Analysis on the omission of section 13 (1)(d) under the Prevention of Corruption Act 2018: Whether a beneficial legislation?

Purnendu Chakravarty, Anuuj Taandon and Shivanshu Goswami analyse whether omission of section 13(1)(d) under the Prevention of Corruption Act is a beneficial legislation or not.

INTRODUCTION :

The evil of corruption is not an aspect of the modern world only. It has been a genuine danger to the general public even from the antiquated occasions. It has accomplished the remarkable qualification of getting socialized. There have been numerous formative developments in such a manner. The mankind has changed itself through numerous reformative stages. In earlier times man used to live like a savage. Then he became civilized by passing through many phases and started living in larger groups than a family. He was dependent on his fellows for his daily needs and security. In this way, the institution of society came into existence. It is the inherent nature of every person to live in a society for fulfilling his requirements and security purpose. But because of the greedy nature of some persons of the society, there has been a degradation of moral values. They take the help of unlawful and deceitful means to fulfill their greed. This degradation of moral values for the sake of personal benefit is called corruption. In India, Corruption is a termite that is eating up the pith of our society. It is not only hampering the growth of individuals but is also affecting the growth of our Country. Thus, to curtail the situation, the Prevention of Corruption Act, 1988 has undergone substantive changes by means of a recent amendment dated 26.7.2018 by Act No. 16 of 2018. Various provisions under the existing Prevention of Corruption Act 1988 were redefined and amended with the object to fill in gaps in description and coverage of the offence of bribery, so as to bring it in line with the current international practice and also to meet more effectively, the nation’s obligations under the United Nation Convention Against Corruption. In pursuance thereof, various provisions were amended and redefined, the scope and ambit of the Act was also widened. Similarly, on a very interesting note, Section 13(1)(d) of Prevention of Corruption Act, 1988 has been omitted by the Parliament. Though Section 13 of the Act which defined the offence of Criminal Misconduct by a Public Servant, still exists, however now in a completely different language, the provisions of Section 13(1)(a), (b), and (d) have been completely omitted.

Analysis on omission of section 13(1)(d)

In this article, an attempt has been made to identify the pros and cons of the omission of section 13(1)(d) of the Prevention of Corruption Act. When we read the amended Section 13 of the Act, we find that Section 13 (1) (a) as defined now is similar to the Section 13(1)(c) of the Act prior to the amendment. It provides that a public servant is said to commit the offence of criminal misconduct if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do.

Similarly, we also find that Section 13(1)(e) of the Act, which relates to the disproportionate assets accumulated by a public servant prior to amendment, has been redefined with a wider scope and placed as Section 13(1)(b) of the Act with the amendment.

Hence, we find that Section 13 (1) (d) of the Prevention of Corruption Act, 1988 has been omitted completely. Now a big question crops- what shall be the effect of such omission and more importantly when such omission has not been saved by the legislature under the Repeal and Saving Clause. To get a substantive answer to this question, we have to trace down the provisions of the General Clauses Act as well as the provision of Repeal and Saving as provided under Section 30 of the Prevention of Corruption Act. The omission of a section or offence is a different meaning from the Repeal and Amendment of the section. As a general rulein view of section 6 of the General Clauses Act, the Repeal statute which is not retrospective in operation does not prima-facie affect the pending proceedings which may be continued as if the Repealed Enactment were still in force. Such Repeal does not affect the pending cases which would continue to be concluded as if the enactment has not been repealed.

Section 13 of the Prevention of Corruption Act, 1988 prior to the amendment reads as under: -

13. Criminal misconduct by a public servant. —

(1) A public servant is said to commit the offence of criminal misconduct, —

• (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 7; or
• (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
• (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
• (d) if he, —
  • (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
  • (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
  • (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
• (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.
• Explanation. —For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

Section 13 of the Prevention of Corruption Act, 1988 after amendment (Act No. 16 of 2018) reads as under: -

13. Criminal misconduct by a public servant. —

(1) A public servant is said to commit the offence of criminal misconduct, —

• (a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or
• (b) if he intentionally enriches himself illicitly during the period of his office.
• Explanation 1. – A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.
• Explanation 2.- The expression “known sources of income” means income received from any lawful sources.

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine.

Under the statements of objects and reasons of the amendment act 16 of 2018, the provisions have been produced below.

The salient features of the Bill, inter alia are

2(f). it is proposed to substitute sub-section 1 of section 13 with a new sub-section so as to omit the existing clauses (a),(b), and (d) of sub section 1 as mentioned above; to incorporate the element of intentional enrichment in the existing clause relating to possessions of disproportionate assets by a public servant; and to modify the definition of “known sources of income” as contained in the explanation to mean income received from any lawful source that is,by doing away with the requirement of intimation in accordance with any law, rules or orders applicable to a public servant.

REPEAL, AMENDMENT AND OMISSION

The omission of a section or offence is a different meaning from the Repeal and Amendment of the section. As a general rule in view of section 6 of the General Clauses Act, the Repeal statute which is not retrospective in operation does not prima-facie affect the pending proceedings which may be continued as if the Repealed Enactment were still in force. Such Repeal does not affect the pending cases which would continue to be concluded as if the enactment has not been repealed.

The term ‘Repeal’ connotes the abrogation of one act by another whereas the amendment of statute means an alteration in the law existing leaving some part of the original still standing but the omission is different from the Repeal and Amendment, unless the omission of the provision/section has not been saved by saving the provision/saving clause of the Act, the same stands expired and under the application of Section 6 of the General Clauses Act, such proceedings cannot be continued.

Provision of Section 6 of the General Clauses Act needs a reference to understand the difference between the Repeal and Omission.

Effect of section 6 General Clauses Act 1897 and Effect of Repeal is where this 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 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.

The term Central Act has been defined in section 3 (7) of the General Clauses Act, which shall mean an Act of Parliament; and shall include;

• (a) An Act of dominion Legislature or of the Indian Legislature passed before the commencement of the Constitution and
• (b) An Act made before such commencement by the Governor General in Council or the Governor General acting in a Legislation capacity.

The term Enactment has been defined in section 3 (19) of General Clauses Act. Enactment shall include a Regulation (as hereinafter defined) and any regulation of the Bengal, Madras or Bombay Code and shall also include any provision contained in any act or in any such Regulation as aforesaid.

The term Regulation has been defined in section 3 (50) of the General Clauses Act, which shall mean a Regulation made by the President (under Article 240 of the Constitution and shall include a Regulation made by the President under Article 243 thereof and) a Regulation made by the Central Government under the Government of India Act, 1870, or the Government of India Act, 1915, or the Government of India Act 1935.

The term ‘Rule’ has been defined in section 3 (51) of the General Clauses Act,wherein it is provided that the term Rule shall mean a Rule made in exercise of a Power conferred by any enactment and shall include a Regulation made as a Rule under any Enactment.

The provision of section 6 of the General Clauses Act deals with the Repeal and its affect. The word ‘Omission’ has not been incorporated in the section as such. The meaning of omission has not been equated to Repeal as held by the Hon’ble Supreme Court in the Constitutional Bench Judgement passed in Rayala Corporation Pvt. Ltd. vs. Director of Enforcement, 1970 AIR page 494.The Hon’ble Apex Court while dealing with the meanings of the Repeal and Omission has held that:

“the Express insertion of these saving clauses was no doubt due to a belated realization that the provisions of section 6 of the General Clauses Act (X of 1897) apply only to repealed statutes and not to expiring statutes, and that the general rule in regard to the expiration of a temporary statute is that unless it contains some special provision to the contrary, after a temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect. Therefore, offences committed against temporary Acts must be prosecuted and punished before the Act expires and as soon as the act expire any proceedings which are being taken against a person will ipso facto terminate”.

Dealing with the case, Hon’ble Apex Court has further held that

• “As we have indicated earlier, the notification of the Ministry of Home affairs omitting Rule 132A of the D.I.Rs. did not make any such provision similar to, that contained in section 6 of the General Clauses Act. Consequently, it is clear that, after the omission of Rule 132A of the D.I.Rs. no prosecution could be instituted even in respect of an act which was an offence when that Rule was in force”.

The Hon’ble Supreme Court while dealing with the effect of Repeal and Omission in the case of Kolhapur Canesugar Works Ltd. vs. Union of India on 1 February, 2000 reported in 2000 ( 1 ) SCR 518, has applied the principles of Rayala Corporation Pvt. Ltd. vs. Director of Enforcement, 1970 AIR page 494 in respect to the omission of the provision. The Hon’ble Apex Court has held that

• “The decision of the Constitution Bench is directly on the question of applicability of Section 6 of the General Clauses Act in a case where a rule is deleted or omitted by a notification and the question was answered in the negative. The Constitution Bench said that “Section 6 only applies to repeal and not to omissions and applies when the repeal is of a Central Act or Regulation and not a Rule”.

In SUSHILA N. RUNGTA VS. TAX RECOVERY OFFICER decided on 30.10.2018, CIVIL APPEAL NO. 10824 OF 2018(Arising out of SLP (C) No. 26686/2016), the Hon’ble Apex Court while considering the principles of Repeal and Saving Clause as per section 6 of the General Clauses Act, has held that since the amendment in any statutory provision has not been saved by the legislation under section 6 of the General Clauses Act, the proceedings have to be terminated.

It is pertinent to mention here that in respect of certain statutes, like proceedings under the Terrorist and Disruptive Activities Act (TADA), 1987 are still continuing in some of the cases across the country, though the Act has been repealed. For the sake of brevity, this needs an address to understand the nature of a Temporary Act,distinctionfrom the permanent Act, and effect of Repeal and Omission so as to clear any ambiguity. The Terrorist and Disruptive Activities Act, 1987 commonly known as TADA Act, was enacted by the Parliament in the 38th year of Republic of India and it had come into force on the 24th Day of May, 1987. It remained in force for a period of 8 years from 24th Day of May, 1987 as provided under Section 1(4) of the Act, but expiry of the Act did not affect the previous operation of the Act and also the right, privilege, penalty, punishment, and investigation covered under the Act. Thus, proceedings in the TADA Act, though it expired after the 8th year, were saved by the Legislation and due to such savings, anything said, done, or committed under the provisions of the TADA shall continue till it attains finality as mentioned in the Act under the Repeal and Saving Clause in Section 30 of the Act.

Rule of Beneficial Legislation: Article 20(1) Constitution of India

No person shall be convicted of any offence except for violation of the 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.

The rule of beneficial construction requires that ex-post facto law should be applied to reduce the rigorous sentence of the previous law on the same subject. Such a law is not affected by Article 20 (1). The principle is based upon the legal maxim “Salus Populi Est Suprema Lex (Regard for the Public welfare is the highest law. It is inspired by principles of justice, equity and good conscience.

CONCEPT OF MOLLIFYING THE RIGOR OF CRIMINAL LAW AND ITS RETROSPECTIVE EFFECT

“The enactment/amendment which mollifies the rigor of criminal law is to be given retrospective effect” has been held by the Hon’ble Apex Court and Hon’ble High Court in various pronouncement(s). In the landmark judgement of Rattan Lal Versus State of Punjab, 1965 AIR page 444, while dealing with the question of mollifying the rigor of criminal law the Hon’ble Supreme Court has held that

• “6. The first question is whether the High Court, acting under Section 11 of the Act, can exercise the power conferred on a court under Section 6 of the Act. It is said that the jurisdiction of the High Court under Section 11(3) of the Act is confined only to a case that has been brought to its file by appeal or revision and, therefore, it can only exercise such jurisdiction as the trial court had, and in the present case the trial court could not have made any order under Section 6 of the Act, as at the time it made the order the Act had not been extended to Gurgaon district. On this assumption, the argument proceeds, the Act should not be given retrospective operation, as, if so given, it would affect the criminal liability of a person for an act committed by him before the Act came into operation. In support of this contention a number of decisions bearing on the question of retroactivity of a statute in the context of vested rights have been cited. Every law that takes away or impairs a vested right is retrospective. Every ex post facto law is necessarily retrospective. 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. The question whether such a law is retrospective and, if so, to what extent depends upon the interpretation of a particular statute, having regard to the well-settled rules of construction. Maxwell in his book On Interpretation of Statutes, 11th Edn., at pp. 274-75, summarizes the relevant rule of construction thus: “The tendency of, modern decisions, upon the whole, is to narrow materially the difference between what is called a strict and a beneficial construction. All statutes are now construed with a more attentive regard to the language, and criminal statutes with a more rational regard to the aim and intention of the legislature, then formerly. It is unquestionably right that the distinction should not be altogether erased from the judicial mind, for it is required by the spirit of our free institutions that the interpretation of all statutes should be favorable to personal liberty, and this tendency is still evinced in a certain reluctance to supply the defects of language, or to eke out the meaning of an obscure passage by strained or doubtful influences. The effect of the rule of strict construction might almost be summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. But it yields to the Crl. Pet. No. 434 of 2010 Page 9 of 18 paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischiefs aimed at are, if the language permits, to be held to fall within its remedial influence.”

The Hon’ble Gauhati High Court in the case of Mohd. Abdul Haque Vs. Srimati Jesmina Begum Choudhury, 25 April 2012, in CRIMINAL PETITION No. 434 of 10 while dealing with a case under section 482 Cr.P.C., has taken the note of application of post facto law and the application of Article 20 (1) of Constitution of India. While dealing with rival submissions at the bar, the Hon’ble Court has relied upon the judgement of Ratan Lal Vs. State of Punjab and has mentioned the relevant extract in the judgement (the same has been submitted in the previous paragraphs). Further while dealing with various judgements on the issue of the Post Facto Law, and regarding mollifying the rigor of criminal law, the Hon’ble High Court at para 20 has held that: -

• Para-20. What emerges from the aforesaid authorities is that every new enactment is presumed to be prospective in operation, unless either expressly or by necessary intendment is made retrospective. Prospective operation of law is also presumed, if it creates new rights and liabilities and this principle has to be applied more rigorously if the law provides penal provisions inasmuch as Article 20 (1) of the Constitution, inter-alia, clearly stipulates that no person shall be convicted of any offence except for violation of „law in force‟ at the time of commission of the act. Only those enactments which only relax the existing procedure or mollify the rigour of the criminal law can be given retrospective operation.

In the recent pronouncement of the Apex Court in TRILOK CHAND VS. STATE OF HIMACHAL PRADESH (Cri. Appeal No. 1831 / 2010 decided on 01.10.2019), while considering the underlying principles of beneficial legislation which has to be extended to the accused in case of Amendment in any statutory provision, held that since the amendment was beneficial to the accused persons it could be applied with respect to earlier cases, as well as the cases which are pending in the court.

Conclusion :

Thus from the above analysis of the provisions of the General Clauses Act, and the Prevention of Corruption Amendment Act 2018, along with objects and reasons for the omission of section 13(1)(d) read with section 30 of the Act and further a closer scrutiny of the constitutional bench Supreme Court in Rayala Corporation and other judgments, it can be concluded that once a provision has been omitted by the parliament the prosecution cannot be carried forward under such provisions unless and until the same has been saved under the saving clause. Also, in terms of rule of beneficial legislation envisaged under article 20(1) of The Constitution of India, if any provision has been omitted by the parliament and has not been saved under the saving clause, the proceedings in respect of the omitted provisions can be terminated in respect of the accused, however at the same juncture the specific omission by virtue of the amendment dated 26 July,2018 under PC ACT and its impact on criminal proceedings, is yet to be interpreted by the high courts as well as Hon’ble Supreme Court vested with Constitutional power to decide this vital question of law.