless the defence successfully rebuts the presumption.

In the present case the accused was found in possession of Rs 3,148. He was able to account for Rs 450 of that amount by showing that it had been paid to him at the time as a trap, and he was acquitted of that related offence. The remaining balance of Rs 2,698 therefore remained unexplained. For a touring officer to carry such a large sum in cash while on tour was considered unreasonable, and his explanation was judged unsatisfactory. The accused, a Government Factory Inspector, received a salary of Rs 450 per month. The High Court recorded that during his thirteen months of service he drew a total salary of Rs 6,045 and a travelling allowance of Rs 2,155, and that he owned 0.648 acre of land which generated no income. The Court also noted that the accused maintained a substantial family establishment, leaving little scope for saving a large amount, and that no additional source of income was disclosed. Given these facts and the rejection of the accused’s explanation, the situation fell squarely within the ambit of section 5(3), obliging the Court to apply the statutory presumption of guilt.

In this case the Court observed that the language of the provision uses the word “shall” rather than “may,” which obligates the Court to presume that the accused is guilty under section 5(2). The provision further provides that a conviction based solely on such a presumption shall not be invalidated. Accordingly, the facts established by the High Court – namely the unusually large sums drawn by the accused, the lack of any other source of income, and the unsatisfactory explanation offered – are sufficient to sustain the conviction without the need to examine any additional matters. The Court therefore affirmed that the High Court was correct in finding that the sanction was adequate and in upholding the conviction of the accused.

The Court then turned to the third observation recorded in the High Court’s certificate, which concerned the alleged lack of particulars in the charge and, as argued, in the sanction. The Court explained that no detailed particulars are required in a charge of this nature because the offence under section 5(1)(a) is not constituted by discrete acts of taking a bribe as defined in section 161 of the Indian Penal Code. Instead, the offence is of a general character, and while specific instances may help to prove the general allegation in a particular case, they are not a prerequisite. This is because section 5(3) mandates the Court to draw a presumption of guilt based on the circumstances proved. Consequently, there was no illegality in either the sanction or the charge, and the accused suffered no prejudice, having been fully aware of the allegations and having been given an opportunity to refute the facts relied upon by the prosecution.

The Court also noted that the accused had been examined under section 342 of the Criminal Procedure Code, where he was again afforded the chance to explain the material facts. Having considered all these aspects, the Court concluded that the appeal could not succeed and consequently dismissed the appeal.