Full Judgment Text
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PETITIONER:
NAYYAR (G. P.)
Vs.
RESPONDENT:
STATE (DELHI ADMN.)
DATE OF JUDGMENT14/12/1978
BENCH:
KAILASAM, P.S.
BENCH:
KAILASAM, P.S.
REDDY, O. CHINNAPPA (J)
CITATION:
1979 AIR 602 1979 SCR (2) 816
1979 SCC (2) 593
ACT:
Prevention of Corruption Act, 1947-Effect of the repeal
of section 5(3) of the Act-Whether Act 16 of 1967
introducing section 5(1) (e) and with retrospective effect
offends Articles 14 and 20(1) of the Constitution.
HEADNOTE:
The appellant who was charged for the offences (a)
under section 120B I.P.C. (b) under section 161 I.P.C. read
with section 5(2) and 5(1) (d) of the Prevention of
Corruption Act 1947 and (c) under section 5(2) read with
section 5(1) (a) of the Prevention of Corruption Act 1947
was acquitted by the special judge holding that neither the
charge of conspiracy nor any other charge against the
accused was proved. But the special Judge held that the
assets of the appellant from 1st of July ’55 to 30th April
1961 had exceeded his income by Rs. 33,588.34 and they were
disproportionate to the known sources of income of the
petitioner. The trial Judge, however, found that as section
5(3) of the Act had been repealed on 18-12-1964 and as
specific instances of payment of bribe to the petitioner
could not be proved the accused could not be held guilty of
the charges. Aggrieved by the decision, the State preferred
an appeal to the Delhi High Court on 11th April, 1967.
Pending the appeal before the High Court, Act No. 16 of
1967, came into force on 5th May 1967 re-introducing section
5(1)(e) in the Act. In the High Court the appellant
challenged the vires of Act No. 16 of 1967 on the ground
that revival of section 5(3) of the Act and making it
applicable retrospectively was void and unconstitutional as
it was in violation of Art. 14 and 20(1) of the
Constitution. A Division Bench of the High Court of Delhi by
its judgment dated 27th November, 1973 allowed the appeal
upholding the validity of Act No. 16 of 1967 and remanded
the case to be tried from the stage at which it was pending
on 18th December, 1964.
In appeals by special leave it was contended that (a)
Since section 5(3) of the P. O. F. A., 1947 was repealed on
18-12-64 the Court below cannot take into account the
provisions of section 5(3) of the Act after the date of its
repeal on 18-12-64 and (b) Act No. 16 of 1964 which gave
retrospective operation to section 5(3) of the Act is
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violative of Articles 14 and 20(1) of the Constitution.
^
HELD: 1. Whether Act 16 of 1967 had been brought into
force on 20th June 1967 or not the rule of evidence as
incorporated in section 5(3) of the P.O.F.A., 1947 would be
available regarding offences that were committed during the
period before the repeal of section 5(3). [823 G]
2. Section 5(3) of the Prevention of Corruption Act,
1947 provided an additional mode of proving an offence
punishable under sub-sections 5(2) for which an accused
person is being tried and, therefore, prescribes a rule of
evidence. Section 5(3) does not create a new kind of offence
of criminal misconduct by a public servant in the discharge
of his official duty. [821 H, 822 A].
817
G.D.S. Swamy v. State, [1960] 1 SCR 461, Surajpal Singh
v. State of U.P., [1961] 2 SCR 971 and Sajjan Singh v. State
of Punjab [1964] 4 S.C.R. 630; applied.
3. While repealing section 5(3) by Act 40 of 1964 the
statute did not say that the section shall be deemed not to
have been in force at all. Section 6 of the General Clauses
Act, 1897 provides that the repeal shall not affect the
previous operation of any enactment so repealed unless a
different intention appears. The operation of all the
provisions of the Prevention of Corruption Act would
continue in so far as the offences that were committed when
section 5(3) was in force. The offences that were committed
after the date of the repeal will not come under the
provisions of section 6(b) of the General Clauses Act.
Section 6(c) also preserves all legal proceedings and
consequences of such proceedings as if the repealing Act had
not been passed. [822 C, 823 E-F].
Keshavan Madhava Menon v. State of Bombay, [1951] 2 SCR
followed.
4. Article 20(1) of the Constitution deals with ex-
post-facto laws though that expression has not been used in
the Article. Usually, a law prescribes a rule of conduct by
which persons ought to be governed in respect of their civil
rights. Certain penalties are also imposed under the
criminal law for breach of any law. Though a sovereign
legislature has power to legislate retrospectively creation
of an offence for an act which at the time of its commission
was not an offence or imposition of a penalty greater than
that which was under the law provided violates Art. 20(1).
All that Art. 20(1) prohibits is ex-post facto laws and is
designed to prevent a person being punished for an act or
omission which was considered innocent when done. It only
prohibits the conviction of a person or his being subjected
to a penalty under expost facto laws. [824 B-D].
In the instant case, the appellant cannot object to a
procedure different from what obtained at the time of the
commission of the offence. The offence that was committed
was when section 5(3) was in force and by Act 16 of 1967 the
procedure is revived. It is not as if the procedure is
brought into force for the first time. [824 F-G].
Rao Shiv Bahadur Singh & Anr. v. The State of
Vindhya Pradesh, [1953] S.C.R. 1188 applied; Phillips
v. Eyre, [1870] 6 Q.B.D. 1, at pp. 23 and 25 and Calder
v. Bull, 3 Dallas 386; 1 Law Ed. 648 at 649; quoted
with approval.
5. There can be no objection in law to the revival of
the procedure which was in force at the time when the
offence was committed. The effect of the amendment is that
sub-section (3) of section 5 as it stood before the
commencement of 1964 Act shall apply and shall be deemed to
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have always applied in relation to trial of offences. It may
be, if by this deeming provision a new offence was created
then the prohibition under Article 20(1) may come into
operation. In this case what is done is no more than
reiterating the effect of section 6(1) of the General
Clauses Act. [825 A-B].
818
6. In the present case the old procedure is revived and
no new procedure is given retrospective effect. The
procedure given effect to is not of such a natural as to
result in creation of a new offence. [825 D].
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
274-275 of 1974.
Appeals by Special Leave from the Judgment and Order
dated 27-11-73 and 11-1-1974 of the Delhi High Court in
Criminal Appeal No. 78/67 and Crl. No. 80/73 respectively.
R. K. Garg, V. J. Francis and D. K. Garg for the
Appellant.
Soli J. Sorabji, Addl. Sol. Genl., R. N. Sachthey for
the Respondent.
The Judgment of the Court was delivered by
KAILASAM, J. These appeals are by special leave against
the judgment of the High Court of Delhi in Criminal Appeal
No. 78 of 1967 and Order dated 11th January, 1974 in Cr.
Misc. (S.C.A.) No. 80 of 1973.
The appellant was chargesheeted on 26th December, 1963
for an offence under section 120-B, Indian Penal Code, for
entering into a criminal conspiracy with one Sirajuddin and
one Rehman to accept from them illegal gratification in the
discharge of his official duties. He was also charged with
specific offences of accepting Rs. 6000 and Rs. 4000 from
Sirajuddin and Rehman being offences punishable under
section 161, Indian Penal Code, read with section 5(2) and
Section 5(1) (d) of the Prevention of Corruption Act, 1947.
He was also charged for the offence punishable under section
5(2) read with section 5(1) (a) of the Prevention of
Corruption Act that in pursuance of the aforesaid
conspiracy, he, during the period from 1955 to 1961
habitually accepted illegal gratification from the said two
co-accused persons. The Special Judge who tried the case
acquitted the appellant by his order dated 19th January,
1967 holding that neither the charge of conspiracy nor any
other charge against the accused was proved. But the Special
Judge held that the assets of the appellant from 1st July,
1955 to 30th April, 1961 had exceeded his income by Rs.
33,588.34 and they were disproportionate to the known
sources of income of the petitioner. The learned Judge,
however, found that as section 5(3) of the Act had been
repealed on 18th December, 1964 and as specific instances of
payment of bribe to the petitioner could not be proved the
accused could not be held guilty of the charges. Aggrieved
by the decision, the State preferred an appeal to the Delhi
High Court on 11th April, 1967. Pending
819
the appeal before the High Court, Act No. 16 of 1967,
received the assent of the President on 20th June 1967 and
came into effect on 5-5-1967 reintroducing S. 5(3) in the
Act w.e.f. 18-12-1964. In the High Court the appellant
challenged the vires of Act No. 16 of 1967 on the ground
that survival of section 5(3) of the Act and making it
applicable retrospectively was void and unconstitutional as
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it was in violation of Art. 14 and 20(1) of the
Constitution. A Division Bench of the High Court of Delhi by
its judgment dated 27th November, 1973 allowed the appeal
upholding the validity of Act No. 16 of 1967 and remanded
the case to be tried from the stage at which it was pending
on 18th December, 1964. Criminal Appeal No. 274 of 1974 is
against the order of the High Court remanding the case for
fresh trial and Criminal Appeal No. 275 of 1974 is against
the order of the High Court refusing to grant a certificate
of fitness for appeal to this Court.
Mr. R. K. Garg, the learned counsel for the appellant,
submitted that since section 5(3) of the Prevention of
Corruption Act, 1947 was repealed on 18th December, 1964,
the Courts below cannot take into account the provisions of
section 5(3) of the Act after the date of its repeal on 18th
December, 1964. It was further submitted that Act No. 16 of
1967 which gave retrospective operation to section 5(3) of
the Act is violative of Arts. 14 and 20(1) of the
Constitution. In order to appreciate the contention of the
learned counsel for the appellant it is necessary to set out
the relevant provisions of the Act.
Section 5(1) of the Prevention Act, 1947, Act 2 of
1947, states when a public servant is said to commit the
offence of criminal misconduct. The section before the
amendment Act No. 16 of 1967 consisted of four clauses (a),
(b), (c) and (d). The appellant was charged for an offence
under section 5(1)(a) and section 5(1) (d) punishable under
section 5(2) of the Act. Section 5(1)(a), and section
5(1)(d) and section 5(2) read as follows:-
"5. (1) A public servant is said to commit the
offence of criminal misconduct in the discharge of his
duty-
(a) if he habitually accepts or obtains or agrees
to accept or attempts to obtain from any
person for himself or for any other person,
any gratification (other than legal
remuneration) as a motive or reward such as
is mentioned in section 161 of the Indian
Penal Code.
(b)
(c)
820
(d) If he, by corrupt or illegal means or by
otherwise abusing his position as public
servant, obtains for himself or for any other
person any valuable thing or pecuniary
advantage.
5 (2) Any public servant who commits criminal
misconduct in the discharge of his duty shall be punishable
with imprisonment for a term which shall not be less than
one year but which may extend to seven years and shall also
be liable to fine:
Provided that the Court may, for any special reasons
recorded in writing, impose a sentence of imprisonment of
less than one year.
Section 5(2) provides for the punishment of any public
servant who commits criminal misconduct as specified in
clauses (a) and (d) of section 5(1). Section 5(3) prescribed
a rule of evidence which runs as follows:-
"5. (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 as such
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proof of 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 therefor shall not be invalid
by reason only that it is based solely on such
presumption."
Section 5(3) was repealed on 18th December, 1964 by Act
40 of 1964. The Act also introduced a new section, section 5
(1) (e) which reads as follows:-
"(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."
Thus on the date when the Special Judge pronounced his
order on 19th January, 1967 section 5(3) was not in
existence and the Special Judge acquitted the appellant on
the ground that the presumption under section 5(3) was not
available for the prosecution on that date. Subsequently on
5th May 1967 Act No. 16 of 1967 came into force. Section 2
of the Act provided as follows:-
"2. Amendment of Anti-Corruption Law in relation to
certain pending trials.
821
(1) Notwithstanding-
(a) the substitution of new provision for sub-
section (3) of section 5 of the Prevention of
Corruption Act, 1947 (hereinafter referred to as the
1947 Act), by section 6(2)(c) of the Anti Corruption
Laws (Amendment) Act, 1964 (hereinafter referred to as
the 1964 Act); and
(b) any judgment or order of any court, the said
sub-section (3) as it stood immediately before the
commencement of the 1964 Act shall apply and shall be
deemed always to have applied to and in relation to
trial of offences punishable under sub-section (2) of
section 5 of the 1947 Act pending before any court
immediately before such commencement as if no such new
provisions had been substituted for the said sub-
section (3);
(2) The accused person in any trial to and in
relation to which sub-section (1) applies may, at the
earliest opportunity available to him after the
commencement of this Act, demand that the trial of the
offence should proceed from the stage at which it was
immediately before the commencement of the 1964 Act and
on any such demand being made the court shall proceed
with the trial from that stage.
(3) For the removal of doubt it is hereby provided
that any court-
(i) before which an appeal or application for
revision against any judgment or order or sentence
passed or made in any trial to which sub-section (1)
applies is pending immediately before the commencement
of this Act, or
(ii) before which an appeal or application for
revision against any judgment, order or sentence passed
or made before the commencement of this Act in any such
trial, is filed after such commencement ’shall remand
the case for trial in conformity with the provisions of
this section."
The contention of the learned counsel for the appellant
is that Act No. 16 of 1967 is an ex-post-facto legislation
creating a new offence retrospectively.
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We will first consider the effect of repeal of section
5(3) of the Prevention of Corruption Act, Act 2 of 1947. The
nature of section 5(3) has been considered by this Court in
several decisions. In Sajjan Singh v. The State of Punjab
this court referring to the sub-
822
section held that the sub-section provided an additional
mode of proving an offence punishable under sub-section 5(2)
for which an accused person is being tried. This Court
negatived the contention that section 5(3) created a new
kind of offence of criminal misconduct by a public servant
in the discharge of his official duty. It held that the
section 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 on
trial. The court followed the view held by this Court in
C.D.S. Swamy v. The State and in Surajpal Singh v. State of
U.P. The question that arises is what is the effect of
repeal of the provision under section 5(3). By Act 40 of
1964 section 5(3) was repealed prospectively. The statute
does not say that the section shall be deemed not to have
been in force at all. Mr. R. K. Garg the learned counsel for
the appellant relying on the dissenting judgment of Fazal
Ali J. in Keshavan Madhava Menon v. The State of Bombay, (3)
submitted that the effect of a repeal will be that it should
be construed as the Act not having been in existence at all.
The view of Tindal C. J. that a repeal of the statute
obliterated it completely from the records of Parliament as
if it had never been passed was followed by Fazal Ali J.
Mahajan J. speaking for the majority disagreed with the view
holding that "it would be more consonant with reason and
justice to say that the law existed and was good at the time
when it was passed but that since the date of its repeal it
has no longer any effect whatsoever." The view taken by the
Chief Justice Jindal was abrogated by the enactment of the
Interpretation Act, 1889. Section 32 of the Interpretation
Act deals with the effect of repealing an Act after August
30, 1889. "Such repealing Acts are, unless contrary
intention appears, not to effect the previous operation of
any enactment so repealed or anything duly done or suffered
under any enactment so repealed or effect any right,
privilege, obligation or liability acquired, accrued or
incurred under any enactment so repealed; or affect any
penalty, forfeiture, or punishment incurred in respect of
any offence committed against any enactment so repealed; or
affect any investigation, legal proceeding, or remedy in
respect of any such right, privilege," obligation,
liability, penalty, forfeiture or punishment as aforesaid."
(Maxwell on The Interpretation of Statutes, 12th Ed., p.17).
In India the General Clauses Act, 1897, contain similar
provisions as in the Interpretation Act, 1889. Section 6 of
the General Clauses Act runs as follows:-
823
"6. Where this Act, or 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-
(a) revive anything not in force or existing at
the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment
so repealed or anything duly done or suffered
thereunder; or
(c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under any
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enactment so repealed; or
(d) affect any penalty, forfeiture or punishment
incurred in respect of any offence committed against
any enactment so repealed; or
(e) affect any investigation, legal proceeding or
remedy in respect of any such right, privilege,
obligation, liability, penalty forfeiture or punishment
as aforesaid;
and any such investigation, legal proceeding or remedy
may be instituted, continued or enforced, and any such
penalty, forfeiture or punishment may be imposed as if the
repealing Act or Regulation had not been passed."
Section 6 provides that the repeal shall not affect the
previous operation of any enactment so repealed unless a
different intention appears. The operation of all the
provisions of the Prevention of Corruption Act would
continue in so far as the offences that were committed when
section 5(3) was in force. The offences that were committed
after the date of the repeal will not come under the
provisions of section 6(b) of the General Clauses Act.
Section 6(c) also preserves all legal proceedings and
consequences of such proceedings as if the repealing Act had
not been passed. In this view it is clear that whether Act
16 of 1967 had been brought into force on 20th June, 1967 or
not the rule of evidence as incorporated in section 5(3)
would be available regarding offences that were committed
during the period before the repeal of section 5(3).
Mr. R. K. Garg the learned counsel submitted that the
provisions of Act 16 of 1967 by virtue of which the rule of
evidence enacted in section 5(3) is deemed to have always
been in existence is violative of Art. 20(1) of the
Constitution. Article 20(1) of the Constitution is as
follows:-
824
"No person shall be convicted of any offence
except for violation of a law in force at the time of
the commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might
have been inflicted under the law in force at the time
of the commission of the offence."
Article 20(1) deals with ex-post-facto laws though that
expression has not been used in the Article. Usually, a law
prescribes a rule of conduct by which persons ought to be
governed in respect of their civil rights. Certain penalties
are also imposed under the criminal law for breach of any
law. Though a sovereign legislature has power to legislate
retrospectively creation of an offence for an act which at
the time of its commission was not an offence or imposition
of a penalty greater than that which was under the law
provided violates Art. 20(1). In the well-known case of
Phillips v. Eyre and also in the American case of Calder v.
Bull the principle underlying the provision has been fully
discussed. All that Art. 20(1) prohibits is ex post facto
laws and is designed to prevent a person being punished for
an act or omission which was considered innocent when done.
It only prohibits the conviction of a person or his being
subjected to a penalty under ex post facto laws. In Rao Shiv
Bahadur Singh & Anr. v. The State of Vindhya Pradesh, the
Court pointed out that "what is prohibited under Art. 20(1)
is only conviction or sentence under an ex post facto law
and not the trial thereof. Such trial under a procedure
different from what obtained at the time of the commission
of the offence or by a Court different from that which had
competence at the time cannot ipso facto be held to be
unconstitutional. A person accused of the commission of an
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offence has no fundamental right to trial by a particular
Court or by a particular procedure, except in so far as any
constitutional objection by way of discrimination or the
violation of any other fundamental right may be involved."
Thus the appellant cannot object to a procedure different
from what obtained at the time of the commission of the
offence. The offence that was committed was when section
5(3) was in force and by Act 16 of 1967 the procedure is
revived. It is not as if the procedure is brought into force
for the first time. "Where an Act is repealed and the
repealing enactment is then repealed by another, which
manifests no intention that the original Act shall continue
repealed, the common law rule was that the repeal of the
second Act revived the first ab initio." Maxwell on the
Interpretation of Statutes,
825
12th Ed., p.19). There can be no objection in law to the
revival of the procedure which was in force at the time when
the offence was committed. The effect of the amendment is
that sub-section (3) of section 5 as it stood before the
commencement of 1964 Act shall apply and shall be deemed to
have always applied in relation to trial of offences. It may
be if by this deeming provision a new offence was created
then the prohibition under Article 20(1) may come into
operation. But in this case, as already pointed out, what is
done is no more than reiterating the effect of section 6(1)
of the General Clauses Act. Mr. Garg, the learned counsel,
submitted that by amending procedure drastically and giving
it retrospective effect a new offence may be created
retrospectively. It was contended that by shifting the
burden of proof as provided for in section 5(3) of the
Prevention of Corruption Act, 1947, a new offence is
created. It is unnecessary for us to consider the larger
question as to whether in certain circumstances giving
retrospective effect to the procedure may amount to creation
of an offence retrospectively. In the present case the old
procedure is revived and no new procedure is given
retrospective effect. The procedure given effect to is not
of such a nature as to result in creation of a new offence.
In the result all the contentions raised by the learned
counsel for the appellant fail and these appeals are
dismissed.
S.R. Appeal dismissed.
826