1. First accused in C.C.Nos.5 of 2010, 6 of 2010 and 2 of 2018 of the Special Judge SPE/CBI-I, Ernakulam is the petitioner in O.P(Crl).Nos.435 and 436 of 2019. He faces trial along with the coaccused for offences punishable under sections 120B, 420, 468 and 471 of the Indian Penal Code and Section 13(1)(a) r/w 13(2) of the Prevention of Corruption Act 1988 (hereinafter referred to as 'the PC Act'). The charge sheet relates to disbursement of agricultural cash credit loans during the period 2007 to 2008. FIR was laid on 24.07.2008 and after investigation, final report was filed in June 2011. In the above proceedings, accused appeared and pleaded not guilty. Charges were framed and trial commenced. In the meanwhile, first accused filed M.P.Nos.853 of 2019, 854 of 2019, 855 of 2019 and 856 of 2019 in the above criminal cases under section 216 Cr.P.C. to alter the charge. This was dismissed which has given rise to the present original petitions.
2. Crl.R.P.Nos.923 of 2019, 925 of 2019 and 928 of 2019 arises from C.C.No.8 of 2014 on the files of the Special Judge (CBI-SPE) Ernakulam. Revision petitioners are accused No.2, 6 and 4 respectively in the above case. The revision petitioners along with the co-accused face prosecution for offences punishable under sections 11, 14 r/w 12, 13(2), r/w 13(1)(b) of the PC Act. Allegation of the prosecution therein was that, first accused habitually received illegal gratification from accused 2 to 8 and thereby committed the above offences. There was a further allegation that, other accused had abetted the commission of offences. In the above criminal proceedings, revision petitioners filed M.P.Nos.5 of 2019, 80 of 2019 and 29 of 2019 seeking discharge. Those applications were dismissed which have given rise to the present revisions.
3. The petitioner in O.Ps(Crl), has raised a contention that in the light of the amendment to the PC Act introduced by Prevention of Corruption (Amendment) Act 2018 (16.09.2018) which came into force on 26.07.2018, there was a legal embargo in the continuance of the trial of the offences under section 13(2) r/w 13(1)(b) of the PC Act. It was contended that, Amendment Act has substituted section 13(1) and the offence as defined under section 13(1)(d) has been impliedly omitted by substituting it with amended section 13(1). It was contended that, it was neither a repeal nor an express omission of Sec.13(2), but was a substitution and implied omission. It was contended that, in the case where the new section was substituted for the old one by way of amendment in the form of substitution and thereby impliedly omitted an offence for which no express provision was made for its continued application, it has to be deemed that, substituted section alone was there in the original Act from the date when the original Act came into force. According to the petitioner, in the Amendment Act 16 of 2018, there was no express provision saving section 13(1)(d) and in that case, what could be inferred was that the legislature intended to substitute a new definition with effect from the date of amendment Act.
4. To buttress the above contention, petitioner relied on the decisions of the Constitution Benches of Honourable Supreme Court in M/s Rayala Corporation (P) Ltd & Others v. Director of Enforcement (AIR 1970 SC 494) and Kolhapur Cane Sugar Works Ltd and Another v. Union of India & Others (2000(2) SCC 536). It was further contended that, in both the decisions, Constitution Benches had observed that omission of provision was different from repeal and section 6 of General Clauses Act applied only to repeal of an Act and not to an omission. In General Finance Co. v. Assistant Commissioner of Income Tax (257 ITR 338(SC)), Honourable Supreme Court after taking note of the two Constitution Bench decisions of the Apex Court, had quashed the criminal proceedings initiated under an omitted section, holding that prosecution could not have been launched or continued by invoking Section 6 of the General Clauses Act, after its omission.
5. In the revisions, it was contended that amendement brought in by the Parliament by virtue of the PC (Amendment) Act was applicable to the prosecution of the revision petitioners. It was also contended that, the amendment introduced by Sections 13 as well as 19 of the PC Act was clarificatory in nature and therefore had retrospective effect in the light of the decision in Vishal Agarwal v. Chhattisgarh Electricity Board (2014(3) SCC 696). It was also contended that the court below ought to have applied the principle laid down in General Finance Company v. Assistant Commissioner of Income Tax ((2002)7 SCC 1). It was contended that since the petitioners were public servants at the time when offence was committed, sanction under section 19 of PC Act was mandatory for taking cognizance. It was further contended that since section 13(1)(b) was omitted from the PC Act, no prosecution could be initiated for an offence which has been impliedly omitted by the Statute.
6. In the above Batch of revisions and the original petitions, the main question of law that arises is whether in the light of the amendment introduced by the PC (Amendment) Act 2018, the prosecution launched and final report under the pre-amended provisions, laid much prior to the amendment, can continue. Since the main question in all the revisions as well as original petitions centers around the impact of the amendment on the existing prosecution, all the matters were heard together. Both sides were heard in extenso and they relied extensively on various Judicial pronouncements.
7. The main contention of the learned counsel for the petitioner in original petition was that, when a new section was substituted for the old one by way of an amendment in the form of substitution, and impliedly omitted an offence for which no express provision was made for its continued application, it was to be deemed that the substituted section alone was there in the Original Act from the date when the original Act came into force. According to the counsel, when a section was substituted by an amendment, it will have retrospective effect, in the absence of clear indication to the contrary. The substituted section will relate back to the original section which had been omitted from the statute. In case of an implied omission of an offence by substitution of a new definition, neither section 6, nor any other provision of the General Clauses Act, 1897, can apply to enable the continuance of the criminal proceedings in respect of the offence which has been impliedly omitted, in the absence of an express provision permitting the continuation of criminal proceedings in the Act by which amendment by way of substitution and implied omission has been made. In Act 16 of 2018, there was no express provision saving section 13(1)(d) and in such a case what alone can be inferred was that the legislature intended to substitute the new definition with effect from the date of commencement of the original Act, it was argued. It was submitted that the allegation against the petitioners will not be an offence as per the substituted section 13(1) of the Prevention of Corruption Act, 1988. Thus continuation of trial proceedings would be for an act, which had ceased to be an offence, it was argued.
8. To appreciate the above contentions, it is essential to refer to sections 13(1)(b) and 13(1)(d) (prior to amendment) which are the main offences alleged in the above prosection and the amended section 13(1). Section 13(2) provides for the offences under section 13(1) of the Act. Section 13(1) reads as follows:
“Section 13. Criminal misconduct by a public servant – (1) A public servant is said to commit the offence of criminal misconduct,-
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without 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 by him, or having any connection with the official function of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(d) if he, -
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
9. After the amendment in 2018, the substituted section 13(1) reads as follows:
Section 13. Criminal misconduct by a public servant – (1) A public servant is said to commit the offence of criminal misconduct , -
(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or
(b) if he intentionally enriches himself illicitly during the period of his office.
Explanation 1.- A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or propery disproportionate to his known sources of income which the public servant cannot satisfactorily account for.
Explanation 2 The expression “known sources of income” means income received from any lawful sources”
10. In the light of the contentions set up by the petitioners, question that arises for consideration is the impact of amended section 13(1) on the corresponding provision under the old Act and whether the prosecution launched for offence under section 13(1)(d) can survive after the amendment.
11. To analyze the main contention set up by the petitioners, reference has to be made to section 6(c) of the General Clauses Act. Sec.6(c) of the Act provides that,
“where any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed”.
The scope of section 6(c) of General Clauses Act was to leave unaffected pending proceedings commenced under the repealed provisions, unless a contrary intention was expressed. It was so clarified by the Honourable Supreme Court in the decision reported in Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal and Co (2001 KHC 1656).
12. However, in M/s.Rayala Corporation Pvt Ltd case (supra) and Kohlapur Cane Sugar Works Case (Supra), it was held that section 6(c) of the above Act applies only to repeals and not to omissions.
13. Old section 13(1) of the PC Act creates offences and to that extent, it may be considered to be in the nature of a substantive provision. The general proposition of construction is that any statute which creates substantive right, prima facie, is prospective in nature. It is a cardinal principal of construction that every statute dealing with a substantive right is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. This is in consonance with the authoritative pronouncement in various decisions of Supreme Court in Mithilesh Kumari and another v. Prem Behari Khare (AIR 1989 SC 1247), State of Madhya Pradesh and Others v. Rameshwar Rathod (AIR 1990 SC 1849), Zile Singh v. State of Haryana and Others (AIR 2004 SC 5100), C.Gupta v. Glaxo Smithkline Pharmaceuticals Ltd. (2007(7) SCC 171) and J.S.Yadav v. State of Uttar Pradesh and Another (2011(6) SCC 570).
14. Though it is a cardinal principle of construction that every statute is prima facie prospective, unless it is expressly or by necessary implication made to have retrospective operation, it is also equally true that an express provision should be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication. Instead of explicit words, the device of a legal fiction can also be used to introduce retrospective operation as held by Supreme Court in Akram Ansari v. Chief Election Officer ((2008)2 SCC 95). Generally , it is considered that every statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made retrospective. Recently, by a series of decisions, it has been held that the classification of a Statute either as substantive or procedural also does not necessarily determine whether it may have retrospective operation.
15. Regarding penal statutes, which either create offences or which have the effect of increasing penalties for existing offences will only be prospective, by virtue of Constitutional protection under Article 20 of the Constitution of India. Courts have leaned very strongly in favour of applying a new law to pending proceedings, if the language is sufficiently clear. This is affirmed by the Supreme Court in United Provinces v. Atiga Begum(AIR 1941 FC 16), K.S.Paripoornan v. State of Kerala (AIR 1995 SC 1012) and State of Punjab v. Bhajan Kaur (AIR 2008 SC 2276).
16. Learned counsel for the petitioners heavily relied on the decisions reported in M/s Rayala Corporation (P) Ltd & Others (supra) and in Kolhapur Cane Sugar Works Ltd and Another's case (Supra). In M/s Rayala Corporation (P) Ltd & Others (Supra) the company and its managing director faced prosecution in a proceeding initiated before the Chief Presidency Magistrate Court, Madras on an allegation that they inter alia contravened Rule 132A(2) of the Defence of India Rules. The proceedings were challenged before the High Court, which did not accept the challenge. The matter ultimately reached the Supreme Court. One of the contention vehemently advanced on behalf of M/s Rayala Corporation (P) Ltd & Others was that, prosecution for violation under Rule 132A(2) of the Defence of India Rule was omitted by a notification of the Ministry of Home Affairs on a date anterior to the initiation of the prosecution proceeding. It was hence contended that the prosecution in respect of an offence punishable under that Rule could not be instituted after the Rule has ceased to exist. Supreme Court after analyzing the various precedents on the issue held that, Rule 132A as a whole ceased to be in existence as a result of the notification issued by the Ministry of Home Affairs by which the Defence of India (Amendment) Rules 1965 were promulgated. Clause (2) of the Amendment Rules provided that Rule 132A of the Defence of India Rules 1962 shall be omitted except in respect of things done or omitted to be done in that Rule. The contention of the Corporation was that even if there was a contravention of Rule 132A(2) by the accused, when the Rule was in force, the act of contravention cannot be held to be a “thing done or omitted to be done under that Rule” so that, after that Rule has been omitted, no prosecution in respect of that contravention can be instituted or continued. However, it was conceded by the Corporation that if the prosecution had already been launched while Rule 132A was in force, that prosecution might have been competently continued. Once the Rule was omitted altogether, no new proceeding by way of prosecution could be initiated even though it might be in respect of an offence committed earlier during the period in which the Rule was in force.
17. Supreme Court accepted the above contention and held that clause (2) of the Defence of India (Amendment) Rules 1965 can only afford protection to action already taken while the Rule was in force but, cannot justify initiation of a new proceeding which will not be an act done or omitted to be done under the Rule, but a new act of initiating the proceeding after the Rule had ceased to exist. It was also held that, the above interpretation was in tune with the general principle initiated by the Supreme Court in S.Krishnan v. State of Madras (1951 SCR 621) where in relation to temporary enactments, the Supreme Court had held that the general rule was that in the absence of special provision to the contrary, proceedings which were taken against the person under it will ipso facto terminate as soon as the statute expires.
18. In Kolhapur Cane Sugar Works Ltd and Another's case (supra), proceedings were initiated against the company for recovery of money released to them as rebate by invoking Rule 10 and 10(a) of the Central Excise Rules. Though the explanation offered by the company was rejected by the Assistant Collector of Central Excise, before the actual pronouncement of the order, Rule 10 and 10A of the above Rules were deleted/omitted. A new provision was introduced as Rule 10.
19. In a proceeding initiated by the company challenging the recovery proceedings, the contention set up was that, the Rule stood deleted and a new Rule was introduced. The effect of such deletion was introduction of a new provision, and that Rule under which the show cause notice was issued ceased to exist. Thereafter further proceedings were without jurisdiction, since notification of the modified Rule did not contain any saving clause. The company placed reliance on the decision in M/s Rayala Corporation (P) Ltd & Others (supra).
20. After evaluating all available judicial precedents, Supreme Court held that, section 6(c) of General Clauses Act was applicable where a Central Act or Regulation made after the commencement of the General Clauses Act repeals any enactment. Supreme Court opined that at common law, the normal effect of repealing a statute for deleting a provision was to obliterate it from the statute book completely, as if it had never been passed, and the statue must be considered as a law that never existed. To this Rule, an exception was engrafted in section 6(c) of the General Clauses Act, that if a provision of a statue is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Saving of the nature contained in section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past, largely depends on the saving applicable. In a case where a particular provision in a statue was omitted and in its place another provision dealing with the same contingency was introduced without a saving clause in favour of pending proceedings, then it can be reasonably inferred that the intention of the legislature was that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision. Referring to the above legal position, a two Judges Bench of Supreme Court in M/s.General Finance Co and Another v. Assistant Commissioner of Income Tax (2002 KHC 1847) held that an omission of a provision was different from repeal and section 6 of the General Clauses Act applies to a repealed law and not to omission.
21. The Constitution Bench of the Supreme Court considered the retrospectivity of a fiscal statute in Commissioner of Income Tax v. Vatika Township Private Limited ((2015)1 SCC 1). It was held by the Supreme Court that one of the established Rule of Interpretation of Legislation was that, unless a contrary intention appears, every legislation was presumed not to be intended to have a retrospective operation. The idea behind the Rule was that the current law should govern current activities. Law passed today cannot apply to the events of the past. According to the Honourable Supreme Court, obvious nature of the principle against the retrospectivity was the principle of fairness, which must be the basis of every legal Rule. Thus, legislation which modified accrued rights or which imposed obligations or imposed new duties or attached a new disability have to be treated as prospective unless the legislative intent was clearly to give the enactment a retrospective effect; unless the legislation was for the purpose of supplying an obvious omission in a former legislation or to explain a former legislation. Applying the principle of doctrine of fairness, the Constitution Bench held that in the instant case proviso added to section 113 of the Income Tax Act, was not beneficial to the Assessee and on the contrary, it was a provision which was onerous to the assessee. Consequently, Supreme Court held that the normal rule of presumption against retrospective operation should apply.
22. In Garikapati Veeraya v. N.Subbiah Choudhry and Others (AIR 1957 Supreme Court 540), the effect of amendment on a right to appeal came up for consideration before a five Judges Bench. The proceedings arose from a suit which was valued at Rs.11,400/. As on the date of suit, an appeal was statutorily maintainable to the Federal Court, if valuation exceeded Rs.10,000/-. Pending the proceedings before High Court, law was changed abolishing the Federal Court. Valuation necessary to appeal to Supreme Court was raised to Rs.20,000/- The scope of amendment and whether appeal was maintainable as of right, came up for consideration before the Bench. By majority, the Supreme Court held that the legal pursuit of a remedy, suit, appeal and second appeal were really but steps in a series of proceedings, all connected by an intrinsic unity and are to be regarded as one legal proceeding. It was held that the right to appeal was not a mere matter of procedure, but was a substantive right and institution of suit carries with it the implication that all rights of appeal then in force are preserved to the parties till the rest of the career of the suit. It was held that the vested right of appeal can be taken away only by a subsequent enactment, if it so provided, expressly or by necessary implication and not otherwise.
23. In T.Barai v. Henry Ah Hoe and Another (1983(1) SCC 177) the applicability of section 16A of the Food Adulteration Act, 1954 inserted by the Prevention of Food Adulteration (Amendment) Act 1976, by the Central Government came up for consideration. The accused in that case stood charged for offence under section 16(1)(a) of the State Act. It was punishable upto life imprisonment in a sessions trial. Offence was committed in 1975. Central Amendment came into force in April 1976, by which, maximum punishment for the above offence was 6 years and was triable by a First Class Magistrate. Considering the impact of amendment by a Central Act on a State enactment, on a subject included in the concurrent list, it was held that eventhough the subsequent law made by the Parliament does not expressly replace a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is brought into force. Referring to Article 20(1) of the Constitution of India it was held that only retroactive criminal legislation was prohibited under Article 20(l). It was held that in so far as the Central Audit Act creates new offences or enhances punishment for a particular type of offence, no person can be convicted by such ex post facto law, nor can the enhanced punishment prescribed by the amendment be made applicable. However, it was observed that in so far as the Central Amendment Act reduced the punishment for an offence, there was no reason why the accused should not have the benefit of the reduced punishment. It was held that the Rule of beneficial construction requires that even expost facto law of such a type should be applied to mitigate the rigour of the law. According to Supreme Court, the principle was based on sound reason and common sense. It was held that the Central Amendment Act having dealt with same offence and provided for a reduced punishment, the accused must have the benefit of reduced punishment.
24. Identical situation came up before Supreme Court in State v. Gian Singh (AIR 1999 SC 3450). In that, the accused faced trial before the Designated Court under Terrorists and Disruptive Activities (Prevention) Act, 1985, in which they were sentenced to death for offence under section 3(2)(i) of TADA Act 1985. It did not provide for any lower sentence. When the matter came up before Supreme Court, it was noticed that the TADA Act 1985 was a temporary statute which was to expire after two years on 22.05.1987. However, by virtue of Saving Clause under section 28 of the said Act, all rights, privileges, obligation or liability acquired or accrued under the Statute were saved, notwithstanding the expiry of the Act. It was held by the Supreme Court that the effect of operation of the above subsection was that inspite of expiring of TADA 1985 on 22.05.1987, all liabilities, penalties or punishments to which a person has already become liable in respect of any offence under the said Act would continue to chase him as though the said Act remained in force. Referring to the two earlier Constitution Bench decisions of the Supreme Court in S.Krishnan and Others v. State of Madras and another (AIR 1951 SC 301) and State of Orissa v. Bhupendra Kumar Bose (1962 Suppl. (2) SCR 380) apex court affirmed the ipso facto termination of temporary Statutes, as a general Rule, unless such Statute contained some special provision to the contrary. After a temporary Act has expired, no proceedings can be taken up and it ceases to have any further effect. However, Supreme Court noted that in Gian Singh's case the outflow of TADA 1985 would normally have continued in the light of section 28 of TADA 1985, but for another contingency that happened in the interregnum, which was the introduction of TADA Act 1987, which substantially covered the same area as in the former legislation, prescribing punishments for identical offences. However, 1987 Act diluted the harshness of 1985 Act by providing an alternate lesser sentence of life imprisonment. According to the Supreme Court, if the position was just in the reverse order, ie: the later Act contained harsher sentence and the former Act contained a lesser sentence, the prohibition embodied in Art.20(1) of the Constitution would have gone to the rescue of the offender. Supreme Court held that section 25 of TADA Act 1987 provided for an overriding effect to the 1987 Act, notwithstanding contained in any other enactment. It was held that section 3(2) of 1985 Act which provided for a harsher sentence was inconsistent with the corresponding provision under 1987 Act, and to that extent, the 1987 Act will override 1985 Act and the Court gets jurisdiction to award alternative sentence of life imprisonment. Accordingly, Supreme Court reduced the sentence to life imprisonment.
25. The decision of the Supreme Court in Jagan M. Seshadri v. State of T.N. (2002)9 SCC 639) was one rendered under the Prevention of Corruption Act. In that a Superintendent of Police faced trial for offence under section 5(i)(d) and (e) r/w section 5(2) of Prevention of Corruption Act, 1947 for acquiring assets disproportionate to his known source of income, during the check period 1977-1984. The trial court on appreciation of the materials placed acquitted the accused. In appeal by the State, the High Court took the view that 1947 Act was replaced by prevention of Corruption Act 1988 which came into force with effect from 09.09.1988. The accused should have been charged under section 13(1) (e) read as section 13(2) of the 1988 Act and not under section 5(1)(d) and (e) of 1947 Act. The High Court on a re-appreciation of evidence found the accused guilty under the provisions of new Act. The Supreme Court reversed the judgment of the High Court, relying on section 30(2) of 1988 Act, which saved any action taken or purported to have been taken under or in pursuance of the repealed Act and in the light of section 6 of the General Clauses Act.
26. In Shyam Sundar and Others v. Ram Kumar and Another (AIR 2001 SUPREME COURT 2472), a suit was filed by plaintiff claiming preferential right to pre-empt sale in favour of defendant on the ground that they were co-sharers. Pending appeal, the parent preemption Act was amended and substituted by a new provision by which right of a co-sharer to pre-empt sale was taken away. Question that came up for consideration before a 5 judges Bench was whether Amendment Act had retrospective operation, so as to affect the rights of parties in litigation. Supreme Court held that the amending Act was neither expressly nor by necessary implication retrospective. Even assuming that the amending Act was a beneficial legislation, there was no such Rule of construction that a beneficial legislation was always retrospective in operation, even though such legislation either expressly or by necessary intendant was not made retrospective. It was held that a Statute which affect the substantive right has to be held to be prospective unless made retrospective, either expressly or by necessary intentment. In General Finance Co. and Ors. v. Assistant Commissioner of Income Tax, Punjab (AIR 2002SC 3126) Supreme Court reiterated the view in Rayala Corporation's Case that section 6 of General Clauses Act applies to repeal of Statutes and not to omission of provision. It was asserted that the principle underlying section 6 of General Clauses Act 1897, as saving the right to initiate proceedings for liabilities incurred during the currency of the Act will not apply to omission of a provision in an Act, but only to repeal, omission being different from repeal as held in the earlier decisions.
27. In Zile Singh v. State of Haryana and Others ((2004)8 SCC 1), the Supreme Court held that substitution of a provision results in repeal of earlier provision and its replacement by the new provision. It was held that, substitution had the effect of deleting the old Rule and making the new Rule operative. In International Ltd. v. Securities and Exchange Board of India ((2015)4 SCC 33), pending an appeal against the order of Securities Appellate Tribunal (SAT), SEBI Act, 1992 was amended reducing the scope of appeal to questions of law and changing the Forum of appeal. Answering the question whether remedy of appeal that was available before amendment, was available even after amendment, Supreme Court held that being a vested right, right of appeal as was available at commencement of proceedings continues to vest in parties engaged in lis, till eventual culmination of proceedings. However in Securities and Exchange Board of India v. Classic Credit Ltd. (2018)13 SCC 1, Supreme Court held that Amendment by which Forum alone was changed was procedural and such amendments are presumed to be retrospective.
28. The above discussion of judicial precedents clearly show that law is settled that generally all amendments of substantive nature are prospective, unless the Amendment Act discloses expressly or by necessary implication a different intention. Definitely, whether the amendment related to a substantive provision or a procedural one itself could be a disputed one. Explaining the scope of section 6 of General Clauses Act, it has been consistently held that it applies only to repeal of a Statute and not to an omission.
29. With the above settled legal propositions, the present amendment will have to be analyzed, to ascertain whether the amendment is prospective or not. Essentially, this depends on the question whether amendment is substantive in nature and whether the Amendment Act, expressly or by necessary implication gives an indication that it is prospective only. Further, it also depends on the question whether it repeals the existing Statute or whether it is an omission. Evidently, the Amendment Act has not provided any saving clause or transitional provision. This calls for an evaluation of the salient features of the Prevention of Corruption (Amendment) Act.
30. Evidently, the amendment is substantial one, covering the major penal provisions in the statute. Section 4 prescribes a time limit for the completion of trial of offences under the Act. This is significant considering the criticism that Prevention of Corruption Act cases take long time for the completion of trial. The provisions relating to illegal gratification by a public servant under sections 7, 8, 9 and 10 have been drastically amended. So also section 13 relating to misconduct of a public servant has been substantially changed.
31. Though the term bribe is not defined anywhere in the old Act or in the Amended Act, the heading used in the amended section 7 is one of common parlance, of “public servant being bribed”. Amended Section 7 reads as follows:
“Section 7 : Offence relating to public servants being bribed : - Any public servant who, -
(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three year but which may extend to seven years and shall also be liable to fine.
Explanation 1. For the purpose of this section, the obtaining, accepting or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
Explanation 2. - For the purpose of this section, -
(I) the expressions “obtains” or “accepts” or “attempts to obtain” shall cover cases where a person being a pubic servant, obtains or “accepts” or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;
(II) it shall be immaterial whether such person being a public servant obtains of accepts, or attempts to obtain the undue advantage directly or through a third party.”
The act, which was penalized under sections 7 to 10 of the old Act was the public servant taking “gratification other than legal remuneration”. The above sections covered various manifestations of that act, of public servant or a person expecting to be a public servant, accepting, obtaining or agreeing to accept or attempting to obtain from any person either himself or for any other person, as a motive or reward for doing or forbearing to do any official act, or for showing or forbearing to show, in the exercise of his official function by favour or disfavour to any person. It was clarified in old section 7 itself that the term gratification was not restricted to pecuniary gratification or to gratification estimable in terms of money.
32. The most striking feature is that the term “gratification other than remuneration” stands replaced by the term “undue advantage”. The term gratification is commonly understood as one “which derives pleasure, especially when gained from the satisfaction of a desire”. On the other hand, the term “undue advantage” means an unfair advantage as held by the Supreme Court in Prakash Chand v. State of M.P ((2004)11 SCC 381), Ghopoo Yadev v. State of Uttarachal, (AIR 2007 SC 363). Etymologically, the term “undue advantage” seems to be more wider than the term “gratification”, since the latter has a prerequisite of a desire, urge or want, which may be lacking in the former. Further, undue advantage can take any form; direct, indirect, tangible or intangible. Hence, it appears that the scope of prosecution has been widened by this amendment.
33. One apparent omission in the amended provision is that the person covered by the present section 7 includes only a public servant and not a person expecting to be a public servant, whereas, the old provision included even a person expecting to be a public servant. This amendment also stands to reason since a public servant, in normal circumstances cannot include a person expecting to be a public servant. Further, the offence is committed, when the act covered by the definition is done in connection with the performance of a public duty.
34. Major change is in the restructuring of section 13. Old section 13(1)(c) is renumbered as present section 13(1)(a). Sub sections 13(1)a, 13(1)(b) and 13(1)(d) have been deleted. However, old section 13(1)(d) has now been substantially retained as Sub section 13(1)(b) in the amended Act along with explanation (1). However, an element of intention in enriching oneself has been added. Further, instead of one possessing disproportionate assets, or in possession of it which he cannot satisfactorily explain, the present section demands an intentional enrichment illicitly. However, a close perusal of section 7 shows that most of the provisions omitted in the old section 13, are substantially included in section 7 of the Amended Act. Amended section 7(a) corresponds to the operative part of old section 7. Amended sub sections 7(b) and 7(c) correspond to unamended sub sections 13(a) and 13(b). Thus a clear segregation is effected with the ingredients of bribing a public servant brought under amended section 7 and ingredients of misconduct brought under section 13. Thus overlapping offences have been clearly separated and brought under separate well defined categories. Another substantial change is that unamended sub sections 13(1)(a) and 13(1)(b) had provided punishment to a person who habitually accepted or obtained illicit gratification or accepted or obtained anything without consideration or inadequate consideration. Corresponding provision now found in section 7 contemplates that a person who repeat the offence after first conviction is treated as a habitual offender with enhanced punishment under section 14. Except that, substantially there is no considerable change in the offences. However, the present sub section 13(2) enhances the punishment for criminal misconduct from an earlier minimum sentence of imprisonment for one year, to imprisonment of four years and maximum punishment of imprisonment for seven years provided in the old Act now enhanced to imprisonment for ten years. Likewise, the minimum punishment of imprisonment of six months provided in the old section 7 has been enhanced in the present Section 7 to minimum three years and maximum sentence of five years enhanced to seven years. This redefining of offences and enhancement of punishment is a strong indication that the amendment was not intended to be retrospective. The contention of the petitioners regarding the implied omission of the offence under section 13(1)(d) by the amendment in 2018 cannot be accepted in the light of amended Section 7. Yet another significant provision is section 17A by which a provision for previous approval for conducting any enquiry, inquiry or investigation by a police officer in certain cases was introduced.
35. Recently Delhi High Court in Madhu Koda v. State through CBI (Crl.A.1186/2017) [judgment dated 22.05.2020], had occasion to consider the retrospectivity of the amendment Act. The Court referred to the views of the select committee of Rajya Sabha on Prevention of Corruption Act (Amendment) Bill, which held that section 13(1)(d)(iii) of the PC Act covered a new species of crime related to corruption, which was not contemplated under the Prevention of Corruption Act. The committee also referred to the Judgment of the Delhi High Court in Rumi Gosh v. CBI (2011 SCC online 5501), in which it was held that mensrea was not an essential ingredient of offence under section 13(1)(d) (iii) of the PC Act. The learned Judge held that the intention of substituting section 13 by enacting the amendment Act was to exclude the act of any public servant obtaining any valuable thing or pecuniary advantage for any person, without any public interest as an offence of criminal misconduct. Section 7 substantially includes the ingredients of section 13(1) of the old Act except for section 13(1)(d)(iii) of the old Act. In the light of the above statutory provision, the contention of the petitioners that section 13(1)(d) was omitted completely is not correct. When the PC Act 1947 was introduced, it did not include any offence of the nature as specified under section 13(1)(d)(iii) of the Act. It was introduced only for the purpose of expanding the scope and coverage of law relating to corruption. Thus, for the first time an act/conduct resulting in a pecuniary advantage to a third party was held culpable as a species of corruption, merely because such act or conduct was without public interest, it was held.
36. It seems that serious concerns were expressed that acts of public servant which did not involve any mens rea or guilty intention or knowledge could, nevertheless, be considered as offence under the PC Act. The Delhi High Court in Madhu Koda's case (supra) held that the said concern was addressed by substituting section 13 of the PC Act. The Amendment Act 2018 to substitute section 13 does indicate the legislative intention to exclude any such act, which was construed as criminal misconduct only for the reason that such act or conduct did not involve any public interest.
37. Delhi High Court observed that since the PC Amendment Act addressed the concerns regarding sub-clause (iii) of section 13(1)(d) of the PC Act, it would stand to reason to accept that the legislative intent was always to ensure that mens rea be considered as an integral part of any offence of corruption. The very definition of corruption, as is commonly understood, includes an element of dishonesty and abuse of power by a public servant.
38. However the Delhi High Court opined that, it was unable to accept the contention that the PC (Amendment) Act, 2018 sought to repeal the provisions of section 13(1)(d) of the Act, as it existed prior to 26.07.2018 ab initio. Mens rea was an integral part of the offence under sub-clause (ii) of section 13(1)(d) of the PC Act. The use of the word 'abuse' in the said Sub-clause indicates so. Thus, there was no reason to assume that the legislative intent of repealing sect
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ion 13 of the PC Act was to exclude the said offence from the scope of the PC Act with retrospective effect. 39. The learned Judge hence concluded that, section 6(c) of the General Clauses Act was applicable and persons convicted of committing the offence of criminal misconduct under section 13(1)(d) of the PC Act would not be absolved of their offences or the liability incurred prior to the coming into force of the amended PC Act. It is also relevant to note that the offence of criminal misconduct, as falling under the provisions of Section 13(1)(d) of the PC Act prior to its amendment, is not the same offence as is now covered under the amended provision. 40. In the light of the above discussion of law, it is clear that the principle of retrospective operation will apply only when an existing statutory provision is completely erased or omitted in the amended provision. Further, it can only apply to actions which are to be initiated pursuant to the earlier Act. In the case at hand, though a provision corresponding to section 13(1)(d) of the old Act is absent in the amended section 13(1), a substantially corresponding provision is found elsewhere in the statute in the form of Section 7. Hence, it cannot be held that the offences under sections 13(1)(b) and 13(1)(d) have been completely omitted or wiped off from the statutory book by the amendment. The amendment appears to be more comprehensive without any reduction in punishment and without substantially omitting any of the offences covered by the old statute. Further, amendment was introduced much after the final report was laid in the present case. To that extent, contention of the petitioner in the original petition that the statute operates retrospectively and the offences under sections 13(1) of the old amended Act cannot survive in the light of the amendments is only to be rejected. 41. Yet another contention set up by the petitioners was that in the light of section 17A of the amended Act, the investigation followed by prosecution without prior approval was non est and liable to be quashed. As indicated above, there is nothing in the statute to indicate that it was retrospective. Section 17A prohibits any enquiry or inquiry or investigation into any offence, without the approval of the authorities mentioned in section 17A alleged to have been committed by a public servant under the Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties. The approval as contemplated under the Act, is basically to protect honest and upright officers and to insulate them against unnecessary victimization or harassment consequent to taking of administrative decisions. It is also intended to embolden upright and honest officers in taking independent decision in public interest. Essentially, the purpose of the Prevention of Corruption Act is to eradicate corruption in administration and to punish corrupt officers. It also has to strengthen the vigilance wing of the Government empowered to investigate corruption in administrative set up. Hence no provision of the Statute, can be interpreted to dilute the object of the Act, and which may have the effect of weakening the powers of investigation agencies entrusted with such task. If the Amendment is held to be retrospective, several cases pending trial in which investigation commenced prior to amendment which are in the various stages of trial or investigation will be prejudicially affected. All those cases will be bad for absence of prior approval under section 17A of the Amended Act. Such an interpretation cannot be given in the absence of any provision explicitly or impliedly indicating retrospectivity. 42. Hence, the Prevention of Corruption (Amendment) Act 2018 has to be held to be prospective and has no application to cases registered prior to amendment and pending under various stages of investigation and to cases in which investigation has been completed and are pending trial. This seems to be in consonance with the decisions in Syam Sunder's Case (supra) and other similar cases and the view expressed by this Court in M.C.Chandrasekaran Nair v. State of Kerala (2015(4) KLJ 603), wherein the retrospective operation of Prevention of Corruption Act, 1988 came up for consideration. Similar view was expressed by a learned Single Judge of Madras High Court, in Crl.Appeal.No.488 of 2018 wherein scope of application of Amendment Act 2018 came up for consideration. It was held to be not retrospective. Delhi High Court in Madhu Koda's case (Supra) also, shared the same view. I agree with those views. In the light of the above discussion, none of the grounds of challenge survives. The Crl.R.Ps and O.P(Crl)s stand dismissed.