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2020 (5) TMI 740 - HC - Indian LawsIllegal gratification - Criminal misconduct - sub-clauses (ii) and (iii) of clause (d) of sub-section (1) of section 13 read with sub-section (2) of section 13 of the Prevention of Corruption Act, 1988 - whether it was necessary for the prosecution to establish that the appellant had demanded illegal gratification, for securing the appellant's conviction for committing an offence under section 13(1)(d) of the PC Act? - HELD THAT:- A plain reading of sub clause (ii) and sub-clause (iii) of clause (d) sub-section (1) of section 13 of the PC Act indicates that a public servant would commit an offence of criminal misconduct if he, by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. A plain reading of the sub-clauses of clause (d) of section 13(1) of the PC Act do not indicate that a demand of illegal gratification is a necessary ingredient of the offence of criminal misconduct. Thus, there is no reason to read-in such a condition in the said sub-clauses. In P. Satyanarayana Murthy v. District Inspector of Police and Anr. [2015 (9) TMI 1666 - SUPREME COURT], the Supreme Court reiterated that the proof of demand of an illegal gratification is the gravamen of an offence under section 7 and sub-clauses (i) and (ii) of section 13(1)(d) of the PC Act. The legislative intent is not to punish a public servant for any erroneous decision; but to punish him for corruption. The preamble of the PC Act indicates that it was enacted "to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith." Thus, to fall within the four corners of Sub-clause (ii) of clause (d) of Sub-section (1) of Section 13 of the PC Act, the decision/conduct of the public servant must be dishonest amounting to corruption. Transparency International defines corruption as\"the abuse of entrusted power for private gain" - Mens rea, the intention and/or knowledge of wrongdoing, is an essential condition of the offence of criminal misconduct under Section 13(1)(d)(ii) of the PC Act. Section 20 of the PC Act does not apply to offences under Section 13(1)(d) of the PC Act and therefore, mens rea cannot be presumed. It is, thus, necessary for the prosecution to establish the same. Whether the appellant is liable to be acquitted in view of the enactment of the PC (Amendment) Act, 2018? - HELD THAT:- The provisions of Section 13 of the PC Act were substituted by virtue of the PC (Amendment) Act, 2018. It is well settled that the effect of substitution of a statutory provision by another is that the earlier provision is repealed and is replaced by the provisions so enacted. The provisions existing prior to the substitution cease to exist and the provisions enacted in substitution of the earlier provisions replace the earlier ones. Subject to any savings provision, the effect would be to write down the substituted provision in the Act as originally enacted. 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 - In the present case, the contention on behalf of the appellant is that the prosecution had failed to establish any relationship between Sh. Vijay Joshi and the appellant and, therefore, the appellant is liable to be acquitted is a matter of evaluating the evidence. Whilst the contention advanced by the appellant is prima facie merited, this Court does not consider it apposite to consider this aspect in any detail at this stage. Clearly, if the wider opinion is that persons charged with crimes ought to be disqualified from contesting elections to public offices, it would not be apposite for this Court to stay the appellant's conviction to overcome the disqualification incurred by him. It would not be apposite to facilitate the appellant to contest elections for any public office, till he is finally acquitted - Application dismissed.
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