R.S. Pandit vs State Of Bihar

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 4 December, 1961

Coram: J.R. Mudholkar, N. Rajgopala Ayyangar, S.J. Imam, Subba Rao

In the matter of R.S. Pandit versus State of Bihar decided on 4 December 1961, the Supreme Court of India, with the bench comprising J.R. Mudholkar, N. Rajgopala Ayyangar and S.J. Imam, delivered a judgment authored by Justice Subba Rao. The appeal, filed under special leave, challenged the decision of the Patna High Court, which had affirmed the conviction of the appellant under section 5 of the Prevention of Corruption Act as rendered by the Special Judge in Bhagalpur.

The factual background presented in the appeal is as follows. The appellant entered Government service in 1942 as a teacher at the Reformatory School in Hazaribagh, receiving a salary of Rs 125 per month. In 1945 he was appointed lecturer in Mechanics at Sabour Agricultural College, where his remuneration ranged from Rs 125 to Rs 250 until August 1947, and subsequently from Rs 200 to Rs 450 from September 1947 through November 1949. In December 1949 he was promoted to Mechanical Assistant Engineer at the same institution and retained that position until 31 August 1952, during which time his salary progressed through five incremental advances, placing him in the Rs 220 to Rs 750 scale. Afterward he reverted to the post of lecturer in Mechanics at the Agricultural College, with a salary band of Rs 200 to Rs 450. Overall, his earnings fluctuated only between Rs 125 and Rs 300 per month. The appellant was married twice and fathered three children; it was admitted that his family lived under modest circumstances and that his wives contributed no financial assets. Nevertheless, during the fiscal year 1951‑52, evidence from his bank account and other records indicated that he came into possession of a sum amounting to Rs 66,832 7⁄3.

The prosecution alleged that between 1950 and 1952 the Government launched a “Grow More Food Scheme,” which was subsidised by the State. Under this scheme the Government purchased pumping sets and supplied them to cultivators, requiring the latter to pay fifty per cent of the cost incurred by the Government. The appellant was said to have been involved in both the procurement of these pumping sets and their subsequent distribution to various agriculturists. In that capacity, the prosecution asserted that he possessed the opportunity to obtain monetary benefits at two stages: at the point of purchase and again at the point of distribution. The charge framed against him was that he accepted illegal gratification during the execution of the scheme. On 25 March 1957 and again on 11 April 1957, the Superintendent of Police secured sanction from the Development Department of the Government of Bihar authorising prosecution of the appellant under section 5(2) read with clause (3) of section 5 of the Prevention of Corruption Act, 1947 (Act II of 1947), hereinafter referred to as “the Act.” Following receipt of this sanction, the appellant was tried before the Special Judge of Bhagalpur for an offence punishable under section 2 read with sub‑sections (1) and (3) of section 5 of the Act.

The Special Judge concluded, after applying the provision of the Act, that the accused had derived “illegal gain out of his economic position” from the scheme in the year 1951‑52. On that basis the Judge found the appellant guilty under Sub‑section (1) read with Sub‑section (3) of section 5 of the Prevention of Corruption Act, 1947. The Judge imposed a term of rigorous imprisonment for three years and directed the appellant to pay a fine of five hundred rupees. The appellant appealed, and the High Court examined the judgment of the Special Judge. The High Court accepted the Special Judge’s findings, affirmed the conviction, and upheld the sentence of three years’ rigorous imprisonment along with the monetary fine. Consequently, the present appeal was filed before this Court.

The counsel representing the appellant argued that the sanction issued by the Government was invalid for three distinct reasons. First, the counsel asserted that the authority which granted the sanction had not been furnished with the complete set of facts that constituted the offence for which sanction was sought, and therefore could not lawfully approve the prosecution. Second, the counsel maintained that the sanction was issued for prosecuting the appellant under Sub‑section (2) read with Sub‑section (3) of section 5, whereas the conviction was secured under Sub‑section (1) of the same section together with Sub‑section (3); thus the sanction did not correspond to the offence for which the appellant was finally convicted. Third, the counsel contended that the sanction was based on Sub‑section (3) of section 5, which merely prescribes a rule of evidence, and that it was premised on the erroneous assumption that this sub‑section itself creates a criminal offence.

Because the dispute turned on the scope of the sanction and the manner in which it was granted, the Court examined the full text of the sanction order. The order, dated 11 April 1957 and bearing the reference No. 1186D, read as follows: “Government of Bihar, Development Department, Patna. Whereas the Governor of Bihar has considered the facts stated in the First Information Report and the letter No. 1195/CR dated 26 March 1957 of the Superintendent of Police, Bhagalpur, addressed to the Secretary of the Government of Bihar, Development Department, through the Commissioner, Bhagalpur Division, and whereas the Governor has reason to believe, on consideration of the facts contained in those documents, that Shri Ram Sagar Pandit, Lecturer (now under suspension) of Sabour Agricultural College, Bhagalpur, has committed offences under clause (2) read with clause (3) of section 5 of the Prevention of Corruption Act, 1947 (Act II of 1947), now, therefore, the Governor of Bihar, in pursuance of the provision laid down in section 5 of the said Act, is pleased to accord sanction to the prosecution of the aforesaid Shri Ram Sagar Pandit under the said section. A copy each of the letter of the Superintendent of Police, Bhagalpur, and the First Information Report of the case is attached herewith. By order of the Governor of Bihar, Sd/‑ H.N. Thakur, Joint Secretary to Government.”

The record further showed that on 7 May 1957 the Superintendent of Police dispatched an additional letter to the Secretary of the Government of Bihar under section 197 of the Criminal Procedure Code. Upon receipt of this communication, a further sanction was granted on 25 June 1957. That later sanction, identified as No. 2250‑D, reiterated that the Governor of Bihar had considered the facts set out in the First Information Report and in the letter No. 1195 dated 25 March 1957 of the Superintendent of Police, Bhagalpur, addressed to the Secretary. The continuation of the sanction text is reproduced in the subsequent part of the judgment.

The Governor of Bihar, after reviewing the documents sent to the Development Department of the Government of Bihar through the Commissioner of the Bhagalpur Division, concluded that there were sufficient reasons to believe that Shri Ramsagar Pandit, who was a lecturer at Sabour Agricultural College in Bhagalpur and was then under suspension, had committed offences under clause (2) read with clause (3) of section 5 of the Prevention of Corruption Act, 1947 (Act II of 1947). Consequently, the Governor issued a partial modification of the sanction previously granted in Government Order No. 1136 D dated 11 April 1957. Pursuing the authority provided by section 6 of the said Act and section 197 of the Criminal Procedure Code, the Governor formally accorded sanction for the prosecution of Shri Ram Sagar Pandit. A copy of the letter addressed to the Superintendent of Police, Bhagalpur, together with the First Information Report of the case, was attached to the order signed by the Governor’s Joint Secretary, H.N. Thakur, on 25 June 1957.

The attached sanctions demonstrate that the sanctioning authority examined the facts set out in the First Information Report as well as in Superintendent of Police letter No. 1195 Cr dated 25 March 1957. The First Information Report had been filed by the Sub‑Inspector who was the Officer‑In‑Charge of the Kotwali Police Station. That report detailed the appellant’s financial condition, noting that despite his meagre personal resources he possessed large bank balances and other substantial funds. It further narrated that during the years 1950 to 1952 the Agricultural Department of the State of Bihar had purchased a massive quantity of pumping sets valued at approximately Rs 58‑59 lakhs. The report stated that Shri Pandit was placed in charge of the procurement and distribution scheme of those pumping sets to various agriculturists, a position that enabled him to obtain illegal gratification. The document also alleged that he had engaged in acts of commission and omission by favouring certain firms, thereby abusing his official role.

The report concluded that Shri Pandit had committed the offence of criminal misconduct as defined in section 5(2) of the Prevention of Corruption Act, 1947, and that he was liable to be punished under subsection (2) read with subsection (3) of section 5 of the same Act. A subsequent letter from the Superintendent of Police to the Secretary of the Development Department reiterated these facts. It emphasized the appellant’s inadequate legitimate income compared with the disproportionately large sums found in his possession. The letter further disclosed that, after the enquiry began, the appellant withdrew all the money from his bank accounts and disposed of a car that he had previously purchased. Additionally, the letter revealed that substantial commissions were recorded in the account books of several firms, amounts that were debited against agents who had received orders for supplying the pumping sets to the Agricultural Department of Bihar. The letter specifically identified one individual, Baidyanath Saran, in connection with those commission entries.

The proprietor of Messrs Seekers and Co., Patna, testified that he had paid a sum of Rs 400 to the accused as an illegal gratification in connection with the supply of pumping sets, as the accused had demanded. The accused offered an explanation for his possession of such a large amount, but that explanation appeared, on its face, to be unacceptable. The letter reporting these facts drew three conclusions: first, that the accused was receiving money by corrupt and illegal means by abusing his position as a public servant; second, that he possessed pecuniary resources that were disproportionate to his known sources of income and that he could not explain the excess; and third, that the accused had committed an offence punishable under sub‑section (2) read with sub‑section (3) of section 5 of the Prevention of Corruption Act. On those grounds, the Superintendent of Police requested that the Government grant sanction under section 6 of the Prevention of Corruption Act and section 197 of the Criminal Procedure Code so that the accused could be prosecuted under sections 5(2) and 5(3) of the Act in a proper criminal court. Both the First Information Report and the letter contained all the necessary factual material to satisfy the mind of the sanctioning authority that the appellant habitually received gratification other than legal gratification within the meaning of section 5(1)(a) of the Act and that, by corrupt or illegal means, he abused his public‑servant position to obtain pecuniary advantage as defined in section 5(1)(d). The orders issued by the Government showed that it had granted sanction under sub‑section (2) read with sub‑section (3) of section 5 after carefully considering the facts disclosed in those two documents.

The Court therefore held that the learned counsel was incorrect in contending that the sanctioning authority had not been presented with all the relevant facts necessary to form its opinion. The counsel’s second contention—that sanction had been granted under section 5(2) but not under section 5(1)—was based on a misunderstanding of the scope of those sub‑sections. Sub‑section (1) defines the ingredients of the offence of criminal misconduct, whereas sub‑section (2) is the penal provision that imposes punishment for such misconduct. Although the sanction expressly referred to sub‑section (2), it inevitably related to the definition contained in sub‑section (1), because the term “criminal misconduct” in sub‑section (2) incorporates the definition set out in sub‑section (1). Consequently, the second contention had no merit. Likewise, the third contention—that the sanction was given to prosecute the appellant solely under sub‑section (3) of section 5—was unfounded. The sanction was granted under sub‑section (2) read with sub‑section (3), and the phrasing indicated that the authority recognised sub‑section (3) as a supporting provision rather than a separate offence. Thus, the Court rejected all three contentions raised by the counsel.

In this case the Court observed that the contention that sub‑section (3) of section 5 of the Act is merely a rule of evidence and does not relate to an offence is based on a misreading of the sanction. The sanction was issued under sub‑section (2) read with sub‑section (3) of section 5. The wording of the sanction shows that the authority was aware that sub‑section (3) is not a separate offence but a supporting provision to the substantive offences defined in sub‑sections 1 and 2. Sub‑section (3) does not create a new offence; it merely establishes a rule of evidence that departs from the usual principle that the onus of proving guilt rests with the prosecution. Under this provision, in the circumstances described, the Court is required to presume, unless the contrary is proved, that the accused is guilty of criminal misconduct in the discharge of official duties. Consequently, when the sanction is issued under sub‑section (2) together with sub‑section (3), it indicates that, on the basis of the facts disclosed in the two documents, a presumption of guilt against the appellant has been justified. The Court then referred to the authorities cited by counsel. The leading authority on this point is the decision of the Judicial Committee in Gokulchand Dwarkadas Morarka v. The King, reported in A.I.R. 1948 P.C. 83 : 75 I.A. 30. The Court quoted the passage: “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 fact 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 any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority.” Section 6 of the Act likewise does not prescribe a particular form for the sanction, and the principle articulated by the Privy Council—that a sanction must be based on the facts constituting the offence—applies equally to sanctions under section 6. In the present matter, all the facts constituting the alleged misconduct were placed before the Government. The second principle, namely that the facts should be mentioned on the face of the sanction and, if absent, must be proved by extraneous evidence, is sound in light of the purpose behind sanction requirements. Although the sanction on its face does not disclose the facts, the documents produced in the case contain all the necessary facts that constitute the offence of criminal misconduct.

In this case the sanction file contained all the relevant facts that were necessary to constitute the offence of criminal misconduct. The Court referred to the earlier decision in Biswabhusan Naik v. State of Orissa, where a similar objection was raised. In that case the sanction issued under section 6 of the Act mentioned only sub‑section (2) of section 5 and failed to specify which of the four offences listed in section 5(1) was intended. The Court examined the contention and observed that the evidence showed the facts placed before the Government could relate only to offences under section 161 of the Indian Penal Code and to clause (a) of section 5(1) of the Prevention of Corruption Act. Because the sanction was limited to section 5(2), it could not, given the circumstances, refer to any clause other than clause (a) of sub‑section (1) of section 5. Consequently the Court held that the omission of the reference to clause (a) in the sanction did not render it invalid. The Court therefore concluded that the two cited authorities answered the first two contentions raised by counsel. The Court also considered the decision in Madan Mohan Singh v. State of Uttar Pradesh, which states that the burden of proving that a proper sanction has been obtained lies on the prosecution, and that this burden includes demonstrating that the sanctioning authority referred to the facts on which the prosecution will be based, whether those facts appear on the face of the sanction or are proved by external evidence. This proposition was accepted as sound. Applying it to the present matter, the sanction not only disclosed that the authority had examined the documents placed before it, but those documents themselves contained all the facts necessary to establish the offence of criminal misconduct.

The Court further examined the decision in Jaswant Singh v. State of Punjab, where it was held that once a sanction is granted for one offence, the court cannot take cognizance of another offence for which no sanction exists. In that precedent, a sanction was issued to prosecute a patwari for accepting an illegal gratification of Rs 50, yet a charge was later framed for his habitual acceptance of illegal gratification. The Court ruled that the prosecution for the offence under section 5(1)(b) was valid, but the charge for habitual receipt of illegal gratification was void for lack of sanction. The appellant in the present case attempted to rely on that decision by arguing that the letter of the Superintendent of Police disclosed only a specific act of bribery. The Court found that the Jaswant Singh ruling was not applicable to the present facts. Here, the sanction was expressly issued to prosecute the appellant for criminal misconduct under sections 5(1)(a) and 5(1)(d) of the Prevention of Corruption Act. Consequently, the charge framed on the basis of that sanction was proper, and the earlier authority concerning multiple offences without separate sanction did not affect the validity of the present sanction.

On the basis of the sanction that had been granted, the authorities framed a charge against the appellant. The charge alleged that the appellant habitually accepted gratification that was not legal remuneration, and that he obtained a pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant. The alleged conduct was said to constitute the offence of criminal misconduct, which is punishable under sub‑section (2) read with sub‑sections (1) and (3) of section 5 of the Prevention of Corruption Act II of 1947. All the material facts required to sustain a prosecution under sub‑section (1)(a) and sub‑section (1)(d) were placed before the sanctioning authority. After the sanctioning authority had granted the sanction, the appellant was formally charged with the said offence. The Court noted that the earlier decision cited by the appellant did not assist his argument. Accordingly, the Court held that none of the three contentions raised by the appellant to invalidate the sanction possessed any merit.

The appellant further suggested that the charge was defective because it deprived him of an opportunity to rebut the presumption created by sub‑section (3) of section 5. The charge, as read, stated: “I, Brahmadev Narain, Special Judge, Bhagalpur, hereby charge you Ram Sagar Pandit as follows: That during the period of the years 1951 and 1952, at Sabour Police Station (Mofussil) and at Bhagalpur Town Police Station (Kotwali), District Bhagalpur, you, being a public servant, namely Mechanical Assistant Engineer, Sabour Agricultural College, habitually accepted gratification other than legal remuneration and obtained for yourself pecuniary advantage by corrupt and illegal means or by otherwise abusing your position as a public servant. As a result, during the said period you came into possession of a sum of about Rs. 62,000, which was disproportionate to your known resources of income and which you could not satisfactorily account for, and thereby you committed the offence of criminal misconduct, an offence punishable under sub‑section 2 read with sub‑sections 1 and 3 of section 5 of the Prevention of Corruption Act II of 1947, and within my cognizance I hereby direct that you be tried by this court on the said charge.” Sub‑section (3) of section 5 provides: “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 proved, and on such proof the court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefore shall not be invalid by reason only that it is based solely on such presumption.” The Court observed that this provision does not create a separate head of offence; it functions solely as a rule of evidence. When the accused possesses pecuniary resources that cannot be satisfactorily explained, a presumption of criminal misconduct arises unless the accused successfully rebuts it. However, this presumption can be challenged by the accused through evidence establishing a lawful source of the resources or by other evidence showing that he did not accept any illegal gratification.

In this case, the Court explained that the statutory presumption under sub‑section (3) of section 5 could be invoked only when the charge specifically alleged criminal misconduct within any of the clauses (a) to (d) of that section. For example, if a charge alleged that the accused had taken a bribe of ten thousand rupees from a complainant as a reward, the prosecution could rely on the presumption by showing that the accused possessed wealth or property that was disproportionate to his known sources of income. The Court further observed that such a presumption could be rebutted by the accused in two distinct ways. First, the accused could produce evidence establishing that the property in question had been acquired lawfully. Second, even if the accused could not explain how he had come into possession of the assets, he could still defeat the presumption by presenting other evidence that he had not received any illegal gratification. The Court stressed that the statutory presumption could not, by itself, bar an accused from proving his innocence with respect to the particular charge that had been framed against him. On the basis of this legal position, the appellant argued that the charge did not disclose the exact amounts of the alleged bribes nor the identities of the persons from whom the bribes were purportedly taken, and therefore he had not been afforded an opportunity to prove his innocence. The Court, however, held that this deficiency did not invalidate the charge, although it might justify a request for better particulars. The charge, as framed, plainly stated that the appellant habitually accepted gratification other than lawful remuneration and obtained pecuniary advantage by corrupt and illegal means, thereby constituting an offence under section 5(1) of the Act. While the Court agreed that the charge could have been drafted with more specific particulars to aid the accused in mounting his defence, it observed that the appellant never raised any objection that the charge lacked the necessary details. The record showed that the accused understood the case presented against him and adduced all the evidence that he chose to place before the Court.

The Court further noted that Section 225 of the Criminal Procedure Code provides that any error or omission in stating the offence or the particulars required in the charge is not to be treated as material at any stage of the proceeding unless the accused was actually misled by such error or omission and this misdirection resulted in a failure of justice. Apart from this statutory safeguard, the appellate Court could set aside a conviction only if a defect in the charge had caused a failure of justice. In the present matter, the appellant did not raise any objection before the Special Judge or before the High Court that the charge was defective, nor did he claim that he had been misled because the charge omitted the names of the persons from whom the alleged bribes were taken. No such objection appeared in the special leave petition or in the statement of the case. The Court therefore characterised the appellant’s grievance as an afterthought that was raised for the first time at this stage of the proceedings. Accordingly, the Court held that the objection could not be entertained, and it dismissed the appeal.

The Court observed that the objection in question could not be introduced at this point in the proceedings, as it had not been raised earlier before the Special Judge, the High Court, or in the present special leave petition. Since the objection was presented only now and was characterised as an after‑thought, the Court held that it was impermissible to consider it at this advanced stage of the litigation. Consequently, the Court concluded that the appeal could not succeed on the basis of an objection that was not timely raised, and therefore the appeal was dismissed in its entirety.