Substituting Amendment Doesn't Obliterate Unamended Provision For Prior Offences, Can't Create Vacuum In Law At Any Point: MP High Court

The Madhya Pradesh High Court has laid down that substituting a provision with an amended provision cannot lead to a vacuum in law, even if the amendment is to take effect at a later point.

The Bench of Justice Sheel Nagu and Justice Hirdesh, while dealing with an offence under Section 13(1)(d) of the Prevention of Corruption Act, 1988 ('criminal misconduct by public servant'), said that the substitution of the said  provision with the amended version of the same with effect from July 2018 would mean that the offences which had taken place on or after the said date would be governed by the amended provision, while those prior to the same would be dealt with by the unamended version of the provision. 

The Bench opined that the said view was fortified by Article 20(1) of the Constitution which stipulates protection in respect of conviction for offences. 

"If (the contention of learned senior counsel) is accepted that substitution leads to obliteration of the unamended Section even for offences which occurred prior to substitution is accepted then vacuum in law would be created thereby letting all those offenders go scott free who committed crime punishable under the unamended Section 13(1)(d) of the PC (Prevention of Corruption) Act. This can never be the intention of law," the Bench observed. 

The case involved allegations of misconduct on the part of the petitioner, who is a public servant, in the tender regarding purchase of Lanterns. The petitioner was alleged to have submitted a false inspection report, thereby causing loss to the government and corresponding financial benefit to the tenderer. 

The counsel for the petitioner contended that the substitution of the unamended Section 13 by the amended Section 13 led to wiping out of the unamended Section 13(1)(d) from the statute books, and thus, the said provision was unavailable to be alleged against him. It was argued that no offence under unamended Section 13(1)(d) of the PC Act could thus have been alleged against petitioner in the impugned order and charge-sheet. 

The petitioner thus prayed for the quashment of charge-sheet against him dated January 17, 2005, and the order dated November 19, 2010, that was registered taking cognizance of the offences punishable under Sections 13(1)(d) and 13(2) of the PC Act read with Section 120-B of the Indian Penal Code. 

The Court thus observed that Rule of Law does not recognize the concept of vacuum in law at any point of time and the substitution of Section 13(1)(d) with the amended version would only indicate that the offences which took place on or before July 2018 would be governed by the amended Section 13(1)(d) of the PC Act, and those prior to the said date would be governed by the unamended provision. 

As regards the other grounds raised by the counsel for the petitioner regarding absence of mens rea, and the transaction being purely contractual in nature, the Court noted that although the petitioner had not been involved in the process of receipt, consideration of tender and award of contract, he had nevertheless submitted a false report as regards receipt of a certain number of Lantern which had been found to be incorrect. 

"The inspection report submitted by petitioner was found to be at variance to the actual number of Lanterns delivered. Any false report exposes the signatory of the report to civil as well as criminal action. During investigation, petitioner did not submit any clarification justifying the inspection report. Thus, the Investigating Agency prima facie found that the said false report was prepared with malafide intention and with criminal intent of causing loss to government and corresponding financial advantage to the private person," it said. 

The Court added that when the existence of the element of mens rea was prima facie established as in the present case, veracity and extent of the same would have to be deciphered during the trial. 

The plea was thus dismissed. 

Counsel for the Petitioner: Senior Advocate Shobha Menon and Advocate Ritu Janjani 

Counsel for the Respondents: Advocate Abhijeet Awasthy

Citation: 2024 LiveLaw (MP) 2

Case Title: U.S. (Upjeet Singh) Arora v. State of Madhya Pradesh & Anr. 

Case Number: MCRC No.24473 of 2023

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