OM PRAKASH Vs. STATE

JUDGEMENT

(1.) This is an appeal by one Om Prakash who has been convicted by a learned Special Judge, acting under Section 6 of the Prevention of Corruption Act, 1947, for an offence punishable under Section 165A, I. P. C., arid sentenced to rigorous imprisonment for one year. The appellant had also been charged under Section 468, read with Section 109, I. P. C., but of that offence he has been acquitted.

(2.) Permits for supply of bricks and certain other things used to be issued from the office of the Mechanical Inspector of the Agricultural Engineering Department in Bulandshahr to agriculturists. It is said that there was a lot of corruption prevailing in that office in that connection. One such form of corruption was that officials employed in that office used to prepare permits in the names of fictitious persons and then issued them to persons not entitled to the same. The prosecution case is that five such permits in favour of fictitious persons were prepared on 11-11-1948 by one Roshan Lal, a Unit Clerk in that office, and that the present appellant obtained those permits on payment of Rs. 300/- as illegal gratification to Roshan Lal. Sri Kant Sharma P. W. 4, Assistant Agriculture Engineer at Aligarh, within whoso jurisdiction was the office of the Mechanical Inspector at Bulandshahr, came to know of the corruption in December, 1948 and thereupon he issued directions to owners of brickkilns not to supply bricks on the basis of permits issued from that office. The appellant was therefore unable to obtain bricks on the basis of the aforesaid permits. He therefore sent a complaint to the Assistant Agriculture Engineer by post on 17-1-1949. The Engineer started an enquiry on the basis of that complaint and went and saw the appellant in that connection at Khurja, the appellant having given his address in Khurja in the aforesaid complaint dated 17-1-1949. When the Engineer made enquiries from the appellant at Khurja on 7-5-1949, the appellant gave a further written, complaint to the Engineer. A copy of the first complaint which the appellant had sent to the Engineer is Exh. P3 and that of the written complaint handed over by him on 7-5-1949 is Exh. P4. In these two writings the appellant purports to have admitted having committed the offence in question. Raj Narain P.W. 1, a clerk in a Magistrate's court, has deposed that Roshan Lal was prosecuted separately and convicted. The appellant denied having either obtained the permits in question from Roshan Lal or having paid Rs. 300/- or any sum to Roshan Lal, as alleged by the prosecution. He also denied having made the aforesaid complaints Exs. P3 and P4. He produced two witnesses, one to show that the appellant had in fact quarrelled with some of the officials of the said office, and the other, who was also named Om Prakash, to show that it was he and not the appellant who had been approached by the Assistant Agriculture Engineer Section K. Sharma P. W. 4. The testimony of both these defence witnesses does not appear to have been accepted by the learned Special Judge, and there was no attempt at a resuscitation of their evidence in this Court. The learned Sessions Judge has convicted and sentenced the appellant under Section 165-A but acquitted him of the offence under Section 468/109, I. P. C. on the finding that there was no evidence as to the appellant himself having had any hand in the matter of the preparation of the permits in question in favour of fictitious persons.

(3.) There was a legal plea put forward by the learned counsel for the appellant and that was to the effect that the alleged offence having been committed in the year 1948, the appellant could not be convicted under section 165-A, I. P. C., since this section was introduced for the first time in the Penal Code by section 3 of the Criminal Law Amendment Act (XLVI of 1952), which came into force on 28.7.1952. The argument was that such a conviction would be an infringement of Article 20 of the Constitution which provided, inter alia, that no person shall be convicted of an offence except for violation of law in force at the time of the commission of that act charged as an offence. And in support of this argument the learned counsel cited a decision of the Madhya Bharat High Court reported as Randhira v. State, AIR 1954 M.B. 83 (A). The legal objection of the learned counsel is no doubt valid; but the defect pointed out by him would not, in my opinion be a bar to the conviction of the appellant on the same facts under Section 161, read with Section 109, I. P.C. If it be otherwise permissible, it would be open to this Court in exercise of its appellate jurisdiction under Section 423 Cr. P. Code, to alter the finding as to the appellant's liability from one under Section 165A to that Under Section 161/109, I. P. C. There is no doubt that the appellant was not charged under Section 161, read with Section 109, I. P. C., but for the offence punishable under Section 165A of the Code; but, in view of the provisions of Section 537, Criminal Procedure Code, there would be no ground for setting aside the conviction of the appellant merely on the ground of this irregularity in the charge unless the irregularity has in fact occasioned a failure of justice, Now, a reference to the charge framed in this case shows that all the facts which it would have been necessary for the prosecution to prove for a conviction of the appellant under Section 161/109, I. P. C., were mentioned there. The charge reads as follows: