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

^[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

^[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.

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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.

^[6]case wherein it was held that a beneficial amendment to an accused could be applied to earlier cases /trials.

^[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.

^[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]

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APPLICATION OF SECTION 6 GENERAL CLAUSES ACT, 1897 IS EXCLUDED

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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.