Surajpal Singh vs The State Of Uttar Pradesh

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 169 of 1959

Decision Date: 7 December 1960

Coram: S.K. Das, Bhuvneshwar P. Sinha, A.K. Sarkar, N. Rajagopala Ayyangar, J.R. Mudholkar

In the matter of Surajpal Singh versus the State of Uttar Pradesh decided on 7 December 1960, the Supreme Court of India delivered its judgment under the authorship of Justice S K Das, with the bench comprising Justice Bhuvneshwar P Sinha, Justice A K Sarkar, Justice N Rajagopala Ayyangar and Justice J R Mudholkar. The petitioner, Surajpal Singh, challenged the conviction imposed by the State of Uttar Pradesh, and the case was reported in the 1961 All India Reporter at page 583 and in the Supreme Court Reporter (Second Series) at page 971, with subsequent citations recorded in various reports. The principal issue before the Court concerned the legality of sustaining a conviction under one provision of the Prevention of Corruption Act, 1947 after the accused had been acquitted of another provision that formed the basis of the alleged misconduct, and whether the statutory presumption created by the Act could, on its own, constitute an offence. The factual background, as outlined in the headnote, described the appellant as a Head Constable attached to a malkhana where seized articles related to excise offences were stored. He was charged under section 5(1)(c) read with section 5(2) of the Prevention of Corruption Act, 1947 on the allegation that he dishonestly or fraudulently misappropriated or otherwise converted to his own use the seized articles, and that a sum of Rs 9,284‑1‑0 recovered from him was disproportionate to his known sources of income. While he was acquitted of the charge under section 5(1)(c), the trial court convicted him under section 5(2) on the ground that he had failed to satisfactorily account for possession of the said sum, which was deemed disproportionate. The Court held that the conviction under section 5(2) was illegal because the only charge originally framed against the appellant was the misconduct under section 5(1)(c). The presumption under section 5(3) could have been employed to sustain a conviction for that specific charge, but the acquittal on that charge precluded any conviction under the other categories listed in clauses (a), (b) or (d) of section 5(1) for which no charge had been framed. The Court observed that the lower courts erred in treating sub‑section (2) or sub‑section (3) of section 5 as creating a separate offence; rather, any offence punishable under sub‑section (2) or founded on the presumption of sub‑section (3) must be one of the categories enumerated in sub‑section (1). The Court referred to the decision in C S D Swamy v. The State, reported in 1960 at page 461 of the Supreme Court Reporter, for similar principles. The judgment arose from Criminal Appeal No. 169 of 1959, which was taken on special leave from the Allahabad High Court’s order dated 27 March 1958, wherein the High Court had affirmed the conviction under section 5(2) but reduced the sentence from four years’ rigorous imprisonment to two years’. Counsel for the appellant, identified in the record as legal representatives, and counsel for the respondent, also identified as legal representatives, appeared before the Court.

On 7 December 1960, Justice S K DAS delivered the judgment in an appeal by special leave from the order of the Allahabad High Court dated 27 March 1958. The High Court had affirmed the conviction of the appellant under section 5(2) of the Prevention of Corruption Act, 1947, but it had reduced the sentence originally imposed by the Special Judge of Kanpur from four years’ rigorous imprisonment to two years’ rigorous imprisonment. The facts relevant to the appeal are as follows. The appellant, Surajpal Singh, was a member of the Uttar Pradesh Government Police. He entered the police service as a constable on 1 August 1930 with a monthly salary of thirteen rupees. In 1946 his salary was raised to forty‑six rupees per month. The following year he was promoted to head constable with a salary of fifty rupees per month. During 1948 and 1949 he acted as a sub‑inspector of police and drew a salary of one hundred and fifty rupees per month. On 1 March 1949 he was reverted to the rank of head constable. From 27 February 1951 until 9 September 1952 he served as a head constable attached to the Sadar Malkhana in Kanpur. The prosecution alleged that, while holding that post, he dishonestly or fraudulently misappropriated or otherwise converted to his own use a number of articles that had been seized in connection with excise offences and were kept in deposit in the Malkhana. The items alleged to have been misappropriated included opium, bottles of liquor and similar goods. The charge also stated that a sum of nine thousand two hundred eighty‑four rupees and one anna was discovered during searches of his residence on 9 and 10 September 1952, and that the amount was disproportionate to his known sources of income. The prosecution further contended that the alleged dishonest acts were committed in conspiracy with two other individuals, identified as Bhagawat Singh and Gulab Singh. Consequently, three charges were framed against the appellant: (1) conspiracy under section 120B of the Indian Penal Code; (2) an offence under section 5(1)(c) of the Prevention of Corruption Act, 1947, for dishonest misappropriation or use, read with section 5(2) of the same Act; and (3) an offence under section 465 of the Indian Penal Code for allegedly forging a specific entry in the Register of Properties maintained in the Sadar Malkhana. The Special Judge who tried the case acquitted Bhagawat Singh and Gulab Singh of all counts. The appellant was also acquitted of the conspiracy charge and the forgery charge, but the Special Judge convicted him on the sole remaining charge under section 5(2) of the Prevention of Corruption Act. The conviction was based exclusively on the finding that the appellant had failed to provide a satisfactory explanation for his possession of the sum of nine thousand two hundred eighty‑four rupees and one anna, which the Special Judge considered disproportionate to his legitimate income.

In this case, the Court observed that the finding of the learned Special Judge that the appellant possessed Rs 9,284‑1‑0, an amount described as disproportionate to the appellant’s known sources of income, formed the basis of the conviction on the charge under sub‑section (2) of section 5 of the Prevention of Corruption Act, 1947. The Court noted that the learned Special Judge had earlier held the appellant not guilty of the various acts of dishonest misappropriation or conversion alleged against him in connection with the properties kept in the Sadar Malkhana. The appellant, in his appeal to the High Court, raised several grounds, one of which contended that a conviction could not be sustained on the presumption prescribed in sub‑section (3) of section 5 of the Prevention of Corruption Act, 1947, when the appellant had been found not guilty of the only charge of criminal misconduct alleged under sub‑section (1)(c) of the same Act. The High Court rejected this contention, upheld the conviction, and merely reduced the sentence. The principal question before the Supreme Court, therefore, was whether, given the circumstances of the present case, the conviction of the appellant on the charge under sub‑section (2) of section 5 of the Prevention of Corruption Act, 1947, by relying on the presumption laid down in sub‑section (3) of that section, was legally justified. For convenience, the Court reproduced the relevant portion of section 5 of the Prevention of Corruption Act, 1947, as follows: “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 obtains 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 of less than one year.”

In the statutory provision, sub‑section (3) provides that during a trial for an offence punishable under sub‑section (2), the fact that the accused, or a person acting on his behalf, is in possession of financial resources or property that cannot be satisfactorily explained and that is disproportionate to his known sources of income may be established as evidence. Upon such proof, the court shall presume, unless the contrary is shown, that the accused is guilty of criminal misconduct in the discharge of his official duty, and a conviction based solely on that presumption shall not be invalidated.

Counsel for the appellant raised the principal issue by stating that an appeal by special leave does not permit the Court to go behind the factual findings of the lower courts. The appellant had offered an explanation for possessing Rs 9,284‑1‑0, but this explanation was rejected by the trial court, and counsel indicated that he does not intend to challenge that factual determination. Instead, the argument focused on the scheme of section 5 of the Prevention of Corruption Act, 1947. Sub‑section (1) defines the offence of criminal misconduct by a public servant and enumerates four categories labeled (a) through (d). Sub‑section (2) prescribes the punishment for the offence, while sub‑section (3) establishes a rule of presumption and provides that a conviction shall not be set aside merely because it relies on that presumption.

Counsel correctly observed that the charge against the appellant pertained only to category (c) of sub‑section (1), which concerns a public servant who dishonestly or fraudulently misappropriates or otherwise converts property entrusted to him for personal use. The Special Judge had the authority to convict the appellant under that charge by invoking the presumption in sub‑section (3), but the judge chose to acquit him on that count. Consequently, counsel argued that invoking the presumption under sub‑section (3) could not be used to find the appellant guilty of any other category—namely (a), (b) or (d)—for which no charge was framed. The Court agreed with this reasoning and accepted counsel’s submission, noting the earlier decision in C S D Swamy.

In this case the State contended that sub‑section (3) of section 5 of the Prevention of Corruption Act, 1947 does not create a new offence but merely sets out a rule of evidence which authorises a court to presume the guilt of the accused in certain circumstances, a position that runs contrary to the well‑known criminal‑law principle that the burden of proof always remains on the prosecution and never shifts onto the accused. The State referred to the decision in C. S. D. Swamy’s case where the accused faced two separate charges of criminal misconduct, one under clause (a) and the other under clause (d). In that case the trial court acquitted the accused of the offence under clause (a) but convicted him of the offence under clause (d) by relying on the presumption rule contained in sub‑section (3) of section 5. The Court distinguished that precedent from the present matter on the ground that, unlike Swamy’s case where two distinct charges could each be supported by the presumption rule, the present case involves only a single charge of criminal misconduct – the charge under clause (c) – from which the appellant has already been acquitted; consequently there is no other charge upon which the presumption rule of sub‑section (3) could be invoked. The Court observed that this limitation creates the difficulty presently faced by the respondent. It further held that the learned Special Judge and the High Court erred in proceeding as if sub‑section (2) or sub‑section (3) of section 5 created a substantive offence. The offence punishable under sub‑section (2) or liable to be established by the presumption rule of sub‑section (3) must be a form of criminal misconduct falling within one of the categories set out in clauses (a) to (d) of sub‑section (1). In the present proceedings the only category alleged against the appellant was clause (c) – dishonest or fraudulent misappropriation of property entrusted to him – a charge that failed, as reported in [1960] 1 S.C.R. 461. Because that charge was not proved, no other charge could be supported by the presumption rule. The State’s counsel argued that the appellate court could affirm the conviction under sub‑section (2) of section 5 by treating the appellant as guilty of misconduct under clause (a) or clause (d). The Court could not accept this argument. The prosecution had never alleged that the amount of Rs 9,284‑1‑0 represented habitually accepted or obtained illegal gratification; rather, the prosecution case was that the sum resulted from dishonest use of property entrusted to the appellant. It is therefore not permissible for the appellate court to uphold a conviction on an entirely new allegation that was never raised at any previous stage. The Court found this situation regrettable.

In this case the trial courts chose not to apply the rule of presumption that is set out in subsection (3) of section 5 in relation to the offence that had been framed under clause (c) of subsection (1) of the same section. Because they declined to rely on that statutory presumption, the prosecution’s case remained based only on the allegations that had been expressly made against the appellant. The Court observed that this failure cannot be remedied by inventing a new basis for conviction after the fact. In other words, the appellate authority cannot create a fresh charge under either clause (a) or clause (d) of subsection (1) of section 5 when the material facts necessary to sustain such a charge were never pleaded, alleged, or suggested at any earlier stage of the proceedings. To do so would amount to forming a new case out of a vacuum, which the law does not permit. Accordingly, after considering the reasons detailed above, the Court allowed the appeal, set aside the appellant’s conviction, and also vacated the sentence that had been imposed. The appellate decision therefore erased the earlier finding of guilt and the accompanying punishment, and the appeal was dismissed as successful.