Mootham, J.:— Three questions have been referred to this Bench for determination. Those questions, together with such facts as are relevant, are set out in the order of reference and need not be repeated.

Section 3 of the Prevention of Corruption Act, 1947. (Act II of 1947), provides that

“3. An offence punishable under section 161 or section 165 of the Indian Penal Code shall be deemed to be a cognizable offence for the purposes of the Code of Criminal Procedure, 1898, notwithstanding anything to the contrary contained therein:

Provided that a police officer below the rank of Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the first class or make any arrest therefor without warrant.”

The drafting of this section is not very apt, for the fact that the second clause is in the form of a proviso suggests that the classification of certain offences as cognizable effected by the first clause is dependent upon the investigation of those offences being conducted in the manner laid down in the second clause. We are, however, satisfied that was not the intention of the legislature.

Now if section 3 of the Prevention of Corruption Act had done no more than place certain offences in the category of cognizable offences, then the investigation of those offences would have been governed by the provisions of section 156 of the Code of Criminal Procedure and could have been conducted (subject to the jurisdictional limits prescribed by that section; by any officer in charge of a police station without the order of a Magistrate. The proviso to section 3, in so far as it places a restriction on the powers of investigation of police officers below a certain rank, is in effect, therefore, a proviso to sub-section (1) of section 156 of the Code and is analogous to the provision in sub-section (2) of section 561 of the same Code that no police., officer below the rank of police inspector shall be employed or take part in the investigation of the offence specified in sub-section (1) of the section.

sub-section (2) of section 156 provides that no proceeding of a police officer in any such case as is referred to in sub-section (1) shall at any stage be called in question on the ground that the case was one which such officer was not empowered under that section to investigate. This sub-section is, in our opinion, in terms wide enough to cover an investigation into an offence punishable under section 161 or section 165 of the Indian Penal Code which is conducted by a police officer not so authorised by the proviso to section 3 of the Prevention of Corruption Act. This also is the view tentatively expressed by the Bombay High Court in Rustom Ardeshir Banaji…(Original Accused), v. Imperator*. In Queen-Empress v. Mehri, a case under section 561 of the Indian Penal Code, it was contended that a contravention of sub-section (2) of that section was a material irregularity affecting the merits of the case. That view was not accepted by the Court, but the case is of little assistance as no reference, appears to have been made in the judgment either to section 156 or section 537 of the Code of Criminal Procedure.

It is in our opinion difficult to see how an investigation conducted by a police officer of lower rank than that specified in the section can prejudice the accused. The adequacy of the investigation will be reflected in the evidence given for the prosecution at the trial, and it is by that evidence that the case against the accused will be measured. As was pointed out by Fawcett, J., in Emperor v. Shivbhat—

“…the main thing to bear in mind is that a conviction or acquittal does not depend upon the question what particular officer actually conducts the investigation which results in his trial. That is determined mainly by the evidence that is given at the trial and considered and the question whether that evidence has, in the first place, been elicited by an Inspector or by a Sub-Inspector is of very minor importance and does not really affect, the result of a trial, except to this extent that the theory is that the higher the rank of the police officer investigating, the more careful and unimpeachable his inquiry is likely to be.”

That was a case in which the investigation into a railway accident had not been conducted by an officer of the rank required by the rules made under the Indian Railways Act, but the decision—that this was an irregularity of the kind contemplated by section 537 of the Code of Criminal Procedure—is also not of assistance in the present case as the rules contained no provision corresponding to sub-section (2) of section 156 of the Code.

In our opinion failure to comply with the proviso to section 3 of the Prevention of Corruption Act is an irregularity which falls within the ambit of sub-section (2) of section 156 of the Code, and accordingly the proceedings of the investigating officer cannot be called in question.

The second question concerns the meaning of the word ‘gratification’ in section 4 of the Act. It has been argued that before the presumption referred to in that section can arise it is necessary (when the allegation is that the gratification has been accepted) for the prosecution to prove not only, the acceptance of the thing, tangible or intangible, constituting the gratification but also that such thing was accepted as a reward or recompense; and reliance was placed on that definition of ‘gratification’ in Webster's Dictionary as a ‘reward, recompense or gratuity.’

We have no doubt that this contention is not well founded. It is difficult to understand how the prosecution could ever prove, for example, that the acceptance of a sum of money was a “reward” without further proving the service or act which was the motive or consideration for such reward; and in that case there is no presumption left to be drawn. It is true that gratification may mean a reward or recompense, but that is only one of its meanings. The primary meaning of the word, as defined both in Murray's Dictionary and in Webster's Dictionary, is the giving of pleasure or satisfaction, and we are clearly of opinion that it is as satisfaction that the word is used in this section. That this is so is, in our opinion, made clear when the section is read as a whole, for it is not only the acceptance of a “gratification” which may give rise to the presumption referred to therein but also the acceptance of “any valuable thing.” It is indeed a little difficult to understand what it is which can be so defined which is not included in the general term “gratification”, but be that as it may, in the case of a valuable thing the presumption arises, if it arises at all, as soon as the prosecution proves the acceptance by the accused person (in the circumstances referred to in the section) of that thing. We cannot think that it was the intention of the legislature that the initial, burden of proof imposed upon the prosecution should be higher in the one case than in the other.

In our opinion the presumption referred to in section 4 arises as soon as the prosecution has proved that the accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person any gratification in the sense in which we have defined it in this judgment; or any valuable thing, from any person provided (however illogical it may be) that in the former case it has further proved that such gratification was not accepted or obtained, or agreed to be accepted or attempted to be obtained, by way of legal remuneration.

The third question concerns the right of a person accused of an offence punishable under section 161 or section 165 of the Indian Penal Code to give evidence on his own behalf. That right is given to him by section 7 of the Prevention of Corruption Act, and we regard it of the highest value to an innocent person. The broad effect of section 4 of the Act is to make every receipt by a public servant of anything of value to him a matter which at some later date he may be called upon to explain and justify. It is a provision which if unwisely used may be the cause of much hardship; and as the circumstances of particular receipts will in many instances be peculiarly within the personal knowledge of the recipient it is evident that the right now accorded to him to go into the witness box and state on oath what those circumstances are is one which the court must be zealous to safeguard.

As is well known the Criminal Evidence Act, 1898 (61 and 62 Vict. c. 36) made every person charged in England with a criminal offence a competent witness for the defence at every stage of the case, and R. v. Villars the Court, of Criminal Appeal held that the failure of the trial court to afford an undefended prisoner the opportunity of giving evidence vitiated the trial.

In our opinion the failure of a court to inform an accused person charged with an offence punishable under section 161 or section 165 of the Indian Penal Code of his right to give evidence on oath in disproof of the charge is a grave irregularity the effect of which must depend upon whether, in the opinion of the appellate court, it has in fact occasioned a failure of justice. If it has the trial is bad, and the court will consider whether the circumstances are such that a retrial should be ordered; if the court is satisfied that there has been no failure of justice the conviction will not, on account of this irregularity, be set aside.

Thereafter the application came again before Mootham, J., by whom it was dismissed subject to a reduction of sentence. In the course of his order his Lordship said—

Mr. Jagdish Sahai's second argument was that the learned judge had misdirected himself with regard to the nature of the burden placed upon an accused person under section 4 of the Act. That, section provides that, in circumstances such as obtain in this case, it shall be presumed “unless the contrary is proved” that the gratification was accepted as a motive or reward such as is mentioned in section 161 of the Indian Penal Code, and it was argued that presumption is displaced as soon as the accused produces some evidence that he is innocent. That is not, I think, the true position. Section 2 of the English Prevention of Corruption Act, 1916 (6 and 7 George V, Chap. 64) is in terms very similar to section 4 of the Indian Act of 1947. It provides that

“Where in any proceedings against a person for an offence under the Prevention of Corruption Act, 1906… it is proved that any money, gift or other consideration has been paid or given to or received by a person in the employment of His Majesty or any Government Department or a public body by or for a person or agent of a person holding or seeking to obtain a contract from His Majesty or any Government Department or public body, the money, gift or consideration shall be deemed to have been paid or given and received corruptly… unless the contrary is proved.”

The meaning of the words “unless the contrary is proved”, which, it will be observed, are also the words which are used in the Indian Act, was considered by the Court of Criminal Appeal in Rex v. Carr-Briant and that Court laid down the law in these terms—

“In our judgment, in any case where, either by statute or at common law, some matter is presumed against an accused person ‘unless the contrary is proved’, the jury should be directed that it is for them to decide whether the contrary is, proved, that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish.”

That decision has been referred to and applied by a Bench of the Calcutta High Court in Chang Chung Ching v. Emperor. Shortly put the words “unless the contrary is proved” impose on an accused person the same burden which is cast on a plaintiff in a civil suit, where “the preponderance of probability may constitute sufficient ground for a verdict”.

[The remainder of the order does not call for report.]

Application dismissed but sentence reduced.