[2G Case]: "Whatever Is Not A Crime At The Time, Cannot Be Made An Offence", Submits Atmaram Nadkarni Before Delhi HC

A Bench of Justice Brijesh Sethi heard the arguments submitted by Senior Advocates Atmaram Nadkarni, N. Hariharan and Advocate Vijay Aggarwal.

Nadkarni commenced his submissions by stating that Section 13(1)(d) of the Prevention of Corruption Act had been amended and substituted with another Section. Consequently, by an Order dated 21.12.2017, the accused had been acquitted and there was no relation between the prosecutor and the accused.

"In July 2018, the Section is amended. This becomes relevant because though I'm not a public servant, I've been charged with conspiracy. The CBI started the investigation in January 2020, but they haven't referred to the amendment", submitted Nadkarni.

He then went on to refer to two maxims of criminal law – "Whatever is not a crime, cannot be made an offence" and "A person cannot be touched if that is not a crime on that date".

"For instance, if I'm smoking and there is no law against it, then you cannot say at a later date that I have committed a crime".

Nadkarni then submitted that there were no pending proceedings and the only pending thing was the leave to appeal, and an application to leave to appeal did not come under pending proceedings.

"My prayer is that a) this very point is pending before the Division Bench. Therefore, the matter should be referred to the DB. B) The validity of the amendment is pending before the Supreme Court. c) For arguendo purposes, my submissions would be on merits of the Application".

Nadkarni then argued that, on account of the fact that there are similar matters pending before the DB, and therefore, the instant matter should be stayed till the DB does not hear the matter.

With regard to the Amendment Act, Nadkarni submitted, "There is no Repeal and Saving Clause. You may note that the intention of the Legislature is evident from the provisions of the Act. They had in their wisdom chosen to not provide for something that they usually provide in others. It's not like they were not aware. They were aware of the pending proceedings and prosecutions".

Nadkarni referred to Section 6 of the General Clauses Act to buttress his submission.

Senior Advocate N. Hariharan informed the Court that he would be adopting the arguments of Nadkarni.

Advocate Vijay Aggarwal also made his submissions post which the Court decided that the matter would be heard tomorrow.