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G.P. Nayyar Versus State (Delhi Administration)

1978 (12) TMI 188 - SUPREME COURT

Criminal Appeal Nos. 274-275 of 1974 - Dated:- 14-12-1978 - KAILASAM, P.S., REDDY AND O. CHINNAPPA. R. K. Garg, V. J. Francis and D. K. Garg for the Appellant. Soli J. Sorabji, Addl. Sol. Genl., R. N. Sachthey for the Respondent. JUDGMENT: The Judgment of the Court was delivered by KAILASAM, J. These appeals are by special leave against the judgment of the High Court of Delhi in Criminal Appeal No. 78 of 1967 and Order dated 11th January, 1974 in Cr. Misc. (S.C.A.) No. 80 of 1973. The appellant .....

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ruption Act, 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 .....

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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 came into effect on 5-5-1967 reintroducing S. 5(3) in the Act w.e.f. 18-12-1964. In the High Court the appellant challenged the vires of Act No. 16 of 1967 on the ground that survival of section 5(3) of the Act and making it applicable retrospectively was void and unconstitutional as it wa .....

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nt a certificate of fitness for appeal to this Court. Mr. R. K. Garg, the learned counsel for the appellant, submitted that since section 5(3) of the Prevention of Corruption Act, 1947 was repealed on 18th December, 1964, the Courts below cannot take into account the provisions of section 5(3) of the Act after the date of its repeal on 18th December, 1964. It was further submitted that Act No. 16 of 1967 which gave retrospective operation to section 5(3) of the Act is violative of Arts. 14 and 2 .....

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ble under section 5(2) of the Act. Section 5(1)(a), and section 5(1)(d) and section 5(2) read as follows: "5. (1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Indian Penal Code. If he, by cor .....

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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 pr .....

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lows: "(e) if he or any person on his behalf is in possession or has at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income." Thus on the date when the Special Judge pronounced his order on 19th January, 1967 section 5(3) was not in existence and the Special Judge acquitted the appellant on the ground that the presumption under section .....

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nafter referred to as the 1964 Act); and (b) any judgment or order of any court, the said sub-section (3) as it stood immediately before the commencement of the 1964 Act shall apply and shall be deemed always to have applied to and in relation to trial of offences punishable under sub-section (2) of section 5 of the 1947 Act pending before any court immediately before such commencement as if no such new provisions had been substituted for the said sub section (3); (2) The accused person in any t .....

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judgment or order or sentence passed or made in any trial to which sub-section (1) applies is pending immediately before the commencement of this Act, or (ii) before which an appeal or application for revision against any judgment, 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 i .....

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cused 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 held by this Court in C.D.S. Swamy v. The State and in Surajpal Singh v. Stat .....

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t having been in existence at all. The view of Tindal C. J. that a repeal of the statute obliterated it completely from the records of Parliament as if it had never been passed was followed by Fazal Ali J. Mahajan J. speaking for the majority disagreed with the view holding that "it would be more consonant with reason and justice to say that the law existed and was good at the time when it was passed but that since the date of its repeal it has no longer any effect whatsoever." The vie .....

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tment so repealed; or affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any enactment so repealed; or affect any investigation, legal proceeding, or remedy in respect of any such right, privilege," obligation, liability, penalty, forfeiture or punishment as aforesaid." (Maxwell on The Interpretation of Statutes, 12th Ed., p.17). In India the General Clauses Act, 1897, contain similar provisions as in the Interpretation Act, 1889. Section .....

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t, 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, .....

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l not come under the provisions of section 6(b) of the General Clauses Act. Section 6(c) also preserves all legal proceedings and consequences of such proceedings as if the repealing Act had not been passed. In this view it is clear that whether Act 16 of 1967 had been brought into force on 20th June, 1967 or not the rule of evidence as incorporated in section 5(3) would be available regarding offences that were committed during the period before the repeal of section 5(3). Mr. R. K. Garg the le .....

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d under the law in force at the time of the commission of the offence." Article 20(1) deals with ex-post-facto laws though that expression has not been used in the Article. Usually, a law prescribes a rule of conduct by which persons ought to be governed in respect of their civil rights. Certain penalties are also imposed under the criminal law for breach of any law. Though a sovereign legislature has power to legislate retrospectively creation of an offence for an act which at the time of .....

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or his being subjected to a penalty under ex post facto laws. In Rao Shiv Bahadur Singh & Anr. v. The State of Vindhya Pradesh, the Court pointed out that "what is prohibited under Art. 20(1) is only conviction or sentence under an ex post facto law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a Court different from that which had competence at the time cannot ipso facto be held to be unconstitut .....

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