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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 The  trial Judge, however, found that as section 5(3) of  the Act  had been  repealed on  18-12-1964  and  as specific instances  of payment  of bribe  to the  petitioner could not  be proved the accused could not be held guilty of the charges.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      In appeals  by special  leave it was contended that (a) Since section  5(3) of the P. O. F. A., 1947 was repealed on 18-12-64 the  Court  below  cannot  take  into  account  the provisions of  section 5(3) of the Act after the date of its repeal on  18-12-64 and  (b) Act 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