C.B.I. vs. DR. R.R. KISHORE

REPORTABLE 2023INSC817 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.377 OF 2007 CBI …APPELLANT(S) VERSUS R.R. KISHORE …RESPONDENT(S) WITH CRL. APPEAL NO. 2763/2023 (Arising out of SLP(CRL.) NO.4364 OF 2011) J U D G M E N T VIKRAM NATH, J. Crl. Appeal No.377/2007. 1. This Constitution Bench has been constituted to consider whether the declaration made by a Constitution Bench of this Court, in the case of Subramanian Swamy vs. Director, Central 1 Bureau of Investigation and another , that Section 6A of the Delhi Special Police 2 Establishment Act, 194 being unconstitutional, can be applied retrospectively in context with Article 20 of the Constitution. 1 (2014) 8 SCC 682 2 In short ‘DSPE Act’ Signature Not Verified Digitally signed by Charanjeet Kaur Date: 2023.09.11 15:46:17 IST Reason: Crl. Appeal No.377 of 2007 Page 1 of 106 2. Necessary facts relevant for the purposes of this case are stated hereunder: 3 2.1 The appellant-Central Bureau of Investigation after registering the First Information Report at 02:00 pm on 16.12.2004 for offences under the 4 Prevention of Corruption Act, 1988 laid a trap in the evening on the same day wherein the respondent is said to have accepted bribe to set the things right for the radiologist conducting Pre-Natal test to determine the sex of the foetus in contravention of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. The respondent applied for discharge, inter alia , amongst others on the ground that the trap which was a part of the enquiry/investigation had been laid without the previous approval of the Central Government as provided under Section 6A of the DSPE Act. 3 In short, “CBI” 4 In short “PC Act, 1988” Crl. Appeal No.377 of 2007 Page 2 of 106 2.2.The Special Judge, CBI, rejected the application for discharge vide order dated 30.04.2006 which was carried in revision before the High Court and was registered as Criminal Revision Petition No.366 of 2006. Learned Single Judge of the High Court vide judgment dated 05.10.2006 framed three questions for consideration namely: 1. What is the background with regard to Section 6A of the DSPE Act? 2. Did the CBI acted in contravention of Section 6A(1)? 3. If yes, does it mean that the entire trial, consequent upon an illegal investigation, is vitiated? It answered question No.2 in favour of the respondent and further with respect to question No.3 left it open for the competent authority to take the decision and further proceed with reinvestigation and in case sanction is not granted, to notify the Special Judge, CBI, to close the case. The operative part of the order is in paragraph 29 of the judgment which is reproduced hereunder: Crl. Appeal No.377 of 2007 Page 3 of 106 “29. It follows that if, at the initial stage of trial, the illegality of investigation is brought to the notice of the court and yet the Trial Court continues with the trial then, such proceedings would be liable to be set aside by the High Court in exercise of its revisional jurisdiction. In this case, in view of the discussion above, it is clear that the provisions of Section 6 A(1) of the Prevention of Corruption Act, 1988 are mandatory and not merely directory. The investigation carried out in contravention of such provisions is, therefore, clearly illegal, in violation of a statutory requirement. The dismissal of the discharge application moved on behalf of the petitioner means that the trial would continue. This cannot be permitted in view of the discussion above. Because, then the court would be turning a blind eye and a deaf ear to the illegality in investigation which has been brought to its notice at the earliest stage. However, it also does not mean that the petitioner is entitled to a discharge and the closure of the case against him. As pointed out in Rishbud’s case and Mubarak Ali’s case, reinvestigation is to be ordered in the context of the provisions of section 6A of the said Act. While the file is to be kept pending before Special Judge, approval of the Central Government is to be sought for investigation. If approval is accorded then the matter shall be reinvestigated as per prescribed procedure and the material gathered in such re-investigation shall be placed before the Special Judge for further proceedings in accordance with law. If the approval is not given by the Central Government, then the same shall be notified to the Special Judge who shall then close the case.” Crl. Appeal No.377 of 2007 Page 4 of 106

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Crl. Appeal No.377 of 2007 Page 6 of 106 5. At a particular stage, this Court felt that the Union of India should be made a party and should be heard. It accordingly suo moto issued notices vide order dated 27.04.2012 and the Union of India was required to file an affidavit. The Union of India filed an affidavit dated 05.10.2012. However, the same was permitted to be withdrawn by order dated 29.01.2013. Thereafter, the Union of India filed another affidavit in February, 2013. The matter was thereafter taken up on 10.03.2016 when this Court, after recording the submissions advanced by the rival parties and considering the importance of the question and also the fact that the retrospectivity or prospectivity of the judgment in the case of Subramanian Swamy (supra) could only be dealt with by a Constitution Bench, directed that the matter be placed before the Chief Justice of India on the administrative side for constituting an appropriate Bench. Paragraph 7 of the order dated 10.03.2016 framed the question for determination and the same is reproduced hereunder: Crl. Appeal No.377 of 2007 Page 7 of 106

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Crl. Appeal No.377 of 2007 Page 9 of 106 4. The provisions of Section 6A(1) of the Delhi Special Police Establishment Act, 1946 has been held to be unconstitutional being violative of Article 14 of the Constitution of India by a Constitution Bench of this Court in Subramanian Swamy versus Director, Central Bureau of Investigation and another [(2014) 8 SCC 682]. The judgment of the Constitution Bench is however silent as to whether its decision would operate prospectively or would have retrospective effect. Though a large number of precedents have been cited at the Bar to persuade us to take either of the above views, as would support the case of the rival parties, we are of the considered view that this question should receive the consideration of a Constitution Bench in view of the provisions of Article 145(3) of the Constitution of India. 5. In fact, in Transmission Corporation of A.P. versus Ch. Prabhakar and others [(2004) 5 SCC 551], the precise question that has arisen before us had been referred to a Constitution Bench. Paragraphs 15 and 21 dealing with the said question read as follows: Crl. Appeal No.377 of 2007 Page 10 of 106

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Crl. Appeal No.377 of 2007 Page 12 of 106 9. This appeal has been filed by the appellant assailing the correctness of the judgment and order of the Bombay High Court passed in Criminal Application No.1913 of 2010, titled Manjit Singh Bali vs. Central Bureau of Investigation dated 29.11.2010. By the above order, the Bombay High Court dismissed the petition praying for quashing of the FIR registered by CBI against the petitioner therein under Sections 7 and 8 of the PC Act, 1988. In this case, an FIR was registered on 18.02.2010 based on a complaint dated 16.02.2010. A raid was conducted on 24.02.2010, during which the petitioner therein was arrested and cash was recovered from his car. In this case also the issue is as to whether in the facts of the said case, Section 6A(1) of DSPE Act would be applicable or Section 6A(2) thereof would be applicable. : ARGUMENTS A. For CBI: Crl. Appeal No.377 of 2007 Page 13 of 106 10. Shri Tushar Mehta, learned Solicitor General appearing for the appellant-CBI in Criminal Appeal No.377 of 2007 made detailed submissions which are briefly summarized hereunder: 10 .1. Section 6A of the DSPE Act is a mere procedural provision and not a penal provision as such would not attract Article 20(1) of the Constitution. Article 20 of the Constitution applies only to those provisions of law in force, violation of which results in conviction and resultantly awarding sentence. Procedural issues like statutory protection during trial, a provision providing for a particular Court to try the offence would not have any bearing while invoking Article 20 of the Constitution. Crl. Appeal No.377 of 2007 Page 14 of 106

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5 (1953) SCR 1188 6 (1963) 2 SCR 111 7 (1964) 4 SCR 630 8 (1964) 7 SCR 676 Crl. Appeal No.377 of 2007 Page 16 of 106

9 (1966) 2 SCR 34 10 (1979) 2 SCC 593 11 (1991) 4 SCC 298 12 (2010) 3 SCC 765 Crl. Appeal No.377 of 2007 Page 17 of 106

13 (1998) 1 SCC 226 Crl. Appeal No.377 of 2007 Page 18 of 106

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14 1951 SCR 228 15 (1955) 1 SCR 613 16 1958 SCR 1422 17 1959 SCR Suppl. (2) 8 18 AIR 1963 SC 1019 Crl. Appeal No.377 of 2007 Page 21 of 106

19 (1969) 1 SCC 475 20 2022 SCC Online SC 130 Crl. Appeal No.377 of 2007 Page 22 of 106

Crl. Appeal No.377 of 2007 Page 23 of 106 10.12. Reference was made by Shri Mehta to the cases of I.C. Golaknath & Ors. Vs. State of 21 Punjab and Anr. and Managing Director, ECIL, Hyderabad and Others Vs. B. 22 Karunakar and Others for the proposition that prospective overruling is to be exercised as an exception in rare circumstances and such power should be seldom exercised. He has further placed reliance upon a judgment of this Court in the case of M.A. Murthy Vs. State of 23 Karnataka and others for the proposition that if prospective overruling is not specifically provided in the decision, it would not be open for Courts in future to declare such a decision to be prospective in nature. If prospective applicability of a decision is not provided in the said decision, then it is presumed that it will have retrospective effect and declaration of any law as invalid would be unenforceable and non- existent from the statute book from the time of its inception. The judgment in the case of Subramanian Swamy (supra) would, therefore, 21 (1967) 2 SCR 762 22 (1993) 4 SCC 727 23 (2003) 7 SCC 517 Crl. Appeal No.377 of 2007 Page 24 of 106

24 (2004) 5 SCC 551 25 110 US 574 (1884) 26 152 US 377 (1894) Crl. Appeal No.377 of 2007 Page 25 of 106

27 162 US 565 (1896) 28 171 US 380 (1898) 29 181 US 589 (1901) 30 196 US 319 (1905) 31 269 US 167 (1925) 32 432 US 282 (1977) 33 538 US 84 (2003) Crl. Appeal No.377 of 2007 Page 26 of 106 11.1.Merely because the Court takes time to decide the matter or merely because the challenge to statutory provisions is made subsequently, it would not make an unconstitutional statutory provision legal or constitutional even if such provision has operated for some time till it is struck down by the Court. Such a violation is void ab initio, as settled by a large number of decisions of this Court. It is only rarely that in some cases in order to obviate the hardships and on equitable grounds, this Court had protected an action taken under an unconstitutional statute. However, that does not mean that the statute was not unconstitutional or bad during the period it was on the statute book. Crl. Appeal No.377 of 2007 Page 27 of 106 11.2.Prohibition under Section 6A of the DSPE Act is against conducting any enquiry or investigation. Referring to the definition of “enquiry” in Section 2(g) of the Code of Criminal 34 Procedure, 1973 , it was submitted that the enquiry commences after charge-sheet is filed and is a forerunner to the trial. Reliance was placed upon the case of Hardeep Singh Vs. 35 in particular, reference has State of Punjab , been made to paragraphs 27, 29 and 39 of the report. 11.3.Further referring to the definition of the word “investigation” in Section 2(h) of Cr.P.C., it was submitted that the prohibition contained in Section 6A of the DSPE Act relates to the prohibition from collecting evidence in an enquiry or during the investigation. 34 In short ‘Cr.P.C.’ 35 (2014) 3 SCC 92 Crl. Appeal No.377 of 2007 Page 28 of 106 11.4.Referring to the case of Subramanian Swamy (supra) it is submitted that there could be two situations prior to the judgment in the aforesaid case i.e. prior to May, 2014; (i) where evidence is already gathered as part of investigation or (ii) where evidence is not gathered because of the prohibition contained in Section 6A of the DSPE Act. Placing reliance upon a judgment of this Court in H.N. Rishbud and Inder Singh Vs. 36 The State of Delhi , wherein, while answering the first question, this Court held that the prohibition contained in Section 5(4) of the 37 Prevention of Corruption Act, 1947 was mandatory in nature whereas while answering the second question, this Court held that trial following an investigation conducted in violation of Section 5(4) of the PC Act, 1947 would not be illegal. It was submitted that where a Magistrate has already taken cognizance upon an investigation, conducted without the approval under Section 6A of the DSPE Act, the Court can act on evidence collected during such investigation and the proceedings would not be vitiated in the absence of any prejudice both 36 (1955) 1 SCR 1150 37 In short, “PC Act, 1947” Crl. Appeal No.377 of 2007 Page 29 of 106

38 (2021) 2 SCC 525 39 (2013) 12 SCC 316 40 AIR 1987 SC 1354 Crl. Appeal No.377 of 2007 Page 30 of 106 11.5.It is further submitted that where investigation was not conducted and where the Magistrate has not taken cognizance, the Investigating Agency can conduct further investigation and collect evidence which earlier it was not able to do due to the bar of Section 6A of the DSPE Act. However, such further investigation would be subject to Section 17(A) of the PC Act, 1988. It was, thus, submitted that after judgment in the case of Subramanian Swamy (supra ), the prohibition contained in Section 6A of the DSPE Act having seized the CBI could investigate the matter subject to Section 17(A) of the PC Act, 1988 wherever applicable. There would be no requirement to obtain approval under Section 6A of the DSPE Act. Crl. Appeal No.377 of 2007 Page 31 of 106

41 (1973) 1 SCC 726 Crl. Appeal No.377 of 2007 Page 32 of 106 12. The respondent, Dr. R.R. Kishore has throughout represented himself in person and has argued the matter at length before us. His submissions are summarized hereunder: Crl. Appeal No.377 of 2007 Page 33 of 106 12.1. At the outset, it was submitted that CBI is contesting this case against the stand of the Union of India. Initially Union of India was not a party to the proceedings, however, pursuant to an order dated 27.04.2012 passed in this appeal, the Union of India was made a party by the Court suo moto . The affidavit filed by Union of India, served upon the respondent on 25.02.2013 and which is part of the record, categorically stated that CBI does not have jurisdiction to initiate investigation against the respondent without prior approval of the Central Government. It further stated that the view taken by the learned Single Judge of the Delhi High Court in the impugned order dated 05.10.2006 is correct and effectively captures the purpose of enactment of a provision. It further took stand in paragraph 23 that purport of Section 6A of the DSPE Act is to accord meaningful protection to the persons imbued with decision making powers from frivolous or motivated investigation by providing a screening mechanism. Reference was also made to the directions issued by this Court in the case of Vineet Narain (supra) to the effect that Central Crl. Appeal No.377 of 2007 Page 34 of 106

Crl. Appeal No.377 of 2007 Page 35 of 106 12.3.Referring to the facts of the case, it was stated that the case was registered under Section 7 of the PC Act on 16.12.2004, the High Court delivered the judgment impugned in the appeal on 05.10.2006, the petition was preferred by the CBI in January, 2007, leave was granted thereafter and notice was issued to the Union of India on 27.04.2012. The affidavit was filed by the Union of India in February, 2013. The provisions of Section 6A of the DSPE Act was continuing on the statute book till 06.05.2014 when the judgment in the case of Subramanian Swamy (supra ) was delivered. On the basis of above facts, it was submitted that the appeal was liable to be dismissed as being meritless. 12.4. It was next submitted that at the time when the appeal is being heard, there is already in existence a similar provision protecting the interest of the respondent by way of Section 17(A) of the PC Act, 1988. Crl. Appeal No.377 of 2007 Page 36 of 106

42 In short ‘the Act, 1897’ Crl. Appeal No.377 of 2007 Page 37 of 106

43 (1997) 5 SCC 201 44 494 US 827 (1990) 45 Civil Appeal No.5815 of 2009 by Supreme Court of India vide order dated 06.09.2021 Crl. Appeal No.377 of 2007 Page 38 of 106 12.9. It was next submitted that appeal of the CBI has been filed primarily on two grounds; that Section 6A(1) of the DSPE Act is not mandatory; and that Section 6A(2) would apply. He also submitted that no ground has been taken that Section 6A(1) is unconstitutional or invalid, as such, CBI cannot argue this point. 12.10. Lastly, it is submitted that not only Article 20, but also Article 21 of the Constitution, should be read in favour of the respondent and also in favour of the law existing at the time when the offence is said to have taken place, benefit should be extended of any protection available at that time. D: Shri Arvind Datar, Senior Advocate for appellant-Manjit Singh Bali in Crl.Appeal @ SLP (Crl.) No. 4364 of 2011: 13. Shri Arvind Datar, learned Senior Counsel appearing for the appellant-Manjit Singh Bali in Criminal Appeal arising out of SLP (Crl.) No.4364 of 2011 made the following submissions: Crl. Appeal No.377 of 2007 Page 39 of 106

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46 (1994) 1 SCC 103 Crl. Appeal No.377 of 2007 Page 41 of 106

Crl. Appeal No.377 of 2007 Page 42 of 106 (a) As there is a presumption of constitutionality till a law is declared to contravene the provisions of Part- III or other constitutional limitations, it remains valid; (b) The expression "to the extent of contravention" implies that there has to be a judicial declaration of contravention and the extent thereof. Till such declaration is made, no law can be treated as void; (c) If there is no interim stay, the law has to be implemented and all actions taken pending final hearing will not become unlawful; (d) The word " void " is used 14 times in the Constitution. The use of the word "void" in the context of the Constitution, unlike the Contract Act, only means that a judicial declaration renders a law inoperative or unenforceable; (e) The Oxford Dictionary defines the word " void " in two ways: Crl. Appeal No.377 of 2007 Page 43 of 106

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13.12. Shri Amit Desai, learned Senior Counsel also appearing for the same party made a few submissions. He placed reliance upon two judgments of this Court, namely (i) Mohan Lal 47 Vs. State of Punjab and, (ii) Varinder Kumar 48 Vs. State of Himachal Pradesh . 47 (2018) 17 SCC 627 48 (2020) 3 SCC 321 Crl. Appeal No.377 of 2007 Page 47 of 106 14. Having considered the submissions advanced on behalf of the parties, the following questions require consideration: (i) Whether Section 6A of the DSPE Act is part of procedure or it introduces a conviction or sentence? (ii) Whether Article 20(1) of the Constitution will have any bearing or relevance in the context of declaration of Section 6A of the DSPE Act as unconstitutional? (iii) The declaration of Section 6A of the DSPE Act as unconstitutional and violative of Article 14 of the Constitution would have a retrospective effect or would apply prospectively from the date of its declaration as unconstitutional? Crl. Appeal No.377 of 2007 Page 48 of 106 15. At the outset, it may be noted that during the course of arguments, it was made clear to the counsels that this Bench would be answering the specific question referred to it and would not be enlarging the scope of the reference made. Although learned counsels and the party in person were allowed to make their submissions and were not checked during the course of the arguments from raising points beyond the scope of the reference in order to enlarge its scope, that would not mean that the Court would deal with all such submissions. It was also made clear that the Bench would not be dealing with the merits of the individual cases and post answering the questions, the matters would be reverted to the regular Bench assigned of such jurisdictions for hearing and disposal. 16. Before commencing to analyse the respective arguments and legal position on the questions so framed, a brief narration of the history of obtaining sanction before launching prosecution may be referred to. Crl. Appeal No.377 of 2007 Page 49 of 106

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49 In short, “Act No. 45 of 2003” Crl. Appeal No.377 of 2007 Page 52 of 106 (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to- (a) the employees of the Central Government of the Level of Joint Secretary and above; and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government. ( 2) Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).]” 17. This Section remained on the statute book for a period of more than ten years till the judgment in the case of was Subramanian Swamy (supra) delivered on 06.05.2014, which held it to be unconstitutional as being violative of Article 14 of Part-III of the Constitution. Crl. Appeal No.377 of 2007 Page 53 of 106

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Crl. Appeal No.377 of 2007 Page 55 of 106 20. The Constitution Bench in the case of Subramanian Swamy (supra) was testing constitutional validity of Section 6A of DSPE Act. Section 6A has two sub-Sections (1) and (2). Sub-Section (1) provides of a protection from any enquiry or investigation into any offence under the PC Act, 1988 without the previous approval of the Central Government where the allegation relates to employees of the Central Government of the level of Joint Secretary and above (Clause a) and also such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Government. Sub-Section (2) begins with a non- obstante clause stating that no such approval would be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the PC Act, 1988. Sub-Section (2) takes away the protection to the Government servant of the category defined in sub-Section (1) where arrest of a Crl. Appeal No.377 of 2007 Page 56 of 106

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Crl. Appeal No.377 of 2007 Page 60 of 106 27. Sub-article (1) of Article 20 of the Constitution consists of two parts. The first part prohibits any law that prescribes judicial punishment for violation of law with retrospective effect. Sub- article (1) to Article 20 of the Constitution does not apply to civil liability, as distinguished from punishment for a criminal offence. Further, what is prohibited is conviction or sentence for any offence under an ex post facto law, albeit the trial itself is not prohibited. Trial under a procedure different from the one when at the time of commission of an offence, or by a court different from the time when the offence was committed is not unconstitutional on account of violation of sub-article (1) to Article 20 of the Constitution. It may be different, if the procedure or the trial is challengeable on account of discrimination under Article 14 of the Constitution or violation of any other fundamental right. Crl. Appeal No.377 of 2007 Page 61 of 106 28. The right under first part of sub-article (1) to Article 20 of the Constitution is a very valuable right, which must be safeguarded and protected by the courts as it is a constitutional mandate. The Constitution bench of this Court in Rao Shiv Bahadur Singh v. State of Vindhya 50 Pradesh , highlighted the principle underlying the prohibition by relying upon judgment of 51 Willes, J. in Phillips v. Eyre and of the United 52 States Supreme Court in Calder v. Bull , to hold that it would be highly unjust, unfair and in violation of human rights to punish a person under the ex post facto law for acts or omissions that were not an offence when committed. In the English system of jurisprudence, in the absence of a written Constitution, the repugnance of such laws is justified on universal notions of fairness and justice, not on the ground of invalidating the law itself, but as compelling the beneficial construction thereof where the language of the statute by any means permits it. Under the American law, ex post facto laws are 50 (1953) 2 SCC 111 51 (1870) LR 6 QB 1 at pp. 23 and 25 52 1 L Ed 648 at p. 649 : 3 US (3 Dall) 386 (1798) Crl. Appeal No.377 of 2007 Page 62 of 106 rendered invalid by virtue of Article 1, Sections 53 9 and 10. 53 It may be noted that the provisions of the American Constitution are differently worded. We must keep in view the language of sub-article (1) of Article 20. Crl. Appeal No.377 of 2007 Page 63 of 106 29. Rao Shiv Bahadur Singh (supra) observes that the language of sub-article (1) of Article 20 of the Constitution is much wider in terms as the prohibition under the Article is not confined to the passing of validity of the law, and that fullest effect must be given to the actual words used and what they convey. Accordingly, the decision had struck down Vidhya Pradesh Ordinance 48 of 1949, which though enacted on 11.09.1949, had postulated that the provisions would deemed to have come into force in Vidhya Pradesh on 09.04.1948, a date prior to the date of commission of offences. Interpreting the term ‘law in force’, it was held that the ordinance giving retrospective effect would not fall within the meaning of the phrase ‘law in force’ as used in sub-article (1) of Article 20 of the Constitution. The ‘law in force’ must be taken to relate not to a law deemed to be in force, but factually in force, and then only it will fall within the meaning of ‘existing law’. Artifice or fiction will fall foul, when they are with the intent to defeat the salutary object and purpose Crl. Appeal No.377 of 2007 Page 64 of 106 behind sub-article (1) of Article 20 of the 54 Constitution. 30. The aforesaid rationale and principles of interpretation equally apply to the second part of sub-article (1) to Article 20, which states that a person can only be subjected to penalties prescribed under the law at the time when the offence for which he is charged was committed. Any additional or higher penalty prescribed by any law after the offence was committed cannot be imposed or inflicted on him. The sub-article does not prohibit substitution of the penalty or sentence which is not higher or greater than the previous one or modification of rigours of 55 criminal law. 54 In the present case, we need not examine-when an offence is a continuous offence, an aspect and matter of considerable debate. 55 See T. Barai Vs. Henry Ah Hoe, (1983) 1 SCC 177 and Pratap Singh Vs. State of Jharkhand, (2005) 3 SCC 551. The latter judgment refers to several judgments. Crl. Appeal No.377 of 2007 Page 65 of 106

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Crl. Appeal No.377 of 2007 Page 67 of 106 33. At this stage, it would be appropriate to briefly refer to the case law on the above point regarding applicability of Article 20 of the Constitution. (i) In the case of Rao Shiv Bahadur Singh (supra), the Constitution Bench, as far back as 1953, was dealing with the effect of Article 20(1) of the Constitution raised under two separate circumstances. The first being that the Court which recorded the conviction had been conferred jurisdiction much after the offence had taken place and at the time of the offence the forum was different. The other issue raised with regard to Article 20(1) of the Constitution was that although the offence had been committed in the month of March and April 1949 but by way of an ordinance which came into force in September 1949, the laws were adopted which covered the offences for which the appellants were charged and as such Article 20(1) would protect them and they could not be tried for such offence which had been introduced later on. Crl. Appeal No.377 of 2007 Page 68 of 106

Crl. Appeal No.377 of 2007 Page 69 of 106 (iii) With respect to the second aspect also, the Constitution Bench did not find favour with the appellant and held that the State of Vindhya Pradesh had the power to frame laws being applied retrospectively and also for the reason that the said offence was already in existence and in force in the said state in 1948 itself. (iv) The Constitution Bench in the case of S.K. Ghosh (supra) was dealing with an appeal filed by the State of West Bengal assailing the correctness of the judgment of the High Court by which two Hon’ble Judges had allowed the appeal of the respondent S.K. Ghosh but for different reasons. Mitter J. had not dealt with the applicability of Article 20(1) of the Constitution for setting aside the forfeiture proceedings. The same was set aside for the reason that there was no determination under Section 12 of the Criminal Law, 1944 Amendment vide 1944 Ordinance, whereas Bhattacharya J. set aside the forfeiture on the ground that the 1944 Ordinance had come into force on 23.08.1944 whereas the effective period for committing the offence had ended in July 1944. Crl. Appeal No.377 of 2007 Page 70 of 106 (v) The Constitution Bench allowed the appeal of the State of West Bengal by holding that both the views taken by the respective judges were not correct. (vi) The Constitution Bench once again relied upon the earlier Constitution bench judgment in the case of Rao Shiv Bahadur Singh (supra) and laid down that forfeiture in the said case would have nothing to do with conviction or punishment and therefore there could be no application of Article 20(1). The relevant extract from the aforesaid judgment is reproduced hereunder: Crl. Appeal No.377 of 2007 Page 71 of 106 “16. We may in this connection refer to Rao Shiv Bahadur Singh v. State of Vindhya Pradesh where Article 20(1) came to be considered. In that case it was held that “the prohibition contained in Article 20(1) of the Constitution against conviction and subjections to penalty under ex post facto laws is not confined in its operation to post- Constitution laws but applied also to ex post facto laws passed before the Constitution in their application to pending proceedings”. This Court further held that Article 20 prohibits 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 offence or by a court different from that which had competence at that time cannot ipso facto be held to be unconstitutional. Therefore, this case shows that it is only conviction and punishment as defined in Section 53 of the Indian Penal Code which are included within Article 20(1) and a conviction under an ex post facto law or a punishment under an ex post facto law would be hit by Article 20(1); but the provisions of Section 13(3) with which we are concerned in the present appeal have nothing to do with conviction or punishment and therefore Article 20(1) in our opinion can have no application to the orders passed under Section 13(3). (emphasis supplied)” Crl. Appeal No.377 of 2007 Page 72 of 106 (vii) In the case of Rattan Lal (supra), a three-Judge Bench of this Court by a majority of 2:1 was of the view that a law made post the offence which neither creates an offence nor enhances the sentence but was a beneficial legislation for reformation of first-time offenders, the benefit could be extended to such an accused convicted for the first time, i.e., under the Probation of Offenders Act 1958, and that Article 20(1) of the Constitution will have no application. (viii) The Constitution Bench in the case of Sukumar Pyne (supra), relying upon the earlier Constitution Bench in Rao Shiv Bahadur Singh (supra), further laid down that there is no principle underlying Article 20(1) of the Constitution which makes a right to any course of procedure a vested right. The relevant extract from the judgment is reproduced hereunder: Crl. Appeal No.377 of 2007 Page 73 of 106 “20. …As observed by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh a person accused of the commission of an offence has no vested right to be tried by a particular court or a particular procedure except insofar as there is any constitutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognized that “no person has a vested right in any course of procedure” (vide Maxwell 11th Edn., p.216), and we see no reason why this ordinary rule should not prevail in the present case. There is no principle underlying Article 20 of the Constitution which makes a right to any course of procedure a vested right… (emphasis supplied)” Crl. Appeal No.377 of 2007 Page 74 of 106 (ix) In the case of G.P. Nayyar (supra) , a two-judge Bench of this Court, while dealing with the effect of repeal and revival of Section 5(3) of the Prevention of Corruption Act, 1947, was of the view that Section 5(3) did not by itself lay down or introduce any offence. It was only a rule of evidence whereas the offence was provided under Section 5(1) or 5(2) of the 1947 Act. As such, the claim of the appellant therein that revival of Section 5(3) by the Anti-Corruption Laws (Amendment) Bill, 1967 retrospectively hit by Article 20(1) of the Constitution was without any merit. Reliance was placed upon the earlier Constitution Bench judgment in Rao Shiv Bahadur Singh (supra) that it was only conviction or sentence under an ex post facto law that was prohibited under Article 20(1) of the Constitution and would not affect the trial. What this Court said was that the appellant cannot object to a procedure different from what existed at the time of the commission of the offence by applying Article 20(1) of the Constitution. It may be noticed that this was a judgment relating to law being amended by the Parliament and not law being declared Crl. Appeal No.377 of 2007 Page 75 of 106

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Crl. Appeal No.377 of 2007 Page 84 of 106 (i) The facts in the case of Keshavan Madhava Menon (supra), was that a prosecution was launched against the appellant therein under the provision of the Indian Press (Emergency 57 Powers) Act, 1931 for a publication issued without the necessary authority under Section 15(1) of the said Act, and as such, became an offence punishable under Section 18 (1) of the same Act. This prosecution had been launched in 1949 itself and registered as Case No. 1102/P of 1949. During the pendency of the said proceedings, the Constitution of India came into force on 26.01.1950. The appellant therein took an objection that provisions of 1931 Act were ultra vires of Article 19(1)(a) read with Article 13(1) of the Constitution and would, therefore, be void and inoperative as such he may be acquitted. The High Court was of the view that the proceedings pending on the date of commencement of the Constitution would not be affected even if the 1931 Act was inconsistent with the Fundamental Rights conferred by Part III of the Constitution. However, the same would become void under Article 13(1) of the Constitution only after 26.01.1950. 57 In short, “1931 Act” Crl. Appeal No.377 of 2007 Page 85 of 106 (ii) The seven-judge Bench of this Court gave rise to three separate opinions: Justice Sudhi Ranjan Das authored the majority judgement with Chief Justice Kania, Justice M. Patanjali Sastri and Justice N. Chandrasekhara Aiyar concurring; Justice Mehar Chand Mahajan authored a separate opinion concurring with the majority view; Justice Fazal Ali wrote a dissenting judgment with Justice B.K. Mukherjea agreeing with him. The majority agreed with the view taken by the High Court. They accordingly dismissed the appeal. Para 16 of the report which contains the dictum is reproduced hereunder: Crl. Appeal No.377 of 2007 Page 86 of 106

Crl. Appeal No.377 of 2007 Page 87 of 106 However, Justice Fazal Ali was of the view that though there can be no doubt that Article 13(1) will have no retrospective operation and transactions which are past and closed, and rights which have already vested will remain untouched. However, with regard to inchoate matters which were still not determined when the Constitution came into force, and as regards proceedings not begun, or pending at the time of enforcement of the Constitution and not yet prosecuted to a final judgment, the answer to this question would be that the law which has been declared by the Constitution to be completely ineffectual, can no longer be applied. To be precise, paragraph no. 63 of the report from SCC Online referred has been reproduced hereunder: Crl. Appeal No.377 of 2007 Page 88 of 106

58 (1951) 1 SCR 682 Crl. Appeal No.377 of 2007 Page 89 of 106 (iv) The Constitution Bench in the case of M.P.V. Sundararamier and Co. (supra) was dealing with the validity of Sales Tax Laws Violation Act, 1956. In paragraph 41, while dealing with difference between law being unconstitutional on account of it being not within the competence of the legislature or because it was offending some constitutional restrictions differentiated between the two. Relevant extract is reproduced here under: Crl. Appeal No.377 of 2007 Page 90 of 106 “41. Now, in considering the question as to the effect of unconstitutionality of a statute, it is necessary to remember that unconstitutionality might arise either because the law is in respect of a matter not within the competence of the legislature, or because the matter itself being within its competence, its provisions offend some constitutional restrictions. In a Federal Constitution where legislative powers are distributed between different bodies, the competence of the legislature to enact a particular law must depend upon whether the topic of that legislation has been assigned by the Constitution Act to that legislature. Thus, a law of the State on an Entry in List 1, Schedule VII of the Constitution would be wholly incompetent and void. But the law may be on a topic within its competence, as for example, an Entry in List II, but it might infringe restrictions imposed by the Constitution on the character of the law to be passed, as for example, limitations enacted in Part III of the Constitution. Here also, the law to the extent of the repugnancy will be void. Thus, a legislation on a topic not within the competence of the legislature and a legislation within its competence but violative of constitutional limitations have both the same reckoning in a court of law; they are both of them unenforceable. But does it follow from this that both the laws are of the same quality and character, and stand on the same footing for all purposes? This question has been the subject of consideration in numerous decisions in the American Courts, and the preponderance of authority is in favour of the view that while a law on a matter not within the competence of the legislature is a nullity, a law on a topic within its competence but repugnant to the Crl. Appeal No.377 of 2007 Page 91 of 106

Crl. Appeal No.377 of 2007 Page 92 of 106 (v) The challenge in the case of Deep Chand (supra) was with respect to the validity of the Uttar Pradesh Transport Service (Development) Act, 1955. The Constitution Bench, after discussing merit of Article 13(2) of the Constitution, was of the firm view that a plain reading of the Clause indicates, without any reasonable doubt, that the prohibition goes to the root of the matter and limits the State’s power to make law; the law made in spite of the prohibition is a still born law. The relevant extract which is part of the paragraph 13 (from the AIR reference), is reproduced hereunder: Crl. Appeal No.377 of 2007 Page 93 of 106 “13. …A Legislature, therefore, has no power to make any law in derogation of the injunction contained in Art. 13. Article 13(1) deals with laws in force in the territory of India before the commencement of the Constitution and such laws in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency be void. The clause, therefore, recognizes the validity of, the pre- Constitution laws and only declares that the said laws would be void thereafter to the extent of their inconsistency with Part III; whereas cl. (2) of that article imposes a prohibition on the State making laws taking away or abridging the rights conferred by Part III and declares that laws made in contravention of this clause shall, to the extent of the contravention, be void. There is a clear distinction between the two clauses. Under cl. (1), a pre-Constitution law subsists except to the extent of its inconsistency with the provisions of Part III; whereas, no post-Constitution law can be made contravening the provisions of Part III, and therefore the law, to that extent, though made, is a nullity from its inception. If this clear distinction is borne in mind, much of the cloud raised is dispelled. When cl. (2) of Art. 13 says in clear and unambiguous terms that no State shall make any law which takes away or abridges the rights conferred by Part III, it will not avail the State to contend either that the clause does not embody a curtailment of the power to legislate or that it imposes only a check but not a prohibition. A constitutional prohibition against a State making certain laws cannot be whittled down by analogy or by drawing inspiration from decisions on the provisions of other Constitutions ; nor can we appreciate the argument that the words " any law " in the Crl. Appeal No.377 of 2007 Page 94 of 106 second line of Art. 13(2) posits the survival of the law made in the teeth of such prohibition. It is said that a law can come into existence only when it is made and therefore any law made in contravention of that clause presupposes that the law made is not a nullity. This argument may be subtle but is not sound. The words " any law " in that clause can only mean an Act passed or made factually, notwithstanding the prohibition. The result of such contravention is stated in that clause. A plain reading of the clause indicates, without any reasonable doubt, that the prohibition goes to the root of the matter and limits the State's power to make law; the law made in spite of the prohibition is a still- born law. (emphasis supplied)” Crl. Appeal No.377 of 2007 Page 95 of 106 (vi) In the case of Mahendra Lal Jaini (supra), again a Constitution Bench dealing with validity of the U.P. Land Tenures (Regulation of Transfers) Act, 1952 as also the amendment of 1956 in the Forests Act, 1957 had the occasion to analyse the difference between Article 13(1) and 13(2). Paragraph nos. 23 and 24 of the report contains the relevant discussion. In paragraph No. 23, it was laid down that the distinction between the voidness in one case arises from the circumstance that it was a pre- Constitutional law and the other is post- Constitutional law. However, the meaning of the word void is used in both the sub-Articles clearly making the law ineffectual and nugatory, devoid of any legal force or binding effect in both the cases. Further in paragraph no. 24 of the report, the Bench proceeds to deal with the effect of an amendment in the Constitution, with respect to the pre-Constitutional laws, holding that removing the inconsistency would result in revival of such laws by virtue of doctrine of eclipse as the pre-existing laws were not still born. However, in the case of the post- Constitutional laws, the same would be still Crl. Appeal No.377 of 2007 Page 96 of 106 born, and as such doctrine of eclipse would not be applicable to the post-Constitutional laws. Doctrine of eclipse does not apply in the present case, for Section 6A of the DSPE Act has been struck down as unconstitutional. There is no attempt to re-legislate this provision by removing the illegality resulting in unconstitutionality. We may beneficially reproduce paragraph nos. 23 and 24 of the said report hereunder: Crl. Appeal No.377 of 2007 Page 97 of 106 “23. It is however urged on behalf of the respondents that this would give a different meaning to the word 'void" in Art. 13 (1). as compared to Art. 13 (2). We do not think so. The meaning of the word "void" in Art. 13 (1) was considered in Keshava Madhava Menon's caseand again in Behram Khurshed Pesikaka's caseIn the later case, Mahajan, C. J., pointed out thatthe majority in Keshava Madhava Menon's case (3) clearly held that the word "void" in Art. 13(1) did not mean that the statute stood repealed and therefore obliterated from the statute book; nor did it mean that the said statute was void ab initio. This, in our opinion if we may say so with respect, follows clearly from the language of Art. 13(1), which presupposes that the existing laws are good except to the extent of the inconsistency with the fundamental rights. Besides there could not be any question of an existing law being void ab initio on account of the inconsistency with Art. 13(1), as they were passed by competent legislatures at the time when they were enacted. Therefore, it was pointed out that the effect of Art. 13(1) with respect to existing laws insofar as they were unconstitutional was only that it nullified them, and made them "'ineffectual and nugatory and devoid of any legal force or binding effect". The meaning of the word "void" for all practical purposes is the same in Art. 13(1) as in Art. 13(2), namely, that the laws which were void were ineffectual and nugatory and devoid of any legal force or binding effect. But the pre- Constitution laws could not become void from their inception on account of the application of Art. 13(1) The meaning of the word ','void" in Art. 13 (2) is also the same viz., that the laws are ineffectual and nugatory and Crl. Appeal No.377 of 2007 Page 98 of 106 devoid of any legal force on binding effect, if they contravene Art. 13(2). But there is one vital difference between pre-Constitution and post- Constitution laws in this matter. The voidness of the pre-Constitution laws is. not from inception. Such voidness supervened when the Constitution came into force; and so, they existed and operated for some time and for certain purposes; the voidness of post- Constitution laws is from their very inception and they cannot therefore continue to exist for any purpose. This distinction between the voidness in one case and the voidness in the other arises from the circumstance that one is a pre- Constitution law and the other is a post- Constitution law; but the meaning of the word void" is the same in either case, namely, that the law is ineffectual and nugatory and devoid of any legal force or binding effect. Crl. Appeal No.377 of 2007 Page 99 of 106 24. Then comes the question as to what is the effect of an amendment of the Constitution in the two types of cases. So far 'as pre-Constitution laws are concerned the amendment of the Constitution which removes the inconsistency will result in the revival of such laws by virtue of the doctrine of eclipse, as laid down in Bhikaji Narain's case (1) for the pre-existing laws were not still-born and would still exist though eclipsed on account of the inconsistency to govern_ pre-existing matters. But in the case of post- Constitution laws, they would be still born to the extent of the contravention. And it is this distinction which results in the impossibility of applying the doctrine of eclipse to post-Constitution laws, for nothing can be revived which We are never had any valid existence. therefore of opinion that the meaning of the word "void" is the same both in Art 13 (1) and Art. 13 (2), and that the application of the doctrine of eclipse in one case and not in the other case does not depend upon giving a different meaning to the word "void' in the two parts of Art. 13; it arises from the inherent difference between Art. 13 (1) and Art. 13 (2) arising from the fact that one is dealing with pre-Constitution laws, and the other is dealing with post- Constitution laws, with the result that in one case the laws being not still-born the doctrine of eclipse will apply while in the other case the laws being still born-there will be no scope for the application of the doctrine of eclipse. Though the, two clauses form part of the same Article, there is a vital difference in the language employed in them as also in their content and scope. By the first clause the Constitution recognises the existence of certain operating laws and they are declared void, to the extent of their inconsistency with Crl. Appeal No.377 of 2007 Page 100 of 106 fundamental rights. Had there been no such declaration, these laws would have continued to operate. Therefore, in the case of pre- Constitution laws what an amendment to the Constitution does is to remove the shadow cast on it by this declaration. The law thus revives. However, in the case of the second clause, applicable to post Constitution laws, the Constitution does not recognise their existence, having been made in defiance of a prohibition to make them. Such defiance makes the law enacted void. In their case therefore there can be no revival by an amendment of the Constitution, MO though the bar to make the law is removed, so far as the period after the amendment is concerned. In the case of post- Constitution laws, it would be hardly appropriate to distinguish between laws which are wholly void-as for instance, those which contravene Art. 31-and those which are substantially void but partly valid, as for instance, laws contravening Art. 19. Theoretically, the laws falling under the latter category may be valid qua non-citizens; but that is a wholly unrealistic consideration and it seems to us that such nationally partial valid existence of the said laws on the strength of hypothetical and pedantic considerations cannot justify the application of the doctrine of eclipse to them. All post Constitution laws which contravene the mandatory injunction contained in the first part of Art. 13 (2) are void, as void as are the laws passed without legislative competence, and the doctrine of eclipse does not apply to them. We are therefore of opinion that the Constitution (Fourth Amendment) Act cannot be applied Crl. Appeal No.377 of 2007 Page 101 of 106

Crl. Appeal No.377 of 2007 Page 102 of 106 “ . 22 Where a statute is adjudged to be unconstitutional, it is as if it had never been . Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it and no one can be punished for having refused obedience to it before the decision was made. Field, J. in Norton v. Shelby County, observed that “an unconstitutional act is not law, it confers no rights, it imposes no duties, it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed”. 23 . An unconstitutional law, be it either due to lack of legislative competence or in violation of fundamental rights guaranteed under Part III of the Constitution of India, is void” ab initio. In Behram Khurshid Pesikaka v. State of Bombay, it was held by a constitution bench of this Court that the law-making power of the State is restricted by a written fundamental law and any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus, a nullity. A declaration of unconstitutionality brought about by lack of legislative power as well as a declaration of unconstitutionality brought about by reason of abridgement of fundamental rights goes to the root of the power itself, making the law void in its This Court in Deep Chand v. inception. State of Uttar Pradesh & Ors. summarised the following propositions: Crl. Appeal No.377 of 2007 Page 103 of 106

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