2018 Amendment To Prevention Of Corruption Act Has No Retrospective Effect: Delhi High Court

The Delhi High Court has held that the 2018 amendment to the Prevention of Corruption Act, does not apply to the offences which have already taken place.

"Prevention of Corruption (Amendment) Act, 2018 does not reveal any intention of destroying the earlier provisions and there is no intention to obliterate the earlier law", Justice Brijesh Sethi observed while rejecting the acquitted accused persons' plea in the 2G scam case alleging that the CBI's appeal in the matter was not duly filed as the requisite sanction was not obtained by the investigating body.

The court said that there is no impediment in hearing the criminal leave to appeal, since the offences in question are alleged to have been committed prior to the coming into force of Prevention of Corruption (Amendment) Act, 2018.

The accused had filed an application objecting to the maintainability of the appeal of the Central Bureau of Investigation against the acquittals in the 2G case contending that the appeal have become infructuous in view of the 2018 amendment to the Prevention of Corruption Act. 

One of the contentions raised by the accused was that the Section 6A of General Clauses Act -which speaks of continuity of prosecution under repealed laws with respect to offences which took place when it was in force- will not apply when the amendment is beneficial in nature. Referring to the provisions of Prevention of Corruption (Amendment) Act, 2018, the court said that there is no intention expressed that Section 6 of the General Clauses Act will not apply. The amending Act does not indicate that all pending proceedings or prosecutions undertaken under the unamended Act would lapse on coming into force of the amending Act, the court said.

"It is clear that even those rights which are not expressively saved by saving clause, continue to operate after enactment of new law and application of Section 6 of the General clauses Act cannot be ruled out even when there is repeal of an enactment followed by fresh legislation. Section 6 of the General clauses Act would be applicable in all such cases unless the new legislation manifests an intention incompatible with or contrary to the provisions of the Section. Thus, unless it is clearly manifested that the amending Act has destroyed or effaced the rights and liabilities under the old Act, the same cannot be inferred."

The 2018 Amendment Act had substituted Section 13(1)(d) of the principal Act. The accused were prosecuted under Section 13(1)(d) as it stood originally. Their contention was that after the substitution of Section 13(1)(d), the appeal of the CBI against the acquittal under the said section was not maintainable.

Another issue raised in this case was whether the amending Act has destroyed the rights and liabilities under the earlier Act or not. It noted that, in as Madhu Koda Vs. State through CBI, decided on 22nd May, 2020 has observed that the amendments in PC Act cannot be applied to the offences prior to the changes in the provisions of the Act. The court, in this regard, said:

"Perusal of the Prevention of Corruption (Amendment) Act, 2018 nowhere reveals that it had the intention of destroying the earlier provisions and it neither indicated any express or implied intention to completely obliterate the earlier law.

"In view of the Hon'ble Apex Court decision in State of Telangana (supra) and decision of Coordinate Bench of this Court in Madhu Koda (Supra), this Court is of the opinion that amending Act does not apply to the offences which have already taken place under the PC Act, 1988 and moreover, Prevention of Corruption (Amendment) Act, 2018 does not reveal any intention of destroying the earlier provisions and there is no intention to obliterate the earlier law, therefore, this Court is of the opinion that there is no impediment in hearing the criminal leave to appeal, since the offences in question are alleged to have been committed prior to the  coming into force of Prevention of Corruption (Amendment) Act, 2018."

CASE: CBI vs. A.Raja  [ Crl.L.P.185/2018 ]
CORAM: JUSTICE BRIJESH SETHI

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