judgement:
Appeal No. 442 of 1965.
Appeal from the judgment and decree dated August 10, 1961 of the Bombay High Court in Appeal No. 23 of 1960.
H.R. Gokhate, P. N. Duda, and J. B. Dadachanji, for the appellant.
H. M. Seervai, Advocate General for the State of Maharashtra, R. Gopalakrishnan and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by certificate, from judgment of the Bombay High Court dated August 10, 1961 by which the appeal of the respondent against the judgment of section M. Shah, J. of that High Court was allowed and the suit of the appellant was dismissed.
The appellant was a member of the Bombay Medical Service, Class 11 and as such was an employee of the State of Maharashtra.
In 1943, the appellant was posted at the Civil Hospital, Ahmedabad and on February 18, 1950 he was in charge of the Medico Legal Section of that hospital.
On January 19, 1950, one Nabimahomed complained to Mr. Rathod, Sub Inspector of Police ' Anti Corruption Branch, Ahmedabad, 580 implicated by the Anti Corruption Branch of the Police and asking him to consider the representation before giving his sanction for prosecution of the appellant and before making an order of suspension.
The Surgeon General forwarded the report of Sub Inspector, Mr. Rathod as well as the representation of the appellant to the State Government by his letter dated February 1, 1950.
He requested the Government that in the circumstances mentioned in the Sub Inspector 's report orders may be issued for placing the appellant under suspension.
His recommendation was approved by the Minister for Health and by the Chief Minister.
By a letter dated February 13, 1950, the Deputy Secretary to the Government informed the Surgeon General that the appellant should be suspended with immediate effect pending further orders.
The Surgeon General thereafter issued an order to the Civil Surgeon, Ahmedabad dated February 16, 1950 that the appellant should be placed under suspension pending further orders from the date of the receipt of the memorandum.
In pursuance of the directions received by him from the Surgeon General, the Civil Surgeon, Ahmedabad, issued the following office order and sent it; to the appellant : "Under orders from the Surgeon General, with the Government of Bombay, conveyed in his Memorandum No. section 97/189/A dated 16th February, 1950, you are informed that you are suspended pending further orders with effect from the afternoon of 18th instant.
You should hand over your charge to Mr. section section Doctor, B.M.S. Class 11 at this hospital.
" On August 21, 1950 the Government directed that the appellant should be allowed subsistence allowance at Rs. 153 5 0 per mensem from the date of his suspension February 19, 1950 to March 31, 1950, at Rs. 158 13 0 per mensem from April 1, 1950 to February 18, 1951 and at Rs. 119 2 0 per mensem from February 19, 1951 onwards.
The Government also directed that the appellant should be paid in addition Rs. 35/ per mensem as dearness allowance and Rs. 14/ as house rent allowance during the entire period of suspension.
On May 6, 1950 sanction was given for the prosecution of the appellant under section 161, Indian Penal Code.
On February 26, 1951 the appellant was convicted by the First Class City Magistrate at Ahmedabad and sentenced to one day 's imprisonment and a fine of Rs. 1000/ .
The appellant filed an appeal to the Sessions Court, but his appeal was dismissed.
Thereafter, the appellant took the matter in revision to the Bombay High Court.
The revision application was allowed and the conviction and sentence passed against the appellant were set aside.
On March 14, 1952, the appellant made a representation to the Government praying that he should be reinstated in service.
581 The Government, however, applied to the High Court for leave to appeal to this Court against the decision if the High Court and on the said application being rejected, the Government applied to this Court for special leave to appeal.
This Court rejected the application on October 13, 1952.
On November 27, 1952 the Government issued another order in regard to the payment of subsistence allowance to the appellant.
On February 20, 1953 the Government directed that a departmental enquiry should be held against the appellant.
The Civil Surgeon, Ahmedabad was appointed Inquiry Officer and he was asked to complete the inquiry within three months and submit his report to the Government through the Surgeon General.
For reasons which are not apparent the departmental inquiry was delayed and ultimately an order of dismissal was made against the appellant on February 11, 1960.
Before the conclusion of the departmental inquiry and while that inquiry was going on the appellant gave a notice to the respondent under section 80 of the Civil Procedure Code.
On April 11, 1953 the appellant brought the present suit against the respondent praying for a declaration that the order of suspension was illegal and inoperative in law and the appellant continued in service as though no order for suspension had been passed.
The appellant claimed remuneration and allowances with usual increments from the date of his suspension till the date of his reinstatement.
The respondent controverted the allegations made in the plaint and asserted that the suspension of the appellant was not illegal.
Shah, J. of the Bombay High Court before whom the suit was tried held that the appellant was entitled to salary and allowances upto the date when he was dismissed i.e., February 11, 1960.
He granted to the appellant a declaration that the order of suspension was illegal and inoperative in law and the appellant continued to be on duty till February 11, 1960 as though no order of suspension had been made.
He also granted a decree directing the respondent to pay to the appellant Rs. 51,135.28 with interest on Rs. 43,223/ at the rate of 4 per cent p.a. and the cost of the suit.
The respondent appealed against the judgment of the trial Judge.
The appeal was heard by a Bench consisting of the Chief Justice and Mody, J.
The Appellate Bench held that the respondent had inherent power to suspend the appellant and to withhold full remuneration for the period of suspension under Rule 151 of the Bombay Civil Services Rules.
The Appellate Bench therefore held that the order of suspension made by the respondent was legally valid as it was in exercise of the inherent power as regards prohibition of work, and in exercise of its powers conferred by the rules so far as the withholding of pay during enquiry against his conduct was concerned.
The Appellate Bench also held that the suit was barred under Article 14 of the Schedule to the Indian Limitation Act.
For these reasons the Appellate Bench allowed the appeal, set aside the decree passed by the trial 582 Judge and dismissed the suit and ordered the appellant to pay four fifths of the costs of the respondent through out.
The first question to be considered in this appeal is whether Government had the power to suspend the appellant by its order dated February 13, 1950 pending enquiry into his alleged misconduct.
It was contended on behalf of the appellant that the power to suspend is not an implied term in an ordinary contract between master and servant and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself.
It was urged that there was no express provision in the Bombay Civil Services Rules granting a power to the Government to suspend a Government servant pending enquiry into the allegations made against him.
The argument was put forward that in the absence of any express provision either in the contract of employment or in any statute or statutory rules governing such employment, there was no power to suspend a public servant pending inquiry into the allegations of his misconduct.
We are unable to accept the argument put forward on behalf of the appellant as correct.
The general law on the subject of suspension has been laid down by this Court in three cases, viz., The Management of Hotel Imperial, New Delhi vs Hotel Workers ' Union,(1) T. Cajee vs U. Jormanik Siem,(2) and R. P. Kapur vs Union of India(3).
It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express, term in the contract itself.
Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the period of suspension.
Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay.
This principle of law of master and servant is well established: (See Hanley vs Pease & Partners, Ltd., (4) Wallwork vs Fielding, (5) and the judgment of Cotton, L. J. in Boston Deep Sea Fishing and Ice Co. vs Ansell) (6).
It is equally well settled that an order of interim suspension can be passed against the employee while an inquiry is pending into his conduct even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would (1) ; (3) ; (5) (2) ; (4) (6) 583 be entitled to his remuneration for the period of suspension if there is no statute or rule under which it could be withheld.
In this connection it is important to notice the distinction between suspending the contract of service of an officer and suspending an officer from performing the duties of his office on the basis that the contract is subsisting.
The suspension in the latter sense is always an implied term in every contract of service.
When an officer is suspended in this sense it means that the Government merely issues a direction to the officer that so long as the contract is subsisting and till the time the officer is legally dismissed he must not do anything in the discharge of the duties of his office.
In other words, the employer is regarded as issuing an order to the employee which, because the contract is subsisting, the employee must obey.
The general principle therefore is that an employer can sus pend an employee pending an inquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension.
If there is no express term relating to payment during such suspension or if there is no statutory provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim suspension.
On the other hand, if there is a term in this respect in the contract of employment or if there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment will be made in accordance therewith.
This principle applies with equal force in a case where the Government is an employer and a public servant is an employee with this qualification that in view of the peculiar structural hierarchy of Government administration, the employer in the case of employment by Government must be held to be the authority which has the power to appoint the public servant concerned.
It follows therefore that the authority entitled to appoint the public servant is entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him.
But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or statutory rule in that connection.
If there is such a provision the payment during suspension will be in accordance therewith.
But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension.
On general principles therefore the government like any other employer, would have a right to suspend a public servant in one of two ways.
It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension.
The Government may also proceed to hold a departmental enquiry and after his being found guilty order suspension as a 584 punishment if the rules so permit.
This will be suspension as a penalty.
As we have already pointed out, the question as to what amount should be paid to the public servant during the period of interim suspension or suspension as a punishment will depend upon the provisions Of the statute or statutory rules made in that connection.
On behalf of the respondent Advocate General of Maharashtra relied upon Rules 151 and 152 of Ch.
VIII of the Bombay Civil Service Rules.
These rules provide as follows: "151.
A Government servant under suspension is entitled to the following payments : (a) In the case of a military officer who is liable to revert to military duty, to the pay and allowances to which he would have been entitled had he been suspended while in military employment.
(b) In any other case, to a subsistence grant at such rates as the suspending authority may direct, but not exceeding one fourth of the pay of the suspended Government servant.
Provided that the suspending authority may direct that the Government servant under suspension shall be granted in addition such compensatory allowances as the Government may sanction by general or special order for issue under this proviso.
Note 1.
The grant of subsistence allowance cannot altogether be withheld." "152.
When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable; or when a Government servant who has been dismissed, removed or suspended is reinstated, the revising or appellate authority may grant to him for the period of his absence from duty (a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded any allowance of which he was in receipt prior to his dismissal, removal or suspension; and (b) if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe.
585 In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty.
In a case falling under clause (b) it will not be treat ed as a period spent on duty unless the revising or appellate authority so direct. .
Note 2 Under this rule the revising or appellate authority can convert a period spent under suspension into one of leave admissible under the rules.
The period of suspension cannot, however, be converted into leave without pay except in accordance with the conditions in Rule 752.
Subsistence allowance paid under this rule should be adjusted or recovered from the Government servant when the period of suspension is converted into leave with or without pay.
" On behalf of the appellant Mr. Gokhale contended that Rule 151 applies only to a case where a Government servant is suspended by way of penalty and not to a case of interim suspension.
We see no warrant for accepting this argument.
Suspension is used in Rule 151 in a general sense and Rule 151 applies to all kinds of suspension, whether it is imposed by way of penalty or as an interim measure pending departmental inquiry or a criminal proceeding.
We see no reason, either in the context or the language of Rule 151, to place a restricted interpretation upon the meaning of the word "suspension" in that rule.
On the contrary, the language of Rules 153 and 156 suggests that the suspension contemplated by these rules includes not only suspension by way of penalty but also interim suspension pending a departmental inquiry or a criminal proceeding.
Rules 153 and 156 state as follows "153.
Leave may not be granted to a Government servant under suspension." "156.
A Government servant committed to a prison either for debt or on a criminal charge should be conssidered as under suspension from the date of his arrest and therefore entitled only to the payments specified in Rule 151 until the termination of the proceedings against him when, if he is not removed or dismissed from service, an adjustment of his pay and allowances should be made according to the conditions, and terms prescribed in rule 152 the full amount being given only in the event of the Government servant being considered to be acquitted of blame, or, if the imprisonment was for debt, of its being proved that the Government servant 's liability arose from circumstances beyond his control.
" If the word "suspension" in Rules 153 and 156 contemplates suspension pending an inquiry we see no reason why it should be 586 given a different interpretation in Rules 151 and 152.
We are accordingly of the opinion that Rule 151 empowers the State Government to withhold pay for the period of interim suspension but the Government servant is entitled under that rule to a subsistence allowance at such rate as the suspending authority may direct but not exceeding one fourth of his pay.
It follows therefore that the order of the State Government dated February 13, 1950 suspending the appellant pending enquiry into his conduct was legally valid and the argument of the appellant on this aspect of the case must be rejected.
The view that we have expressed is supported by the ratio of the principle of the decision of this Court in R. P. Kapur vs Union of India(1).
The question in that case arose with regard to the interpretation of Fundamental Rule 53 which provided for payment to a Government servant under suspension and which states as follows "53(1).
A Government servant under suspension shall be entitled to the following payments, namely : (i) in the case of a Commissioned Officer of the Indian Medical Department or a Warrant Officer in Civil Employ who is liable to revert to Military duty, the pay and allowances to which he would have been entitled had he been suspended while in military employment; (ii)in the case of any other Government servant (a) a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half average pay or on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary: Provided that where the period of suspension exceeds twelve months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first twelve months as follows Fundamental Rule 54 is to the following effect: "54(1) When a Government servant who has been dismissed, removed, compulsorily retired or suspended is re instated or would have been re instated but for his retirement on superannuation while under suspension.
the authority competent to order the reinstatement shall consider and make a specific order (1) ; 587 (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority mentioned in sub rule (1) is of opinion that the Government servant has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed, compulsorily retired or suspended, as the case may be.
It was held by the majority decision of this Court that Fundamental Rule 5 3 contemplates all kinds of suspension, whether it is a penalty or as an interim measure pending departmental inquiry or criminal proceeding.
It is manifest that Rules 151 and 152 of the Bombay Civil Service Rules are couched in a similar language to that of Fundamental Rules 53 and 54 and it must be held for this reason also that Rules 151 and 152 of the Bombay Civil Service Rules comprise in their scope both kinds of suspension, whether it is a penalty or as an interim measure pending an inquiry into the conduct of the Government servant concerned or criminal proceeding against him.
We proceed to consider the next question arising in this case i.e., whether the order of suspension came to an end on February 15, 1952 when the appellant was acquitted by the High Court in revision and whether in consequence the appellant is entitled to full pay for the period from February 15, 1952 to February 11, 1960 when he was ultimately dismissed.
It was contended on behalf of the appellant that he was suspended pending an inquiry into the charge for the criminal offence alleged to have been com mitted by him and as the proceedings in connection with that charge ended with the acquittal of the appellant by the High Court on February 15, 1952, the order of suspension must be deemed to have automatically come to an end on that date.
We see no justification for accepting this argument.
The order of suspension dated February 13, 1950 recites that the appellant should be suspended with immediate effect "pending further orders".
It is clear therefore that the order of suspension could not be automatically terminated but it could have only been terminated by another order of the Government.
Until therefore a further order of the State Government was made terminating the suspension 588 ,the appellant had no right to be reinstated to service.
On behalf ,of the appellant reliance was placed on the decision of the Orissa High Court in Narayan Prasad Rewany vs State of Orissa(1).
But the facts of that case are clearly to be distinguished.
The order of suspension in that case did not contain the phrase "pending further ' orders".
Furthermore, the order of suspension was passed under R. 93A of the Orissa Service Code, Vol. 1, under which the Government servant could be suspended during the periods when he was not actually detained in custody or imprisoned.
Having, regard to the terms of that rule it was held by the Orissa High Court that the order ceased to be operative as soon as criminal proceedings had terminated.
In the present case, however, the appellant was not suspended under any rule similar to rule 93A of the Orissa Service Code, Vol. 1 and the decision of the Orissa High Court has therefore no rele vance.
We are therefore of the opinion that the order of suspension of the appellant made by the State Government on February 13, 1950 did not come to an end on the date of the order of acquittal made by the High Court and Counsel for the appellant is unable to make good his submission on this aspect of the case.
It is not necessary for us to express any opinion as to whether the suit is barred under Article 14 of the Schedule to the Indian Limitation Act as we have held that the claim of the appellant is devoid of merit.
For the reasons already expressed, we hold that the judgment of the Bombay High Court dated August 10, 1961 is correct and this appeal must be dismissed.
In view of the circumstances of the case we do not propose to make any order as to costs ,of this Court.
R.K.P.S. Appeal dismissed.
(1) A.I.R. 4957 Orissa 51.

summary:
The appellant was a member of the State Medical Service and as such an employee of the respondent State.
On a report made in January 1950 by the Anti Corruption branch, sanction was given in May 1950 for his prosecution under section 161 Indian Penal Code for accepting a bribe and the trial court convicted him of the offence in February 1951.
In February 1950, he was suspended by an order of the Civil Surgeon pending further orders and in August 1950,directions were given about the payment of subsistence allowance to the appellant during the period of his suspension.
Thereafter a revision application against his conviction was allowed by the High Court and a special leave petition to this Court was rejected.
In February 1953 the respondent State Government directed that a departmental enquiry should be held against the appellant, as a result of which an order of dismissal was made against the appellant on February 11, 1960.
While the enquiry was going on the appellant gave notice to the respondent under section 80 of the Civil Procedure Code and then filed a suit against the respondent praying for a declaration that the order of suspension was illegal and inoperative in law and the appellant continued in service as though no order for suspension had been made; he therefore claimed remuneration and allowances with usual increments from the date of his suspension till the date of his reinstatement.
A Single Bench of the High Court decreed the suit in the appellant 's favour but a Division Bench allowed an appeal and held that the respondent had inherent power to suspend the appellant and to withhold full remuneration for the period of suspension under r. 151 of the Bombay Civil Service Rules.
In the, appeal to this Court it was contended, inter alia, on behalf of the appellant (i) that the power to suspend is not an implied term in an ordinary contract between master and servant and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself; in the absence of any express provision either in the contract of employment or in the Bombay Civil Service Rules, there was no power to suspend a public servant pending inquiry into the allegations of his misconduct; and (ii) as the appellant was suspended pending an inquiry into the charge for the criminal offence alleged to have been committed by him and as the proceedings in connection with that charge ended with the acquittal of the appellant by the High Court on February 15, 1952, the order of suspension must be deemed to have automatically come to an end on that date and the appellant was entitled to full pay from then until February It, 1960 when he was ultimately dismissed.
HELD : dismissing the appeal (i)The order of the State Government dated February 13, 1950.
suspending the appellant pending enquiry into his conduct was valid.
[586 B] L2Sup.
C.11/ 8 6. 578 The general principle is that a employer can suspend an employee pending an enquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension.
it is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself.
Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the period of suspension.
Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay.
[582 D G; 583 C D] It is equally well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which it could be withheld.
In this connection it is important to notice the distinction between suspending the contract of service of an officer and sus pending an officer from performing the duties of his office on the basis that the contract is subsisting.
The suspension in the latter sense is always an implied term in every contract of service.
When an officer is suspended in this sense it means that the Government merely issues a direction to the officer that so long as the contract is subsisting and till the time, the officer is legally dismissed he must not do anything in the discharge of the duties of his office.
In other words, the employer is regarded as issuing an order to the employee which, because the contract is subsisting, the employee must obey.
[582 H; 583 A C] The Management of Hotel Imperial, New Delhi vs Hotel Workers ' Union, ; , T. Cajee vs U. Jormanik Siem, ; ; R. P. Kapur vs Union of India, ; ; Hanley vs Pease & Partners, Ltd. ; Wallwork vs Fielding, ; Boston Deep Sea Fishing and Ice Co. vs Ansell, [1888] 39 Ch.
D. 339, referred to.
If there is no express term relating to payment during such suspension or if there is no statutory provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim suspension.
[583 G H] However, in the present case Rule 151 of the Bombay Civil Service Rules empowered the State Government to withhold pay for the period of interim suspension but the Government servant was entitled under that rule to a subsistence allowance at such rate as the suspending authority may direct but not exceeding one fourth of his pay.
There was no force in the contention that Rule 151 of the Bombay Civil Service Rules applies only to a case where a Government servant is 'suspended by way of penalty and not to a case of interim suspension.
[585 D] R. P. Kapur vs Union of India, 5 S.C.R. 431, relied on.
(ii)The order of suspension dated February 13, 1950 recited that the appellant should be suspended with immediate effect "pending further 579 orders".
It is clear therefore that the order could not be terminated automatically but only by another order of the Government.
Until therefore a further order of the State Government was made terminating the suspension the appellant had no right to be reinstated in service and to the remuneration claimed.
[587 H] Narayan Prasad Rewany vs State of Orissa, A.T.R. 1957 Orissa 51, distinguished.


judgement:
Appeal No. 781 of 1964.
Appeal from the judgment and decree dated September 6, 1961 of the Punjab High Court in Regular Second Appeal No. 54 of 1960.
N. section Bindra, Kartar Singh Suri, Champat Rai and E. C. Agrawala, for the appellants.
section P. Sinha, section K. Mehta and K. L. Mehta, for respondents Nos. 1, 3, 5 and 6.
Bishan Narain, section K. Mehta and K. L. Mehta, for respondent No. 4.
The Judgment of the Court was delivered by Ramaswami, J.
The question to be considered in this appeal is whether under the customary law applicable to Sidhu Jats of Muktsar Tahsil of Ferozepore district collaterals of the 5th degree of the deceased land owner could take precedence over his married daughters in succession to his non ancestral property.
The dispute relates to 1574 kanals 4 marlas of land situated in village Kotli Ablu, Muktsar Tahsil of Ferozepore district.
Dulla Singh was the last male holder of the land and he was succeeded by his widow, Smt.
Indi on his death.
Indi died on September 8, 1955 and thereafter the estate was mutated by the revenue authorities on February 1, 1956 in favour of the defendants who were the reversioners of her husband in the 5th degree.
Nihal Kaur is the daughter of Dulla Singh.
On November 14, 1957 she instituted the suit which is the subject matter of the present appeal in the court of Subordinate Judge, Muktsar for a declaration that she was the legal heir of the land left by Smt.
Indi and that 653 she was entitled to inherit the estate to the exclusion of the collaterals.
The suit was resisted by the defendants who claimed that the whole of the land was ancestral and they were preferential heirs to the deceased Dulla Singh than the plaintiff.
The trial court held that the land in dispute was not the ancestral property of Dulla Singh, but the defendants who were 5th degree collaterals of Dulla Singh were entitled to exclude his daughter from succession even to the non ancestral property under the custom of the district.
Accordingly the trial court dismissed the suit of the plaintiff.
The decree was affirmed by the Additional District Judge, Ferozepore in appeal.
Nihal Kaur preferred a Second Appeal to the Punjab High Court which was allowed and the suit of the plaintiff was decreed.
The High Court took the view that the general custom of the Punjab as laid down in Rattigan 's Customary Law was that the daughters excluded collaterals for succession to the self acquired property of their father and the special custom set out in the Riwaj i am that the agnates, however, remote, exclude daughters from succession to their father 's property was opposed to the general custom referred to above and the Riwaj i am was only a presumptive evidence in favour of the collaterals and the presumption has been rebutted by the plaintiff Mst.
Nihal Kaur in the circumstances of the present case.
In other words, the High Court, held that the general custom in favour of the daughter 's succession prevailed and the defendants had not been able to prove that the general custom had been varied by a special custom enabling the collaterals to exclude the daughters.
This appeal is brought by the defendants on a certificate from the judgment of the Punjab High, Court dated September 6, 1961 in Regular Second Appeal No. 54 of 1960.
On the question of custom the respondents relied upon the statements in paragraph 23 of Rattigan 's Digest of Customary Law (14th Edn.), a book of unquestioned authority in the Punjab, State.
In para 23, p. 132 it is stated that (1) a daughter only succeeds to the ancestral landed property of her father, if an agriculturist, in default : (1) of the heirs mentioned in the preceding paragraph (viz., male lineal descendants, widow or mother), or (2) of near male collaterals of her father, provided that a married daughter sometimes excludes near male collaterals in certain circumstances specified in the paragraph, (2) But in regard to the acquired property of her father, the daughter is preferred to collaterals.
It is further stated at p. 152 that "the general custom of Punjab is that a daughter excludes collaterals in succession to self acquired property of her father and the initial onus, therefore, is on the collaterals to show that the general custom in favour of the daughter 's succession to the self acquired property of her father, has been varied by a special custom 654 excluding daughters".
This being the legal position of the parties the question arises whether the defendants had discharged the onus ,of proving the existence of a special custom excluding the daughters.
On this point the appellants relied upon the answers to ,Questions 48 and 49 in the Compilation of the Customary Law of Ferozepore district by M.M.L. Currie, Settlement Officer.
These ,questions and answers are comprised in the Riwaj i am of the settlement of Ferozepore district of 1914 and are reproduced below : " Question 48 Under what circumstances are daughters entitled to inherit ? Are they excluded by the sons or near male kindreds of the deceased ? If they are excluded by the near male kindred, is there any fixed limit of relationship within which such near male kindred must stand towards the deceased in order to exclude his daughter ? If so, how is the limit ascertained? If this depends on descent from a common ancestor, state within how many generations relatively to the deceased such common ancestor must come? Answer At last settlement Mr. Francis wrote "Except a few Sayyads all tribes say that a daughter can never succeed.
Some Sayyads say that an unmarried daughter can succeed like a son; but no instances are given. ' The custom has now changed completely, most tribes admitting that a daughter is entitled to succeed till marriage in the absence of a widow or male lineal descendants.
The following groups, however, do not admit that a daughter can succeed : Dogars of Fazilka, Nipals, Sayyads of Ferozepore, Zira and Muktsar, Bodlas (unless there are no collaterals in the 5th degree), ,Chishtis (unless no collaterals in the 7th degree), Pathans of Ferozepore (except the Kasuria group), Rajputs of Fazilka, Wattus of Zira and Fazilka, Moghals except in Ferozepore, Mahtams, Sodhis, Bagri Jats, Kumhars and Suthars, Bishnois and the following Jat Sikhs in Fazilka Tahsil Dhaliwals, Sidhhus, Gils and Sandhus.
The Kasuria Pathans state that a daughter succeeds if there are no sons, and the Arians state that she excludes collaterals who do not come within the 4th degree.
Question 49 Is there any distinction as to the rights of daughters to inherit (i) the immovable or ancestral, (ii) the movable or acquired property of their father ? 655 Answer There is no distinction.
A father can of course gift his movable or acquired property to his daughter.
" In the present case, there is no proof of any instance for or against the right of inheritance of a daughter of a deceased last male holder of the, Sidhu tribe of Jats, either in the Muktsar Tahsil or in the whole district of Ferozepore.
At least, none was brought to the notice of the lower courts by the plaintiff or the defendants.
It was contended on behalf of the appellants that the Riwaj i am of 1914 was entitled to a presumption as to the existence of a custom even though not supported by proof of instances and it must therefore be held that the defendants have discharged the initial onus of proving that the general custom has been varied by a special custom enabling them to exclude the married daughter.
The real controversy in this appeal is, however, on the question whether the entries in the Riwaj i am on which the defendants rely refer at all to non ancestral property or not.
In Mst.
Raj Kaur vs Talok Singh(1) Sir Donald Johnstone, the Chief Justice held that the Riwaj i am as compiled, did not cover self acquired property and that where the Riwaj i am talked about succession to land without discrimination between ancestral and self acquired land, the rule laid down could only be taken to apply to ancestral property.
This case related to property in Ferozepore district, though with regard to a different tehsil and different sub caste of Jats, but the important point is that the questions of the Riwaj i am of 1878 in that case were exactly in the same language as questions 48 and 49 of the Riwaj i am of 1914.
A similar view was taken by Shadilal and Wilberforce, JJ.
in Budhi Prakash vs Chandra Bhan(2).
The view was followed by other judges of the Lahore High Court in Narain vs Mst.
Gaindo(3), and Fatima Bibi vs Shah Nawaz ( 4 ) .
In Abdul Rahman vs Mst.
Natho(5) it was observed by the High Court as follows : " According to the Customary Law of the district, collaterals within the fifth degree exclude daughters, but it has been consistently held by this Court that Riwaj i am refer only to ancestral land unless there is a clear statement to the contrary.
It is unnecessary to refer to the numerous decisions on this point.
Customary law is in fact usually only concerned with protecting ancestral property, while self acquired property can be disposed of as the owner pleases, that is, reversioners are usually concerned only with property ancestral qua them." (1) A.I.R. 1916 Lah. 343.
(2) A.I.R. 1918 Lah.
(3) A.I.R. 1918 Lah.
(4) A.T.R. 1921 Lab.
(5) I.L.R. 656 The decision of this case was affirmed by the Full Bench of the Lahore High Court in Mst.
Hurmate vs Hoshiaru(l).
Din Mohammad, J. delivering the leading judgment in this case,, observed as follows : "In my view, the raison d ' etre of those cases which lay down that the Manuals of Customary Law were ordinarily concerned with ancestral property only is quite intelligible.
Collaterals are, as stated by Addison, J. in Abdul Rehman vs Mst.
Natho ( 2 ) really speaking interested in that property only which descends from their common ancestor and this is the only basis of the agnatic theory.
What a maleholder acquires himself is really no concern of theirs.
It is reasonable, therefore, to assume that when manuals of customary law were originally prepared and subsequently revised, the persons questioned, unless specifically told to the contrary, could normally reply in the light of their own interest alone and that, as stated above, was confined to the ancestral property only.
The fact that on some occasions the questioner had particularly drawn some distinction between ancestral and non ancestral property would not have put them on their guard in every case, considering their lack of education and lack of intelligence in general.
Similarly, the use of the terms 'in no case ' or 'under no circumstances ' would refer to ancestral property only and not be extended so as to cover self acquired property unless the context favoured that construction.
" The decision of the Full Bench of the Lahore High Court was approved by the Judicial Committee in Mst.
Subhani vs Nawab and Ors.(3) in which the controversy arose with regard to the interpretation of questions 16 and 17 and the answers thereto in Wilson 's Manual of Customary Law which are reproduced below "Question 16 (p. 48) Under what circumstances are daughters entitled to inherit ? Are they excluded by the sons or by the widow, or by the near male kindred of the, deceased ? If they are excluded by the near male kindred, is there any fixed limit of relationship within which such near kindred must stand towards the deceased in order to exclude his daughters ? If so, how is the limit ascertained ? If it depends on descent from a common ancestor, state within how many generations relatively to the deceased such common ancestor must come.
(1) I.L.R. I.L.R. (3) 68 I. A. 1. 657 Answer 16 All Musalmans.
A married daughter in no case inherits her father 's estate or any share in it.
An unmarried daughter succeeds to no share in presence of agnate descendants of the deceased, or of her own mother; but if there be no agnate descendants and no sonless widow, the un married daughters succeed in equal shares to the whole of their father 's property, movable and immovable, till their marriage, when it reverts to the agnate heirs.
If there be a widow and daughters of another wife who has died, the unmarried daughters of the deceased wife succeed to their mother 's share till their marriage.
Question 17 (p. 49) Is there any distinction as to the rights of daughters to inherit (1) the immovable or ancestral, (2) the movable or acquired, property of their father? Answer 1.7 All Musalmans.
As regards the right of the daughter to inherit, no distinction is made between the movable and immovable ancestral and acquired, property of the father.
If she inherits at all she takes the, whole estate.
" It was held by the Judicial Committee that though in the answers to question No. 17 in Wilson 's Manual no distinction was made between ancestral and non ancestral or between movable and immovable property, and the rule was stated as a wide generalization (in answer to question No. 16) that a married daughter in no case inherits her father 's estate or any share in it, it must be taken in view of the numerous decisions of the Punjab courts that the Riwaj i am which states the rule in such wide and general terms governs ancestral property only.
It should be noticed that Questions 16 and IT of the Wilson 's Manual are couched in similar language to Questions 48 and 49 of the Riwaj i ani with which we are concerned in the present appeal.
In view of these authorities we have therefore come to the conclusion that the entries in the Riwaj i ani with regard to Questions 48 and 49 on which the appellants rely do not refer at all to non ancestral property and are therefore not relevant evidence to establish a special custom among the Sidhu Jats of Muktsar Tahsil of Ferozepore district entitling collaterals for succession to non ancestral property in preference to daughters.
It follows therefore that the appellants have not discharged the onus which lay upon them of proving that the general custom has been varied by a special customs enabling the collaterals to exclude the daughters.
It is manifest therefore that the customary law among the Sidhu Jats of Muktsar Tahsil of Ferozepore district as regards non ancestral property is the same 658 as recorded generally for the State of Punjab in paragraph 23 of Rattigan 's Digest i.e., a daughter is preferred to collaterals.
We shall, however, assume in favour of the appellants that Questions 48 and 49 of the Riwaj i am relate also to succession of non ancestral property of the last male holder.
Even upon that assumption we are of opinion that the case of the appellants cannot succeed.
The reason is that though the entries in the Riwaj i am are entitled to an initial presumption in favour of their correctness, the quantum of evidence necessary to rebut this presumption would vary with the facts and circumstances of each parti cular case.
Where, for instance, the Riwaj i am laid down a custom in consonance with the general agricultural custom of the State, very strong proof would be required to displace this presumption, but where, on the other hand, this was not the case, and the custom as recorded in the Riwaj i am was opposed to the rules generally prevalent, the presumption would be considerably weakened.
Likewise, where the Riwaj i am affected adversely the rights of females who had no opportunity whatever of appearig before the revenue authorities, the presumption would be weaker still, and very little evidence would suffice to rebut it.
In Narain vs Mst.
Deoki(l), Roe, J. stated as follows : "There is no doubt a general tendency of the stronger to over ride the weak, and many instances may occur of the males of a family depriving females of rights to which the latter are legally entitled.
Such instances may be followed so generally as to establish a custom, even though the origin of the custom were usurpation; but the Courts are bound carefully to watch over the rights of the weaker party, and to refuse to hold that they had ceased to exist unless a custom against them is most clearly established".
In a later case, Sayad Rahim Shah vs Sayad Hussain Shah (2) a similar caution was uttered by Robertson, J. who observed as follows: "The male relations, in many cases at least, have been clearly more concerned for their own advantage than for the security of the rights of widows and 'other female relatives with rights or alleged rights over family property, and the statements of the male relatives in such matters have to be taken cum grano salis where they tend to minimize the rights of others and to extend their own.
(1) (1893) 24 P R. 124.
(2) (1901) 102 P.R. 353.
6 5 9 The same view was expressed by the Lahore High Court in a still later case Bholi vs Man Singh(1) where the Riwaj i am had laid down that daughters were excluded by collaterals, even up to the tenth degree and it was stated as follows: "As the land is rising in value under British rule, the land holders are becoming more and more anxious to exclude female succession.
They are ready to state the rule against daughters as strongly as possible, but if the custom is so well established, it is strange that they are unable to state a single instance in point on an occasion like the compilation of the Riwaj i am, when detailed inquiries are being made and when the leading men are supposed to give their answers with deliberation and care.
" The principle was reiterated by this Court in Mahant Salig Ram vs Mst.
Maya Debi(2) It was pointed out in that case that it was well settled that the general custom of the Punjab State was that the daughter excluded collaterals from succession to self acquired property of her father and so the initial onus must therefore be on the collaterals to show that the general custom in favour of the daughter 's succession to the self acquired property of her father has been varied by a special custom excluding the daughter.
It was also well settled that the entries in the Riwaj i am are entitled to an initial presumption in favour of their correctness but the presumption will be considerably weak ened if it adversely affects the rights of the females who have no opportunity of appearing before the Revenue authorities.
In the present case, apart from the general custom of the Punjab to which due weight must be attached three instances have been referred by the High Court in the course of its judgment to show that the presumption attaching to Riwaj i am has been rebutted in this case.
The first instance is the subject matter of the decision in Mst.
Rai Kaur vs Talok Singh(3).
It was a case of Gill Jats from Zira Tahsil of Ferozepore district.
It was held in that case that the plaintiffs on whom the onus rested had failed to prove that by custom among Gill Jats of mauza Lohara, tahsil Zira, district Ferozepore, they, as near collaterals of a deceased sonless proprietor, succeeded to his self acquired estate in preference to a daughter.
As we have already pointed out earlier, Questions 48 and 49 correspond to Questions 1 and 2 of the Riwaj i am of 1878 which were dealt with in this case.
The second instance is reported as Ratta vs Mst.
Jai Kaur(4).
It is case of a Daliwal Jat of Tahsil Moga, District Ferozepore.
It was admitted that daughter of the last male holder was entitled to succeed to his self acquired property.
It is true that the case (1) (1908) 86 P.R. 402.
(3) A.T.R. L2 SupCI/68 12 (2) [1955]1 S.C.R. 1191.
(4) 660 was decided upon the admission of Counsel for the collaterals but it is improbable that if there was material evidence in support of the collaterals the Counsel would have made such an admission.
The third instance referred to by the High Court is R.F.A. No. 220 of 1954, decided on April 11, 1961, in which it was held that sister of the last male holder excludes his collaterals from inheritance in regard to his non ancestral or acquired property.
That is a case of Jats from Fazilka tahsil of Ferozepore district.
The property, however, was situated in two villages, one in Fazilka tahsil and the other in Muktsar tahsil.
It was held in that case that in Muktsar and in Fazilka in regard to non ancestral or acquired property of the last male holder his sister was a preferential successor as against collaterals.
In this connection it should be noticed that in the Riwaj i am of 1914 Question 58 concerns the rights of succession of sisters and sisters ' sons and the answer is that they never inherit.
Considering therefore that in the neighbouring tahsils of the same district in regard to non ancestral property a daughter has excluded collaterals and in Muktsar tahsil a sister has excluded collaterals, there is in our opinion sufficient material to displace the presumption of correctness of the Riwaj i am entries in this case.
In view of the considerations already mentioned in the judgment the presumption attaching to the Riwaj i am entries is a weak presumption and in our opinion it has been sufficiently discharged by the evidence adduced by the respondents in this case.
It is necessary to add that the appellants defendants have not relied upon any instances in support of their case.
For the reasons expressed we hold that the judgment of the High Court dated September 6, 1961 in Regular Second Appeal No. 54 of 1960 is correct and this appeal must be dismissed with costs.

dataset_name: IN-Abs

summary:
D, a Sidhu Jat of Muktsar Tahsil, Ferozepore District, Punjab was tile last male holder of certain land in that area.
He was succeeded by his widow after whose death, the land was mutated in favour of D 's collaterals in the 5th degree.
D 's daughter filed a suit for a declaration that she was the legal heir of .he land and was entitled to inherit to the exclusion of the collaterals.
The trial court held that the land was not ancestral but the defendants were preferential heirs under the custom of the district.
The decree was affirmed by the first appellate court.
In second appeal, however, the High Court decided in favour of the plaintiff holding that the general custom recorded in Rattigan 's Digest had not been shown to be displaced by any special custom in the Riwaj i am, The defendants appealed.
HELD : The entries in the Riwaj i am on which the appellants relied, did not refer at all to non ancestral property and were therefore not relevant evidence to establish a special custom among the Sidhu jats of Muktsar Tahsil of Ferozepore District entitling collaterals for succession to non ancestral property in preference to daughters.
The appellants had not discharged the onus which lay upon them of proving that the general custom had been varied by a special custom enabling the collaterals to exclude the daughters.
It was manifest therefore that the customary law among the Sidhu Jats of Muktsar Tahsil of Ferozepore district Is regards non ancestral property was the same as recorded generally for the State of Punjab in Paragraph 23 of Rattigan 's Digest i.e. a daughter is preferred to collaterals.
[657 G H] Mst.
Rai Kaur vs Talok Singh, A.I.R. 1916 Lab. 343, Budhi Prakash vs Chandra Bhan, A.I.R. 1918 Lab.
225, Narain vs Mst.
Gaindo, A.I.R. 1918 Lab.
304, Fatima Bibi vs Shah Nawaz.
A.I.R. 1921 Lab.
180, Abdul Rahiman vs Mst.
Natho, I.L.R. [1932] 13 Lab.
458, Mst.
Hurmate vs Hoshiaru, I.L.R. 25 Lab.
228 and Mst.
Subhani vs Nawab and Ors.
, 68 I.A. 1, referred to.
(ii) Even on the assumption that the Riwaj i am entries referred to the non ancestral property of the last male holder the appellants could not succeed.
For though the entries in the Riwaj i am are entitled to an initial presumption in favour of their correctness, the quantum of evidence necessary to rebut this presumption would vary with the facts and circumstances of each particular case.
Where, for instance, the Riwaj i am laid down a custom in consonance with the general agricultural custom of the State, very strong proof would be required to displace this presumption, but where, on the & her hand, this was not the case, and the custom as recorded in the Riwaj i am was opposed to the rules generally 652 prevalent the presumption would be considerably weakened.
Likewise, when the Riwaj i am affected adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weaker still, and very little evidence would suffice to rebut it.
[658 B D] Har Narain vs Mst.
Deoki, (1893) 24.
P.R. 124.
Sayad Rahim Shah vs Sayad Hussain Shah, (1901) 102 P. R. 353, Bholi vs Man Singh, ( 1908) 86 P. R. 402 and Mahant Salig Ram vs Mst.
Maya Devi , referred to.
(iii)In.
the present case the High Court bid mentioned three instances in its judgment which showed that the presumption attaching to Riwaj i am had been rebutted in this case.
The appellant 's defendants had not relied upon any instances in support of their case.
The High Court therefore rightly decided in favour of the plaintiffs.
[660 C D] Mst.
Rai Kaur vs Talok Singh, A.I.R. 1916 Lah.
343, Ratta vs Mst Jai Kaur, and R.F.A. No. 220 of 1954 decided by the Punjab High Court on April 11 1961, referred to.


judgement:
iminal Appeal No.42 of 1965.
Appeal by special leave from the judgment and order dated December, 16, 17, 18, 19, 21, 22 of 1964 of the Bombay High Court in Criminal Appeal No. 53 of 1964.
Nuruddin Ahmed, E. C. Agrawala, Champat Rai, section V. Pikale and P. C. Agrawala, for the appellant.
Adi P. Gandhi, H. R. Khanna and section P. Nayar, for the res pondent.
The Judgment of the Court was delivered by Hidayatullah, J.
The appellant Haroon is the sole appellant from a batch of 18 persons who were tried jointly before the Chief Presidency Magistrate, Esplanade Court, Bombay for offences under section 120 B of the Indian Penal Code read with section 167(81) of the Sea Customs Act and certain offences under the Foreign Exchange Regulations Act, 1947.
Of these, No. 17 accused (Saleh Mohamed Bhaya) was discharged by the Magistrate, No. 1 accused (Govind Narain Bengali) died after the conclusion of the case but before judgment in the Court of triad and No. 4 accused (Noor Mohammad) jumped bail just before the same judgment.
The case against Bengali was held to have 643 abated and that against Noor Mohammad was kept pending.
Nos. 11, 12, 13 and 16 accused were acquitted.
Of the remaining accused who were convicted, Haroon alone is before us.
His appeal to the High Court of Bombay was dismissed but he obtained special leave under article 136 of the Constitution and brought this appeal.
As this appeal is to be considered on a question of law, it is not necessary to give the facts in detail.
The several accused (and many others unknown) were said to be concerned in a criminal conspiracy the object of which was to smuggle gold into India from the Middle East.
Gold was brought in steam launches from places on the Persian Gulf and transhipped into Indian boats standing out at sea, which would then shore it to be taken away by persons waiting for it.
The operations were organised by No. 15 accused (Haji Sattar) and his nephew No. 9 accused (Ayub) with the assistance of Bengali, Noor Mohammad and Kashinath (P.W. 1).
Four trips, in which gold of the value of nearly a crore of rupees was smuggled, were made and Haroon is said to have taken part in the third and fourth trips.
His share in the affair was only this; that he was present when gold was landed and he helped in taking it away and accompanied Haji Sattar and Ayub in their car.
As the smuggling of gold and the details of the operations are admitted it is not necessary to consider the prosecution evidence with a view to finding out whether there existed sufficient proof on that part of the case.
It may, however be stated that as the raid took place while the last consignment of gold was still with the smugglers and many of them were arrested there and then, no successful attempt to refute it could at all be made.
The only question was who were in the conspiracy besides those caught at the spot.
The argument in this appeal is that there is no legal evidence to connect Haroon with the others.
The case against Haroon stands mainly on the basis of the statement of the accomplice Kashinath (P.W. 1).
Kashinath must be held to be a competent witness in view of our decision in the Chauraria 's case(1).
Corroboration for Kashinath 's evidence on the general aspects of the conspiracy was amply available from diverse sources and this is not denied but in respect of Haroon (whose name (foes not figure in the rest of the oral or documentary evidence) it was found to exist in the statement of Kashinath.
before the Customs authorities, and statements made by Bengali and Noor Mohammad also to the Customs Officers, all in answer to notices under section 171 A of the Sea Customs Act.
The use of these statements is objected to generally and in particular on the.
(1) ; 1.2 Sup CI/68 10 644 following grounds: It is submitted firstly that these statements are not confessions proper to which section 30 of the Evidence Act can be made applicable; secondly, that as Bengali died and Noor Mohammad absconded before the trial was finally concluded against them. their statements are not of persons jointly tried with Haroon; thirdly a confession of a co accused is no better than accomplice evidence and just as one accomplice cannot be held to corroborate another accomplice, the confession of a co accused cannot also be held to be sufficient corroboration; fourthly as these confessions, were later retracted their probative value is nil; and fifthly Kashinath 's previous statement cannot be used to corroborate him as an accomplice cannot corroborate himself.
On these submissions it is urged that Haroon 's conviction is based really on the uncorroborated testimony of an accomplice.
We may begin by stating that we have read the deposition of Kashinath as the first prosecution witness.
We have been impressed by the simplicity of the narrative and there is on record a note by the Magistrate that he was impressed by the manner in which Kashinath deposed.
The High Court and the Magistrate have, concurred in accepting it and we have not seen anything significant to reject it as false.
To corroborate Kashinath, the Magistrate and the High Court have looked into his statement under ,section 171 A of the Sea Customs Act.
In Rameshwar vs State of Rajasthan(1) the previous statement was held under section 157, Evidence Act, corroborative evidence provided it was made "at ,or about the time when the fact took place.
" This is perhaps true of other testimony but as pointed out by the.
Judicial Committee in Babhoni Sahu vs Emperor(1), the use of the previous statement of an accomplice is to make the accomplice corroborate himself.
We have, therefore, not used exhibit A to corroborate Kashinath but we cannot help saying that only Iwo discrepancies were noticed on comparison.
The first was that Haroon 's name was mentioned in exhibit A in the second trip while in the deposition in Court he was shown to have taken part in the third trip.
The details of the trips where his name is mentioned are identical and it seems that in counting the trips, Kashinath has made a confusion, counting the reconnaisance trip as the first trip in his deposition but not in his statement.
The second was the omission of a couple of names from the long list of those who were on the beach to receive the gold.
This is not of much Consequence because any one who tries to give a long list of names, often makes such an omission.
On the whole the two statements contained the same story with sufficient details for verification from outside sources.
The reception of exhibit A as corroborative of accomplice testimony, although open to some ,objection, has, however, not affected the case.
(1) ; (2) A.I.R. 1949 P.C. 257.
645 This leads us to the consideration of the statements of Bengali and Noor Mohammad which were received in corroboration of Kashinath 's testimony.
These statements contain admission constituting the guilt of the makers under the charged sections.
They also mention the name of Haroon, among others, as being concerned in the smuggling and in much the same way as does the accomplice.
The question is, can they be used to corroborate him? These statements are not confessions recorded by a Magistrate under section 164 of the Code of Criminal Procedure but are statements made in answer to a notice under section 171 A of the Sea Customs Act.
As they are not made subject to the safeguards under which confessions are recorded by Magistrates they must be specially scrutinised to finding out if they were made under threat or promise from some, one in authority.
If after such scrutiny they are considered to be voluntary, they may be received against ,the maker and in the same way as confessions are received, also against a co accused jointly tried with him.
Section 30 of the Evidence Act does not limit itself to confessions made to Magistrates, nor do the earlier sections do so, and hence there is no bar to its proper application to the statements such as we have here.
No doubt both Bengali and Noor Mohammad retracted their statements alleging duress and torture.
But these allegations came months later and it is impossible to heed them.
The statements were, therefore, relevant.
Both Bengali and Noor Mohammad were jointly tried with Haroon right to the end and all that remained to be done was to pronounce judgment.
Although Bengali was convicted by the judgment, the case was held abated against him after his death.
In Ram Sarup Singh and Others vs Emperor (1), J was put on his trial along with L; the trial proceeded for some time and about six months before the delivery of judgment, when the trial had proceeded for about a year, J died.
Before his death J 's confession had been put on the record.
R. C. Mitter, J. (Henderson, J. dubitante) allowed the confession to go in for corroborating other evidence but not as substantive evidence by itself.
Of course, the confession of a person who is dead and has never been brought for trial is not admissible under section 30 which insists upon a joint trial.
The statement becomes relevant under section 30 read with section 32(3) of the Evidence Act because Bengali was fully tried jointly with Haroon.
There is, however, difficulty about Noor Mohammad 's statement because his trial was separated and the High Court has not relied upon it.
The statement of Bengali being relevant we have next to see how far it can be held to be legal corroboration of Kashinath 's accomplice evidence.
The law as to accomplice evidence is settled.
The Evidence Act in section 133 provides that an accomplice (1) A.I.R. 1937 Cal.
39. 646 is a competent witness against an accused person and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
The effect of this provision is that the court trying an accused may legally convict him on the single evidence, of an accomplice.
To this there is a rider in illustration (b) to section 114 of the Act which provides that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars.
This cautionary provision incorporates a rule of prudence because an accomplice, who betrays his associates, is not a fair witness and it is possible that he may, to please the prosecution, weave false details into those which are true and his whole story appearing true, there may be no means at hand to sever the false from that which is true.
It is for this reason that courts, before they act on accomplice evidence, insist on corroboration in material respects as to the offence itself and also implicating in some satisfactory way, however small, each accused named by the accomplice.
In this way the commission of the offence is confirmed by some competent evidence other than the single or unconfirmed testimony of the accomplice and the inclusion by the accomplice of an innocent person is defeated.
This rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to have almost the standing of a rule of law.
The argument here is that the cautionary rule applies, whe ther there be one accomplice or more and that the confessing co accused cannot be placed higher than an accomplice. 'Therefore, unless there is some evidence besides these implicating the accused in some material respect, conviction cannot stand.
Reliance is placed in this connection upon the observations of the Judicial Committee in Bhuboni Sahu vs Emperor(1), a case in which a conviction was founded upon the evidence of an accomplice supported only by the confession of a co accused.
The Judicial Committee acquitting the accused observed: Their Lordships whilst not doubting that such a conviction is justified in law under section 133, Evidence Act, and whilst appreciating that the coincidence of a number of confessions of co accused all implicating the particular accused given independently, and without an opportunity of previous concert, might be entitled to great weight, would nevertheless observe that Courts should be slow to depart from the rule of prudence,, based on long experience, which requires some independent evidence implicating the particular accused.
The danger of acting upon accomplice evidence is not merely that the accomplice is on his own admission a (1) A. I.R. 647 man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue.
As against this the State relies upon the observations of Imam, J. in Ram Prakash vs State of Punjab(1): "The Evidence Act nowhere provides that if the confession is retracted, it cannot be taken into consideration against the co accused or the confessing accused.
Accordingly, the provisions of the Evidence Act do not prevent the Court from taking into consideration a retracted confession against the confessing accused and his co accused.
Not a, single decision of any of the courts in India was placed before us to show that a retracted confession was not admissible in evidence or that it was irrelevant as against a co accused.
An examination of the reported decisions of the various High Courts in India indicates that the preponderance of opinion is in favour of the view that although it may be taken into consideration against a co accused by virtue of the provisions of section 30 of the Indian Evidence Act, its value was extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars.
The corroboration in the full sense implies corroboration not only as to the factum of the crime but also as to the connection of the co accused with that crime.
In our opinion, there appears to be considerable justification for this view.
The amount of credibility to be attached to a retracted confession, however, would depend upon the circumstances of each particular case.
Although a retracted confession is admissible against a co accused by virtue of section 30 of the Indian Evidence Act, as a matter of prudence and practice a court would not ordinarily act upon it to convict a co accused without corroboration.
" The State further relies upon the observations of Govinda Menon J. in Subramania Goundan vs State of Madras(2) where the value of a confession was compared with the value of accomplice evidence.
The case of the Judicial Committee dealt with accomplice evidence which was sought to be corroborated by retracted con (1) , 1223.
(2) ; 648 fessions.
The case of this Court dealt with a retracted confession which was sought to be used without corroboration.
Both cases treat the retracted confession as evidence which may be used although not within the definition of evidence.
But both cases regard this evidence as very weak and only to be used with great caution.
Although Govinda Menon, J. in Subramania Goundan 's case(1) placed a confession on a slightly higher level than accom plice evidence, the observation is intended to convey the difference between the extent of corroboration needed for the one or the other before they can be acted upon.
To read more meaning into the observations is not permissible for no such meanig was intended.
The confession there considered was also intended to be used against the maker and not against a co accused.
A confession intended to be used against a co accused stands on a lower level than accomplice evidence because the latter is at least tested 'by cross examination whilst the former is not.
The observations of Govinda Menon, J. must not be applied to those cases where the confession is to be used against a co accused.
As pointed out by this Court in Nathu vs State of Uttar Pradesh (2) , confessions of co accused are not evidence but if there is other evidence on which a conviction can be based, they can be referred to as lending some assurance to the verdict.
In this connection the question of retraction must also be considered.
A retracted confession must be looked upon with greater concern unless the, reasons given for having made it in the first instance (not for retraction as erroneously stated in some cases) are on the face of them false.
Once the confession is proved satisfactorily any admission made therein must be satisfactorily withdrawn or the making of it explained as having proceeded from fear, duress, promise or the like from some one in authority.
A retracted confession is a weak link against the maker and more so against a co accused.
In Rameshwar vs State of Rajasthan(3) this Court laid down certain general rules about the nature of corroboration needed before accomplice evidence may be accepted.
It is there pointed Out that every detail of the story of the accomplice need not be confirmed by independent evidence although some additional independent evidence must be looked for to see whether the approver is speaking the truth and there must be some evidence, direct or circumstantial which connects the co accused with the crime independently of the accomplice.
One such circumstance may be the making of a number of confessions without a chance for prior consultation between the confessing co accused.
But before even a number of such confessions can (1) ; (3) ; (2) A.I. R. 649 be used each such confession must inspire confidence both in its content and in the manner and circumstances of its making.
If there be any suspicion of false implication the confession ' must be discarded as of no probative value.
This may result from a variety of circumstances of which a few alone may be mentioned, such as why the, accused confessed whether he expected a gain for himself by implicating his co accused, the part he assigns to himself and that to his co accused, the opportunity for being coached up to narrate a false story or a story false in certain.
details.
Where there is a single retracted confession corroborating other accomplice evidence, the caution must necessarily be still greater and the probative value smaller.
Even if there are more than one such confession and they are proved to be given independently and without an opportunity for a prior concert,.
the probative value may increase but the need for caution remains because a number of suspects may be prompted by the. same or different motives to embroil a particular individual.
It is only when false implication is excluded after close scrutiny that confession of a co accused can be used to lend assurance to other evidence.
This was so stated by Sir Lawrence Jenkins in Emperor vs Lalit Mohan Chuckerburty(1) and accepted by this Court, and a retracted confession cannot obviously go further or have higher value.
The offence in this case was detected on the night of August 13, 1961 and investigation went on till the morning of the 14th.
Thereafter the customs authorities served notices upon various suspects and recorded their statements in answer to these notices.
The statements of Kashinath (exhibit A) and Bengali (exhibit Z 27) were recorded on the 15th, the former by Kamik (P.W. 24) and the latter by Rane (P.W. 26).
These statements were recorded simultaneously or almost simultaneously.
The statement of Noor Mohammad (exhibit Z 17) was recorded by Randive (P.W. 22) on August 19.
As there was no gap of time between the statements.
of Kashinath and Bengali and the incident was only a few hours old, it is impossible that the officers could have tutored them to, make statements which agree in so many details.
Both the statements receive corroboration at numerous points in the story from other than accomplice evidence.
For example the statements of Kashinath regarding the boats employed, the names of the owners and pilots, the manner the trips were made, the names of persons who took part and what they did, the description of the residences of the Muslim co accused, the furniture and furnishings in the, room where gold used to be secreted, the description of the cars employed, and the identity of the several participants other than Haroon, are amply borne out by evidence which is not accomplice in character.
A bare reading of the statement of Kashinath made (1) I.L.R.38 Cal.559,588.
650 before the Court and corroborated by his earlier statement to the Customs authorities (except in two particulars already considered) leaves one convinced that he is speaking the truth.
We are not seeking corroboration of the accomplice from his own statements because that does not advance accomplice evidence any further.
We are only looking into the previous statement to see if it discloses any variation which would put us on further inquiry.
The real check comes when one compares these two statements with that made by Bengali.
A remarkable degree of agreement is found there also.
In fact they are so consistent that Mr. Nuruddin Ahmad sought to make a point and said that they must be the result of collusion.
Apart from the fact that there was no time to collude, there are extra details in the different statements which also receive independent corroboration.
Further, although Noor Mohammad 's statement was not used by the High Court and we have reluctantly left it out of consideration also, nothing was shown to us to destroy the conclusion about the truth of accomplice evidence.
If it was, we would have considered seriously Whether we should not take it into consideration.
Further Haroon himself was also served with a notice like others.
He was unwilling to make a statement till he had seen what the others had said.
This may well be regarded as peculiar conduct in a man who now claims that he was not concerned with the smuggling.
The High Court has very searchingly examined the evidence of Kashinath and applied to it the checks which must always be applied to accomplice evidence before it is accepted.
There is corroboration to the evidence of Kashinath in respect of Haroon from the confession of Bengali given independently and in circumstances which exclude any collusion or malpractice.
Regard being had to the provisions of section 133 of the Evidence Act, we do not think that we should interfere in this appeal by special leave, particularly as we hold the same opinion about the veracity of Kashinath.
The appeal, therefore, fails and is dismissed.
Appellant to surrender to his bail.
V.P.S. Appeal dismissed.

summary:
Gold was smuggled into India by bringing it in steam launches from places on the Persian Gulf, transhipping it into Indian boats standing out at sea, then bringing it to the Indian shores and by being taken away by persons waiting for it.
There was a raid on the night of August 13, 1961 while a consignment was being brought in.
Many of the smugglers were arrested, the case was investigated into, and on the 14th, the Customs Authorities served notices upon the suspects under section 171A of the Sea Customs Act.
On the 15th, two Customs Officers recorded the statements, in answer to the notices, from two of the suspects K and B, independently, and almost simultaneously.
The statement of K implicated himself and the appellant in the smuggling and the satement of B contained a confession of his own guilt as well as the implication of the appellant in the smuggling.
The, appellant himself was served with a notice by the Customs authorities, but he was unwilling to make a statement till he had seen what the others had said.
The appellant and 17 others were tried for (the offence of conspiracy to smuggle gold into India.
At the trial, K was a witness for the prosecution and B, who was jointly tried with the appellant retracted the confession he made before the Customs authorities alleging duress and torture.
He however died before judgment was delivered but after the conclusion of the trial of the case.
Some of the accused were acquitted and others, including the appellant, were convicted.
In appeal, the High Court, confirmed the conviction of the appellant relying on the evidence of K corroborated by his statement before the Custom authorities and the retracted confession of B.
In appeal to this Court, it was contended that, as K was an accomplice, no conviction could be based on his evidence unless it was corroborated in material particulars; and the statement of K before the Customs authorities and the confession of B to the Customs authorities.
which was later retracted, could not be used for purposes of such corroboration.
HELD : An accomplice is a competent witness and his evidence could be accepted and a conviction based on it if there is nothing significant to reject it as false.
But the rule of prudence, ingrained in the consideration of accomplice evidence, requires independent corroborative evidence first of the offence and next connecting the accused, against whom the accomplice evidence is used, with the crime.
Such corroborative evidence could be direct or circumstantial.
On such circumstance may be the making of confessions by more than one accused, provided there was no chance for prior consultation between the confessing co accused for implicating another, and they inspire confidence both in their content and in the manner and circumstances of their making.
If a confessing co accused is tried jointly, within the.
meaning of section 30 of the Evidence Act, with the accused against whom the accomplice evidence is sought to be used for has 642 ing a conviction, the confession could be referred to as lending some assurance to the verdict.
The fact that the confession was later retracted would make no difference unless the admissions made in the confession are satisfactorily withdrawn, or, the making of it explained as having proceeded from fear, duress, promise or the like, of some one in authority.
[644 D. 646 A. C E; 648 D H; 650 E F] In the present case, though K was an accomplice and his own statement before the Customs authorities could not be used for purposes of corroboration, his evidence, impressed the lower Courts and was accepted by them.
There was nothing to make this Court form a different opinion about his veracity.
There was no gap of time between the statements of K and B, and it was impossible that the Customs officers could have tutored them to make the statements which agree in many details.
Further, both the statements received corroboration at numerous other points in the story from independent evidence.
Therefore, the confession of B given independently and in circumstances which exclude any collusion or malpractice affords corroboration to the evidence of K in respect of the appellant.
B 's confession could also be taken into consideration under section 30 of the Evidence Act, to lend assurance to the verdict, as B was fully tried jointly with the appellant, and his allegations of duress and torture for retracting his confession came months later and it was impossible to heed them.
[644 C D; 645 D E; 649 F G] Rameshwar vs State of Rajasthan, ; , Nathu vs State of U.P., A.I.R. 1956 section C. 56, Subramania Goundan vs State of Madras, 119581 S.C.R. 428, Ram Prakash vs State of Punjab, , Chauraria 's case [1968] 2 S.C.R. 624, Babhoni Sahu vs Emperor, A.I.R. 1949 P.C. 257, Emperor vs Lalit Mohan Chuckerburty, I.L.R. and Ram Sarup Singh.
& Ors.
vs Emperor, A.I.R. 1937 Cal. 39, referred to.


judgement:
riminal Appeal No. 33 of 1952.
Appeal under Article 134(1)(c) from the Judgment and Order dated the 19th February, 1952, of the 93 High Court of Orissa at Cuttack in Criminal Appeal No. 66 of 1950 arising out of the Judgment and Order dated the 19th September, 1950, of the Court of the Additional Sessions Judge, Cuttack Dhenkanal, Cuttack, in Sessions Trial No. 9 C of 1950.
Nur ud Din Ahmed, R. Patnaik and R. C. Prasad, for the appellant.
R. Ganapathy lyer, for the respondent.
April 7.
The Judgment of the Court was delivered by BOSE J.
The appellant was an Inspector of Factories under the Government of Orissa. 'It was a part of his duty to inspect factories and mills in the State of Orissa.
He toured the districts of Koraput and Balasore from 18th August, 1948, to 27th August, 1948, and from 29th September, 1948, to 30th October, 1948, respectively.
The prosecution case is that he collected bribes from persons connected with some of the mills he inspected in those districts.
It is said that he used to threaten to close their mills and impose other penalties for alleged defects unless they paid him a bribe.
On 3rd October, 1948, he was camping at the Dak Bungalow at Basta in the Balasore district.
Because of information received against him his person and belongings were searched on that day and a sum of Rs. 3,148 was recovered from him consisting of Rs. 450 paid at the time as a trap and Rs. 2,698 already in his possession.
He was arrested on the spot but was later released on bail.
Departmental and other proceedings were taken against him and he was eventually brought to trial on 29th March, 1950, and charged under section 5(2) of the Prevention of Corruption Act (II of 1947) for criminal misconduct in the shape of habitually accepting illegal gratification.
He was also separately charged and separately prosecuted under section 161 of the Indian Penal Code for three specific offences of bribe taking but we are not concerned here with that as he was acquitted on all three counts.
His, conviction here is under section 5(2) alone.
The trial Court 94 sentenced him to rigorous imprisonment for four years and a fine of Rs. 5,000.
The High Court upheld the conviction on appeal but reduced the sentence to two years and a fine of Rs. 3,000.
The accused applied for a certificate to appeal under article 134(1)(c) on three points.
The High Court held that two of them were not of sufficient importance to justify the issue of a certificate particullarly 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 importance.
The points were formulated as follows: "(i) whether the view of this Court as to the requirement of sanction in a case of this kind and the interpretation of Morarka 's case in A.I.R. 1948 P.C. p. 82 adopted by this Court in its judgment are correct; (ii)whether the interpretation of this Court relating to the requirements as to the corroboration of an accomplice witness in a bribery case with reference to 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; and (iii)whether the law as propounded by the decision now ' sought to be appealed against with reference to the considerations that arise in judging the presumptions under section 5(3) of the Prevention of Corruption Act is correct.
" The first point arises in this way.
Four kinds of criminal misconduct are set out in section 5 of the Prevention of Corruption Act.
They are enumerated in clauses (a), (b), (c) and (d) of sub section (1).
The sanction is general and does not specify which of these four offences was, meant.
It runs as follows: " Government of Orissa.
Commerce and Labour Department.
Order No. 4561/Com., dated 3 11 1948.
In pursuance of section 6 of the Prevention of Corruption Act, 1947 (II of 1947), the Governor of 95 Orissa is hereby pleased to accord sanction for prosecution of Sri B. B. Nayak, Inspector of Factories.
Orissa, employed in connection with the affairs of the Province under sub section (2) of section 5 of the said Act.
Nature of offence committed: Criminal misconduct in discharge of official duty.
By order of the governor, Sd./ V. Ramanathan, Secretary to Government.
It was contended that the Privy Council held in Gokutchand Dwarkadas Morarka vs The King(1) that such a sanction is invalid.
The High Court rejected this argument.
We agree with the High Court.
The passage of the Privy Council judgment on which reliance is placed is as follows "In their Lordships ' view, 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 facts should be ' referred to on th; face of the sanction but this is not essential since clause 23 does not require the sanction to be in an particular form nor even to be in writing.
But if the facts constituting the offence charged are not known on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority.
" The Judgment of the Judicial Committee relates to clause 23 of the Cotton Cloth and Yarn (Control).
Order, 1943, but the principles apply here.
It is no more necessary for the sanction under the Prevention of Corruption Act to be in any particular form, or in 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 of such a course is obvious because when the facts are not set out in the sanction proof has to be given (1) A.I.R. 1948 P.C. 82.
96 aliunde that sanction was given in respect of the facts constituting the offence charged, but an omission to do so is not fatal so long as the facts can be, and are, proved in some other way.
The High Court finds that the facts to which the sanction relates were duly placed before the proper sanctioning authority.
We need not consider the evidence about telephone calls and the like because the letter of the District Magistrate asking for sanction (Exhibit 26) is enough to show the facts on which the sanction is based. 'It is in these terms: "I have the honour to report that Sri B.B. Nayak, Inspector of Factories, Orissa, in the course of his visit to this district had been visiting certain mills, and on information received by me that he had been collecting heavy sums as illegal gratification from the Manager or Proprietor of Mills under threat of mischief to the mill owners, it was arranged to verify the truth of this information by handing over 3 hundred rupee notes marked with my initials in presence of the Superintendent of Police and two other respectable gentlemen and millowners, on the evening of the 2nd October, 1948.
On the 3rd October the Factory Inspector having actually received the illegal gratification of Rs. 45o which sum included the three marked hundred rupee notes, the Prosecuting Inspector seized the marked notes along with a further heavy sum of Rs. 2,698 from his possession.
Under section 6 of the Prevention of Corruption Act, 1947, the accused being a public servant in the employ of the Provincial Government the sanction of the Provincial Government is necessary prior to taking cognisance of an offence under section 161, Indian Penal Code or subsection (2) of section 5 of the Act." A sanction based on the facts set out in this letter,.
namely the information received about the collection of heavy sums as bribes and the finding of Rs. 2,698 in his possession would be sufficient to validate the present prosecution.
It is evident from this letter and from the other evidence that the facts placed before the 97 Government could only relate to offences under section 161 of the Indian Penal Code and clause (a) of section 5(1) of the Prevention of Corruption Act.
They could not relate to clauses (b) or (c).
Therefore, when the sanction was confined to section 5 (2) it could not, in the circumstances of the case, have related to anything but clause (a) of sub section (1) of section 5.
Therefore, the omission to mention clause (a) in the sanction does not invalidate it.
The present prosecution is confined to section 5(1)(a) which runs as follows: "(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.
" Then comes sub section (3) which sets out a new rule of evidence in these terms: "In any trial of an offence punishable under subsection (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 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 to show that the accused, or some person on his behalf, is in possession of pecuniary resources or property disproportionate to his known sources of income and for which the accused cannot satisfactorily account.
Once that is established then the Court has to presume, unless the contrary is proved, that the accused is guilty of the new offence created by section 5, namely criminal misconduct in the discharge of his official duty.
13 98 Now the accused was found in possession of Rs. 3,148.
He accounted for Rs. 450 of that sum by showing that 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 concerned in this Court.
Therefore, all that remains to be seen is whether this was disproportionate to his known sources of income.
The accused is a Government Factory Inspector and we were told that his salary is only Rs. 450 a month.
The High Court finds that the total sums drawn by him during his entire period of service of thirteen months was Rs. 6,045 as salary and Rs. 2,155 as travelling allowance.
It also finds that he owns 0.648 acres of land which brings in no income worth the 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 margin for saving such a large sum of money.
No 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 touring purposes even if he was away from headquarters for a month.
His explanation was considered unsatisfactory 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 rejected as unsatisfactory, section 5(3) was at once attracted and the Court was bound to presume (the word used in the section is "shall" and not "may") that the 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 reason only that it is based solely on such presumption.
" These facts alone are enough to sustain the conviction and we need not consider the other matters.
The High Court was right in holding that the sanction was sufficient and in convicting the accused.
99 The third point set out in the certificate of the High Court relates to the absence of particulars in the 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 section 5(1)(a) does not consist of individual acts of bribe taking as in section 161 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 relied.
He was also questioned about the material facts set out above in his examination under section 342 of the Criminal Procedure Code and was given a chance then as well to give such explanation as he wished.
The appeal fails and is dismissed.
Appeal dismissed.

summary:
Held, that it is not necessary for the sanction for an offence punishable under section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947) to be in any Particular form or in writing or for it to set out the facts in respect of which it is given.
It is, however, desirable to state the facts on the face of sanction, because when the facts are not set out in the sanction, proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged but an omission to set out the facts in the sanction is not fatal so long as the facts can be and are proved in some other way.
Where the sanction was confined to section 5(2) of the Act, it could not, under the circumstances of the case, have related to anything but clause (a) of sub section (1) of section 5 and therefore an omission to mention clause (a) in the sanction did not invalidate it.
under section 5(3) of the Act all that the prosecution has to do is to show that the accused or some person on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income and for which the accused cannot satisfactorily account.
Once that is established then the Court is bound to presume unless the contrary is proved, that the accused is guilty of the new offence created by section 5 namely criminal misconduct in the discharge of his official duty.
Held, also that there was no illegality either in the sanction or in the charge on the ground that no particulars were given because the offence under section 5(1)(a) of the Prevention of Corruption Act does not consist of individual acts of bribe taking as in section 161 I.P. C. but is of a general character and individual instances are not necessary because of the presumption which section 5(3) requires the Court to draw.
Gokulchand Dwarkadas Morarka vs The King (A.I.R. 1948 P.C. 82) referred to.