2020 (5) TMI 740 - HC - Indian Laws

Illegal 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.

Summary

Issues Involved:
1. Whether the prosecution needed to establish that the appellant demanded illegal gratification for a conviction under Section 13(1)(d) of the Prevention of Corruption Act (PC Act).
2. Whether the appellant’s conviction should be overturned due to the amendments made to the PC Act in 2018.
3. Whether the conviction of the appellant should be stayed to allow him to contest elections.

Detailed Analysis:

1. Necessity of Demand for Illegal Gratification:
The court examined whether the prosecution needed to prove that the appellant demanded illegal gratification to secure a conviction under Section 13(1)(d) of the PC Act. The appellant argued that the absence of such a demand invalidated his conviction, citing Supreme Court decisions indicating that demand for illegal gratification is a sine qua non for offenses under Section 13(1)(d). However, the court clarified that the plain language of Section 13(1)(d) does not necessitate proving a demand for illegal gratification. The court distinguished between offenses under Section 7 of the PC Act, which explicitly involve demand or acceptance of illegal gratification, and standalone offenses under Section 13(1)(d). The court cited cases like Neera Yadav v. CBI and R. Venkatkrishnan v. CBI to support its position that a public servant could be convicted under Section 13(1)(d) without evidence of a demand for illegal gratification if the public servant abused his position to obtain a pecuniary advantage for himself or others without public interest.

2. Impact of the PC Act Amendments (2018):
The appellant contended that the amendments to the PC Act, which came into effect on July 26, 2018, should apply retrospectively, thus invalidating his conviction. The court examined the legislative intent behind the amendments and the doctrine of beneficial construction. It noted that the amendments aimed to align domestic laws with international practices and address concerns about the broad scope of the previous provisions. The court concluded that the amendments did not retrospectively absolve individuals convicted under the previous provisions of Section 13(1)(d). The court emphasized that the legislative intent was not to exclude offenses committed before the amendments from the scope of the PC Act. Therefore, the appellant could not benefit from the amendments to overturn his conviction.

3. Staying the Conviction:
The appellant sought a stay on his conviction to contest elections. The court considered the broader implications of staying a conviction, especially in the context of decriminalizing politics. The court referenced the Supreme Court’s position in cases like Navjot Singh Sidhu v. State of Punjab and K.C. Sareen v. CBI, which highlighted that staying a conviction should be an exception, not the rule, and should be exercised only in exceptional circumstances to prevent injustice and irreversible consequences. The court noted the increasing concern about criminalization in politics and the societal expectation for clean governance. Given the appellant’s conviction after a trial and the public interest in preventing individuals with criminal convictions from holding public office, the court decided against staying the conviction. The court emphasized that allowing the appellant to contest elections before his final acquittal would not be appropriate.

Conclusion:
The court dismissed the applications, upholding the appellant’s conviction under Section 13(1)(d) of the PC Act. The court found no merit in the argument that a demand for illegal gratification was necessary for the conviction or that the amendments to the PC Act should apply retrospectively to absolve the appellant. Additionally, the court declined to stay the conviction to enable the appellant to contest elections, considering the wider ramifications and the public interest in maintaining the integrity of the political process.