Karnataka High Court
Sri. Panchalingaiah vs State Of Karnataka on 6 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 5, 2020 (2) AKR 18
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 6TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL REVISION PETITION No.485 OF 2019
C/W
CRIMINAL REVISION PETITION No.1039 OF 2019
CRIMINAL REVISION PETITION No.436 OF 2019
CRIMINAL REVISION PETITION No.437 OF 2019
CRIMINAL REVISION PETITION No.471 OF 2019
CRIMINAL REVISION PETITION No.674 OF 2019
CRIMINAL REVISION PETITION No.689 OF 2019
IN CRIMINAL REVISION PETITION No.485 OF 2019:
BETWEEN:
Sri Panchalingaiah
S/o late Venkatappa
Aged about 60 years
Resident of Hemmigerpura
Vidyapeeta Post, Kengeri Post
Bengaluru South Taluk-560 060.
...Petitioner
(By Sri Kiran S. Javali, Advocate for
Sri Chandrashekara K., Advocate)
AND:
State of Karnataka
by Karnataka Lokayukta
Dr. Ambedkar Veedhi
Bengaluru-560 001.
...Respondent
(By Sri Venkatesh S. Arabatti, Special Public Prosecutor)
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This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C praying to set aside the order dated
19.03.2019 passed in Spl.C.No.189/2013 on the file of the
Hon'ble LXXVI Additional City Civil and Sessions Judge
and Special Judge for Lokayuta of Bengaluru Urban
District (CCH-77) Bengaluru vide (Annexure-A) and
consequently set aside the proceedings as not maintainable
for non compliance of the mandatory requirement and
interdite proceedings.
IN CRIMINAL REVISION PETITION No.1039 OF 2019:
BETWEEN:
Shri G.E.Veerabhadrappa
S/o late G.Veerappa
Aged about 68 years
Vice President (Retired)
Income Tax Appellate Tribunal (ITAT)
Mumbai, Maharashtra
Presently at : No.772,
"Cotha Signature Apartment",
II Floor, 36th Cross, 20th Main
4th "T" Block, Jayanagar,
Bengaluru-560 041.
...Petitioner
(By Sri Kiran S. Javali, Advocate for
Sri Chandrashekara K., Advocate)
AND:
Deputy Superintendent of Police
Central Bureau of Investigation
Bank Securities & Funds Cell
Bengaluru-560 031.
...Respondent
(By Sri P.Prasanna Kumar, Standing Counsel)
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This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C praying to set aside the order dated
03.08.2019 (Annexure-A) passed in Spl.C.CNo.56/2015 on
the file of the Hon'ble XXXII Additional City Civil and
Sessions Judge and Special Judge for CBI cases,
Bengaluru (CCH-34) Bengaluru and etc.,
IN CRIMINAL REVISION PETITION No.436 OF 2019:
BETWEEN:
Sri C.R. Rajendra Babu
S/o late C. Rangaswamy Naidu
Aged about 73 years
Now resident at No.11, 3rd Main Road
Horamavu Main Road, Banaswadi,
Bengaluru-560 042.
...Petitioner
(By Sri Kiran S. Javali, Advocate for
Sri Mohammed Mujassim, Advocate)
AND:
The Central Bureau of Investigation
Bank Securities and Frauds Cell
Ganganagar, Bellary Road
Bengaluru-560 032
Represented by Special Public Prosecutor
High Court of Karnataka
Bengaluru-560 001.
...Respondent
(By Sri P.Prasanna Kumar, Standing Counsel)
This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C praying to set aside the order dated
18.03.2019 passed in Spl.C.C.No.68/2007 on the file of the
Hon'ble XXI Additional City Civil and Sessions Judge,
Principal Special Judge for CBI cases Bengaluru (CCH-4)
Bengaluru vide Annexure-A.
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IN CRIMINAL REVISION PETITION No.437 OF 2019:
BETWEEN:
Sri C.R. Rajendra Babu
S/o late C. Rangaswamy Naidu
Aged about 73 years
Now resident at No.11, 3rd Main Road
Horamavu Main Road, Banaswadi,
Bengaluru-560 042.
...Petitioner
(By Sri Kiran S. Javali, Advocate for
Sri Mohammed Mujassim, Advocate)
AND:
The Central Bureau of Investigation
Bank Securities and Frauds Cell
Ganganagar, Bellary Road
Bengaluru-560 032
Represented by Special Public Prosecutor
High Court of Karnataka
Bengaluru-560 001.
...Respondent
(By Sri P.Prasanna Kumar, Standing Counsel)
This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C praying to set aside the order dated
18.03.2019 passed in Spl.C.C.No.67/2007 on the file of the
Hon'ble XXI Additional City Civil and Sessions Judge,
Principal Special Judge for CBI cases Bengaluru (CCH-4)
Bengaluru vide Annexure-A.
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IN CRIMINAL REVISION PETITION No.471 OF 2019:
BETWEEN:
Sri N.Sridhar S/o N.K.Narasinha
Aged about 65 years
Resident at No.127, 4th Main,
Anam Enclave, Thanisandra,
S.R.K. Nagar Post, Bengaluru-560 077
Permanent Address:
No.88, 7th A Main
IEHCS Layout, Vidyaranyapura,
Bengaluru-560 068.
...Petitioner
(By Sri Kiran S. Javali, Advocate for
Sri Mohammed Mujassim, Advocate)
AND:
The Central Bureau of Investigation
Anti-Corruption Bureau
Ganganagar, Bellary Road
Bengaluru-560 032
Represented by Special Public Prosecutor
High Court of Karnataka
Bengaluru-560 001.
...Respondent
(By Sri P.Prasanna Kumar, Standing Counsel)
This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C praying to set aside the order dated
18.03.2019 passed in Spl.C.C.No.32/2015 on the file of the
Hon'ble XXI Additional City Civil and Sessions Judge,
Special Judge for CBI Cases Bengaluru (CCH-4) Bengaluru
vide Annexure-A and consequently set aside the
proceedings as not maintainable for non compliance of the
mandatory requirement.
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IN CRIMINAL REVISION PETITION No.674 OF 2019:
BETWEEN:
Sri H.T.Ramegowda
S/o late Thimmegowda
Aged about 68 years
Surveyor (Retd.)
Office of the SLAO, BDA
Bengaluru
Presently Residing at No.60,
11th Cross, 2nd Main, K.R.Layout
J.P.Nagar, 6th Stage
Bengaluru-560 078.
...Petitioner
(By Sri Kiran S. Javali, Advocate for
Sri Chandrashekara K., Advocate)
AND:
The State of Karnataka
By Karnataka Lokayukta
Superintendent of Police
Dr. Ambedkar Veedhi
Benglauru-560 001.
Represented by Special Public Prosecutor
...Respondent
(By Sri Venkatesh S. Arabatti, Special Public Prosecutor)
This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C praying to set aside the order dated
19.03.2019 passed by the LXXVI Additional City Civil and
Sessions Judge, Special Judge and Special Judge,
Bengaluru in Spl.C.C.No.189/2013 vide Annexure-A and
consequently set aside the proceedings as not maintainable
for non compliance of the mandatory requirement and
interdite proceedings.
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IN CRIMINAL REVISION PETITION No.689 OF 2019:
BETWEEN:
V.Vishweshwara Bhat
Aged about 57 years
S/o late M.Venkataramana Bhat
Residing at No.2, Block "L"
Customs and Central Excise quarters
BTM II Stage, madiwala
Bengaluru-560 068.
Superintendent of Customs and Central Excise
Dept. of Revenue, Ministry of Finance
Government of India
Queen's Road, Bengaluru-560 001.
...Petitioner
(By Sri Kiran S. Javali, Advocate)
AND:
State by CBI/ACB
Bellary Road, Benglauru-560 032
Represented by Special Public Prosecutor
...Respondent
(By Sri P. Prasanna Kumar, Standing Counsel)
This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C praying to set aside the order dated
10.05.2019 passed in Spl.C.C.No.623/2017 on the file of
the Court of the Hon'ble XXI Additional City Civil and
Sessions Judge and Principal Special Judge for CBI Cases,
Bengaluru and discharge the petitioner.
These Criminal Revision Petitions having been heard
and reserved on 19.12.2019 coming on for pronouncement
of Orders this day, the Court made the following:-
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ORDER
These petitions have been filed by petitioners/accused persons challenging the orders passed in Spl.C.C.Nos.189/2013, 56/2015, 68/2007, 67/2007, 32/2015, 189/2013 and 623/2017 dated 19.3.2019, 3.8.2019, 18.3.2019, 18.3.2019, 18.3.2019, 19.3.2019 and 10.5.2019 respectively, by the Courts below on the application for discharge.
2. Since the point of law involved in all these cases is one and the same, though they are not arising out of the common order, in order to avoid repetition of law and facts, they have been clubbed together and disposed of by virtue of a common order.
3. I have heard Sri.Kiran.S.Javali, Sri.Chandrashekara.K., Sri.Mohammed Mujassim, learned counsel for the petitioners and Sri.Venkatesh.S.Arabatti and Sri.P.Prasanna Kumar, Special Public Prosecutor and -9- Standing Counsel for respondents-Lokayuktha and CBI respectively.
4. All these cases have been registered by Lokayuktha/CBI/ACB under the Prevention of Corruption Act, 1988 (hereinafter referred to as "PC Act" for short) under Section 13(1)(c)(d) and (e) of the PC Act and after investigation, charge sheet has been filed. In some of the cases, as accused have been retired from their services, since sanction was not necessary, without obtaining sanction, charge sheet was submitted against them. In other cases, where sanction is necessary, after obtaining sanction, charge sheet was filed. After hearing the learned counsel appearing for the parties, the Special Court framed the charge and trial was commenced. As on that date, amendment to the PC Act 2018 was not in existence. Admittedly, Sections 13(e) and 19 of the PC Act were amended on 26.7.2018. In pursuance to the amendment Act 2018, the present applications came to be filed by the petitioners seeking discharge. After hearing the parties
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Courts below dismissed said applications. Challenging the legality and correctness of the said order the present petitions have been filed.
5. It is the contention of the learned counsel for the petitioners that if a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. It is his further submission that earlier as per Section 19 of PC Act, sanction was not necessary for a retired Government official. But, by virtue of the amendment brought to the said provision, sanction is necessary. Since there is no saving clause, the said amendment will be having retrospective effect and it reverts back to the date of enacting of the said law. Hence, it is his submission that without sanction case cannot be proceeded further. Section 19 of the PC Act clearly
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enumerates that, no Court shall take cognizance of an offence under the said Act in case of an employee, without there being a previous sanction. It is his further submission that earlier if a person has amassed wealth disproportionate to his known sources of income, he was tried under Section 13(1)(e) of the old PC Act. But now by virtue of Amendment Act, 2018 the said Section has been deleted, as such, accused cannot be tried for a non-existing law.
It is his further submission that as per Article 21 of the Constitution of India, any person facing criminal trial shall be dealt, tried and punished in accordance with law under a procedure established by law. When the Law itself is not in existence, if the accused is tried for the said offence, it would vitiate the entire proceedings. It is his further submission that procedural law is a beneficial legislation and if any benefit arises out of the said procedure, it has to be given to the accused. As such, it is his submission that without sanction, the Court cannot
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proceed in accordance with law and the accused cannot be tried for such offence. Unless an amendment expressly or by necessary implication makes the provision applicable retrospectively, it cannot be given retrospective effect. In order to substantiate his argument he relied upon the decision in the case of Ramesh Singh Vs. Cinta Devi reported in AIR 1996 SC 1560. The said ruling has been referred to by the Co-ordinate Bench of this Court in the case of M/s.Hindustan Petroleum Corporation Ltd., Vs. Union of India in W.P.Nos.10559-10560/2015 and connected matters disposed on 7.10.2015. On these grounds, he prayed to allow the petitions and to discharge the accused.
6. Per-contra, Sri.Venkatesh S Arabatti, learned Special Public Prosecutor appearing for the respondent vehemently argued and submitted that amendment to Section 19 of the PC Act is a procedural aspect and it is prospective in nature. Since accused persons have already
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retired from service, sanction to prosecute is not required. In order to substantiate his argument, he relied upon the decision reported in (1994) 4 SCC 602 in the case of Hitendra Vishnu Thakur and others Vs. State of Maharashtra and others. It is his further submission that Section 19(c) will not come in the way due to substitution which came into effect from 26.7.2018. In the instant case, already cognizance has been taken and evidence has also been recorded. At this juncture case cannot be taken to an earlier stage, as such petitions are liable to be dismissed. As per Section 6 of the General Clauses Act if there is no saving clause, it cannot be given retrospective effect. Section 6 is not applicable in case of omission of rule and as such, the said amendment is not applicable to the pending proceedings. It is his further submission that entire Section 19 of PC Act has not been removed. There is only an insertion and as such, the earlier proceedings are saved and Section 6 of the General Clauses Act cannot be made applicable. On these grounds,
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he prayed to dismiss the petitions by confirming the order of the trial Court.
7. Sri.P.Prasanna Kumar, learned Standing Counsel appearing for the respondent has vehemently argued and submitted that after recording evidence the application filed for discharge cannot be entertained. When once charges are framed and case is proceeded with, the accused cannot be discharged. The learned Sessions Judge is required to proceed with the trial to its logical end. In order to substantiate his contention, he relied upon the decision in the case of Bharat Parikh Vs. Central Bureau of Investigation and another reported in (2008) 10 SCC
109.
8. He would submit that while construing rules every statute or statutory rule is having a prospective effect unless it is expressly or by necessary implication made to have a retrospective effect. The statutes cannot be construed so as to create new disabilities or obligations or
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impose new duties in respect of transactions which were complete at the time of amending Act came into force. It is his further submission that if the Amended Act expressly states that the substituted provision shall come into force from the date the amendment comes into force, the said provision is prospective in nature. The notification was published on 1.8.2018 and it has come into effect from that date. As such, it is having a prospective effect. In order to substantiate his contention, he relied upon the decision of Division Bench of this Court in the case of Govardhan M. Vs. State of Karnataka and others reported in (2013) 1 Kar.L.J. 437 (DB). In this regard, he also relied upon one more decision in the case of Sri Vijayalakshmi Rice Mills, New Contractors Co. and others Vs. State of Andhra Pradesh reported in (1976) 3 SCC 37.
9. It is his further submission that usually the cardinal principle of construction is to give a prospective effect unless it is expressly provided in the Act and new
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Law will always regulate what is to be followed, usually it is not intended to give a retrospective effect. In this regard, he relied upon the decision in the case of Zile Singh Vs. State of Haryana and others reported in (2004)8 SCC 1. In this regard, he has also relied upon another decision in the case of Shyam Sunder and others Vs. Ram Kumar and another reported in (2001) 8 SCC 24.
10. It is his submission that Section 6 of General Clauses Act provides that repeal shall not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder. When an offence has been committed on an earlier occasion, by subsequent amendment the legislature does not intend to wipe the said crime. In this regard, he relied upon the decision in the case of Jagan M Seshadri Vs. State of Tamil Nadu reported in (2002)9 SCC 639.
11. Further, by relying upon the decision in the case of G.P.Nayyar Vs. State (Delhi Administration) reported
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in (1979) 2 SCC 593 he would contend that Section 6 of the General Clauses Act provides that the repeal shall not affect the previous operation of any enactment so repealed, unless a different intention appears. In this regard, he has also relied upon the decision in the case of Securities and Exchange Board of India Vs. Classic Credit Limited reported in (2018) 13 SCC 1.
12. It is his submission that looking from any angle, the application itself is not maintainable that too when already the charge has been framed and evidence has been recorded by the Court below. On these grounds, he prayed to dismiss the petitions.
13. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
14. The common question raised in all these cases relates to the amendment made to PC Act by virtue of
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Amendment Act, 2018. It is the contention of the learned counsel for the petitioners that in view of the substitution to the main Act, the old Act does not exist since there is no saving clause and as such, proceedings initiated by virtue of the earlier Act of 1988 would vitiate the entire proceedings. For the purpose of brevity, I quote Sections 13 and 19 of the PC Act of 1988 and the PC (Amendment) Act, 2018, which reads as under:
Sections 13 and 19 of the PC Act, 1988:
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
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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
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(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 four year but which may extend to ten years and shall also be liable to fine.
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19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 --
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government
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or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error,
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omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation.--For the purposes of this section,--
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with
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the sanction of a specified person or any requirement of a similar nature Sections 13 and 19 of the PC (Amendment) Act, 2018:
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
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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 year but which may extend to ten years and shall also be liable to fine.
19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 --
(a) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union and is not removable from his office save by or with the
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sanction of the Central Government, of that Government;
(b) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
"Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless--
(i) such person has filed a complaint in a competent court about the alleged
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offences for which the public servant is sought to be prosecuted; and
(ii) the court has not dismissed the complaint under section 203 of the Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:
Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant:
Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt:
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Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month:
Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, presecribe such guidelines as it considers necessary.
Explanation.--For the purposes of sub-section (1), the expression "public servant" includes such person--
(a) who has ceased to hold the office during which the offence is alleged to have been committed; or
(b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which
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the offence is alleged to have been committed.".
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as
required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of
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justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
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Explanation.--For the purposes of this section,--
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
15. It is not in dispute that before Amendment Act of 2018 proceedings have been initiated against the petitioners/accused by virtue of the PC Act, 1988. The question which arises for consideration is, whether the amended provision is applicable to the pending proceedings or not?
16. It is the contention of the learned counsel for the petitioners that by virtue of amendment there is substitution and when there is substitution it will have a
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retrospective effect and old Law would get repealed and the rights and liabilities would be determined on the basis of new Act. The effect of substitution has come up before the Hon'ble Apex Court in the case of Government of India and others Vs. Indian Tobacco Association reported in (2005) 7 SCC 396 wherein at paragraphs No.15 and 16, it has been observed as under:
"15. The word "substitute" ordinarily would mean "to put (one) in place of another"; or "to replace". In Black's Law Dictionary, 5th Edn., at p. 1281, the word "substitute" has been defined to mean "to put in the place of another person or thing", or "to exchange". In Collins English Dictionary, the word "substitute" has been defined to mean "to serve or cause to serve in place of another person or thing"; "to replace (an atom or group in a molecule) with (another atom or group)"; or "a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague".
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16. By reason of the aforementioned amendment no substantive right has been taken away nor any penal consequence has been imposed. Only an obvious mistake was sought to be removed thereby."
In the said ratio it has been observed that substitution of a provision results in repeal of the earlier provision and its replacement by the new provision.
17. Keeping in view the above said aspect the effect of new statute has to be seen as to whether the amendment introduced is applicable to the pending proceedings or not?
18. If there is any provision in the enactment to show therein that pending proceedings shall continue and be disposed of under the old Rule as if the said rule has not been deleted or omitted then such proceedings will continue. If the statute or amendment is silent in this regard, then the Court has to see whether the case is covered by Section 6 of the General Clauses Act. If the case is covered under Section 6 of the General Clauses Act
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or there is a pari materia provision in the statute under which the rule has been framed, in such case the pending proceedings will not be affected by omission of the rule. In the absence of any such provision, the substitution or amendment would benefit the accused. This proposition of law has been also laid down by the Hon'ble Apex Court in the case of Kolhapur Canesugar Works Ltd. and another Vs. Union of India and others reported in (2000)2 SCC 536 wherein at paragraph Nos.34 and 37 it has been observed as under:
"34. For the reasons set forth above we do not accept the view taken in Saurashtra Cement and Chemical Industries Ltd. [(1993) 42 ECC 126 (Guj) (FB)] in Falcon Tyres Ltd. [(1992) 60 ELT 116 (Kant)] and the other decisions taking similar view. It is not correct to say that in considering the question of maintainability of pending proceedings initiated under a particular provision of the rule after the said provision was omitted the court is not to look for a provision in the newly-added rule for continuing the pending
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proceedings. It is also not correct to say that the test is whether there is any provision in the rules to the effect that pending proceedings will lapse on omission of the rule under which the notice was issued. It is our considered view that in such a case the court is to look to the provision in the rule which has been introduced after omission of the previous rule to determine whether pending proceedings will continue or lapse. If there is a provision therein that pending proceedings shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted then such proceedings will continue. If the case is covered by Section 6 of the General Clauses Act or there is a pari materia provision in the statute under which the rule has been framed, in that case also the pending proceedings will not be affected by omission of the rule. In the absence of any such provision in the statute or in the rule the pending proceedings would lapse on the rule under which the notice was issued or proceedings were initiated being deleted/omitted. It is relevant to note here that in the present case the question of
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divesting the Revenue of a vested right does not arise since no order directing refund of the amount had been passed on the date when Rule 10 was omitted.
37. The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute-book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing
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with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision."
19. The normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book completely as if it had never been passed, and the statute must be considered as a law that never existed. But to this principle Section 6 of the General Clauses Act is an exception. If a provision of statute is unconditionally omitted without a saving clause in favour of a pending proceeding, all actions must stop where the omission finds them and if final relief has not been granted before the omission goes into the effect.
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20. For the purpose of brevity, I quote Sections 6 and 6A of the General Clauses Act:
"6. Effect of repeal. --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 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,
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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.
6A. Repeal of Act making textual amendment in Act or Regulation. Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal."
21. On a close reading of Section 6A of the Act, it makes it clear that unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in
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operation at the time of such repeal. Even on plain reading of Section 6 it makes it clear that any investigation, legal proceeding or other remedies 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.
22. It is the contention of the learned counsel for the respondent that as per Section 1 of the PC (Amendment) Act, 2018 it will come into force from the date of notification and as such it cannot be given a retrospective effect. Admittedly, the notification is dated 26.7.2018 and as such, it has come into force from that date and no retrospective effect can be given to the said provision. Coupled with this, Section 30 of the amended Act 2018, which deals with Repeal and Saving clause, reads as under:
"30. Repeal and saving - (1) The Prevention of Corruption Act, 1947 (2 of 1947)
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and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed.
(2) Notwithstanding such repeal, but without prejudice to the application of section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act."
23. On a close reading of the said saving clause it has been observed that anything done or any action taken in pursuance of the Acts so repealed shall, insofar as it is not inconsistent with the provisions of the present Act and be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act old proceedings will continue. It is well settled principle of law that intention of an Act and meaning has to be gathered by reading the entire enactment, it should not be read in
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isolation by taking each section separately. In that light, the contention of the learned counsel for the petitioners is not having any force and hence the same is liable to be rejected.
24. As per Section 13 of the Amended Act, 2018 there is no complete omission of the said provision. As per Section 13(e) of the PC Act, 1988, if a Government servant, during his official tenure, is in possession of any income disproportionate to his known sources of income, the same is liable to be punished and as per the present amended Act of 2018, if he intentionally enriches himself illicitly during the period of office, then he is liable to be punished. There is no inconsistency in the provisions of earlier Act and the present Act. If the intention is looked into while passing the legislation it is intended to prevent such type of activities of amassing wealth. As earlier discussed, the intention of enactment has to be seen while application of substitution or repealing Act. In that light, if the entire
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object and intention is taken into consideration, then the contention of the learned counsel for the petitioners will not have any force and the same is liable to be rejected.
25. I have thoroughly gone through the decisions relied upon by the learned counsel for the petitioners. By giving my thoughtful consideration, I am not having any difference of opinion with regard to the law laid down in the said decisions. But the said principles are not applicable to the facts of the present case. If the intention of the legislation is taken into consideration, no legislation would intend to repeal an offence which has already been committed. If such an interpretation is given to the provisions of Section 13(e) and 19(1) of PC Act, it will have a devastating effect on the pending proceedings and it amounts to paving path to the accused persons who are retired public servants to sneak away from prosecution though they have committed serious offences. As such, the
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contention of the learned counsel for the petitioners is not sustainable in law.
26. Be that as it may, it is the contention of the learned counsel for the respondent that already charge has been framed and evidence has been recorded, under such circumstances, application under Sections 227 and 228 of Cr.P.C. is not sustainable. For the purpose of brevity, I quote Sections 227 and 228 of the Code of Criminal Procedure, 1973:
"227. Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
228. Framing of charge.-(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground
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for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
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27. On going through the said provisions it indicates that while framing charge the trial Court can look into the material produced by the prosecution by giving an opportunity to the accused to show that the said material was insufficient for the purpose of framing charge. If that stage has been passed, then the Court cannot go back to the earlier stage. If that procedure is followed it amounts to putting the cart before the horse. Once the charge is framed and accused has pleaded not guilty and trial has been commenced, the Court is required to proceed with the trial to its logical end. This question has also come up before the Hon'ble Apex Court in the case of Bharat Parikh quoted supra wherein at paragraph No.6, it has been observed as under:
"6. In rejecting the said application, the learned Special Judge relied primarily on the decision of this Court in Ratilal Bhanji Mithani v. State of Maharashtra [(1979) 2 SCC 179 : 1979 SCC (Cri) 405 : AIR 1979 SC 94] in which this Court had held that
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once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code of Criminal Procedure to cancel such charge and to discharge the accused. It was also observed that once charge has been framed and the accused pleads not guilty, the Magistrate is required to proceed with the trial to its logical end. In other words, once a charge is framed in a warrant case instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused. He can, thereafter, either acquit or convict the accused."
In that light also, at this stage, the application filed for discharge under Sections 227 and 228 of Cr.P.C. is not maintainable.
28. It is the contention of the learned counsel for the petitioners that by virtue of substitution the prosecution has to take sanction to prosecute the accused persons. The effect of substitution has come up before the Division
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Bench of this Court in the case of Govardhan M. quoted supra, wherein at paragraph Nos.17, 28 and 29 it has been observed as under:
"17. The Apex Court in the case of Shamrao V. Parulekar v. District Magistrate, Thana, Bombay [AIR 1952 SC 324 : 1952 Cri.
L.J. 1503 (SC)] , dealing with the interpretation to be placed on a substituted provision held as under:
"(7). The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. 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 (except where that would lead to a repugnancy, inconsistency or absurdity) 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".
18. xxx xxx xxx
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19. xxx xxx xxx
20. xxx xxx xxx
21. xxx xxx xxx
22. xxx xxx xxx
23. xxx xxx xxx
24. xxx xxx xxx
25. xxx xxx xxx
26. xxx xxx xxx
27. xxx xxx xxx
28. The word "substitute" ordinarily would mean "to put (one) in place of another"; or "to replace". In Black's Law Dictionary, Fifth Edition, at page 1281, the word "substitute" has been defined to mean "To put in the place of another person or thing" or "to exchange". In Collins English Dictionary, the word "substitute" has been defined to mean "to serve or cause to serve in place of another person or thing"; "to replace (an atom or group in a molecule) with (another atom or group)"; or "a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. Substitution thus combines repeal and fresh enactment. The substitution has the effect of just deleting the old rule and
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making the new rule 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. Whenever an amended Act has to be applied subsequent to the date of amendment, the various unamended provisions of the Act have to be read along with the amended provision" as though they are the part of it.
29. It is well-settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. The principle is also well- settled that statutes should not be construed so as to create new disabilities or obligations
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or impose new duties in respect of transactions which were complete at the time the Amending Act came into force. When the Legislature amends an existing provision in a statute by way of substitution, the effect is the substituted provision stands repealed and the amended provision is substituted in the place of earlier provision in the earlier Act, as if the substituted provision is there in the earlier act from the inception. By express provision or by implication if it is not made clear that it is prospective in nature the said amended provision comes into effect from the date of the earlier Act. But it is not an invariable Rule. If such an interpretation is given, if it leads to repugnancy, inconsistency or absurdity, then the said general rule is not followed. 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. If the amendment Act expressly states that the substituted provision shall come into force from the date the amendment comes into force, the said provision is prospective in
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nature. Then it is not open to the Court by way of interpretation to give retrospective effect to such provision. Ultimately to decide whether these provisions are prospective or retrospective, it is the intention of the legislature which is the sole guide. If the procedure adopted for amendment is substitution and in the Amended Act it is specifically stated that the substituted provisions come into effect from the date the amended Rules or Act came into force, the intention of the legislature is clear. On the pretext that it is the case of substitution, the effect cannot be given to that substituted provision from the date of the earlier statute. It has to be necessarily from the date the amended rules came into force."
29. The said ratio also makes it crystal clear that the rule of construction is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. If the amended Act expressly states that the substituted provision shall come into force from the date the amendment comes into force, the said
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provision is prospective in nature. In that light if Section 1 of the PC (Amendment) Act, 2018 is looked into, sub-clause (2) says that it shall come into force on such date as the Central Government may, by notification in the official gazette appoint and admittedly, the said notification has been issued vide Government Order dated 26.7.2018. As such, it is not open to the Court by way of interpretation to give retrospective effect to such provision. Once it is having a prospective effect, the contention of the learned counsel for the petitioners is not liable to be accepted. This issue has also been considered before the Hon'ble Apex Court in the case of Zile Singh quoted supra, wherein at paragraph No.13 it has been observed as under:
"13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing
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obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only -- "nova constitutio futuris formam imponere debet non praeteritis" -- a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at p.
438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid., p. 440)."
30. In catena of decisions it has been observed that where a repeal of provision of an enactment is followed by fresh legislation by an amending Act, such legislation is prospective in operation and does not affect substantive or vested rights of the parties unless it is made retrospective either expressly or by necessary intendment. This has also
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been observed by the Hon'ble Apex Court in the case of Shyam Sunder quoted supra wherein at paragraph No.28 it has been observed as under:
"28. From the aforesaid decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation, such legislation does not affect the substantive rights of the parties on the date of the suit or adjudication of the suit unless such a legislation is retrospective and a court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered because the rights of the parties in an appeal are determined under the law in force on the date of the suit. However, the position in law would be different in the matters which relate to procedural law but so far as substantive rights of parties are concerned, they remain unaffected by the amendment in the enactment. We are, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act, such legislation is prospective
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in operation and does not affect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statute and further a statute is not to be construed to have a greater retrospective operation than its language renders necessary, but an amending Act which affects the procedure is presumed to be retrospective, unless the amending Act provides otherwise. We have carefully looked into the new substituted Section 15 brought in the parent Act by the Amendment Act, 1995 but do not find it either expressly or by necessary implication retrospective in operation which may affect the rights of the parties on the date of adjudication of the suit and the same is required to be taken into consideration by the appellate court. In Shanti Devi v. Hukum Chand [(1996) 5 SCC 768] this Court had occasion to interpret the substituted Section 15 with which we are concerned and held that on a plain reading of Section 15, it is clear that it has been introduced prospectively
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and there is no question of such section affecting in any manner the judgment and decree passed in the suit for pre-emption affirmed by the High Court in the second appeal. We are respectfully in agreement with the view expressed in the said decision and hold that the substituted Section 15 in the absence of anything in it to show that it is retrospective, does not affect the right of the parties which accrued to them on the date of the suit or on the date of passing of the decree by the court of first instance. We are also of the view that the present appeals are unaffected by change in law insofar it related to determination of the substantive rights of the parties and the same are required to be decided in the light of the law of pre-emption as it existed on the date of passing of the decree."
31. Though during the course of arguments the learned counsel for the petitioners contended that when there is no law, the accused cannot be tried for a law which is not in existence. In that light, he has also submitted
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that Article 21 of the Constitution of India gives a right to the accused to have trial in accordance with law and there is violation of Article 21 of the Constitution. But as could be seen from the records, earlier the accused persons have been prosecuted under Section 13 of the PC Act, 1988 and in respect of the retired employees, as per the old law, no sanction was necessary and in respect of accused persons who were in service, sanction has been obtained and they have been charge sheeted and proceeded in accordance with law which was then existing. In that light, there is no question of violation of Article 21 of the Constitution of India.
32. It is contended by the learned counsel for the petitioners that by virtue of discharge, the accused persons are not given a clean chit, but they would be tried after obtaining fresh sanction in accordance with law as per the amended Act. But if that procedure is adopted, it will be leading to multiplicity of proceedings. Section 19 of the PC
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Act is admittedly a procedural law. If there is any procedural irregularity, it will not vitiate the proceedings. Insofar as Section 13 of the PC Act is concerned, if at all they are intending to be tried under the new enactment, they are exposing themselves to the new Law, which will again be violating fundamental rights principles of the Constitution that no accused shall be tried for an offence which is not in existence as on the day when the accused has committed the offence. In that light, the contention of the learned counsel for the petitioners/accused does not stand to any reason. At one stretch he contends that there is no law existing and at another stretch he contends that accused could be tried under the amended law. How the amended law is applicable to the old acts and omissions committed is not stated in the Amended Act. It is well settled proposition of law that which is not there it cannot be presumed, law has to be interpreted as it is with its object and intention. In that light if the entire enactment is looked into, it is not having any retrospective effect and the
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amended Act or substitution will not give any benefit to the petitioners/accused.
Taking into consideration the above said facts and circumstances, I am of the considered opinion that the petitioners/accused have not made any goods grounds to interfere with the order of the trial Court. The order of the trial Court deserves to be confirmed. Accordingly, petitions are disposed of being devoid of merits.
Consequently, I.A.No.1/2019 filed in all these petitions are disposed of.
Sd/-
JUDGE bkp