TMI Blog2020 (5) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned Special Judge convicting the appellant of the offence of criminal misconduct under 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 (hereafter 'PC Act'), be stayed. 2. The appellant desires to contest for election to public offices, including contest elections for the Legislative Assembly of the State of Jharkhand but is disqualified to do so on account of his conviction. The appellant states that he was elected as a member 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant and Sh. Vijay Joshi. He contended that thus, the allegations of any conspiracy must fail. 7. Mr. R.S. Cheema, learned senior counsel appearing for CBI countered the aforesaid submissions. He stated that the provisions of Section 13(1)(d) of the PC did not necessarily require establishing that any illegal gratification had been demanded or paid to the public servant. He relied upon the decisions of Supreme Court in Neera Yadav v. CBI: (2017) 8 SCC 757; C.K. Jaffer Shareiff v. State (2013) 1 SCC 205; R. Venkatkrishnan vs. CBI: (2009) 11 SCC 737; and State 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 2010 were not placed under any category and, therefore, were ineligible for being recommended for allocation of any coal block. 16. It is stated that based on the said criteria, VISUL was ineligible for being recommended for allocation of any coal block. Therefore, Ministry of Steel also did not recommend allocation of any coal block in favour of VISUL. 17. Prior to May 2008, the State Government of Jharkhand was not considering VISUL's application favorably for recommendation. But in the month of May 2008, the ownership of M/s. VISUL changed hands from the Tulsyan family to one 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 Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , - xxxx xxxx xxxx xxxx (d) if he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. 26. 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. 27. Mr. Bhandari had rested his contention on the strength of certain decisions rendered by the Supreme Court. In B. Jayar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict Inspector of Police and Anr. (supra), 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 relevant extract of the said decision is set out below: 20. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence Under Section 7 as well as 13(1)(d)(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 off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndering or attempting to render any service or disservice to any person, would be punishable for committing an offence under the said section. In other words, Section 7 of the PC Act refers to an offence of demanding or obtaining illegal gratification. In all the cases referred to on behalf of the appellant, the accused were charged with the offence of demanding/accepting illegal gratification. In addition, the accused were also charged with the offence under Section 13(1)(d) of the PC Act in conjunction with the offence under Section 7 of the PC Act. Clearly, in order to establish the offence in such cases, it would be necessary for 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms. Neera Yadav had made a request for allotment of a plot in any of developed sectors through conversion. The allotment of the plot bearing no. B 002, which was allotted in Sector 32, was converted to an allotment of a plot in Sector 14A Noida comprising of an area of 415 square meters (Plot No. 26). It was further alleged that after conversion of the plot, the Chief Architect Planner of Noida had put up a note on the directions of Smt. Neera Yadav for proposing a revision in the layout plan of Plot Nos. 26, 27 and 28 in Sector 14A, by increasing their size from 450 square meters to 562 square meters, 525 square meters and 487.5 square meters 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 allot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention that it is necessary for the prosecution to establish a demand for illegal gratification for sustaining the allegation of an offence under Section 13(1)(d) of the PC Act as in force prior to 26th July 2018, is without merit. 37. Having stated the above, it is also necessary to observe that mere arbitrary or unreasonable exercise of official power to confer any benefit or pecuniary advantage to an unconnected party, may be not be sufficient to impute that the exercise of such power is culpable misconduct under sub-clause (ii) of clause (d) of sub-section (1) of Section 13 of the PC Act. First of all, it would be necessary for the prosecution 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to him or any property under his control as a public servant or allows any other person so to do; or (b) if he intentionally enriches himself illicitly during the period of his office. Explanation 1.--A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for. Explanation 2.--The expression known sources of income means income received from any lawful sources. . (2) Any public 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offending act had ceased to be an offence. It is settled law that an ex post facto legislation, which enhances the punishment for an offence and creates a new offence, cannot be applied retrospectively as the same would violate Article 20(1) of the Constitution of India. However, an ex post facto law that mitigates the rigors of law, does not foul fall of Article 20(1) of the Constitution of India. There is no reason to restrict the retrospective operation of such an enactment, which reduces the rigors of the law. In view of the aforesaid principles, the Supreme Court held that merely because the Central Amendment Act had not expressly repealed the West Bengal Amendment Act, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court emphasized the distinction between supersession of a rule and substitution of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. 46. The Statement of Objects and Reasons of the Prevention of Corruption (Amendment) Bill, 2013 makes it clear that the said Bill was introduced pursuant to India's ratification of the United Nations Convention against Corruption (UNCAC) in May 2011, judicial pronouncements, and the need to bring domestic laws in line with international practices. The Statement of Objects and Reasons reads as under:- The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstituting Section 13 by enacting the PC (Amendment) Act, 2018 was to exclude the act of any public servant obtaining any valuable thing or pecuniary advantage for any person, without any public interest as an offence of criminal misconduct. 49. It is relevant to note that PC Act was enacted, inter alia, to make the then existing anti corruption laws more effective by widening their coverage and strengthening the provisions. It was enacted to consolidate and amend the law relating to prevention of corruption and for matters related thereto. The Prevention of Corruption Act, 1947 did not include any offence of the nature as specified under Section 13(1)(d)(iii) of the PC Act. It does 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, noneth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him. 56. 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. 57. In the light of the above, the principal question to be examined is whether the conviction of the appellant is liable to be stayed. The power of a court to stay a conviction has been considered by the Supreme Court in several decisions. In Navjot Singh Sidhu v. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he damage done cannot be undone; the disqualification incurred by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay or suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company. 5. The aforesaid view has recently been reiterated and followed by another Three Judge Bench in Ravi Kant S. Patil 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s be taken for decriminalization of politics. A large number of persons with criminal antecedents or who are charged with heinous crimes stand for and are elected to Legislative Assemblies and the Parliament. This has been a matter of some concern. In Public Interest Foundation and Ors. v. Union of India and Ors. (2019) 3 SCC 224, the Supreme Court had observed as under: 2. The constitutional functionaries, who have taken the pledge to uphold the constitutional principles, are charged with the responsibility to ensure that the existing political framework does not get tainted with the evil of corruption. However, despite this heavy mandate prescribed by our Constitution, our Indian democracy, which is the world'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 considere ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
