The Delhi High Court on Friday held that the Prevention of Corruption (Amendment) Act, 2018, so far as it substitutes Section 13(1)(d) of the principal Act, does not operate in a retrospective manner.
The bench of Justice Vibhu Bakhru has held that the purpose for introducing the amendment was to ensure that the actions of a public servant that may appear to be against public interest but do not involve mens rea, are not construed as criminal misconduct. However he clarified that there was no requirement to give retrospective application to the Amendment Act as even the unamended provision entailed an element of "abuse".
Section 13(1)(d) of the Prevention of Corruption Act, 1988 originally stated,
"A public servant is said to commit the offence of criminal misconduct,- (d) if he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest."
The interpretation of this provision, Justice Bakhru acknowledged, encompassed the risk that decisions which did not involve any mens rea or guilty intention or knowledge on part of the public servant could nonetheless be considered as offences under the PC Act.
In this backdrop he said, the Amendment Act was introduced which modifies the language of the provision to emphasize on the elements of "dishonesty" and "illicit intentional enrichment".
"There were serious concerns expressed that decisions which did not involve any mens rea or any guilty intention or knowledge could, nonetheless, be considered as offences under the PC Act. Some stakeholders also expressed the view that such an interpretation would make public servants reluctant to make any decisions involving grant of any advantage to any third party.
It is apparent that said concerns were addressed by substituting Section 13 of the PC Act. The enactment of the PC (Amendment) Act, 2018 to substitute the provisions of Section 13 does indicate the legislative intent to exclude any such act, which was construed as criminal misconduct only for the reason that the conduct was against public interest," Justice Bakhru held.
Be that as it may, the bench further stated that the very concept of corruption includes an element of dishonesty and abuse of power by a public servant and thus, there was no requirement to substitute Section 13(1)(d), as it stood originally, retrospectively.
"This Court is unable to accept that the PC (Amendment) Act, 2018 seeks to repeal the provisions of Section 13(1)(d) of the Act, as it existed prior to 26.07.2018 ab initio. Mens rea is an integral part of the offence under Sub-clause (ii) of Section 13(1)(d) of the PC Act. The use of the word 'abuse' in the said Subclause indicates so. Thus, there is no reason to assume that the legislative intent of repealing Section 13 of the PC Act was to exclude the said offence from the scope of PC Act with retrospective effect," the bench held.
"In view of the above, Section 6(d) of the General Clauses Act is applicable and persons convicted of committing the offence of criminal misconduct under Section 13(1)(d) of the PC Act would not be absolved of their offences or the liability incurred prior to the PC Act coming into force. It is also relevant to note that the offence of criminal misconduct as falling under the provisions of Section 13(1)(d) of the PC Act prior to its amendment, is not the same offence as is now covered under the amended provision.
In view of the above, this Court is unable to accept that if it is established beyond reasonable doubt that the appellant had abused his position for securing a pecuniary advantage to VISUL, the benefit of any beneficial construction of the PC (Amendment) Act, 2018 could be extended to him", the Court added.
The Court made these observations while hearing an application filed by Madhu Koda, former Jharkhand Chief Minister, seeking stay of conviction in the coal scam case.
The observations have been made in a criminal appeal seeking quashing of the order of a Special Judge, whereby the Appellant was convicted for having abused his position as a public servant in order to obtain the allocation of Rajhara Coal Block in favour of M/s Vini Iron and Steel Udyog Limited, without any public interest.
The Appellant had argued that the PC Act was amended with effect from 26th July 2018 and the provisions of Section 13(1)(d) stood deleted by virtue of the PC Amendment Act, 2018. He thus argued that the allegations leveled against him no longer constituted an offence and, therefore, he was entitled to be acquitted by virtue of the doctrine of "beneficial construction".
Dispelling this argument, the court held that Section 6(d) of the General Clauses Act is applicable and persons convicted of committing the offence of criminal misconduct under Section 13(1)(d) of the PC Act would not be absolved of their offences or the liability incurred prior to the PC Act coming into force.
Illegal gratification not a sine qua non
The Appellant had also contended that there is neither any allegation nor any evidence to establish, that the appellant had demanded any illegal gratification, which is sine qua non of an offence under Section 13(1)(d) of the PC Act.
Rejecting this argument, the court observed that a plain reading of the provision does not indicate that a demand of illegal gratification is a necessary ingredient of the offence of criminal misconduct.
Justice Bakhru clarified that the a bare perusal of the precedents cited by the Appellant indicated that in all those cases, charges against the accused were also framed under Section 7 of the PC Act.
In view of the above, the court dismissed the appeal.
Case Title: Madhu Koda v. State through CBI
Case No.: Crl. A. No. 1186/2017
Quorum: Justice Vibhu Bakhru
Appearance: Advocates Abhimanyu Bhandari, Gauri Rishi, Srishti Juneja, Aashima Singhal and Vinay Prakash (for Petitioner); Sr. Advocate RS Cheema with Advocates Tarannum Cheema, Smrithi Suresh, Hiral Gupta and Akshay Nayarajan (for Respondent)