DIN DAYAL SHARMA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The appellant was convicted under S. 5(2) of the Prevention of Corruption Act and under S. 161 of the Indian Penal Code and sentenced to one year's rigorous imprisonment on each count. The sentences were made to run concurrently.

(2.) On the facts found by the courts below the appellant accepted Rs. 20 as illegal gratification from one Malekchand who had applied for allotment of a house. The appellant was employed at that time as a clerk in the office of the District Relief and Rehabilitation Office, Meerut. The aforesaid sum of money was accepted by the appellant as bribe with a view to getting a house allotted to Malekchand. There can be no question that, on the facts found, the appellant was guilty both under S. 5(2) of the Prevention of Corruption Act and under S. 161 of the Indian Penal Code.

(3.) The first point taken was that the investigation had taken place by a police officer below the rank of Deputy Superintendent of Police. Consequently, the investigation had taken place in contravention of the provisions of the Prevention of Corruption Act. The conviction of the appellant was therefore vitiated. This point was taken before the Additional Sessions Judge who had heard the appeal of the appellant against his conviction. The Additional Sessions Judge referred to a decision of the Calcutta High Court which supported the submission made on behalf of the appellant. He also referred to a decision of the Allahabad High Court to the contrary effect. He followed, as he was bound to follow, the decision of the Allahabad High Court. The decision of this Court in the case of H. N. Rishbud vs. State of Delhi, (1955) 1 SCR l150 does not support the submission made by Mr. Umrigar on behalf of the appellant. He, however, referred to a passage in the aforesaid cited decision at page l164 to the effect that where a breach of a mandatory provision is brought to the knowledge of the court at a sufficiently early stage, the court, while not declining cognizance, would have to take the necessary steps to get the illegality cured and the defect rectified by ordering such investigation as the circumstances of the case may call for. It has not been shown to our satisfaction that the attention of the trial court was drawn at an early stage to any breach of the provisions of the Prevention of Corruption Act. There had been an enquiry before commitment to the Sessions. It is clear that during those proceedings before the commitment no objection was raised that the investigation had taken place by a police officer below the rank of Deputy Superintendent of Police in contravention of the provisions of the Prevention of Corruption Act. The decision of this Court was given on December 14, 1954, and the High Court judgment in the present case was delivered on December 16, 1955. No point was taken before the High Court to the effect that the investigation had been made by an officer below the rank of Deputy Superintendent of Police in contravention of the provisions of the Prevention of Corruption Act. Such an objection should have been taken if the appellant was prepared to establish before the High Court that the objection had been taken at a sufficiently early stage and that in view of the decision of this Court in the case cited the trial court ought not have proceeded with the trial unless the defect had been removed. The decision of this Court in the case cited is clear however, that generally a conviction is not vitiated because there had not been strict compliance with the provisions of the Prevention of Corruption Act in the matter of investigation by a police officer. As to whether the objection was taken at a sufficiently early stage is a question of fact and ought to have been raised in the High Court as the decision of this Court in the case cited had been delivered something like a year before. As this point in this form was not raised before the High Court we cannot allow it to be raised at this stage.