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Benefit Of Amendment In Section 13 Prevention Of Corruption Act 1988 As Amended By The Prevention Of Corruption (Amendment) Act 2018 Can Be Extended To Pending Cases

Anuj Chauhan
31 March 2020 11:56 AM GMT
Benefit Of Amendment In Section 13 Prevention Of Corruption Act 1988 As Amended By The Prevention Of Corruption (Amendment) Act 2018 Can Be Extended To Pending Cases
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The Prevention of Corruption Act 1988 (PC Act 1988) was amended by The Prevention of Corruption (Amendment) Act 2018 (Amendment Act of 2018) vide which the amendment to section 13 of the PC Act 1988 was introduced by substituting the text of Section 13(1) with a new definition for the offence of criminal misconduct. The amendment has taken away the rigour of criminal law by incorporating the guilty intention as a necessary ingredient to attract the offence of criminal misconduct as defined under section 13 of the PC Act 1988 as amended by the Amendment Act of 2018. The Statement of Objects and Reasons to The Prevention of Corruption Amendment Bill 2013 mentions that changes proposed to the aforesaid Act has been necessitated due to ratification of the United Nations Convention Against Corruption (UNCAC) in May, 2011 by our country; and Judicial pronouncements in corruption cases to fill in gaps in description and coverage of offence of bribery so as to bring it in line with the current international practice.

Full Bench of Hon'ble High Court of Delhi in the matter of Runu Ghosh Vs. CBI
[1] held that there is no requirement of proving mens rea for the offence u/s 13(1)(d)(iii) of the PC Act 1988 (as it then existed). For offence u/s 13(1)(d)(iii) the test applicable was when the decision or an act of a public servant, (which results in another obtaining pecuniary advantage or valuable thing) be without public interest, namely, if that action of the public servant is the consequence of her or his manifest failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted. However the new(substituted) definition of Criminal Misconduct puts an additional burden on the Investigation agency to prove the guilty intention on part of the public servant which is manifested from the language of the new provision itself.

MISUSE OF PROVISION BY THE INVESTIGATING AGENCIES : MISCHIEF PREVAILED IN COUNTRY

One of the Suggestion taken into consideration by the Standing Committee of Rajya Sabha was that the provisions under Section13 (1)(d)(iii) of the P C Act, 1988 has been misused by investigating agencies and is exposed to potential misinterpretation leading to prosecution of honest public servant. Therefore, the concerned Section needs to be deleted in public interest. 
[2]No guilty intention of public servant was required to be established under the provision u/s 13(1)(d)(iii) except showing that the public servant has obtained any valuable thing or pecuniary advantage for any person 'without any public interest'. The definition thus leaves open a very wide scope for its misuse by investigating agencies. Accordingly, the Prevention of Corruption (Amendment) Bill, 2013 had proposed to delete section 13(1)(d)(iii) of the PC Act 1988.[3] Non requirement of guilty intention for aforesaid provision raises apprehensions and fears in the mind of public servant which prima facie have the potential of impeding and slowing down decision making.[4] Due to this there was an apprehension in the minds of public servant which as there was a potential threat of prosecution of honest public servants. In order to provide a work friendly environment to the public servant the section 13(1)(d)(iii) was proposed to be deleted.

Select Committee of Rajya Sabha suggested that Section 13(1) (d)(iii) of the Prevention of Corruption Act, 1988 covers new species of crime related to corruption which was not contemplated under Prevention of Corruption Act, 1947. The amendment proposes to alter the said Section to the extent of deleting Section 13(1)(d)(iii) which may not be appropriate to contain corruption where bureaucrats in connivance with politician causes pecuniary benefit to any private party without having proper consideration of public interest. A three Bench judgement of Delhi High Court in the matter of Runu Ghosh and others Vs. Central Bureau of Investigation (CBI) has upheld the said Section in 2011 which has not yet been overruled by the Supreme Court. However, most stakeholders agreed to the amendment proposed by the Government. 
[5]

HOW THE RIGOUR OF SECTION 13(1) IS MOLLIFIED

Under the un-amended law guilty intention of the public servant was not required to be proved for the offence of criminal misconduct , However under the ex-post facto law mens rea or guilty intention of on the part of public servant is a sine qua non for attracting the offence of criminal misconduct under section 13(1) PC Act 1988 as amended by the Amendment Act of 2018.

The additional requirement of proving guilty intention is the benefit which can be extended to the earlier cases. What is prohibited under Article 20(1) of the constitution is the retrospective operation of an ex-post facto law which brings a new offence or enhances the punishment for an offence. What is not prohibited under Article 20(1) is the retrospective operation of the ex-post facto law which mitigates the rigor of criminal law. A rigor of law would include the sentencing structure , standards or ingredients of definition of offence , or any other factor responsible for strictness of criminal law. For example the benefit of probation under The Probation of Offenders Act 1958 is not applicable to the offences under P C 1988 which enhances its rigor as compared to the offences wherein the benefit of probation can be granted.

AMENDMENTS THAT MOLLIFIES THE RIGOR OF CRIMINAL LAW CAN BE APPLIED IN EARLIER CASES.

Hon'ble Supreme Court of India while deciding Trilok Chand v. State of Himachal Pradesh, Criminal Appeal No. 1831/2010 decided on 01.10.2019, relied on T. Barai
[6]case wherein it was held that a beneficial amendment to an accused could be applied to earlier cases /trials.

This preposition was first propounded by Supreme Court in Rattan Lal vs State Of Punjab
[7]. Under Article 20 of the Constitution, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of that 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. But an ex post facto law which only mollifies the rigour of a criminal law does not fall within the said prohibition. If a particular law makes a provision to that effect, though retrospective in operation, it will be valid. [8] The rule of beneficial construction requires that even ex post facto law beneficial to the accused should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense. Moreover, the International Covenant on Civil and Political Rights, 1966, Article 15, Clause-1, ratified by India states, "no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If subsequent to the commission of the offence, the provision is made by law for the imposition of lighter penalty, the offender shall get benefit thereof.

EFFECT OF SUBSTITUTION

Another ground why the amendment in section 13(1) of PC Act 1988 can be applied retrospectively is that the amendment in Section 13(1) is by way of substitution. The legislature while making a amending legislation had advisedly used the word "substitution" in place of the word "addition" or "insertion". The object and purport of the subsequent amendment by the legislature was, thus, to grant the same benefit (benefit of guilty intention) which has been introduced by the amendment, to the public servants facing prosecution without there being any allegation of quid pro quo against them.

The substitution of one text for the other pre-existing text is one of the known and well-recognised practices employed in legislative drafting. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (see Principles of Statutory Interpretation, ibid., p. 565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. v. State of U.P. [(2002) 2 SCC 645] , State of Rajasthan v. Mangilal Pindwal [(1996) 5 SCC 60] , Koteswar Vittal Kamath v. K. Rangappa Baliga and Co. [(1969) 1 SCC 255] and A.L.V.R.S.T. Veerappa Chettiar v. S. Michael [AIR 1963 SC 933] . In West U.P. Sugar Mills Assn. case[(2002) 2 SCC 645] Hon'ble Supreme Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centering around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwal case [(1996) 5 SCC 60] Hon'ble Supreme Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force.
[9] In Government of India v. Indian Tobacco Association, (2005) 7 SCC 396, by referring to the decision in Zile Singh v. State of Haryana, (2004) 8 SCC 1, it has been clearly held that substitution would have the effect of amending the operation of law during the period in which it was in force. What is substituted would stand substituted from inception Whereas insertion or addition will be relevant to the date of amendment.[10]

Ordinarily wherever the word 'substitute' or 'substitution' is used by the legislature, it has the effect of deleting the old provision and make the new provision operative. The process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. No doubt, in certain situations, the Court having regard to the purport and object sought to be achieved by the Legislature may construe the word "substitution" as an "amendment" having a prospective effect. Therefore, we do not think that it is a universal rule that the word 'substitution' necessarily or always connotes two severable steps, that is to say, one of repeal and another of a fresh enactment even if it implies two steps. However, the aforesaid general meaning is to be given effect to, unless it is found that legislature intended otherwise.
[11]

APPLICATION OF SECTION 6 GENERAL CLAUSES ACT, 1897 IS EXCLUDED

Section 6 of The General Clauses Act 1897 saves the proceedings under the repealed enactment unless a different intention appears. Section 6 of the General Clauses Act could be attracted when an Act or regulation is repealed simpliciter but not always when, as in the present scenario, the repeal is followed by re-enactment (substitution) and therefore it is incumbent upon the court to see whether the new legislation on the same subject manifest a different intention either expressly or by necessary implication. Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. 
[12]

The different intention to exclude the application of section 6 of General Clauses Act is incorporated in the expression substitution itself especially when the reports of standing committee and select committee manifest that the intention of parliament was to destroy the provision of section 13(1)(d)(iii) PC Act 1988 (as it then existed) to protect the honest public servants against the frivolous prosecutions and also to remove apprehensions and fears in the mind of public servant. Further there is no saving clause to save the proceedings under the earlier law.

CONCLUSION

The issue whether the benefit of amendment in section 13 of the PC Act 1988 as amended by the Amendment Act of 2018 is receiving consideration before the Hon'ble High Court of Delhi. Even if the Amendment in Section 13 (1) of the PC Act 1988 is held to be prospective, still in view of the law laid down by the Supreme Court the benefit of amendment (i.e proof of guilty intention) should not be denied to the public servants facing the rigour of trial/prosecution without there being any allegation of quid pro quo. In cases, registered under section 13(1)d (as it then existed), wherein there is no allegation of quid pro quo or demand by the public servant the proceedings should be quashed qua section 13(1)d.

Anuj Chauhan Is A Delhi Based Advocate.The author's views are personal.


[1] 2011 SCC ONLINE DEL 5501

[2] Sixty Ninth Report, The Prevention Of Corruption (Amendment) Bill, 2013 , Department-Related Parliamentary Standing Committee On Personnel, Public Grievances, Law And Justice

[3] Comment by DoPT, Sixty Ninth Report, The Prevention Of Corruption (Amendment) Bill, 2013 , Department-Related Parliamentary Standing Committee On Personnel, Public Grievances, Law And Justice

[4] Unstarred Question No. 1286, Ministry Of Personnel, Public Grievances And Pensions Lok Sabha, Web Source : http://164.100.47.194/loksabha/questions/qresult15.aspx?qref=70079&lsno=16

[5] Report Of The Select Committee Of Rajya Sabha On The Prevention Of Corruption (Amendment) Bill, 2013

[6] (1983) 1 SCC 177

[7] 1965 AIR SC 444

[8] 1965 AIR SC 444

[9] ZILE SINGH V. STATE OF HARYANA, (2004) 8 SCC 1

[10] SAKTHI MASALA P. LTD. VS. ASSITANT COMMISSIONER, 2013 SCC ONLINE MAD 1508

[11] GOTTUMUKKALA VENKATA KRISHAMRAJU VS. UNION OF INDIA, 2018 SCC ONLINE SC 1386

[12] STATE OF PUNJAB V. MOHAR SINGH, (1955) 1 SCR 893 : AIR 1955 SC 84 : 1955 CRI LJ 254

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