BISWABHUSAN NAIK v. The State of Orisso, an

to appeal under article 134 ( 1) ( c) oh three points. The High them were not of sufficient im Court held issue of a certificate particu- portance larly as one of the two was covered by the principle laid down by this Court. But it granted leave on all three as it considered that the first point was of im portance. The points were formulated as follows: "(i) whether the view of this Court as requirement of sanction in a case of this kind and the interpretation of Morarka's case in A.LR. 1948 P.C. judgment are p. 82 adopted by correct ; this Court (ii) whether the interpretation of this Court relat requirements as to the corroboration of an ing to the reference to accomplice witness in a bribery case with the latest unreported case of the Supreme Court which has been referred to in the judgment and which has since been reported in 1952 S.C.J, p. 46 is correct; r '~ •' -'- ,.. (iii) whether the law as propounded by the decision to be appealed against with reference to now sought the presump the considerations that arise in judging tions under section 5(3) of the Prevention of Corrup tion Act is correct." ·- in this way. Four kinds of set out in section 5 of The first point arises criminal misconduct are enumerated Prevention of Corruption Act. They are in clauses (a), (b), (c) and (d) of sub-section (1). The sanction is general and dt>es hOt specify which of these .four offences was meant. the -1.. it runs as follows: Government of Orissa. Commerce and Labour Department. Order No. 4561/Com., dated 3-11-1948. ln pursuance of section 6 of (II of 1947), Corruption Act, 1947 the Prevention the Governor of .f '-\ s.c.R. SUPREME COURT REPORTS 95 1s hereby pleased to accord sanction for pro Orissa Inspector of Factories, secution of Sri. B. B. Nayak, Orissa, employed the affairs of the in connection with Province under sub-section (2) of section 5 of the said Act.

#2. Nature of offence committed: Criminal misconduct m discharge of official 1954 Biswabhusatl Naik . . v. The State of Orissa. Bose]. duty. By order of the Governor, Sd./-V. Rainanathan, Secretary to Government." It was contended Gokulchand Dwarkadas Morarka v. such a sanction is invalid. The High Court ~ this argument. We agree with the High Court. that the Privv Council held m The King(1), that rejected The passage of the Privy Council judgment on which reliance is placed is as follows : It is plainly desirable "In their Lordships' view, in order tq comply with the provisions of clause 23 it must be proved sanction was given in respect of the facts· <;onstituting the offence charged. facts should be referred to on the face of the sa,p.ction but this is not essential since clause 23 does not require the sanction to be in any particular form nor even be in writing. But if the facts constituting the offence charged are not known on the face of the sanction, prosecution must prove by extraneous evidence that those facts were placed before the sanctioning autho rity." ) , clause 23 of The Judgment of the Judicial Committee relates to (Control) the Cotton Cloth and Yarn Order, 1943, but the principles apply here. It 1s no for the sanction under the Prevention more necessary of Corruption Act to be in any particular form, or m writing or for it to set out the facts in respect of which it is given than it was under clause 23 of the Order which their Lordships were considering. The desirability is obvious . because when the facts of such ~ course to be given ), are not ·set out in the sanction proof has (1) A.T.R. 1948 P.C. 82. - ' 1954 Biswablru.ran Naik • v. TlieStau of Orissa. 96 SUPREME COURT REPORTS t1.955) r aliunde that sanction was given in respect 6f the facts constituting the~ offen'ce ch, arged, but an omission to do so i~ ·not fatal so-long as the facts can be, and are, pioved in some .other way. Th<! High Court finds that the facts to which the· sanctioh relates were duly placed before the proper sanctioning authority. We need not consider the evi telephone calls and dehee <l\iout letter of- the Distri~t Magistrate asking for ~anction (Exhibit 25) the facts on which the sanction is based. It is in these terms: is. enough to show the like because \ the ~ information ''I have the honour· to report that ~ri B. B. Nayak, Inspector of Factories, Orissa, in ~he---coutse ·of his visit to this district had been visiting certain mills, and, recejved by me that he .had been col-. lecting heavy sums a~ illegal gratification Manager or Propiietor of Mills under threat of thischief it was arranged to verify the truth to the mill owners, information by handing over 3 hundm;I rupee notes marked with my , initials m presence of the Superintendent of Police and respectable gentlemen and niillowners, on the evening of the 2nd October, 1948. On the Factory illegal gratifica ,,Inspector having actually received the tion of Rs. 450 which sum included the three marked hundred rupee notes, the Prosecuting Inspector seized the marked notes alohg with ·a further heavy sum of Rs. 2,698 from his possession . the 3rd October two other . . . . . . . . . . . . . . . . . . : ..................... . Under section 6 of the Prevention of Comwtion in the Act, 1947, the accused ~eing a public, servant employ of th~ Provincial . Government the sanction of the Provincial Gove~nrnent is necessary prior ~o taking- cognisance of' ap offence under section 161, II)dian P~nal Code or sub-section (2) of section 5 of the Act." A sanction based on the facts set out in this letter, about the collection nam~ly the information received of heavy sums as bribes and .the finding of Rs. 2,698 in his possession w?uld be sufficient to validate the present ,prosecution. the facts placed before the the other evidence It is evident from letter and \ " I - ..( r -it S.C.R. Sl]PREME COURT REPORTS 97 to offences under sec relate Government could only tion 161, of the Indian Penal Code and clause (a) of section 5(1) of the Prevention of Corruption Act. They to clauses (b) or (.c). Therefore, when could not relate to section 5 (2) it could not, the sanction was confined in the circumstances of the case, have related to any clause (a) of sub-section (1) of section 5. thing but Therefore, to mention clause (a) in the the omission sanction does not invalidate it. The present prosecution is confined to section 5(1)(a) which runs as follows : 1954 Biswabhusarr Naik v. The State of Orissa. Bose].; "(1) A public servant is said of criminal misconduct ( a) if he habitually accepts or obtains or agrees accept or attempts to obtain self or; for any other person, any than legal remuneration) ,-as 1s mentioned in section 161 of Code." to commit the offence in the discharge of his duty from any person for him (other .gratification as a motive or reward such Indian Penal Then comes sub-section (3) which sets out a new rule of evidence in these terms : - resources or property disproportionate "In any trial of an offence punishable under sub the accused person or any section (2) the other person on his behalf is in possession, for which account, of satisfactorily the accused person cannot pecuniary income may be proved, and on his known sources of the contrary such proof the Court shall presume, unless is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption." Therefore, all that the prosecution has to do is the accused, or some person on his behalf, 1s m possession of pecuniary resources or property to his known sources of income and disproportionate the accused cannot satisfactorily account. for which then the Court has to presume, Orice that is established is proved, unless 1s guilty of the new offence created by section 5, namely criminal misconduct in the discharge of his official duty. the accused the contrary l \ t v.:, Thi Stat1 ef Oriss•: Bos•J. 98 SUPREME COURT REPORTS [1955] Now the accused was found in possession of Rs. 3,148. He accounted for Rs. 450 of that sum by showing it was paid to him at the time as a trap.. He has been acquitted of that offence, so all he had to account for was the balance Rs. 2,698. This is a large sum for a touring officer to carry with him in cash while on tour. His explanation was not considered satisfactory and that is a question of fact with which we are not con cerned in this Court. Therefore, all that be seen 1s whether to his known sources of income. this was disproportionate remains salary and Rs. 2,155 The accused is a Government Factory ihat his salary Inspector and is only Rs. 450 a month. we were The High Court finds the , total sums drawn by him during his entire period of service of thirteen months was Rs. 6,045 as that he owns 0.648 tra veiling allowanc~. It also acres of land which brings m no mcome worth name. On the expenditure side of the accused's account the High Court finds that he has a substantial family establishment which would not leave him enough large sum of money. No margin for saving such a other source of income has been .disclosed. It is evident that no touring officer of his status and in his position would require such a large sum of money for his tour if he was away from headquarters ing. purposes even for a month. His explanation was considered un satisfactory by both Courts and was disbelieved. These are all questions of fact. Once the facts set out above were found to exist and the explanation of the accused section 5(3) was at once rejected attra~ted and the Court was bound to presume (the is "shall" and not "may") word used in accused was guilty under section 5(2), especially as this part of the section goes on to say- "and his conviction therefor shall not be invalid by rea son only that it is based solely on such presumption." the convic the other matters. The that the sanction was tion and we need not consider High Court was right sufficient and in convicting the accused. These facts alone are enough as unsatisfactory, the section in holding to sustain S.C.R~··-··sUPREl\IE COURT REPORTS . 99 '954 Biswabkusan Naik v. The State of · 01issa. Bose]. The thir~ "point set out in the certificate of the High Court relates to the , absence ()f particulars in charge and, we gathered from the arguments, . in the sanction._ But no particulars need be set out in the charge in such a case because the offence under sec tion 5(1 )(a) does not consist of indi vid ualacts of bribe taking as in sectionJ61 of the Indian Penal Code but is of a general , character. Individual instances may be useful to prove the general averment in particular cases but it is by no means necessary because of the presumption which section 5(3) requires the Court to draw. There was therefore no illegality either in , the sanction or in the charge ; nor has the accused been prejudiced because he knew everything that was being · urged against him and led evidence to refute the facts on which the prosecution i:elied. He was also question ed about the material facts set out above in his examination under section 342 of the Criminal Pro cedure Code and was given a chance then ·as well to give such explanation as he wished. • The appeal fails and i~ dismissed. ' Appeal dismissed . SHANK.AR SITARAM SONTAKKE AND ANOTHER v. BALKRISHNA SITARMI SONTAKKE AND. OTHERS. [l\IEHR CHAND l'llAHAJAN C.J., VIVIAN BosE and GHULAM HASAN JJ.]. Coosent decree-Legal effect thereof-Compromise not vitiated -by fraud, misreprese·ntation, misunderstanding or mistake-Decree pas3ed thereon-Whether operates as res iudicata......:. Civil Procedure - Code-( Act V of 1908)--0rder II, rule 2(3)-Relinquishment of· claim in a prior suit-Sttbsequent suit barred in respect of the claim so omitted. · It is well settled that a consent decree is as binding upon the parties thereto as a. decree passed by invitum... Where a com pro~ misa is round not to be vitiated by fraud, misrepresentation, I954 .. .. r