PC (Amendment) Act 2018: Retrospective or Prospective – Part 1

LATEST POSITION OF LAW

Hon’ble Supreme Court in the Case of State Of Telangana vs Managipet @ Mangipet Sarveshwar[1] upholding the decision of the High Court observed that “The question as to whether a sanction is necessary to prosecute the Accused Officer, a retired public servant, is a question which can be examined during the course of the trial as held by this Court in K. Kalimuthu v. State by DSP [2].”

        It was further observed that, “In the present case, the FIR was registered on 9th November, 2011 much before the Act was amended in the year 2018. Whether any offence has been committed or not has to be examined in the light of the provisions of the statute as it existed prior to the amendment carried out on 26^th July, 2018.”

          Karnataka High Court while dismissing a petition filed by a retired engineer who was prosecuted for possessing assets disproportionate to his known source of income, held that the amendments made to the Prevention of Corruption Act, 1988, making it mandatory to take prior sanctions, both to conduct investigation as well as prosecution, of even retired public servants is “prospective” in nature. It was further stated that a statute, which not only changes the procedure but also creates new rights and liabilities, shall be construed to be prospective in operation unless otherwise provided either expressly or by necessary implication. A careful reading of Section 17A as also Section 19, do not contain any express provision to show that they are retrospective in nature nor it is discernible by application.

             Pointing out that apex court had laid down that anti-corruption law has to be interpreted in such a fashion as to strengthen fight against corruption and where two constructions are eminently reasonable, the courts have to accept the one that seeks to eradicate corruption, the court said.

AMENDMENTS IN THE PREVENTION OF CORRUPTION ACT: AN OVERVIEW

A bare reading of the Provisions of the Prevention of Corruption (Amendment) Act, 2018, noticeable distinctive features emerge, listing a few:-

1. Some Sections of the Principal Act stands omitted e.g. Section 11 (w.r.t “or agrees to accept”); Section 24 of Principal Act etc.
2. Some Insertions in Words, Brackets, Letters and Figures are introduced e.g. Section 2, Section 19 (Clause C) of the Principal Act.
3. Some Sections stands Substituted e.g. Section 4 (4); Section 7, 8, 9 & 10; Section 11 (marginal heading and words); Section 12; Section 13; Section 14; Section 15 (words, bracket and letter); Section 16 (words, bracket and letter); Section 17 (words, bracket and letter); Section 19 (words & figures); Section 20; Section 23 (marginal heading, word, figures, brackets and letter) of the Principal Act.
4. Some Sections /Chapters which were not in existence in the Principal Act are inserted e.g. after Section 17 of Principal Act, Section 17A has been inserted; after Chapter IV of the Principal Act, Chapter IVA has been inserted; after Section 29 of the Principal Act, Section 29A has been inserted.

         Interestingly vide Prevention of Corruption (Amendment) Act, dated 26.07.2018, there is no amendment in Sections 3, 5, 6, 18, 21, 22, 25 to 28, 30 & 31 of the Principal Act. The corresponding Sections of the Principal Act, provides with the following:-

Section 30 of PC Act (both pre-amended and post-amended) provides as follows:-

30. Repeal and saving.—

1. The Prevention of Corruption Act, 1947 (2 of1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed.
2. Notwithstanding such repeal, but without prejudice to the application of section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act.

              Accordingly, this provision does not save the repealed/omitted or substituted provisions of Prevention of Corruption Act, 1988 (Pre-amended) because the essence of amendment is directly in-consistent with the substituted provisions of previously existent PC Act.

           Further, Section 31 of PC Act (both pre-amended and post-amended) provides as follows:-

31. Omission of certain sections of Act 45 of 1860.—Sections 161 to 165A (both inclusive) of the Indian Penal Code, 1860 (45 of 1860) shall be omitted, and section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply to such omission as if the said sections had been repealed by a Central Act.

              Accordingly, this provision does not save the repealed/ omitted or substituted provisions of Prevention of Corruption Act, 1988 (Pre-amended). Ra ther, specific reference to Section 6 of General Clauses Act, 1897 (10 of 97), specifically deals with the omissions only related to the acts and provisions, which were repealed i.e. Section 161 to 165A of IPC only and thus even the General Clauses Act does not save the provisions of Pre-Amended Act /Principal Act which stood either Omitted explicitly or the provisions, which got Omitted by the process Substitution.

AMENDMENT AND ITS ANOMALIES

With plethora of court cases wherein the competent court has summoned the accused persons under the Principal Act i.e. the Act which was in force uptill 25.07.2018, but stands amended w.e.f. 26.07.2018 has led to numerous anomaly. Primarily because the Prevention of Corruption Act is a Special Act and its provisions would prevail and will have an overriding effect on the general law.

          Accordingly, though under the general law, the cognizance is taken under Section 190 Cr.P.C. by a Magistrate, but in view of Section 3 of PC Act, the judicial officer competent to be appointed as Special Judge, would be a Session Judge or Addl. Session Judge or Assistant Session Judge under the Code of Criminal Procedure.

            Further, as per Section 4 of the Prevention of Corruption Act, the trial of the offences under PC Act, prescribed under Section 3 (1) shall be done by the Special Judges only, prescribed under Section 3 (2) of PC Act.

             Prevention of Corruption (Amendment) Act, 2018, does not explicitly specify as to whether the Amended Provisions would have a retrospective effect i.e. presumed to be effected from 9^th Sept. 1988, i.e. the day when the Principal Act was notified or in alternative, the Amended Provisions would be operated from the day, the notification of Prevention of Corruption (Amendment) Act, 2018 was published.

            Creation of a rider is a beneficial provision for those persons who ceases to be Public Servant, as on the day when the indulgence of the court is sought for taking cognizance and it is a settled rule of law that benefit of beneficial provision would always be given retrospectively.

           Reference to this effect, can be safely made to Section 428 of Cr.P.C. wherein the benefit of period of Pre-trial custody is provided to the accused irrespective of the fact as to whether the said pre-trial custody was in the same case or in a different case.

[1] (2019) SCC online SC 1559

[2] (2005) 4 SCC 512

Author:

Advocate Mr. Harsh K. Sharma

With 32 years of Standing at the bar, he is the Founder of Prosoll Law Inc. 

He is a Standing Counsel for Bar Council of India and has been the Ex-Member of Special Committee of Bar Council of Delhi