TMI Blog1978 (12) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... 1947. He was also charged for the offence punishable under section 5(2) read with section 5(1) (a) of the Prevention of Corruption Act that in pursuance of the aforesaid conspiracy, he, during the period from 1955 to 1961 habitually accepted illegal gratification from the said two co-accused persons. The Special Judge who tried the case acquitted the appellant by his order dated 19th January, 1967 holding that neither the charge of conspiracy nor any other charge against the accused was proved. But the Special Judge held that the assets of the appellant from 1st July, 1955 to 30th April, 1961 had exceeded his income by ₹ 33,588.34 and they were disproportionate to the known sources of income of the petitioner. The learned Judge, however, found that as section 5(3) of the Act had been repealed on 18th December, 1964 and as specific instances of payment of bribe to the petitioner could not be proved the accused could not be held guilty of the charges. Aggrieved by the decision, the State preferred an appeal to the Delhi High Court on 11th April, 1967. Pending 819 the appeal before the High Court, Act No. 16 of 1967, received the assent of the President on 20th June 1967 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other person any valuable thing or pecuniary advantage. 5 (2) Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the Court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year. Section 5(2) provides for the punishment of any public servant who commits criminal misconduct as specified in clauses (a) and (d) of section 5(1). Section 5(3) prescribed a rule of evidence which runs as follows: 5. (3) In any trial of an offence punishable under sub-section (2), the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and as such proof of the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment, order or sentence passed or made before the commencement of this Act in any such trial, is filed after such commencement shall remand the case for trial in conformity with the provisions of this section. The contention of the learned counsel for the appellant is that Act No. 16 of 1967 is an ex-post-facto legislation creating a new offence retrospectively. We will first consider the effect of repeal of section 5(3) of the Prevention of Corruption Act, Act 2 of 1947. The nature of section 5(3) has been considered by this Court in several decisions. In Sajjan Singh v. The State of Punjab this court referring to the sub822 section held that the sub-section provided an additional mode of proving an offence punishable under sub-section 5(2) for which an accused person is being tried. This Court negatived the contention that section 5(3) created a new kind of offence of criminal misconduct by a public servant in the discharge of his official duty. It held that the section merely prescribed a rule of evidence for the purpose of proving the offence of criminal misconduct as defined in section 5(1) for which an accused person is already on trial. The court followed the view hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. Section 6 provides that the repeal shall not affect the previous operation of any enactment so repealed unless a different intention appears. The operation of all the provisions of the Prevention of Corruption Act would continue in so far as the offences that were committed when section 5(3) was in force. The offences that were committed after the date of the repeal will not come under the provisions of section 6(b) of the Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular Court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved. Thus the appellant cannot object to a procedure different from what obtained at the time of the commission of the offence. The offence that was committed was when section 5(3) was in force and by Act 16 of 1967 the procedure is revived. It is not as if the procedure is brought into force for the first time. Where an Act is repealed and the repealing enactment is then repealed by another, which manifests no intention that the original Act shall continue repealed, the common law rule was that the repeal of the second Act revived the first ab initio. Maxwell on the Interpretation of Statutes, There can be no objection in law to the revival of the procedure which was in force at the time when the offence was committed. The effect of the amendment is that sub-section (3) of section 5 as it stood before the commencement of 1964 Act shall apply and shall be deemed to have always appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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