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TMI Blog1977 (8) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... a Magistrate of the First Class under Section 96 of the CrPC on May 17, 1964, and a lot of property was recovered from his possession. That led to an investigation into the transactions which were found to have been made by him and the members of his family. While the matter was still under investigation, the Prevention of Corruption Act, 1947, hereinafter referred to as the Act, was amended by Amending Act No. 40 of 1964, and the following was inserted as Clause (e) in Sub-section (1) of Section 5: (e) if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the Public servant cannot satisfactorily account, of pecuniary resources or property disproportionate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (1) of Section 5 of the Act by the Amending Act of 1964, his prosecution under that clause was illegal inasmuch as the said Sub-section of Section 5(1) could not be so interpreted as to apply to the possession of the property and resources by the appellant before it was enacted. The High Court examined the transactions in jaggery and sewing machines also, and held further that it could not see how the said acts of the appellant constitute offences either under Sections. 161 and 165 of the Indian Penal Code or under Section 5(1), (a), (b) and (d) of the Prevention of Corruption Act, 1947. It, therefore, proceeded to examine the question whether the conviction of the accused for the offence under Clause (e) of Sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch constituted the offence of criminal misconduct under Sub-section (1) of Section 5. The result of the insertion was that more possession of pecuniary resources or property disproportionate to the known sources of income of a public servant, for which he could not satisfactorily account, became an offence by itself. Such a possession was not, however, an offence by itself until December 18, 1964 although there was a third sub section of Section 5 before that date which read as follows: In any trial of an offence punishable under Sub-section (2) the fact that the accused person or any other person on his behalf is in possession for which the accused person cannot satisfactorily account, of pecuniary resources or property disproport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of criminal misconduct as defined in Section 5 (1) for which an accused person is already under trial. It is, therefore, well settled that Sub-section (3) did not constitute an offence by itself. 6. It appears that the Legislature thereafter thought it proper to do away with the rule of evidence provided by Sub-section (3) of Section 5 and inserted the new Clause (e) in Sub-section (i) of Section 5 as one more category of the offence of criminal misconduct. But it cannot be gainsaid that the new offence, under the newly inserted Clause (e), became an offence on and from December 18, 1968 by virtue of Section 6 of the Amending Act 40 of 1964. In this view of the matter, the High Court rightly held that in the absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ),or (d) of Sub-section (1) of Section 5 of the Act, or any of those clauses, and it was permissible for the prosecution to take the benefit of Sub-section (3) of Section 5, as it stood before its substitution by Amending Act No. 40 of 1964 for the purpose of establishing his guilt with reference to one or the other of those clauses, but as the accused has been acquitted of the offences under Clauses (a), (b) and (d) read with sub Section (2),and his acquittal for those offences, and for the offences under Sections 161 and 165 of the Penal Code, has become final in view of the limited leave of appeal referred to above, it is not permissible for counsel for the appellant State to contend that the protection of Article 20(1) of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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