Din Dayal Sharma vs The State Of Uttar Pradesh

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

Court: supreme-court

Case Number: Criminal Appeal No. 95 of 1957

Decision Date: 23 April 1959

Coram: Syed Jaffer Imam, J.L. Kapur

In this matter, Din Dayal Sharma appealed against a conviction imposed by an Assistant Sessions Judge. The appeal concerned offences under section 5(2) of the Prevention of Corruption Act, 1947 and section 161 of the Indian Penal Code. The appellant had originally been committed to the Court of Session for trial of those offences. Shortly after the commitment, the Criminal Law (Amendment) Act, 1952 came into force. Under that amendment, the appellant was tried before an Assistant Sessions Judge, who found him guilty and sentenced him to one year of rigorous imprisonment on each count, the sentences to run concurrently. The appellant contended that the trial was legally defective for two reasons. First, he argued that the investigation had been conducted by a police officer who was junior to the rank of Deputy Superintendent of Police, which he claimed violated the provisions of the Prevention of Corruption Act. Second, he maintained that the Assistant Sessions Judge lacked jurisdiction to try the case because the amendment transferred such cases to a Special Judge. The Court examined section 10 of the Criminal Law (Amendment) Act, 1952 and held that the transfer provision applied only to cases pending before magistrates at the time the amendment became effective; it did not affect cases that had already been committed to the Court of Session. Accordingly, the Assistant Sessions Judge retained jurisdiction to try the matter, a conclusion supported by the earlier authority in Asgarali Nazarali Singaporewalla v. The State, reported in 1957 S.C.R. 678. With respect to the investigation, the Court found that the conviction was not vitiated by the fact that a lower-rank officer had carried out the inquiry. The Court observed that, had this objection been raised at an earlier stage, the appropriate remedy would have been to order fresh investigations to cure the irregularity. However, the appellant did not raise the question of the investigating officer’s rank before the lower courts, and therefore could not be permitted to introduce it for the first time at this appellate stage. The Court relied on the principle expressed in H.N. Rishbud v. The State of Delhi, 1955 S.C.R. 250, to affirm that procedural objections must be raised at the earliest opportunity.

The appeal was entertained under criminal appellate jurisdiction as Criminal Appeal No. 95 of 1957, filed by special leave from the judgment and order dated 16 December 1955 of the Allahabad High Court in Criminal Revision No. 1403 of 1953. That revision itself arose from the judgment and order dated 6 August 1953 of the Court of the Additional Sessions Judge at Meerut in Criminal Appeal No. 225 of 1953. Counsel for the appellant appeared on the appellant’s side, while counsel for the respondent represented the State of Uttar Pradesh. The Bench comprised Justice Syed Jaffer Imam and Justice J.L. Kapur. The judgment was delivered by Justice Imam, who set out the findings on jurisdiction, the applicability of the amendment act, and the propriety of the investigation, and consequently dismissed the appellant’s contentions, thereby upholding the conviction and the sentence imposed by the Assistant Sessions Judge.

In this case, the appellant had been found guilty of two offences. The conviction was under section 5(2) of the Prevention of Corruption Act and also under section 161 of the Indian Penal Code. For each of those convictions the court imposed a term of rigorous imprisonment of one year, and the two sentences were ordered to run at the same time. The factual findings of the trial courts recorded that the appellant, who was then working as a clerk in the District Relief and Rehabilitation Office at Meerut, had taken a sum of twenty rupees from a person identified as Malekchand. Malekchand had approached the authorities seeking the allotment of a house, and the appellant accepted the twenty rupees as an illegal gratification, i.e., a bribe, with the intention of ensuring that a house would be allotted to Malekchand. On the basis of those findings, the court affirmed that the appellant was guilty of both the offence under section 5(2) of the Prevention of Corruption Act and the offence under section 161 of the Indian Penal Code. The appellant raised a preliminary objection that the investigation had been conducted by a police officer who was junior to the rank of Deputy Superintendent of Police, and that such a conduct violated the procedural requirements of the Prevention of Corruption Act. The appellant argued that because the investigation was therefore unlawful, the conviction should be set aside. This objection was presented before the Additional Sessions Judge who was hearing the appellant’s appeal against the conviction. The Additional Sessions Judge referred to a decision of the Calcutta High Court that appeared to support the appellant’s submission, but he also noted a decision of the Allahabad High Court that took the opposite view. As a judge bound by precedent, he chose to follow the Allahabad High Court decision. The judgment of this Court in H. N. Rishbud and Inder Singh v. The State of Delhi (1) was also examined. That judgment did not endorse the argument advanced by counsel for the appellant. However, the Court’s earlier decision was quoted, particularly a passage on page 1164, which stated that when a breach of a mandatory provision is brought to the court’s attention at a sufficiently early stage, the court, without declining jurisdiction, must take appropriate steps to cure the illegality and rectify the defect, possibly by ordering a fresh investigation as the circumstances require. The present record does not show that the trial court’s attention was drawn at an early stage to any breach of the Prevention of Corruption Act. There had been an inquiry before the appellant was committed to the Sessions Court, and during those pre-commitment proceedings no objection was raised that the investigation had been carried out by an officer below the rank of Deputy Superintendent of Police in violation of the Act. The Supreme Court delivered its decision on 14 December 1954, and the judgment of the Allahabad High Court in this matter was rendered on 16 December 1955. No submission was made before the High Court pointing out that the investigation had been conducted by an officer of insufficient rank.

It was argued that the investigation had been carried out by a police officer whose rank was below that of Deputy Superintendent of Police, thereby violating the provisions of the Prevention of Corruption Act. The Court observed that an objection to this defect could have been raised only if the appellant was prepared to demonstrate before the High Court that the objection had been made at a sufficiently early stage and that, in view of the earlier decision of this Court, the trial court should not have proceeded with the trial without first remedying the defect. The earlier decision, however, makes clear that a conviction is not automatically invalid merely because the investigation was not conducted in strict compliance with the Act. Whether the objection was raised early enough is a factual issue that should have been submitted to the High Court, especially since the cited decision of this Court was delivered about a year before the present proceedings. Because this point was not raised before the High Court, the Court held that it could not be introduced at this later stage.

The next contention was that the Assistant Sessions Judge who tried the case lacked jurisdiction, on the ground that the offence was triable only by a Special Judge. The Court explained that the case had been committed to the Court of Sessions before the Criminal Law (Amendment) Act, 1952, came into force. Section 10 of that Act transferred all cases pending before a magistrate to a Special Judge, but it did not contemplate the transfer of cases already pending in the Court of Sessions at the commencement of the Act. Referring to the authority in Asgarali Nazarali Singaporewalla v. State, the Court noted that “The cases which were pending before the courts of sessions did not require to be so transferred because they would be tried by the procedure obtaining in the courts of sessions and nothing further required to be done.” Accordingly, the Court concluded that the Assistant Sessions Judge possessed the jurisdiction to try the case because it remained pending in the Court of Sessions when the amendment became effective. The third issue raised concerned whether the lower courts had correctly understood the nature, extent, and quantum of proof required to invoke the presumption under section 4 of the Prevention of Corruption Act. The Court found that the High Court’s judgment did not indicate that any presumption under section 4 had been applied against the appellant. To illustrate this, the Court quoted the High Court’s own finding: “It was next contended that the evidence on the record does not satisfactorily prove that the sum of Rs.20 was received by the applicant as illegal gratification. The finding on this point is a …”

In this case, the Court examined the judgments of both the lower courts and found no satisfactory reason to depart from their concurrent finding of fact regarding the alleged payment. The prosecution presented ample evidence that Malekchand handed a sum of Rs 20 to the applicant at his request in order to secure the allotment of a house. Conversely, the Court saw no reasonable explanation for Malekchand to have given Rs 20 to the applicant for the purpose of procuring wheat for him. Consequently, the Court concluded that no presumption under section four of the Prevention of Corruption Act could be raised against the appellant. The appellant's defence that he received the Rs 20 from Malekchand to purchase wheat was rejected, and Malekchand's testimony that the money was intended to obtain a house allotment was accepted. The Court found that the point raised by the appellant lacked any substantive foundation and therefore could not affect the finding of guilt. The matter of sentencing was then considered, with the Court noting that the alleged incident occurred in 1951 and that the appellant had been out on bail. Although the Court acknowledged the appellant's present bail status, it held that a one-year term of imprisonment for corruption by a public servant was not unduly severe. The Court also observed that the passage of time since the alleged offence did not justify any mitigation of the punishment. Accordingly, the appeal was dismissed, and the order of conviction together with the sentence of one year imprisonment was affirmed by the Court.