V.D. Misra, J.
(1) Whether clause (e) of sub-section (1) of Section 5 of the Prevention of Corruption Act is ultra virus of Article 20(3) of the Constitution of India Is the question raised in this writ petition.
(2) Shorn of all unnecessary details the facts in brief are that the petitioner is a public servant. He started his career as clerk some where in 1940.
(3) After a break of one year from June 15, 1948 to July 15, 1949 he rejoined Government service as a Statistician with the Ministry of Rehabilitation. After working in various capacities in different departments of the Government of India, he was working as Deputy Commissioner in the Ministry of Agriculture when a case under section 5(1)(e) ofthe Prevention of Corruption Act, was registered against him. After completing the investigation a chargesheet was submitted on July 21, 1977 in the court of Special Judge. It is alleged that the petitioner has been found to be in possession of disproportionate assets to the tune of Rs. 4,86,060.30 P. which he has been unable to explain satisfactorily. has' to be given' an opportunity to satisfactorily account for his pecuniary resources or property said to be disproportionate to his known sources of income, and only when the accused cannot satisfactorily account for the same he can be said to have committed the offence. It is submitted that asking an accused to satisfactorily account for his assets amounts to compelling a person to be a witness against himself which is in violation of clause (3) of Article 20 of the Constitution of India.
(4) SUB-SECTION (1) of section 5 lays down what constitutes criminal misconduct by a public servant. Before the Anti-Corruption Laws (Amendment) Act, 1964 (40 of 1964), hereinafter referred to as 'the Amendment', there were four categories of criminal misconduct. The amendment added one more category by introducing clause (e) and deleting the existing subjection (3) of section 5. Clause (e) is practically the substance of subjection (3). Before we analyze clause (e) we would examine sub-section (3) since the learned counsel for the petitioner has laid much stress on it to support his contentions.
(5) SUB-SECTION (3) before the Amendment was in the following terms :
'(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 thereforee shall not be invalid by reason only that it is based solely on such presumption.'
(6) Now this sub-section by itself did not constitute criminal misconduct and so a public servant could not beprosecuted for possessing assets disproportionate to his known sources of income. However, during the course of proving criminal misconduct in terms of clauses (a) to (d) of sub-section (1) the prosecution was entitled to show that the accused or any person on his behalf was in possession of pecuniary resources or property disproportionate to the known sources of income of the accused and that the accused cannot satisfactorily account for the same. For the purpose of proving the failure of an accused to saitisfactorily account for his possession of disproportionate pecuniary resources or property, the prosecution was entitled to rely not only on the evidence of its own witnesses, but also on the Explanationn offered by the accused in the trial. AIR 1949 Cal 641, Captain J. R. Blythe' v. The King (1). This sub-section did not constitute an offence by itself. It 'merely prescribed a rule of evidence for the purpose of proving the offence of criminal misconduct as defined in section 5(1) for which an accused person is already under trial'. (Sajjan Singh v. State of Punjab, : 1964CriLJ310 ). A burden was cast on the accused to satisfactorily account for the assets in question. The moment the conditions of sub-section (3) were fulfillled, the Court was bound to make a presumption that the accused was guilty of criminal misconduct within the meaning of section 5(l)(d). In' other words, it was to be presumed that the accused had 'by corrupt or illegal means or by otherwise abusing his position as a public servant' obtained for himself or for any person any valuable thing or pecuniary advantage. (C. S. D. Swami v. The State, : 1960CriLJ131 ).
(7) After the Amendment sub-section (3) was deleted and clause (e) to sub-section (1) was added. This clause is in the following terms :
'(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 to his known sources of income.'
In other words, one more ground constituting criminal misconduct has been added. Now a person can be prosecuted on this ground also.
(8) It is submitted that it is the duty of the investigating officer to call upon the accused to account for the pecuniary resources or property disproportionate to his known sources of income, and only when the Explanationn of the accused is not found satisfactory by the investigating officer, the latter can file the charge-sheet. It is thus urged that an accused would be 'compelled to be a witness against himself' in violation of clause (3) of Article 20 of the Constitution.
(9) We are afraid we cannot agree with the learned counsel for the petitioner. The fallacy lies in assuming that an accused is bound to account for the assets in question to the Investigating Officer. From a bare reading of clause (e) it is plain that it is up to an accused to account or not to account for his assets. By no stretch of imagination it can be said that this clause compels an accused to be a witness against himself in terms of Article 20(3). The Explanationn, if any, given by an accused will neither incriminate him nor can be used against him by the Investigating Officer.
(10) In Smt. Nandmi Satpathy v. P. L. Dani and another : 1978CriLJ968 , it was held that the provisions of Article 20(3) and section 161(1) of the Code of Criminal Procedure substantially cover the same area so far as police investigations are concerned. Krishna lyer, J., speaking for the Court, after making reference to section 161 of the Code of Criminal Procedure, observed thus :
'The legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of 'prosecution may lead to legal tension in the exercise of a constitutional right, but, then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilty, it becomes 'compelled testimony', violating of Article 20(3).'
(11) In other wards, if an Investigating Officer does not put pressure of any kind whatsoever while asking a question from an accused the reply, if any, cannot be said to be a compelled testimony. What is self-incrimination or tendency to expose oneself to a criminal charge was explained thus :
'It is less than 'relevant' and more than 'confessional'. Irrelevance is impermissible but relevance is licit but when relevant questions are loaded with guilty inference in the event of an answer being supplied, the tendency to in criminate springs into existence.'
(12) Clause (3) of Article 20 of the Constitution came to be interpreted by a Bench of Ii Judges of the Supereme Court in State of Bombay v. Kathi Kalu Oghad, : 1961CriLJ856 . It was held that the mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'. It was also held that to bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement and that it was not enough that he should become an accused any time -after the statement had been made. It was thus ruled that a voluntary statement made by the accused person while in custody and admissible under section 27 of the Evidence Act will not be hit by the provisions of clause (3) of Article 20 because no compulsion had been used. The meaning of the words 'to be a witness' used in Article 20(3) was given by the court thus : ' To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.'
(13) In Tukaram G. Gaokar v. R. N. Shukia and others, : 1968CriLJ1234 , the contention of the appellant that it was necessary for him to enter the witness-box for substantiating his defense and he was thus being compelled to be a witness against himself in terms of Article 20(3), was repelled and it was observed : 'Even in a criminal trial, any person accused of an offence is a competent witness for the defense under section 342-A of the Criminal Procedure Code and may give evidence on oath in disproof of the charges made against him. It may be very necessary for the accused person to enter the witness-box for substantiating his defelice. But this is no reason for saying that the criminal trial compels him to be a witness against himself and is in violation of Article 20(3) Compulsion in the context of Article 20(3) must proceed from another person or authority.'
(14) It is thus plain that if a person accused of an offence makes a voluntary statement which is incriminating, or is forced by circumstances to make a statement which may be incriminatory, it cannot be said that he is being 'compelled' to be a witness against himself. Clause (e) of sub-section (1) of section 5 of the Prevention of Corruption Act cannot, thereforee, be said to compel an accused to be a witness against himself. It, thereforee, does not contravene Article 20(3) of the Constitution.
(15) We cannot subscribe to the view that an accused has to satisfy the Investigating Officer about his assets being not disproportionate. It must be remembered that it is the court to which an accused is accountable. The questions before the court are (i) Whether the assets are disproportinate to the known sources of income; and (ii) Are they satisfactorily accounted for An accused is free to account or refuse to account for his assets to the police. His refusal to account to the police will not leave the offence incomplete, as is suggested by the learned counsel for the petitioner- His silence will amount to his having no Explanationn and failing to account for his assets.
(16) 'THE learned counsel for the petitioner requested us for exercising our inherent jurisdiction under section 482 of the Code of Criminal Procedure to quash the present proceedings. But we have not allowed him to raise the contention because we admitted the present petition primarily on the question of the virus of clause (e) of subsection (1) of section 5.