Karnataka High Court
I.P Venkataramanappa S/O ... vs State Of Karnataka on 20 November, 2009
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 20"' DAY OF NOVEMBER zoos BEFORE THE HON'BLE MR.JUSTIClELJAWAD-«Ei:A2§i:lelVVI:liii.:: if CRL.R.P. No.3z3;2/2 oQ_;9w " T A BETWEEN: S if S I.P.Ven|<at aramanappa, S/0 Pattandurappa, V x Age: Major, Occ: Scientifst, ~_ R/0: No.70, Whitefielf Ma_in Road', " Bangaiore~560yD66. ' .. ...Petitioner (By Sri c.riy.;i' ad'iteay, AND: O' O' " O' V' O StatevofKargnaijalgayl - . By Central Bu.rea.u«of Investigation, S--PE;.A' . ' Gangenahaiii,' '_ Baiiigaltore. - ...R.espondent B SV.ri:Ray'i«svhankar, Advocate for 'As'h.ok- Harngahaili Associates) >i<>l<>i< "ibis petition is flied under Section 397 r/w. 401 *Cr.,P.C'; praying to set~aside the order dated 11.3.2009 g vpassed by the XXI Addi.City Civil & Sessions Judge and Special Judge for CB1 cases at Bangalore, in ?Spi.C.C.No.108/2003, thereby directing to frame charge for the offences punishable under Section 420 I.P.C. and 13(2) r/w. 13(1)(d) of Prevention of Corruption Act, 1988. This petition coming on for final disposal this day, the Court made the following; W ORDER
This petition under Section 397 Cr.P.C. ivsfbyagthe accused facing charge for offence punishable 13(1)(d) of Prevention of Corruption Act...(,heVreEn.afftei' short referred to as the 'Act') and also4,'ujjnder"fo'r.:anoffegncie punishable under Section: .420 No.108/2003 on the file Civil and Sessions Judge at Ban,g'alor:§, g_,_ee"'i{i_rig:discharge,
2. Hea.rc:'f:th..e leaVrn:edV:::Cou«nfseI Srv§«VlC.H.Jadhav for the petitioner; learned Counsel for the resp<:,fVndent;' ;[.'_., 35.
Before,'I,:'eld'v*e:rt'4to the grounds urged by both side--3-. agaiuns.i,:v'an.d for the prosecution, brief reference to
- ,tF1ie€'co.hAte§<t,uaI facts is necessary which are as follows:
..,a:)_gThepetitioner is appointed in the cadre of Junior Fi--tterV_v~M_eTchanic in National Aerospace Laboratories, , (ghereintafter for short referred to as 'N.A.L.') and worked in fthallt capacity and is still shown to be on the roll as such. .:%During the year 1983, suppressing his employment at i\£.A.L., he applied and secured the job as Inspector in Weights and Measures Department of the State of (3.9% Karnataka and continued to draw saiary admissibEe___to the post tiii 2003. During this period, say on 23.4.2QO_3f,f'~tVhe officers of the respondent-C.B.I. noticed5.:wth'e.'fcfrazid committed by the petitioner and_re_gister'e"d'suofmotto"
case and embarked on investigati4on;jD.uring' iAn:\iesti:gati'ic-.r_i, they found that the petition'eVr'wVhiEe"i'n service"in§._'?é.,,AV.|;. hadii' aiso secured appointment asf:V"'I.ns:3.ectoi-' ..i:n:fiWe}§ghts and Measures Departmenth'in' Karnataka and continued to draw post of Junior Fitter to the Inspector in To their dismay, it is atso 'secured further progression in career irfthe fiiainoaiore.
The in\;*esti_gation officer reached a iogicai end that ' Vpr-irna.¢faci'e._écase was made out against him for an offence H420 of I.P.C. and as such offence was corhmi"ttVedfiby him while in service in N.A.L.. Charge for Aoffehce" under Sections 13(2) and 13(1)(d) of the Act was also raised.
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c) When called upon to answer the charge, he seriously resisted raising several pleas against which core of contention is as follows:
i) The petitioner has not committed a.ri~~,{:"al_t:t.VVof deception or any act, which purview of Section 1_3....o_f_P.C."'A"ct,.'_jVTVh'ere.fore,'"» the charge for offence Siectiori 13(1)(d) of the'Ac't~..cannAo~t Vibe.
He also would VA,coVn'i:e_nd._,,thatiasy the alleged offence is"*t'ra.cea£é~le '4tof_t'he:._Vyear 1983, the pres'e,nt p:rovi'sionV'to,fSectio.n 71.3 of the Act was in the book of statute and iitherefore not be charged or tried for tVhe._.said offences.
He refers to the provisions of the Act of 1947, whvere similar provision was found in Section 5 of the repealed P.C. Act. In other words, his contention is that if at all there was such allegation, he could be charged only under provision Section 5 of the repealed provision of the Act of 1947 and not under the provisions of at 01 Section 13(1)(d) or Section 13(2) of Prevention of Corruption Act (as amended) in the year 1988.
iv) As regards charge for offence 420 of I.P.C. is concerned', he') had received salarvy the "vviorié Therefore, it do'es"'n.ot amount_to..Vi|i'eg<a.i..g~ain orf' cheating or fraud,.__._.w~._ '
4. Ali contentio'n_s iiireswistance from the prosecution, vw.h'o.__woufiivdflpointj"thatthe petitioner had obtainVedVi's'ai.a'ry and the amount for both the posts.vv"--Therefor:eV"his'act-...o17 receiving money suppressing the fact of V_his.,',em'pios/ment in i\l.A.i_., amounts to an offeincsg..deifined'un'<i'e'r the Penal Code. It is aiso pointed out 'tifi8a'tii»vsh>b:si:.ance content and the ingredients of the offence. Section 5 of the repeaied Act of 1947 is the same letter and spirit of provision Section 13 (1)(d) and S_ec"t:ion 13(2) of the amended provision of Prevention of ___Corruption Act, 1988.
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5. However the prosecution would contend that, even if we apply the provision of Section 6 of th'e'*S_'"eneral Clauses Act, 1897, the accused has no escape"
on the date, he is alleged to actux' complained of, it was an offence:"tho:'ug"h; Section 5 of the Act, and by»la:n*.~e_ndm'ent toVVthe"p_r'o'v~is'i:on oft Prevention of Corruption s'a.r.ne.offen.ce.v:§has been carved out as the of the Act with no change in the l_angi1ag:e to constitute the offence' salary has been received'"Yr.ihi'rnSV'1'%i<rT'iowiiiiit'w'e*ll:i.ithat he is not entitled to, it amounts to terms of Section 415 of I.P.C. which is "cl41ueating_'."u.'wfitseiéetore, it supports the prosecution launchpad against .tl__1__9 petitioner, A .t:o"~..whether allegations make out for charge 13(1)(d) or Section 13(2) of the Act is conce~r_ned, it shall not hold us long because the undisputed are that the petitioner is shown to be a permanent worker appointed in the cadre of Fitter Mechanic in l\i.A.i_. and has periodically been granted promotion and he is now designated as "Scientist". He has been on the roll W continuously and was also drawing the saiary payabie or admissible to the post. The finding of fact reached the investigation officer that he has also secured em'p.l_oy_rr:~ent as Inspector in Weights and Measures supported from the documentary_evi,dence"coi"ie.cte'd during' investigation and the fact that he:.'isifdra'wing :'is..aiso documented. Therefore, afte:r_V"securi'ng sucht'a'jo,b,v«.he--5could~ L' not have been on the roll ,,:,f:,heVA,,{.3vanted to continue in the have joined or taken his job4as,_.Inspect.or:: Athex" and Measures that he has been drawing the departments, which is a proof in "i'tseif.,th'at.'4Vrie"continued to receive monies by way of.»s,,aiVar*ies proc!a,irn_ing to be entitled to it which he was * VV7."AV"T?'Cne'at'ing" is defined under the provision Section 4135 as follows;
'A it "415. Cheating.-Whoever, by deceiving ' any person, fraudulently or dishonestly induces the persons so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely, cause damage or harm to that person mind, reputation or property is said to =2 Explanation: A dishonest: iconcea-irnein t. ' _ facts is a deception within theimeaningpiof Section". D I A if A
8. In the instant case_,...Vti~ae_ 'p.etitione.r,_,is_ei|ieged to have been receiving the department conceaiing the'fact""""of':: in other depart,ment..Viiiie-reforé',_:a"s 'per the explanation, dishonest conceairrient .ofV"facts 'deception within the meaning of th.eiSVec*tion and" arnounts to "cheating". By such deception, i ;he__ha_s_.'«rec,e'i'ved the salary and therefore, the department "--."decei.v--ed::"t This therefore falfs squarely within the de4finitViQn.'oif "cheating" defined under Section 415 of I.P.C. if Aiairidheii has no escape, but to face the charge.
9. The question is, whether the charge under Section S 13(1)(d) and 13(2) of the Act is made out. The provision Section deais with criminai misconduct by a public servant. 6%"/"
"Misconduct" is speited out in ciauses (a) to (e) of Section 13 of Prevention of Corruption Act, 1988, which.«j£'ea"ds"--,as fottows:
"13. Criminal misconductby at (1) A public servant is saidxto Vthe'-ofi'en§:e::,Qf criminal misconduct. -- _
(a) if he habitually accepts or obtains.,,or.3agrees to accept or e_ttempts;_ from any person for VhimselfJ'o.r_ person any gratification Qther'than_~~lega;i remuneration as a ,.- 0F':fl_'--?:W3rd has is mentioned in "V:SecE'ion }".9_ 'or"V_' ..
lfb)' if accepts or obtains or agrees to ' acceptor attempts to obtain for himself or for élarzygiother person, any valuable thing without ,.consideration or for a consideration which he :V"vi!%nows to be inadequate from any person he knows to have been, or to be, or to ' 5be 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 5/ 95»
(c) if he dishonestly or fraudulently misappropriates or otherwise converts7.for_V his own use any property entrusted...._fQ~ under his control as a public serarantior"iali'oiivs any other person so to...do_,f orj
(d) if he,- i ' "
(i) by corrupt oigiliegal n»§"eaAns;' for hims.elf.y»or fur. am,v~.':othe'r"'p'erson' any va,luable' nu thing ~ . or iipecuniary adiaantuei
(ii) by abuslngf hrisil§¢sit,:on as a public _ obta:insV'forVV'Vhimself or for any pe_i'son' valuable thing for V . aciyantage; or """ H fiii) holding office as a public ' . obtains for any person any valuable thing or pecuniary advantage without any public interest; or or any person on his behalf, is in if or has, at any time during the period of been in possession for which the public ~~ Vseryant cannot satisfactorily account, of pecuniary resources or property disporportionate 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 §V\,¢y 'H intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant".
From the extracted portion, it is noticed would be applicable to the nature of the all_e'gati'of_ri~sVf'rrfiadteu'V' against the petitioner because allpfub'l'ic,_vs*ervant"
have committed the offence of criminal by corrupt or illegal means ob'tsaihed pecu_ni"a.rfy afdvafntage.
10. In the instari_t"'~%<:as:'_e$, we"h.aai,e'--.noticedA that the act of petitioner su_ppressi,n_g'_VtheV__ffact'"'~of'fihjivsf" employment in N.A.La._;V isianr.f¢a d,ec.evpti_onVVVdefined under Section 415 I.P.C as ,f'chea"ti,nglf' by that act, he has drawn the salary from t.heS.stat'e lZ?ZS.<.chequer admissible to the post of
- ;_nSpae{:.tor"of'_Weigvhtsvand Measures, which post he was not :ent,iVtie,d:--«..tvo or to be appointed to. By drawing salary pa-yabl_e-tolrtihe post of Inspector in Weights and Measures ,Depar*trnent, he has obtained pecuniary advantage for ff'-..v"h~i.miself and that pecuniary advantage is result of V. ,.:suppressing the fact of his employment in N.A.L., which as referred to above was an act of deception, constitutes the offence of cheating. Charge of the said offence is certainly
12. tenable. Section 13(2) prescribes the punishment, which he would suffer for such conduct. Therefore, Section 13(2) undoubtedly applies.
11. The next question what is raised is with re,'g:j'a»rd to the prosecution of the petitioner for the offen.ce:'__'__u'ndVeer Section 13(1)(d) and Section 13(2) of the_A.ct'_:i~nvrelat,ion' the alleged offence committed th'_eyfe"a,,r coming into force of Preventivon of C*o_r'ruptioi»,§'Act, :198;8,'*by'g which provision Section 13 havstrbeen enfgrafftted.
12. In this reg'a--.rd:(,;-- sifi iearned Counsel for that before coming into force of Prevention,' of Act, 1988, the Prevention of Cortufption (Act II of 1947) was in force. Under .' the sasvid._A.ct',~«,misconduct no doubt was punishabie, but it err'§r~a_fted"" in the provision Section 5 of the Act. Th'eref'or.e',"'he submits that the effect of Section 5 of the 'A*ct_wa's not severe as of Section 13 of the Act in the 'AA'-matter relating to punishment. Therefore, Article 20 of the 3' "(Constitution of India would be attracted and as the petitioner could not be exposed to a punishment more éffiv than what was prescribed earlier when the offence was committed by him under the repealed provision S of the Act. In other words, it is contended.-A4't}*rat.,i:Vii's:'a't the charge has been raised, it CouldAbel'tonéliyrt-Vinntdeiflthle it relevant provision of Section of 1:947>'_'_Act Act.
13. This view fin':ds._ decision in the case of R.S.Ka/akapur lV/sit" fV>of"'i{ai;n'ataka reported in 1994 (3) Crinveis;-%i20 ifeliedfupoin learned Counsel Sri C.H.Jac3'l.ha\..r.'"jTl:h'e* in which this issue is dealt hereunder;.
Z7"/i' readino?j.".of"'-hath the Sections would _ indicate. th_at~~.the"a/iegations made against V the appellanttwould have attracted Section V QZ6_:1'I_.VP.C. But, it is difficult to accept the he _Vf'furthVerV'_fi.. contention of the learned High _C.ourti:: Government P/eader that no prejudice is caused to the accused as the "charge has not been framed under Section 161 I.P.C. The punishment prescribed for an offence under Section 161 I.P.C. is imprisonment of either description which may extend to 3 years or with fine, or with both. In the case of an offence under Section 7 of the Act of 1988, the offender is iiable to be punished with imprisonmenti._:"a._ which shall not be less than six and which may extend to five .
also liable to fine. Sections»? is p_lacéd:'ovnV"a higher pedestal than that :_oif'gSecti.o!i'1«61 .'
1.p.<:. Section 7 or the Actlof 1988: while ' enhancing the period""of pdnishn*re_"ntVV"to""5 years, stipulates that 'o.ffendei"«sifiall7be compulsorily"«imprisoned i'oi'v.a"'period of not less than sixAV¢rnonths.Vl «*tnVe'A-instant case, this of by the la.-ar,1_ect,. Judge sentencing the "acc;isedV 'frfimprisonment for a period of" :"?years;s..'_'vThe. offence for which a 'person'«.'is,"soiight. to be convicted must h,a%v'e be_en._in..:_force at the time when the act"'with' which he is charged was alleged to__ havewibeen committed. A person the_re--.{'ore cannot be convicted for an act 'V l was not an offence when that act . was committed. Section 7 of the Act of A1' 1988 was not in force at the time the 9% '€' appellant-accused is alleged to have demanded and accepted illegal gratification. Contravention of a provision relating to fundamental right cannot be condoned. The trial held against the 15"
appellant, therefore, is opposed to Article 20(1) of the Constitution and because of this fundamental defect, the whole trial is vitiated. In such a situation, the only out is to order retrial invoking "
of the Cr.P.C. '
14. For clarity, this issue~:,'ha's=.t)een_' comparative study of thel__'i*e|evanvtprov'E.sio{ns~..."In Prevention of corruption Act_,___'i'9_4_Fi~»,_v was no doubt made an offense... It §.w,as"'iptiniishabie under the provision of Section 5-'oithte thus:
.... _ "~V?§5'."*{§rini--ina.i_'miscon.duct--(1) A public se.+vant'iis said to commit the offence of
--. * criminal..miscon'duct' " V, ('a) If.he.jh.abitu'aii'y accepts or obtains or "agrees .toy,a'cc_ept or attempts to obtain from any person for himself or for any other' person, any gratification (other titan legal remuneration) as a motive or 'reward such as is mentioned in section "15*1_of the Indian Penal Code, 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 to the person so concerned, or
(c) if he dishonestly, or,éfraudulentlytx" , misappropriates or otherwise, 'converts.
for his own use any property' entrusted ~ to him or under his control=--as a,.p-public"
servant or allo ws 'a.n'y~..other" peisor:;so~._,to~ do, or
(d) if he, by 't:orrupt_or illegal means or by otherwise' 'ab.usin;,v ivhisposition as a public servant, "obtains foi=.hi'ms._eif or for any o"th__er person ;anyj'v_aiual;jle' thing or pe.{:'uni;a.iy advantage; or?' = kg) or aam,«s¢;son onhis behalf is in ,.possessi_o.n ~ori._has,~--a.t~any time during period, of his office, been in '--possesfsion,,vforwhich the public servant * 'V cannot ' vsa'tisfaCtorily _ account, of "pecuniaryg " resources or property disproportionate to his known sources of incomevii, ttttt _ (2) Any public servant who ._f-.__coin,mits criminal misconduct * * * shall ' Vb-e,",Ipunishable with imprisonment for a ~ _term which shall not be less than one year but which may extend to seven A1' 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, (3) Whoever habitually commits-
3\%/ is a subordinate, or from any person wh0n_1=..__"«._" _ he knows to be interested in or relateaf , ' 17-
(i) an offence punishable under Section 162 or Section 163 of the Indian Penal Code, or
(ii) an offence punishable under Section 164A of the Indian Penal Code_._ ' . ' V. Shall be punishable with imprison.men't5§"*--- 'V' ' for a term which shall not be less-.thajn~.. I"
one year but which may.,,extend"'toseena years, and shall also be Iiabieto. fina.:_'' « . ' Provided that the co4u._rt"may, forgarny V' special reasons" _recorded in writing., impose a sentence».,of. impriso_nn1ent'1.,of less than one year,_f'__ 5 (3) In any trial"an.oiffencewjpunishable under sub section (2) the fact th.at'_theV._a¢cu'sed'person or any other person on ;~rh;'sg:.,fbeha_lf gis~' in» possession, for which the accusedt'per;3onV':cann'ot"'satisfactorily account, of pecuniary resources orbithpropeérty:"disproportionate to his known sourcesxof»incom'e.:'may._"be proved, an on such proof the Coju.-ft nnshali presumie, unless the contrary is proved, that accused perso-n*'is guilty of criminal misconduct in the ' ;Vdisch.arge«..,of his official duty and his conviction therefore ._ shh_all"'r:ot.,.be;'in'valid by reason only that is based solely on such presumption.
* _('+"i) Notwithstanding anything contained in the Code If of,_Criminal Procedure, 1898 (v of 1898), a police officer below the rank of Deputy Superintendent of Police shall not investigate any offence punishable under subsection (2) without the order of a Magistrate of the first class or make any arrest therefor without a warrant".
14. The offence defined under Section 5 in the repealed provisions of P.C. Act of 1947 is now a,n'r'o_ii'etnce under Section 13 of Prevention of Corruptio_n""Aci;t__j,,jitV'§8:S,_ which reads thus:
"13. Criminal misconiductbyl -uupubiic 's=e'rvan;t..b--
(1) A public servant is, said totcommitgkflfie"offenceiof crimial misconduct. ~ (8) if he habituaih/_ 'a.,ccepts~ or t§btai'ns or agrees to -'_ac«;:ept.._ " 'attempts to obtain from any person.--'«foi5;hin:>self or for any vother persoi1,jtany..gratification other than 5;:le_ga!:rern,unerafiion as' a motive or re ward V' mentioned in Section 7; or if4V7he»:_hiabitually accepts or obtains or
--degrees to accept or attempts to obtain Vforbhimself or for any other person, any valuable thing without consideration or W 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 19 he is subordinate, or from any person whom he knows to be interested..,_4iin._ or related to the person so concer*ned,§__i'o7r_.__ if
(c) if he dishonestly .or'=.:_raudulently"
misappropriatesg or gojtherwisre '' ~co.nve;ts for his own use"an'y_'property-entrus~ted--_g to him or under his ._control "a_s"'a~ public" V servant or allows any other person so to
(d) irhe/% _
(i)_:by_ corrupt':1o.r_:'illegal means, obtains for for g;:her"person any valuable
-advantage; or """ - hisposition as a public servant, ' or for any other person any if valuable.'Ati'1ii1'g"fo'r pecuniary advantage; or 'while'- holding office as a public servant, _ A obtains~~--fo'r any person any valuable thing or '«p'ec_uniary advantage without any public interest; or (_e)~ he or any person on his behalf, is in possession or has, at any time during the period of A' 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 applicaib.lei.to a public servant".
(2) Any public servant who 2 misconduct shall be punishable' for a term which shall be not less than-._,one«.ye«ai~<. which may extend to seven y'ea,rswanrl shaii'..aiso be ' liable to fine".
:5. The offence"'def-aneg s'e--et:'oe:n-its of the repealed Act i'.j"i'SWe"{Z'€i.l£;)iriI' 1§5o'f the_:Act o'f"19"€:38. But it is necessary to notiQé'*._At'h,et' of punishment, Section 5 pres_cribed~.. 'anyservant who commits criminal shail'v--b-e"punishable with imprisonment for a vtehrm not be less than one year but which may years and also liable to fine, provided that the Courtmay have the special reasons recorded in writing "eh .impose the sentence of imprisonment of less than 1 year.'
16. In the provision Section 13(2) of the Act, the punishment prescribed is, 'any public servant who commits 8W 'Z1 misconduct shall be punished with imprisonment for not less than 1 year which may extend to 7 years and also be liable to fine. '
17. The difference is, the proviso which wasy.-part of Section 5- has been omitted whiie recasting the.A.provis:ionv..of Section 13, consequent to which the imposing punishment of less tha:n'''1'year7._presc'i¥ibeVd'tinder ' Section 5 (Section 13(2) of away and on proof of gui|Vt,'--v.,tfh'e, offender..,wi,IER'ha'Ve'Vito be sentenced to minimum..perioo"'of:'one__year,é "there being no discretion"i'o?f,the:'§, to i'n5b'ose sentence of less than one year. * V .18. Vt.her'efore, satisfied that as far as the trial 'or'.-.petitionerxisv concerned, though the aiiegations Vmiakes out a case for "misconduct", but the 'ounishmenitAiprescribed in Section 5 of the repealed provi'sioan of P.C. Act of 1947 wouid appiy, and the benefit the accused wouid have had under the provision of ___Section 5. Hence, Section 6 of Generai Clauses Act, 1897, wouid be attracted. It reads thus:
.\~*'f "6. Effect of repeal.-- Where this Act, or any Central Act of Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then' a different intention appears, the repeal _s*h.:all'Ano.'t--~..T ' _
(a) revive anything notin"'force for the ' j time at which the rep-ealjtalanes'effect; 7:]
(b) affect the previo'us"~opera'tion' 'anVy;vVe'nactment' A so repeales or anfthing duly 'idoneggyvor suffered thereunder}-or , * V
(c) affect anyright, p,-iyiiege, olahligation or liability acq}'}iiired,V°--gaccrued. or"'-in'curred under any A ' *ienactment'so repealed; or (dl l,affect"".an:y:'investigation, legal proceeding of A" remedy in respect of any such right, privilege, obligauion, liability, penalty, forfeiture or = punishment as aforesaid;
an'c'l5I_ahy such investigation, legal proceedings or a 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".
arjlu
19. Therefore, by virtue of Section 6 of General Clauses Act, 1897, the punishment that was presca='it:)e.d,:'«for. such misconduct, shown as punishment under.SectioVn"s-'S"lof"'s "
the repealed provision, which vwas-.4ben'efi.cial'I,',,t.ov4.'_the'-., if accused, would certainly continue to be lappli'Cabie,,a.nd_:'i1.ovt=. the stringency of the punishme_n't~V..presAc'ribed.by, SeV'c'tion: 13 S' of the repealed provisiongof
20. In the result, urged in the revision that for a charge punishable unci"e_r of Section 5 of Prevention--rofTCorr'upjtionfact, far as the charge for miscond"'uct'~ with the provision of repealed en'actment._to._the}'extent which will be applicable the.§,,,,~nvaAttevr of "p-un_i_s_h:nent. As far as the charge for the "'._,off;e'nce u_nd,er._Se_ction 420 of I.P.C., the material placed by the ,p'rosecu--t'i,jon',i=is sufficient. x _ 2i.-jin conclusion, it has to be observed that we find A ,rth.at~.th1e overtacts alleged to have been committed by the '[email protected] make out a strong case against him for a charge 'runder Section 420 of I.P.C. and it also would constitute misconduct as defined under Section 5 of the provisions of Prevention of Corruption Act, 1947 and now re----engrafted in Section 13(1)(d) of the Prevention of Corruption Act, 1988.
22. The order passed by the iearned therefore, upheld to the extent inciicated _~ab*oQ:eV.:a'n:d'--tt.e' charge framed by the iearnedi.__tri:a£fJiJ'id.oe' accordingiy re~casted, applyinjgsectiion 211 _:and it is further made ciear that -.Vre--castin:gj of} charge would not amount to aiteré:ti'o'n o;r'aod_iLtviorit of the charge. With this oi3servati'on,. t'he'*pée:t_itio'nVis'tiieposed of. Sdl-3 Judge Ets*.