NANI GOPAL MITRA versus THE STATE OF BIHAR

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NANI GOPAL MITRA v.

THE S;I'ATE OF BIHAR

October 15, 1968

(J. C. SHAH AND V. RAMASWAMI, JJ.]

Prevention of Corruption Act 2 of 1947 s. 5(1), (2) and (3)- After conviction of appellant under s. 5 (2) and before hearing of appeal by High Court, s. 5(3) repealed-If presumption ins. 5(3) could be in voked an appeal.

S. SA-Magistrate not gtv1ng reasons for

pernlltt1ng Officer other

than D.S.P. to investigate-If non-contpliance with section.

Particulars-Insufficient porticulars given

in the

charge-Appellant

not complaining at trial or before High Court-Effect of.

In connection with an investigation in January 1958 relating to an other case, the appellant, who was employed as a railway guard on the Eastern Railway, was found in possession of pecuniary resources dispro portionate to his known sources of income. As it was thought that he had come in possession of these Pecuniary resources by committing acts of misconduct defined in clauses (a) to (d) of s. 5(1) of the Prevention of Corruption Act 2 of 1947. on the recommendation of the Deputy Superintendent of Police for the area, an Inspector of Police was appoint ed by an Ordi:r dated 27th February 1959 of the Magistrate, 1st Class, Sahibganj, to investigate the case against the appellant. The Investiga- ting Officer, upon completion of the investigation and after obtaining sanction of the appropriate authority for prosecution of the appellant, submitted a charge sheet on March 31, 1960. The Trial Court convicted the appellant under s. 5(2) of the Act and s. 411 I.P.C. In appeal, by a judgment dated September 14, 1965, the High Court set aside the con viction and sentence of the appellant under s. 411 J .P .C. but confirmed his conviction under s. 5 (2) of the Act and reduced the sentence awarded by the Trial Court.

the Act.

In appeal

On December 18. 1964 Parliament enacted the Anti-Corruption Laws (Amendment) Act 40 of 1964 which repealed sub-section (3) of s. 5 of the; Act and enlarged the scope of criminal misconduct in s. 5 by inserting a new clause (e) in s. 5(1) of to this Court it was contended on behalf of the appellant (i) that s. 5(3) of the Act having been repealed while the appeal was pending in the High Court, the presumption enacted in s. 5 (3) was not available to the prosecuting authorities after the repeal and it was not open to the High Court. to invoke the presumption in considering the case against the appellant; the presumption contained iri s. 5 (3) was a rule of pro cedural law and as alterations in the form of procedure are always re trospective in character, unless it was provided otherwise, it was not open to the High Court to apply the presumption in the present case; (ii) that the statutory safeguards under s. 5A of the Act had not beeo complied with as the Magistrate had not given reasons for entrusting the investigation to a Police Officer below ·the rank of Deputy Superintendent of Police; and (iii) that the charge against the appellant under s. 5(2) of the Act was defective1 as .there were no specific particulars of mis90n". duct as envisaged under clauses (a) to (d) of s. 5(1) df the Act, nothing was stated about the amounts the appellant took as bribes and · the

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persons from whom he had taken such bribes so that the appellant had A no opportunity to rebut the presumption Act and to prove his innocence.

raisecl under s. 5 ( 3) of

the

HEW : Dismissing the appeal :

(i) The High Court was right

the presumption under s. 5(3) of the Act even though it was repealed on December 18, 1964 by the Amending Act.

invoking

Although as a general rule the amended law relating to procedure operates retrospectively, there is another equally important principle, which is also embodied in s. 6 of the General Clauses Act, that a statute should not be so construed as to create new disabilities or obligations. or impose new duties in respect of transactions which were complete at the time the amending Act came into force. The effect of the appli cation of this principle is that pending cases although instituted under the old. Act but still pending are governed by the new procedure under the amended law, but whatever procedure was correctly adopted and con cluded under the old law cannot be opened again for the purpose of In the present case, the trial of the appel applying the new procedure. lant was taken up when s. 5(3) of the Act was still operative. The conviction of the appellant was pronounced on March 31, 1962 long It was not therefore possible before the amending Act was promulgated. to accept the contention that the conviction pronounced by the trial Court had become illegal or in any way defective in law because of the amend [417 G; 418 DJ ment to procedural law made on December 18, 1964.

Jame• Gardner v. Edward A. Lucas, [1878) 3 AC. 582 at p, 603; King v. Chandra Dharma, [1905) 2 K.B. 335; In re a Debtor [19361 1 Ch. 237 and Jn re Vernazza; [1960] A.C. 965; referred to.

(ii) Although the Magistrate's order on the ]>Otition filed by

the Deputy Superintenden.t of Police suggesting that the Inspector of Police be empowered to investigate the case does not state any for his granting the permission sought, the High Court had rightly concluded that as the Magistrate was working in the area for a period of two years prior to the passing of the order in question he must have known that the Deputy Supcrintendent of Police could not devote his whole time to the investigation of the case and therefore the Inspector of Police should be entrusted to do the investigation. [419 Fl

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(iii) The charge, as framed, clearly stated that the appellant accepted gratification. other than legal remuneration and obtained· pecuniary ad vantage by corrupt and illegal means. The absence of sufficient parti culars could not invalidate the dharge though it may be a ground for asking for better particulars. The appellant never complained in the trial court or the High Court that the charge did not contain the necessary G particulars, be was misled on that account in his defence. In vie\v of this and the provisions of s. 225 Cr. P.C. it could not be said that the charge was defective. [421 Bl

CRIMINAL APPELLATE

}URIS!>ICTION: Criminal Appeal

No. 181of1965.

Appeal by special leave from the judgment and order, dated September 14, 1965 of the Patna High Court in Crin:iinal Appeal No. 268 of 1962.

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NANI GOPAL v. BIHA:R (Ramaswami, J.)

413

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S. C. Agarwala, for the appellant.

D. Goburdhun, for the respondent.

The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the judgment of the Patna High Court dated September 14, 1~65 in Criminal Appeal No. 268 of 1962 filed by the appellant agamst the judgment of the Special Judge, Santhal Parganas, Dumka dated March 31, 1962.

In January, 1958 the appellant was employed as a Railway Guard on the Eastern Railway and was posted at Sahibganj Rail way Station. On January 18, 1958 Hinga Lal Sinha (P.W. 47) who was in charge of squad of travelling ticket examiners caught hold of Shambu Pada Banerji (P.W. 54) as he found him working as a bogus travelling ticket examiner in a train. P. W. 4 7 banded Shambu Pada Banerji to Md. Junaid (P.W. 48) who was a police officer in charge of Barharwa Railway outpost. A Fard Beyan was recorded on the statement of P.W. 47 and G.R.P. Case No. 12 ( 1) 58 was registered against Shambu Pada Banerji. In connec tion with the investigation of that case the house of the appellant which was at a distance of 300 yards from Sahebganj Railway station was searched on January 19, 1958 at about 3 p.m. by r.w. 56 along with other police officers, Md. Junaid (P.W. 48) and Dharmadeo Singh (P.W. 57). Various articles were recovered from the house of the appellant and a search list (Ex. 5/17) was prepared. A charge sheet was submitted in G.R.P. Case No. 12 (1 )58 against the appellant and Shambu Pada Banerji. Both of them were tried and convicted by the Assistant Sessions Judge, Dumka by a judgment dated June 12, 1961. The appellant filed Criminal Appeal No. 405 of 1961 against his conviction under s. 474/466 of the Indian Penal Code. The appeal was allowed by the High Court by its judgment dated September 14, 1962 on the ground that there was no proof that the appellant was in cons cious possession of the incriminating articles.

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During the course of the investigation of G.R.P. Case No. 12 (1)58, the Investigating Officer (P.W. 56) found a sum of Rs. 51,000 standing to the credit of the appellant in the Eastern Railway Employees' Co-operative Credit Society Ltd., Calcutta . He also found the appellant in possession of NationaJ. Savings Certifi_catc:s of the value of Rs. 8,000. On August 24, 1958 the Im:es!Igatmg Officer (P.W. 56) handed over charge of the investi gatmn of G.~.P. Case: No. 1~(1)58 to P.W. 46 of Sahebganj Gov efll!Dent Railway Pohce Station. P.W. 46 completed the investi gation on February 26, 1958. Since by that time it was found that the appellant was in possession of pecuniary resources dispro Portionate. to his kn?wn sources of in~ome it was thought that be had come m possession of these pecumary resources by committing

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acts of ·misconduct as defined in clauses (a) to ( d) of sub-s. ( 1) of s. 5 of the Prevention of Corruption Act, 1947 (Act 2 of 1947), hereinafter referred to as the 'Act', and since the investigation of a case under the Act could be carried only in accordance with the· provisions of s. 5A of the Act, under the orders of the superior officers, the case being G.R.P. Case No. 12 (1)58 was split up in tl!e sense !hat a new case against the appellant being Sahebganj Police Station Case No. 11(2)59 was started upon the first infor mation report of P.W. 46 made oil. February 26, 1959 to Gokhul Jha·(P.W. 45), Officer in charge of Sahebganj Police Station. By his order dated February 27, 1959 Sri R. P. Lakhaiyar, Magistrate First Class, Sahibganj accepted the recommendation of the Deputy Superintendent of Police that Inspector Madhusudan Haldar, P.W. 55 may investigate the case. Accordingly Madhusudan Hal dhar, P.W. 55 proceeded to investigate the case and after obtaining sanction of the appropriate authority for prosecution of the appel lant submitted a charge sheet on March 31, 1960. Cognizance was taken and the case was transferred to Sri Banerji a Magistrate First Class who committed the appellant and the two co-accused Baldeo Prasad and Mrs. Kamla Mitra to stand trial before the Court of Session. By his judgment dated March 31, 1962, the Special Judge, Santhal Parganas convicted the appellant under s. 5(2) of the Act and s. 411, Indian Penal Code. The appellant and the other co-accused Baldeo Prasad and Mrs. Kamla Mitra were ac quitted of the charge of conspiracy under s. 120 (B) read with ss. 379, 411, 406 and 420, Indian Penal Code ands. 5(2) of the Act. The Special Judge also acquitted the appellant of the charge under s. 4 7 4/ 466, Indian Penal Code. The matter was taken in appeal to the High Court which by its judgment dated September 14, 1965 set aside the conviction and sentence of the appellant under s. 411, Indian Penal· Code and confirmed the conviction of the appellant under s. 5 (2) of the Act. The High Court, how ever, reduced the sentence of 6 years simple imprisonment and a fine of Rs. 40,000 to 2 years imprisonment and a fine of Rs. 20,000.

Section 5 of the Act, as it stood before its amendment by Act

40 of 1964, read as follows :

"5. ( 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 gratifica tion (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Indian Penal Code, or

(b) if he habitually accepts or obtains or agrees

to accept or attempts to obtain for himself or .for

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NANI GOPAL v. BIHAR (Ramaswami, !.)

415

any other person, any valuable thing wit,hout consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or the person so concerned, or

related

to

( c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any pro perty entrusted to him or under his control as a public servant or allows any other person so to do, or

(d) if he, by corrupt or illegal means or by other wise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.

(2) Any public servant who commits criminal misconduct in the discharge of his duty shall be punish able with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine :

Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year.

( 3) 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 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 tha! it is based solely on such presumption.

( 4) The provisions of this section shall be in addi tion to, and not in derogation of, any other law for 1;b.e time being in force, and .nothing contained herein shall exempt any public servant from any proceeding whkh

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might, apart from this section, be 11im."

instituted against

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On December 18 1964, Parliament enacted the Anti-Corruption Laws ( Amendme~t) Act 1964 (Act No. 40 of 1964) which repealed sub-s. (3) of s. 5 of the Act and enlarged the scope of criminal misconduct in s. 5 of the Act by inserting a new clause B ( e) in s. 5 ( 1) of .the Act to the following effect :

" ( e) if he or any person on his behalf is in posses sion or has, at any. time during the period of his office, been in possession, for which the public servant cannot resources or pro- satisfactorily account, of pecuniary perty disproportionate to his known in- come."

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It was in the first place contended on behalf of the appellant that s. 5 (3) of the Act was repealed by Parliament while the appeal was pending in the High Court and the presumption en acted in s. 5 ( 3) of the Act was not available to the prosecuting authorities after the repeal of the sub-section on December 18, D 1964. The argument was stressed that it was not open to the High Court to invoke the presumption contained in s. 5 (3) of the Act in considering the case against the appellant. It was also said that the presumption contained in s. 5(3) of the Act was a rule of procedural law and not a rule of substantive law and alterations in the form of procedure are always retrospective in E character unless there is some good reason or other why they should not be. It was therefore submitted that the judgment of the High Court was defective in law as it applied to the present case the presumption contained in s. 5(3) of the Act even after its repeal. We are unable to accept the contention put forward on behalf of the appellant as correct. It is true that as a general rule alterations in the form of procedure are character unless there is some good reason or other why should not be. Blackburn stated :

they In James Gardner v. Edward A. Lucas('), Lord

retrospective

in F

"Now the general rule, not merely of England and Scotland, but, I believe, of every civilized nation, is ex pressed in the maxim, 'Noya constitutio futuris formam imponere debet non prateritis'-prima facie, any new law that is made affects future transactions, not past ones. Nevertheless, it is quite clear that the subject-matter of an Act might be such t~at,. thou15h there were not .any express words to shew 11, 11 might be retrospective. For instance, I think it is perfectly settled that if the Legislature intended to frame a new procedure, that

(I) fl878] IJl App. Cas. 582 at p. 603.

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NANI GOPAL v. BJHAR (Ramaswami, J.)

417

instead of proceeding in this form or that, you should proceed in another and a different way; clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. Then, again, I think that where alterations are made in matters of evidence, certainly upon the reason of the thing, and I think upon the authorities also, those are retrospective, whether civil or criminal."

In the King v. Chandra Dharma('), Lord Alverstone, C.J. observed as follows :

"The rule is clearly established that, apart from any special circumstances appearing on the face of the sta tute in question, statutes which make alterations in pro cedure are retrospective. It has been held that a statute shortening the time within which proceedings can be taken is re.trospective (The Ydun, 1899 p. 236.), and it seems to me that it is impossible tQ give any good reason why a statute extending the time within which proceedings may be taken should not also be held to be retrospective. If the case could have been brought within the principle tliat unless the language is clear a statute ought not to be construed so as to create new disabilities or obligations, or impose new duties in res time pect of transactions which were complete at the when the Act came into force, Mr. Compton Smith would have been entitled to succeed; but when no new disability or obligation has been created by the statute, but it -0nly alters the time within which proceedings may be taken, it may be held to apply to offences completed before the statute was passed. That is the case here."

It is therefore clear that as a general rule the amended law relat ing to procedure operates retrospectively. But there is another equally important principle, viz. that a statute should not be so construed as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending Act came into force-(See In re a Debtor(') and In re Vernazza('). The same principle is embodied in s. 6 of the General Clauses Act which is to the following effect :

"6. Effect of repeal.-Where this Act or any Cent ral Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or here-

(!) [1905} 2 K.B. 335.

(2) [1936] l Ch. 237.

(3) [1960} A.C. 965.

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after to be made, then, unless a different appears, the repeal shall not-

intention

....................................... (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or ...................................... ( e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, or punishment as aforesaid;

liability, penalty,

forfeiture

and any such investigation, legal proceeding or remedy · may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

The effect of the application of this principle is that pending cases although instituted under the old Act but 'still pending are governed by the new procedure under the amended Jaw, but whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure. In the present case, the trial of the appellant was taken up by the Special Judge, Santhal Parganas when the s. 5(3) of the Act was still operative. The conviction of appellant was pronounced on March 31, 1962 by the Special Judge, Santhal Parganas long before the amending Act was pro mulgated. It is not hence possible to accept the argument of the appellant that the conviction pronounced by the Special Judge, Santhal Parganas has become illegal or in any way defective in law because of the amendment to procedural law made on Decem in ber 18, 1964. Jn our opinion, the High Court was invoking the presumption nnder s. 5(3) of the Act even though it was repealed on December 18, 1964 by the amending Act. We accordingly reject the argument of the appellant on thls as pect of the case.

right

It was next argued on behalf of the appellant that the statu tory safeguards under s. 5A of the Act have not been complied with and the Magistrate has not given reasons for entrusting the investigation to a police officer below the rank of Deputy Super intendent of Police. Section SA of the Act provides as follows :

"Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no police officer below the rank-

( a) in the presidency towns of Madras and Cal

cutta, of an assistant commissioner of police,

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NANI GOPAL v. BIHAR (Ramaswami, J.)

419

(b) in the presidency town of Bombay, of a super

intendent of police, and

(c) elsewhere, of a deputy superintendent of police, shall investigate any offence punishable under section 161, section 165 or section 165A of the Indian Penal Code or under sub-section (2) of section 5 of this Act, without the order of a presidency magistrate or a magis trate of the first class, as the case may be, or make any arrest therefor without a warrant :

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In the present case the officer-incharge of Sahibganj police station (P.W. 45) filed a petition dated February 27, 1959 (Ex. 1) to the First Class Magistrate upon which the Deputy Superintendent of Police made an endorsement (Ex.Ill) suggesting that Inspec tor Haldhar may be empowered to investigate the case. The order of the Magistrate is Ex.1/2 and is dated February 27, 1959. The order states : "lnspP..ctor Sri M. S. Haldhar is allowed to do it". The evidence of P.W. 1 is that he was posted at Saheb ganj as a Magistrate from 1956 and used to do the work of the Sub~divisional Officer also in his absence. He passed the order (Ex. 1/2) authorising M. S. Haldhar to investigate the case be- · cause the Deputy Superintendent of Police used to remain busy with his work and the present case needP.,d a whole-time investi It was argued on behalf of the appellant that there was gation. nothing in the endorsement of the Deputy Superintendent of Police that he was busy and therefore the inquiry should be en trusted to Sri Haldhar. But the High Court has observed that P.W. 1 was a Magistrate working at Sahibganj for a period of two years prior to the passing to the order in question and he must have known that the Deputy Superintendent of Police could not devote his whole-time to the investigation of the case and therefore the Inspector of Police should be entrusted to do the in vestigation. On this point the High Court has come to the con clusion that the order of the Magistrate was not mechanically passed and the permission of the Magistrate authorising Haldhar In our to investigate the case was not opinion Counsel on behalf of the appellant has been unable to make good his argument on this point.

illegal or

improper.

It was then said that the charge against the appellant under s. 5 (2) of the Act was defective as there were no specific parti culars of misconduct as envisaged under els. (a) to ( d) of s. 5 ( 1) of the Act. It was suggested that the charge was defective in as much as it deprived the appellant of the opportunity to rebut the presumption raised under s. 5 ( 3) of the Act. The charge against the appellant reads as follows :

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"First-That during the period of 1956 to 19th January, 1958 at Sahebganj Police Station Sahebganj G.R.P. and Sahebganj Local, District Santhal Parganas and at other places, within and without the said district, you, being a public servant viz. Guard of trains in ~e Eastern Railway of the Railway Department and while holding the said post, habitually accepted or obtained from persons for yourself gratifications other than legal remuneration as a motive or reward such as mentioned in sec. 161 of the Indian Penal Code, habitually accept ed or obtained for yourself valuable things without con sideration or for a consideration which you know to be inadequate from persons having connectio,n. with your official function, habitually, dishonestly and fraudulently, misappropriated or otherwise converted for your own use properties entrusted to you or put under your con- . trol as a guard of trains or otherwise, and habitually by corrupt and illegal means, or by otherwise abusing your position as a public servant obtained for yourself valu able things or pecuniary advantage, with the result that during the search of your house at Sahebganj aforesaid the on 19-1-1958 and during Sahebganj G.R.P. S. Case no. 12 dated 19-1-58 u/s 170 etc. I.P.C., you were found, during the month of Jan. 1958 in possession of cash amount to the extent of the Rs. 59,000 and other properties fully described in appendix no. 1 attached herewith and forming part of this charge [of Sahebganj P.S. Case No. 11 (2)59], and that the said cash amount and properties are dispropor tionate to your known sources of income and that you cannot satisfactorily account the possession of the same and that you thereby committed the offences of crimi nal misconduct, under clauses (a) to (b) of s. 5 ( 1) of the Prevention of Corruption Act, 194 7 (Act II of 1947), punishable under Sec. 5(2) of the said Act, within the cognizance of this Court.

investigation of

the

"

It was argued that the charge did not disclose the amounts the appellant took as bribes and the persons from whom he had taken such bribes and the appellant had therefore no opportunity to prove his innocence. But, in our view, this circumstance does not invalidate the charge, though it may be a ground for asking stated for better particulars. The charge, as framed, clearly that the appellant accepted gratification other than legal reinune' ration and obtained pecuniary advantage by corrupt and illegal means. The charge, no doubt, should have contained better particulars so as to enable the appellant to prove his case. But

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the appellant never complained in the trial court or the High Court that the charge did not contain the necessary particulars. The record on the other hand discloSl'.d that the appellant understood the case against him and adduced all the evidence which he wanted to place before the Court. Section 225 of the Criminal Procedure Code says "that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regard ed at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice." It also appears that the appellant never raised any objection either before the Special Judge or in the High Court on the score that the charge was defective and that he was misled in his defence on the ground that no particulars of the persons from whom the bribes were taken were mentioned. We accordingly reject the argument of the appellant on this point

the For the reasons expressed we hold that the judgment of High Court dated September 14, 1965 is correct and this appeal must be dismissed.

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RK.P.S .

Appeal dismissed.

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