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TMI Blog2020 (5) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... ber of Bihar Legislative Assembly for the first time in the year 2000. On 15.11.2000, the State of Jharkhand was carved out from the erstwhile State of Bihar. The appellant held the office of the Minister of the State for Rural Engineering Organization thereafter and continued to do so till the year 2003. It is stated that thereafter, he held the office of Minister of Panchayati Raj of Special Arrangement. The appellant successfully contested the elections for the Legislative Assembly in the year 2005 and in September 2006 was appointed the Chief Minister of the State of Jharkhand. He continued to hold the said office till 23.08.2008. 3. The appellant has been convicted by the impugned order in a case captioned "CBI v. M/s. Vini Iron and Steel Udyog Limited and Ors. "arising from FIR No. RC 219 2012 E 0012. The Trial Court found that the appellant had abused his position as a public servant in order to obtain the allocation of Rajhara Coal Block in favour of M/s. Vini Iron and Steel Udyog Limited (hereafter 'VISUL'), without any public interest. Submissions 4. Mr. Abhimanyu Bhandari, learned counsel appearing for the appellant advanced contentions on, essentially, three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rajasthan vs. Fatehkaran Mehdu: (2017) 3 SCC 198. 8. He briefly narrated the facts as found by learned Trial Court and submitted that the same clearly establish that VISUL had been favoured with allocation of the Coal Block at the instance of the appellant. He also countered the submission that the benefit of PC Amendment Act, 2018 could be extended to the appellant. He referred to Section 6(d) of the General Clauses Act, 1897 (hereafter 'the General Clauses Act') and contended that since the appellant had been convicted prior to the PC Amendment Act, 2018 coming into force, the benefit of the same could not be extended to the appellant. 9. Next, he submitted that this was a case of conspiracy and the facts of the case clearly established that the appellant was complicit in the offence notwithstanding that his connection with Vijay Joshi had not been irrefutably established. 10. Lastly, he submitted that whilst at the interim stage, the sentence awarded to a convict can be suspended on the basis of a prima facie view; his conviction cannot be stayed without considering the wider ramifications. He referred to the decisions in KC Sareen vs. CBI 2001(6) SCC 584; CBI v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Vijay Joshi, who is alleged to be a close associate of the appellant. And, with the change in the shareholding of VISUL, its fortunes also changed for the better. 18. All applications pertaining to steel and cement sector were considered by the 36th Screening Committee headed by the Secretary, Ministry of Coal, Government of India at its meetings held on 07.12.2007, 08.12.2007, 07.02.2008, 08.02.2008 and on 03.07.2008. The said Committee made the final recommendations in its meeting held on 03.07.2008. 19. On 02.07.2008, Shri. B.K. Bhattacharya-who was a Section Officer with the Department of Mines, State Government of Jharkhand-prepared a note stating that the performance of M/s. Zoom Vallabh Steel Ltd was not satisfactory but the progress of VISUL was, and therefore VISUL be recommended for allocation of the Rajhara Coal Block. 20. It is stated that one of the co-accused, A.K. Basu, the then Chief Secretary, Government of Jharkhand attended the final meeting of the 36th Screening Committee held on 03.07.2008 as a representative of the State, Government of Jharkhand. And, despite being aware that VISUL was not recommended for allocation of a coal block, he allegedly insisted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 27. Mr. Bhandari had rested his contention on the strength of certain decisions rendered by the Supreme Court. In B. Jayaraj (supra), the Supreme Court had observed as under: "7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the prosecution to establish that the accused had demanded or had obtained illegal gratification either himself or by any other person as the same is necessary for securing a conviction of an offence under Section 7 of the PC Act. 32. Apart from criminal misconduct being in conjunction of demand for illegal gratification, an offence under Section 13(1)(d) of the PC Act could also be established as a standalone offence. In Neera Yadav v. CBI (supra), the Supreme Court had examined the provisions of Section 13 of the PC Act as then in force and had explained the ingredients necessary for commission of the said offence. Paragraphs 16 and 17 of the said decision are relevant and are set out below: "16. Section 13 of the PC Act in general lays down that if a public servant, by corrupt or illegal means or otherwise abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage, he would be guilty of "criminal misconduct". Sub-section (2) of Section 13 speaks of the punishment for such misconduct. Section 13(1)(d) read with Section 13(2) of the PC Act lays down the essentials and punishment respectively for the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s respectively. Smt. Neera Yadav approved the same to her benefit. It was alleged that by a subsequent change in the plan, a 7.5 meter wide road was carved out to the east of plot no. 26, which also resulted in benefiting her. In addition to the above, the prosecution established that Smt. Neera Yadav had abused her position in securing allotments of two plots in favour of her daughters. Both her daughters were allotted shops in Noida and on the basis of such allotment, they had applied for allotment of residential plots, which were also allotted to them. Since the allegations against Ms. Neera Yadav were established, she was convicted for criminal misconduct under Section 13(1)(d) of the PC Act read with Section 13(2) of the PC Act. She was sentenced to undergo rigorous imprisonment for a period of three years with the fine of ` 1,00,000/-. The Allahabad High Court upheld her conviction. Ms. Neera Yadav appealed to the Supreme Court. The Supreme Court upheld her conviction but reduced her prison sentence from three years to two years. In this case, there was no question of any demand for illegal gratification as Ms. Neera Yadav had abused her position as a public servant for secur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to establish that the public servant had abused his official position; that is, used it for wrongdoing and for a purpose he ought not to have. Secondly, the same was for securing a valuable thing or pecuniary advantage for himself or for any other person, without any public interest. Obviously, if the third person, who has acquired a valuable thing or pecuniary advantage, is unconnected with the public servant, it would be difficult to accept that the conduct of the public servant is culpable in terms of Sub-clause (ii) of clause (d) of Subsection (1) of Section 13 of the PC Act. 38. 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". 39. Mens rea, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine." 43. In T. Barai (supra), the question, which fell for consideration before the Supreme Court, related to the applicability of Section 16A of the Prevention of Food Adulteration Act, 1954 as inserted by the Prevention of Food Adulteration (Amendment) Act, 1976 (referred to as 'the Central Amendment Act') in relation to the prosecution that was launched under Section 16(1)(a) as applicable in the State of West Bengal between the period 29.04.1974 to 01.04.1976. The offences in question were punishable with imprisonment for life and therefore triable by the Court of Sessions by virtue of the Act as amended by Prevention of Adulteration of Food, Drugs and Cosmetics (West Bengal Amendment) Act, 1973. The Division Bench of the Calcutta High Court held that by virtue of the Prevention of Food Adulteration (Amendment) Act, 1976 (Central Act)-which came into force on 01.04.1976-all pending proceedings for trial of offences punishable under Section 16(1)(a) of the Act as amended by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it could not be said that the former was not retrospective in its operation. The Supreme Court found that the legislation had substituted the scheme and, therefore, the Act as amended by the West Bengal Amendment Act stood repealed. The Court was also of the view that the intention of the legislature was to do so with retrospective effect. It is material to note that one of the reasons that persuaded the Supreme Court to take the said view was the fact that the Central Amendment Act was in respect of the same offence that was earlier punishable under Section 16(1)(a) of the Act. 45. 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. In Zile Singh v. State of Haryana & Ors.: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Prevention of Corruption Act, 1988 provides for prevention of corruption and for matters connected therewith. The ratification by India of the United Nations Convention Against Corruption, the international practice on treatment of the offence of bribery and corruption and judicial pronouncements have necessitated a review of the existing provisions of the Act and the need to amend it so as to fill in the gaps in description and coverage of the offence of bribery so as to bring with it in line with the current international practice and also to meet more effectively, the country's obligations under the aforesaid convention." 47. The said Bill was introduced in the Rajya Sabha on 19.08.2013 and was referred to the Department related Standing Committee on Personnel, Public Grievances, Law and Justice which presented its 69th Report on the Bill to the Parliament on 06.02.2014. The Law Commission also submitted a Report (254th Report) expressing its views on the amendments. The Select Committee of Rajya Sabha on Prevention of Corruption (Amendment) Bill, 2013 was constituted on 11.12.2015 to examine the Bill and the amendments proposed by Government and the members and to submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appear that the said provision was introduced only for the purpose of expanding the scope and coverage of the law relating to prevention of corruption. Thus, for the first time, an act/conduct resulting in a pecuniary advantage to a third party was held culpable, as a species of corruption, merely because such an act or conduct was without public interest. 50. There were serious concerns expressed that decisions which did not involve any mens rea or any guilty intention or knowledge could, nonetheless, be considered as offences under the PC Act. Some stakeholders also expressed the view that such an interpretation would make public servants reluctant to make any decisions involving grant of any advantage to any third party. 51. It is apparent that said concerns were addressed by substituting Section 13 of the PC Act. The enactment of the PC (Amendment) Act, 2018 to substitute the provisions of Section 13 does indicate the legislative intent to exclude any such act, which was construed as criminal misconduct only for the reason that the conduct was against public interest. 52. Since the PC Amendment Act addressed the concerns regarding Sub-clause (iii) of Section 13(1)(d) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . State of Punjab (2007) 2 SCC 574, the Supreme Court had summarized the legal position as under: "4. Before proceeding further it may be seen whether there is any provision which may enable the Court to suspend the order of conviction as normally what is suspended is the execution of the sentence. Subsection (1) of Section 389 says that pending any appeal by a convicted person, the appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. This Sub-section confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction. This question has been examined in considerable detail by a Three Judge Bench of this Court in Rama Narang v. Ramesh Narang & Ors. (1995) 2 SCC 513 and Ahmadi, C.J., speaking for the Court, held as under (para 19 of the reports):- "19. That takes us to the question whether the scope of Section 389 (1) of the Code extends to conferring power on the Appellate Court to stay the opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Sarvabhouma S. Bagali: JT 2006 (1) SC 578. After referring to the decisions on the issue, viz., State of Tamil Nadu v. A. Jaganathan (1996) 5 SCC 329, K.C. Sareen v. C.B.I., Chandigarh (2001) 6 SCC 584, B.R. Kapur v. State of T.N. & Anr. (2001) 7 SCC 231 and State of Maharashtra v. Gajanan & Anr. (2003) 12 SCC 432, this Court concluded (para 12.5 of the report): "16.5. All these decisions, while recognizing the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences." The Court also observed:- "11. It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non- existent, but only non-operative." 6. The legal position is, therefore, clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s largest democracy, has seen a steady increase in the level of criminalization that has been creeping into the Indian polity. This unsettlingly increasing trend of criminalization of politics, to which our country has been a witness, tends to disrupt the constitutional ethos and strikes at the very root of our democratic form of government by making our citizenry suffer at the hands of those who are nothing but a liability to our country." 61. The Court considered the plea of the petitioner in that case to disqualify persons who were charged with heinous offences to contest elections to public offices. The Law Commission, in its 244th Report, had also recommended that a person against whom the charges have been framed be disqualified from standing for elections. 62. The Supreme Court in Public Interest Foundation v. Union of India (supra), had extensively referred to the recommendations of the Law Commission and, after noting various decisions, had observed as under: "118. We have issued the aforesaid directions with immense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. A time has come that the Parliament must make law to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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