Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code r/w Section 27 of Prevention of Corruption Act, 1988 to set aside the judgment dated 27.09.2018 passed in Special C.C. No. 8 of 2005 on the file of the Special Judge/Chief Judicial Magistrate/Assistant Sessions Judge for Prevention of Corruption Act Cases, Ramanathapuram.
The Judgment of the Court was delivered by
G. Jayachandran, J.:— This Criminal Appeal is directed against the judgment passed by the Special Judge/Chief Judicial Magistrate, Ramanathapuram in Spl.C.C. No. 8 of 2005. The charge against the accused is that while A1 was serving as Tahsildhar and A2 as Village Administrative Assistant in Rameshwaram, A1 demanded a sum of Rs. 5,000/- (Rupees Five Thousand only) as illegal gratification or as a reward for allowing one Karrupiah to run his fish pond. Later, A1 through A2 received Rs. 3000/- from Karrupiah. A trap was laid based on the complaint given by Karrupiah. The trial Court after examining 22 witnesses and 48 exhibits filed on behalf of the prosecution, besides 8 material objects, has found both A1 and A2 guilty. However, while convicting them, the Court below has taken note of the latest development in the law and has applied the amended provisions in the Prevention of Corruption Act (PC Act), 2018 which came into force on 26.07.2018.
2. While the charges were framed under Section 7 and 13(1)(d) r/w 13(2) of PC Act, 1988, the Court below has applied the new amended provisions and sentenced the accused persons under the Amended Act XVI of 2018. While doing so, since Section 13(1)(a) and 13(1)(b) has been repealed under the New Act and the provisions of Section 13 has been renumbered, the Court below has acquitted both the accused from charge under Section 13(1)(d) r/w 13(2) of PC Act, 1988. Also, while sentencing for the offence under Section 7 of the PC Act, the Court below has taken note of the amendments brought under Section 7 of PC Act. While the accused/appellant have raised several issues on facts, he has also pointed out the illegality in the impugned order for applying the amended provisions for the alleged act committed prior to the amendment.
3. This Court on pursuing the records is fully convinced that the matter has to be remanded for fresh consideration by the trial Court. Before concluding, this Court is bound to point out that as per the facts of this case, the demand for illegal gratification by the first accused was on 18.09.2004. Pursuant to the first demand, there was negotiation between the bribe taker and the de facto complainant. Ultimately on 24.09.2004, the first accused has received Rs. 3,000/- from the de facto complainant through the second accused. Based on the above said facts, charge under Section 7 and 13(1)(d) r/w 13(2) of PC Act, 1988 was framed against the accused/appellant and they were tried by the trial Court for these offences. While so, the trial Court having held that prosecution has proved the demand and acceptance of illegal gratification as well as the recovery of tainted money from A2, had misapplied the amended provision which has come into force on 26.07.2018 much after the date of occurrence.
4. In this respect, the learned Additional Public Prosecutor would submit that when Prevention of Corruption Act, 1947 was repealed by Act 49 of 1988 under Section 30, the repealed provisions got saved. The sub Section (2) of section 30 had categorically saved all the actions done or taken or perpetuated to have been done or taken under the Repealed Act, in so far as it is not inconsistent with the provisions of the New Act. It shall be deemed to be done in pursuance to the corresponding provisions of this Act. The learned Additional Public Prosecutor also relies on Section 6 of the General Clauses Act which deals with the effect of repeal.
5. Any penal provisions repealed will not affect the pending investigation, Legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, unless different intentions appears. In support of his submissions, the learned Public Prosecutor would submit that the judgment rendered by the Hon'ble Supreme Court in Jagan M. Seshadri v. State of Tamil Nadu reported in (2002) 9 SCC 639, wherein a similar issue under the Prevention of Corruption Act 1947 and 1988, came for discussion, the Hon'ble Supreme Court has held as below:—
“7. A bare reading of Section 30(2) the 1988 Act shows that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act, 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 provisions of the Act. It does not substitute Section 13 in place of Section 5 of the 1947 Act. Section 30(2) applicable “without prejudice to the application of Section 6 the General Clauses Act, 1897”. In our opinion, the application of Section 13 of the 1988 Act to the fact situation of the present case would offend Section 6_of the General Clauses Act, which, inter alia provides that repeal shall not (i) affect previous operation of any enactment so repealed or anything duly done or suffered thereunder or (ii) affect any investigation legal proceedings or remedy in respect of any such rights, privilege, obligation, penalty, forfeiture of punishment. Section 13 both in the matter of punishment as also by the addition of the explanation to Section 13(1)(e) is materially different from Section 5 the 1947 Act. The presumption permitted to be raised under the explanation to Section 13(1)(e) not available to be raised under Section 5(1)(e) of the 1947 Act. This difference can have a material bearing on the case.”
6. Therefore, referring the amended provisions of Prevention of Corruption Act and the General Clauses Act, in the light of Section 30 clause (2), the non-abstante clause saving the old provisions without prejudice to the application of Section 6 of General Clauses Act, the learned Additional Public Prosecutor would fairly concede that the trial Court has erred in applying the new provisions for an Act to the case committed and tried under the old provision of the PC Act.
7. The learned Additional Public Prosecutor would also make a conscious and cautious submission that the amended Act, though come into force only on 26.07.2018, three provisions of the new law will have effect on the pending matters and had pointed out the following:—
(i) Section 4 - Sub Section 4:
“(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the trial of an offence shall be held, as far as practicable, on day-to-day basis andan endeavour shall be made to ensure that the said trial is concluded within a period of two years:
Provided that where the trial is not concluded within the said period, the special Judge shall record the reasons for not having done so:
Provided further that the said period may be extended by such further period, for reasons to be recorded in writing but not exceeding six months at a time; so, however, that the said period together with such extended period shall not exceed ordinarily four years in aggregate.”
8. A reading of sub section 4 of Section 4 of PC Act as amended by 16 of 2018, prescribes the time limit to complete the trial. Also it indicates that as far as possible, the trial for an offence under PC Act should be done on a day-to-day basis.
(ii) Sections 18(A):
ATTACHMENT AND FORFEITURE OF PROPERTY
“(1) Save as otherwise provided under the Prevention of Money Laundering Act, 2002, the provisions of the Criminal Law Amendment Ordinance, 1944 shall, as far as may be, apply to the attachment, administration of attached property and execution of order of attachment or confiscation of money or property procured by means of an offence under this Act. (2) For the purposes of this Act, the provisions of the Criminal Law Amendment Ordinance, 1944 shall have effect, subject to the modification that the references to “District Judge” shall be construed as references to “Special Judge”.
9. Section 18(a) is in respect of attachment and forfeiture of the property and the application of provisions of criminal law ordinances 1944. The amendment brought in the provisions of Money Laundering Act, 2002 by including offences under the provisions of PC Act.
(iii) Section 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.
(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 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 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 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 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:
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, prescribe such guidelines as it considers necessary.”
10. According to the Additional Public Prosecutor only these three provisions, will be applicable to the pending trial and all other provisions of the amended act will have only prospective effect.
11. This Court after considering the submissions made by the learned counsel for the appellant as well as the learned Public prosecutor consider that this matter has to be remanded back since the trial Court has applied amended provisisons of the Act for the offences committed prior to amendments.
12. Therefore, the judgment dated 27.09.2018 passed in Special C.C. No. 8 of 2005 on the file of the Special Judge/Chief Judicial Magistrate/Assistant Sessions Judge for Prevention of Corruption Act Cases, Ramanathapuram is set aside and remanded back to the trial Court for fresh apprisal of the evidence and to pass judgment after hearing the parties concerned.
13. Since the Chief Judicial Magistrate, Ramanathapuram has already applied his mind and passed this order, it would not be appropriate to remand the matter back to him for fresh consideration. Therefore, the Special Court for Prevention of Corruption Act situated at Sivagangai shall take up the matter and decide on merits.
14. Registry is directed to inform the Chief Judicial Magistrate, Ramanathapuram to send the records to the Chief Judicial Magistrate, Sivagangai. The Chief Judicial Magistrate, Ramanathapuram is directed to forward the records forthwith not later than 20 November 2018. The Chief Judicial Magistrate, Special Court for PC Act, Sivagangai is directed to hear the submissions of the parties and pronounce judgment within 30 days from the date of the receipt of the records.
15. With these observations and directions, this Criminal Appeal is disposed of. Consequently, connected Crl.M.P. (MD) No. 8712 of 2018 is closed.