[This Article was originally published in the Criminal Law Journal in 1995, with the citation of 1995 Cri LJ (Journal) 68.]
“INTERPRETATION OF KNOWN SOURCES OF INCOME IN PREVENTION OF CORRUPTION ACT, 1988”[1]
By : Ashok Dhamija, IPS, Supdt. of Police, Central Bureau of Investigation, White House, 91-Walkeshwar Road, Bombay-400006.
Clause (e) of the Sub-section 13(1) of the Prevention of Corruption Act, 1988 defines an offence what is popularly called possession of disproportionate assets in the following words–
“A public servant commits the offence of criminal misconduct 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 to his known sources of income.”
It may be pertinent here to mention that the said offence was for the first time included in the statute books by introduction of clause (e) in sub-section 5(1) of the erstwhile Prevention of Corruption Act, 1947 through the Criminal Law Amendment Act, 1964 (No. 40 of 1964) on the basis of the recommendation of the Santhanam Committee appointed by the Govt. of India. It may be further mentioned that prior to its becoming a substantive offence for the first time in 1964, the possession of disproportionate assets by a public servant was merely a rule of evidence defined in sub-section 5(3) of the Prevention of Corruption Act, 1947, providing for an alternative method of proving the offence of criminal misconduct as it then existed. The erstwhile Prevention of Corruption Act 1947, has since been repealed and replaced by the Prevention of Corruption Act, 1988.
The aforesaid definition makes it abundantly clear that the commission of the said offence becomes complete only when the possession of pecuniary resources or property is disproportionate to the known sources of income. This expression known source of income was not defined in the earlier Prevention of corruption Act, 1947, or in the Criminal Law Amendment Act, 1964 which created this offence for the first time. However, case law was available on this point. It was held in C.S.D. Swamy v. The State,[2] that:
“The expression known sources of income must have reference to sources known to the prosecution on a thorough investigation of the case. It was not, and it could not be, contended that known sources of income means sources known to the accused. The prosecution cannot, in the very nature of things, be expected to known the affairs of an accused person. Those will be matters specially within the knowledge of the accused within the meaning of S. 106 of the Evidence Act ……, and if the prosecution has failed to disclose all the sources of income of an accused person, it is always open to him to prove those other sources of income which have not been taken into account or brought into evidence by the prosecution.”
The aforesaid interpretation of the expression ‘known sources of income’ was reiterated by the Supreme Court in the case of Sajjan Singh v. State of Punjab[3], andHemant Kumar Mohanti v. State of Orissa.[4]
However, it is important to mention that the new Prevention of Corruption Act of 1988 has defined the expression known sources of income in the Act itself by way of an Explanation attached to clause (e) of sub-section 13(1) of the Prevention of Corruption Act, 1988, in the following words:-
“Explanation:- ‘Known sources of income’ means income received from any lawful source, and such receipt has been intimated in accordance with the provisions of any law, rules or orders for he time being applicable to a public servant.”
Thus, it is seen that, now for a source of income to qualify as a known sources of income for the purposes of S. 13(1)(e) of the Prevention of Corruption Act, 1988, it is essential that it should satisfy the following two conditions, namely:-
(i) it should be a lawful source of income, and
(ii) the receipt of income from such a source should have been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to the concerned public servant.
As a natural corollary, it immediately follows that:-
(i) any income received from a source which is not lawful cannot be considered for inclusion in the expression known sources of income for the purposes of S. 13(1)(e) of the said Act, even if such an income was actually received by the concerned public servant.
(iii) any income, even though received from a lawful source, cannot likewise be considered for inclusion in the expression known sources of income for the aforesaid purposes, if the receipt of such income has not been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to the concerned public servant.
Thus, it is obvious that even if the existence of a particular source of income is proved by a public servant, unless it satisfies the aforesaid both essential conditions of lawful source and receipt of income having been intimated, it cannot be considered as a known source of income while ascertaining whether or not, an offence of possession of pecuniary resources or property disproportionate to known sources of income, under Sec. 13(1) (e) of the Prevention of Corruption Act, 1988 has been made out.
There have been some misgivings in some corners to the effect that the above-said definition of known sources of income causes hardship or inconvenience or injustice to the accused public servant and places a heavy burden on him to ensure that not only his sources of income be lawful, but also that receipt of any income of such sources be intimated in accordance with the provisions of any law, rules or orders for the time being applicable to him. Any non-compliance with either of these two essential ingredients in respect of a particular source of income by a public servant will render that source of income to be ineligible for inclusion in the expression known sources of income for the purpose of ascertaining as to whether or not an offence under S. 13(1)(e) of the Prevention of Corruption Act, 1988 is made out. This is definitely bound to weaken the defence of an accused public servant.
In view of this, arguments of causing of hardship, inconvenience or injustice to an accused public servant due to the said definition of known sources of income are sometimes raised in some corners and it is doubted whether the said definition will be able to stand the test before a court of law. An attempt has been made to dispel these doubts and fears in this article.
In early days, the relationship between the State and the individual was regarded as nothing more than that of a superior and an inferior, and as such the sovereign will, expressed in the form of a legislation, could even be arbitrary and despotic. In modern democratic societies, however, there exists a mutuality of rights and duties between the State and the individual, and as such the doctrine of superior and inferior plays a very insignificant role in the process of modern legislation. As Allen has observed[5]:
“The spirit which dominates modern doctrine is observable in the trend of legislation. At least in democratic countries, it is not a process solely of command and obedience, but of action and reaction between constitutionally authorized initiative on the one hand, and social forces on the other. Which creates the other, where one begins and the other ends, it is often very difficult to say. It is, however, certain that the great mass of ‘inferiors or subject’ are not now a days simply passive recipients of orders.”
Sir Henry Maine has observed that the three instrumentalities by which the gulf between social necessities and social option on the one hand, and the law on the other, is narrowed down are legal fictions, equity and legislation. When law becomes fixed, it is adapted to the new wants of the society, first by legal fictions, next by the growth of a fresh body of the rules by the side of the original law, founded on distinct principles and claiming to supersede the law in virtue of a superior sanctity inherent in those principles (that is equity), and finally by legislation.
Likewise, Dicey also observes:
“There exists at any given time a body of beliefs, convictions, sentiments, accepted principles, or firmly-rooted prejudices, which taken together make up the public opinion of a particular era, or what we may call the reigning or predominant current of opinion, and as regards at any rate the last three or four centuries, and specially the 19thcentury, the influence of this dominant current of opinion has, in England, if we look at the matter broadly, determined, directly or indirectly, the course of legislation.”
Thus, in a modern democratic state, legislation reflects the public opinion or the will of the people and no legislature worth its salt, can ignore public opinion which has trickled through various channels. Legislation narrows down the gulf between the social necessities and social opinion on the one hand, and the law on the other, as observed by Henry Maine (supra).
Based upon the public or social opinion and the social necessities, legislation in a modern democratic state is actuated with some policy to curb some public evil or to give effect to some public benefit. And, the duty to so legislate on matters of public interest, with the said objectives of curbing some public evil or of giving effect to some policy of public benefit is cast on the legislature. While performing this sacred duty of legislation, a legislature is accordingly guided by the social necessities and public opinion, is influenced by the past and the present experience on the problems which have actuated the proposed legislation, and is directed to meet the future expectations of the people.
It is in the light of these observations, that we should view the said definition of the expression ‘known sources of income’ in the form of ‘Explanation’ to clause (e) of sub-section 13(1) of the Prevention of Corruption Act, 1988, through which the legislature has intended to curb the public evil of corruption, which has engulfed the whole of the Indian society and against which immense public opinion exists in the country. Corruption is a social evil, which due to its all-pervasive nature, has diffused in most walks of life in the society with catastrophic consequences. Corruption is one of the root causes of many a problem facing the society. And, to root out corruption from the Society is evidently one of the foremost and biggest social necessities. The enactment of a strict definition of the expression ‘known sources of income’ must be viewed accordingly, actuated by the social necessities and the public opinion to root out corruption from the society.
This leads us to the refutation of the arguments of hardship, inconvenience or injustice supposedly caused to a public servant due to the said definition. Contents of above paras immediately show that these arguments are perfunctory, misleading and baseless, and are of no avail against a validly enacted provision of law, duly made by the legislature in the performance of its sacred duty on the basis of the social necessity of rooting out corruption from the society. Moreover, presuming that the said definition of the expression ‘known sources of income’ does cause some amount of hardship or inconvenience to some persons (read some public servants), the same can easily be justified on the additional grounds mentioned as under.
It is common knowledge that most laws enacted by any legislature cause at least some amount of hardship or inconvenience to at least some sections of the society. Every law creates certain rights and liabilities for the society as a whole or for some particular sections thereof. More the severity of the public evil sought to be curbed by a proposed law, more the severity of liabilities imposed by that law. In fact, even a law meant for extending some public benefit to the society as a whole or some sections thereof, will also normally impose at least some liabilities on some particular sections of the society. Liabilities so imposed by a law on some sections of the society would mean hardship or inconvenience for the same. For example, a penal law may cause hardship or inconvenience to an accused person, a tax law may do so to a tax-evader or defaulter, a law of limitation may cause such a hardship or inconvenience to a party delaying filing of an appeal, and so on and so forth. Thus, hardship or inconvenience caused to some persons due to a law is not an abnormal phenomenon.
In fact, the amount of hardship or inconvenience caused to some persons by a statute needs to be considered vis-à-vis the immense benefits that may accrue to the Society as a whole from the same statute. For the general benefit of the society as a whole, hardship or inconvenience to some people may well be justified and even desirable.
Thus the arguments of hardship, inconvenience etc. caused by the said definition of known sources of income do not hold water.
At this juncture, we may like to see as to what sort of hardship or inconvenience etc., if at all, is caused to a public servant due to said definition of the expression known sources of income.
It will immediately become clear that what a public servant is expected to do is just to ensure that his sources of income are lawful and the receipt of any income therefrom is intimated in accordance with any law, rules or orders, as the case may be, for the time being applicable to a public servant. As such these requirements do not cause hardship or inconvenience. As the law provides for those two requirements to be satisfied, every public servant is expected to comply with the same.
As for the first requirement, it is crystal clear that no public servant, as of a divine right, can lay a claim that even his unlawful sources of income should be considered for the said purpose, more so when the said definition of known sources of income specifically prohibits it. And, for the second requirement, at the most a public servant may take the plea that he was not aware of the requirement of intimation of a particular income under a particular law or rule or order. It may also be argued by a public servant that non-consideration of some particular receipt of income by him just because the same has not been intimated in accordance with some law, rules, or orders because of his ignorance or otherwise, even though the source of that income be lawful is not just. However such an ignorance of the provisions of the law, rules, orders will be covered within the meaning of “mistake of law”. It is a well known maxim of law that ignorantia juris non excusat which means that ignorance of law is no excuse.
It has been held that mistake in point of law in a criminal case is no defence. Mistake of Law ordinarily means mistake as to the existence or otherwise of any law on a relevant subject as well as mistake as to what the law is[6]. It is also held that ignorance of the municipal law of the Kingdom, or of the penalty thereby inflicted upon offenders, doth not excuse any, that is of the age of discretion and compos mentis, from the penalty of the breach of it; because every person of the age of discretion and compos mentis is bound to know the law and presumed so to do[7]. If any individual should infringe the statute law of the country through ignorance or carelessness, he must abide by the consequences of his error, it is not competent to him to aver in a Court of Justice that he was ignorant of the law of the land, and no Court of Justice is at liberty to receive such a plea[8].
The said maxim ignorantia juris non excusat, in its application to criminal offences, admits of no exception, not even in the case of a foreigner who cannot reasonably be supposed in fact to know the law of the lands [9].
It has further been laid down in respect of the plea of ignorance of a statute which has been newly passed, that, although a person commits an act which is made an offence for the first time by a statute so recently passed as to render it impossible that any notice of the passing of the statute could have reached the place where the offence has been committed, yet his ignorance of the statute will not save him from punishment[10].
Thus it may be seen that the plea of ignorance of law is not available even to a foreigner and also even in respect of a statute passed recently. Accordingly a public servant cannot plead that he was ignorant of the definition of known sources of income as also that he was ignorant about any law, rules or orders providing for intimation to be given to some authority about receipt of income fro a particular source.
At this stage, we may examine the matter in the context of presuming that some amount of hardship/inconvenience/injustice is caused to a public servant by way of the said definition of known sources of income, what will be the fate of the said definition and what interpretation will be given to it by the Courts. In order to examine this we may examine the abundant case law available in this connection laying down the rules of interpretation of statutes.
It has been held that a statute is an edict of the legislature[11]. A statute is to be construed according to the intention of them that make it[12]. The duty of judicature is to act upon the true intention of he legislature – the mens or sententia legis[13].
It has been held that courts are not entitled to usurp legislature function under the disguise of interpretation[14]. The courts must avoid the danger of an a priori determination of the meaning of provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somehow fitted[15]. Caution is all the more necessary is dealing with a legislation enacted to give effect to policies that are subject to bitter public and parliamentary controversy for in controversial matters there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable, it is the Parliament’s opinion in these matters that is paramount[16].
The next rule of construction is “to intend the legislature to have meant what they have actually expressed”[17]. The object of all interpretation is to discover the intention of Parliament, but the intention of Parliament must be deduced from the language used[18].
The aforesaid judgments make it manifestly clear that a statute is to be enacted by the legislature and the duty of the courts is to give effect to the intention of the legislature through the words expressed therein.
It has further been laid down that, where by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be[19]. Similarly in respect of the decision in Short v, McCarthy[20], it is noted in the well known authoritative work of Maxwell on the Interpretation of Statutes[21] that the hardship of such decision was obvious, but the language was susceptible of no other interpretation. The interpretation of a statute is not to be collected from any notions which may be entertained by the court as to what is just and expedient[22]. The duty of the court is to expound the law as it stands, and to have the remedy (if one be resolved upon) to others[23]. Similarly it is held that a sense of the possible injustice of an interpretation ought not to induce judges to do violence to well settled rules of construction. ….[24].
When the words of a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences[25]. It is further held that in construing words the courts are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used[26].
It is often found that laws enacted for the general advantage do result in individual hardship; for example Laws of Limitation, Registration, attestation although enacted for the public benefit, may work injustice in particular cases, but that is hardly any reason to depart from he normal rule to relieve the supposed hardship or injustice in such cases[27]. It is the duty of all courts of justice to take care for the general good of the community, that hard cases do not make bad law[28]. The function of the court is to find out what is legal and not what is right[29].
The aforesaid case law makes it clear that when the language of a statute is clear and unambiguous, no arguments of hardship, inconvenience, absurdity, injustice etc. could be sustained and he courts are duty bound to interpret the statute accordingly. As the aforesaid definition of known sources of income is clear and unambiguous, therefore its interpretation by the courts has to be in accordance with the specific words used in the said definition.
For the sake of argument, even if it be presumed that the language used in the said definition of known sources of income is ambiguous or has got more than one meanings, the interpretation of the same will have to be done in accordance with what is known as mischief rule of interpretation. This rule was first laid down in the famous Heydon’s case[30] in 1584 and thereafter it has been applied consistently by various courts including the Supreme Court of India. This principle is explained in detail by S.R. Das, C.J., in the case of Bengal Immunity Co. v. State of Bihar[31]. As per this mischief rule the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act, pro bono publico. Thus, as per this rule, the mischief or the defect existing before making of an Act has to be identified, the remedy for which is provided by the new Act, and thereafter the construction has to be in such manner that the mischief is suppressed and the remedy is advanced. This rule has been applied by the Supreme Court in the Bengal Immunity Company’s case[32]; RMD Chamarbaugwalla v. Union Bank of India[33]; CIT, MP and Bhopal v. Sodradevi[34]; Dr. Waliram Waman Hiray v. Mr. Justice B. Lentin[35], and many other cases.
In case the said mischief rule is to be applied for the purpose of interpretation of the said definition of known sources of income, it is evident that corruption in the society is evil and is a mischief which was intended to be removed by providing a remedy in the form of the said definition of the known sources of income. Therefore even it is presumed that the said definition admits of ambiguity, its interpretation has to be made in such a manner that the mischief of corruption is avoided and the remedy of detection of corruption cases provided for the said mischief is advanced. Therefore in this manner also, it may immediately be concluded that the said definition of known sources of income will stand the test of interpretation in a court of Law.
The discussion in the preceding paras immediately leads us to the conclusion that there is nothing wrong in he said definition of known sources of income as introduced in the Prevention of Corruption Act, 1988, in the form of Explanation to Clause (e) of sub-section 13(1). It is nothing but a manifestation of the intention of the Parliament aimed at rooting out the corruption from the Indian society. Accordingly, in order to ensure that the intention of the Parliament to root out corruption in introducing the said definition of known sources of income is honoured, these provisions are required to be implemented scrupulously.
[1] This Article was originally published in the Criminal Law Journal in 1995, with the citation of 1995 Cri LJ (Journal) 68.
[2] AIR 1960 SC 7.
[3] AIR 1964 SC 464.
[4] 1973 (1) SLR 1121.
[5] Allen: Law in the Making, 5th Ed., p. 405.
[6] Tustipada Mandal (1950) Cut 75..
[7] 1 Hale P.C. 42.
[8] Fischer, (1891) 14 Mad 342, 354, F.B.
[9] Esop, (1836) 7 C. & P. 456.
[10] Bailey’s case, 1800- Russ & Ry. 1.
[11] Vishnu Pratap Sugar Works Pvt. Ltd. v. Chief Inspector of Stamp, U.P. , AIR 1968 SC 102.
[12] RMD Chamarbaugwalla v. Union of India, AIR 1957 SC 628.
[13] Salmond on Jurisprudence, 12th Ed., p. 132.
[14] Magor and St. Mellons Rural District Council v. Newport Corporation, (1951) 1 All ER 539 (HL)
[15] DA Venkatachalam v. Dy. Transport Commissioner, AIR 1977 SC 842.
[16] Duport Steels Ltd. v. Sirs, (1980) 1 All ER 529 (HL)
[17] R. v. Banbury (Inhabitants) (1834) 1 A. & E. 136.
[18] Maxwell on the Interpretation of Statutes, 12th Ed., p. 28; Capper v. Baldwin (1965) 2 QB 53.
[19] Cartledge v. E, Jopling & Sons Ltd., (1963) AC 758.
[20] (1820) 3 B. & Ald. 626.
[21] 12th Ed., p. 29.
[22] Gwynne v. Burnell (1840) 7 Cl. & F. 572.
[23] Sutters v. Briggs (1922) 1 A.C. 1.
[24] Arrow Shiping Co. Ltd. v. Tyne Improvement Commissioners (1894) AC 508.
[25] Principles of Statutory Interpretation, by Justice G.P. Singh. 5th Ed., p. 32.
[26] Emperor v. Benoarial Sarma, AIR 1945 PC 48.
[27] Principles of Statutory Interpretation, by Justice G.P. Singh, supra. P. 91; also see – Lucy v. Henleys Telegraph Works, (1969) 3 All ER 456 (CA).
[28] East India Co. v. Odichurn Paul, 7 Moo PC 85.
[29] Chandavarkar Sita Ratan Rao v. Ashalata S. Guram, AIR 1987 SC 117.
[30] (1584) 3 Co. Rep. 7a, p. 7b : 76 ER 637.
[31] AIR 1955 SC 661.
[32] Ibid.
[33] AIR 1957 SC 628.
[34] AIR 1957 SC 82
[35] AIR 1988 SC 2267.
What is the effect if the prosecution is not able to establish that there exist a law/rule/order/ provision mandating intimation of details details regarding lawful income of the public servant