Kapur, J. - (1.) This is an appeal by special leave against the judgment and order of the Punjab High Court dated May 17, 1956. At the relevant time, i.e., between May 1, 1953, and June 2, 1954, the appellant was a Naib-Tehsildar at Ferozepur Jhirka in the district of Gurgaon. The allegation against the appellant was that during his tours in the several villages of Ferozepur Jhirka Tehsil, his son who was a Director of the Starline Pictures Ltd., a film company of Delhi, accompanied him and at the time of mutations the appellant asked the parties whose mutation he was attesting to purchase shares in the company of his son and that many of such persons on being so pressed by the appellant purchased shares and did so because they were asked by the appellant who showed them official favours.
(2.) The facts which have led to the conviction of the appellant are these. On June 8, 1954, the First Information Report against the appellant was filed under S. 5(1)(d) of the Prevention of Corruption Act (hereinafter termed the Act). It was based on a letter of the Deputy Commissioner who is also the Collector of the district enclosing with the letter the report of the Revenue Assistant, Gurgaon in an enquiry which he held against the appellant. The letter stated that the case felt within S. 5(1)(d) of the Act and suggested that the necessary sanction should be taken under S. 6 of the Act. Thereafter the sanction of the Commissioner, Ambala Division, was taken on 2-12-1954. By this document the Commissioner sanctioned the prosecution of the appellant under S. 5 of the Act. Cognizance of the case was taken on July 18, 1955, by Mr. Manohar Singh, Special Judge, Gurgaon but it was his successor who recorded the evidence of the witnesses for the prosecution on various dates from 2-9-1955, up to 19-10-1955. On 2-11-1955, a charge was framed against the appellant under S. 5(1)(a) of the Act. After the charge the appellant cross-examined six prosecution witnesses and then examined some defence withnesses and after the arguments were heard the appellant was convicted on January 4, 1956, and sentenced to imprisonment till the rising of the Court. The conviction was in the following words: "After a careful consideration of the whole evidence, I am of opinion that the offence with which the accused has been charged is proved beyond reasonable doubt. I convict him of an offence under Section 5 of the Prevention of Corruption Act". It may here be added that the evidence disclosed against the appellant was that all the forms of applications for shares were written by the appellant excepting eight and receipts for the sums received were sent later by post or through some other agency. According to the case set up against the appellant in the trial Court it is alleged that he had abused his official position, collected subscriptions for the shares for the benefit of his son and the company of which his son was a Director and that without his so acting the Meos, an agriculturist tribe, in that Tehsil whose mutations were before the appellant would not have purchased these shares. All the witnesses for the prosecution had stated that they did not understand what a share of a company was and they had never thought of buying a share in a company and they had paid the money to the appellant or his son because they thought that thereby they were obliging the appellant who was to attest their mutations. It has also been found that the appellant asked the various persons to purchase the shares and that money was paid to the appellant or to his son in the presence of the appellant.
(3.) It was contended in the High Court that the action of the appellant did not amount to criminal misconduct as the appellant himself did not derive any advantage of a pecuniary nature and counsel there referred to the language of the charge framed which stated that the appellant "was in the habit of obtaining illegal gratification" but the High Court was of the opinion that the evidence was led in the presence of the appellant and he knew what the case against him was and what case he had to meet. The finding of the High Court may be stated in its own words: "It is clear that the appellant's son obtained a pecuniary advantage by the sale of these shares and it is equally clear that the appellant himself used his official position to persuade various persons to purchase those shares. Under section 5 of the Prevention of Corruption Act a person who abuses his official position for obtaining a pecuniary advantage either for himself or for any other person commits the offence of criminal misconduct, and on the facts proved in this case there can be no doubt that the appellant did abuse his official position in order to obtain pecuniary advantage for his son, and, in my opinion, therefore, the appellant's conviction under section 5 of the Prevention of Corruption Act is justified." For the appellant two questions were raised before us:(1) that the sanction for prosecution purported to be under S. 5(1)(d) and therefore the appellant could not be convicted under S. 5(1)(a) and (2) that the High Court had no power to convert the conviction from one under S. 5(1)(a) to one under S. 5(1)(d) because the charge also was under S. 5(1)(a). A subsidiary point was raised that in any event no offence under S. 5(1)(d) had been made out against the appellant as no pecuniary advantage was proved.;