QUESTION OF RETROSPECTIVITY
By virtue of Section 19 of PC Act (Pre-amendment) Special Judge cannot take cognizance of the offence, under Section 7, 10, 11, 13 & 15 (Pre-amended Act) except with Previous Sanction. However, an exception existed to the effect that in case, the public servant is no more in employment, then Sanction was not required. However, now by virtue of Section 19 of PC Act (Post Amendment), in Section 19 (1) of the Principal Act, “Words & Figure 7, 10, 11, 13 & 15 had been substituted with Section 7, 11, 13, 15 and for the word in Clause (a) & (b) of Section 19(1) of Principal Act for the words “who is employed” had been substituted with words “who is employed or as the case may be was at the time of commission of the alleged offence employed”.
Significantly, Section 14 of the Prevention of Corruption (Amendment) Act, had substituted, the previously existing Section 19 (1) of the Principal Act, then the ordinary rule of interpretation, w.r.t. word “Substitution” would be as follows:-
- Language/ terminology which the legislature had used while inserting new provision is to the effect that the section /provision in the Principal Act stood substituted with the new section /provision.
- The word “substitute” ordinarily would mean “to put (one) in place of another”; or “to replace”. In Black’s Law Dictionary, 5th Edn., at p. 1281, the word “substitute” has been defined to mean “to put in the place of another person or thing”, or “to exchange”. In Collins English Dictionary, the word “substitute” has been defined to mean “to serve or cause to serve in place of another person or thing”; “to replace (an atom or group in a molecule) with (another atom or group)”; or “a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague”.
- The substitution of one text for the other pre-existing text is one of the known and well-recognised practices employed in legislative drafting. “Substitution” has to be distinguished from “supersession” or a mere repeal of an existing provision.
- Ordinarily wherever the word ‘substitute’ or ‘substitution’ is used by the legislature, it has the effect of deleting the old provision and make the new provision operative. 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. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all.
- It is not a Universal Rule that the word “Substitution” necessarily or always connotes two severable steps, that is to say, one of repeal and another of a fresh enactment even if it implies two steps. However, the aforesaid general meaning is to be given effect to, unless it is found that legislature intended otherwise.
Accordingly, Section 4 & 7 of Prevention of Corruption (Amendment) Act, 2018, which had amended Section 7, 8, 9 & 10; alongwith Section 13 respectively of Principal Act by substituting new Provisions in the corresponding Sections of the Principal Act, thus obliterating the erstwhile section of the Principal Act as if, they never existed on the Statute Book.
For instance it is interpreted that the substituted provisions of Prevention of Corruption Act would take effect only post 26.07.2018, then a presumption has to be drawn to the effect that the legislature had legislated in Prevention of Corruption (Amendment) Act, 2018 that the amendments being made would be operated only after the date of publication of the said Amendment Act in the Gazette. However, since there is no such averment in the Prevention of Corruption (Amendment) Act, 2018 and the language of the legislature is clear, therefore, treating the amendments only prospective in nature, would be fallacious.
Material Question of Law arises because Criminal Procedure Code, 1973 was amended by the Criminal Procedure Code Amendment Act, 1978 (45 of 1978) dated 18.12.1978 a number of times, however when an Amendment was carried out in Criminal Procedure Code, w.r.t. Section 428 of the Principal Act. The said amendment was given retrospective effect because there was nothing in the said clause which suggest either expressly or by necessary implication that the conviction and sentence which were subject matter of the said provision must be after coming into force the respective amendment.
Relevant Precedents
The Hon’ble Supreme Court in case titled Boucher Pierre Andre V. Superintendent, Central Jail held:-
“Para 2. The question which arises for determination in this petition is a narrow one and it rests on the true interpretation of Section 428. In this section confined in its application only to cases where a person is convicted after the coming into force of the new code of Criminal Procedure, or does it also embrace cases where a person has been convicted before but his sentence is still running at the date when the new CrPC came into force? It is only if the latter interpretation is accepted that the petitioner would be entitled to claim the benefit of the section and hence it becomes necessary to arrive at its proper construction. Section 428 reads as follows :
Where an accused person has, on conviction, been sentenced to imprisonment for a term, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.
Para 3. This section, on a plain natural construction of its language, posits for its applicability a fact situation which is described by the clause “where accused person has, on conviction, been sentenced to imprisonment for a term.” There is nothing in this clause which suggests, either expressly or by necessary implication that the conviction and sentence must be after the coming into force of the new Cr PC. The language of the clause is neutral. It does not refer to any particular point of time
Section 428 merely indicates a fact situation which must exist in order to attract the applicability of the section and this fact situation would be satisfied equally whether an accused person has been convicted and sentenced before or after the coming into force of the new CrPC. Even where an accused person has been convicted and sentenced prior to the coming into force of the new CrPC but his sentence is still running, it would not be inappropriate to say that the “accused person has, on conviction, been sentenced to imprisonment for a term”. Therefore, where an accused person has been convicted and he is still serving his sentence at the date when the new CrPC came into force, Section 428 would apply and he would be entitled to claim that the period of detention undergone by him during the investigation, inquiry or trial of the case should be set off against the term of imprisonment imposed on him and he should be required to undergo only the remainder of the terms of course, if the term of the sentence has already run out, no question of set off can arise. It is only where the sentence is still running that the section can operate to restrict the term. This construction of the section does not offend against the principle which requires that unless the legislative intend is clear and comulsive, no retrospective operation should be given to a statute On this interpretation, the section is not given any retrospective effect. It does not seek to set at nought the conviction already recorded against the accused person. The conviction remains intact and unaffected and so does the sentence already undergone. It is only the sentence, in so far as it yet remains to be undergone, that is reduced. The section operates prospectively on the sentence which yet remains to be served and curtails it by setting off the period of detention undergone by the accused person during the investigation, inquiry or trial of the case. Any argument based on the objection against giving retrospective operation is, therefore, irrelevant.
Para 6. ………….having regard to this object of Section 428, any differentiation can be made between a substantive sentence of imprisonment and a sentence of imprisonment in default of payment of fine. The nature of the mischief arising by reason of the accused person being made to suffer jail life “for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute” would be the same in the both cases and it is impossible to imagine that the legislature should have sought to remedy this mischief in one case and leave it untouched in the other. Therefore, even if two constructions of Section 428 were possible, we should adopt that which suppresses the mischief and advance the remedy and carries out the subject of the legislature as fully and effectually as possible.
We accordingly take the view that Section 428 applies not only in relation to a substantive sentence of imprisonment but also in relation to a sentence of imprisonment in default of payment of fine. The period for which an accused person has been detained during investigation, inquiry are trial of the case is liable to be set off not only against a term of substantive imprisonment but also against the term of imprisonment in default of payment of fine. The set off, however, does not absolve the accused person from the liability to pay the fine imposed on him. Section 421 of the new Code provides that even if the accused person has undergone the whole of the imprisonment in default of payment of fine, the Court passing the sentence can issue a warrant for the recovery of the fine if, for special reasons to be recorded in writing, it considers it necessary so to do or it has made an order for payment of expenses or compensation out of the fine under Section 357.”
Accordingly the legit inference that can be drawn from the aforesaid precedent is that Section 4 & 7 of Prevention of Corruption (Amendment) Act, 2018, which had amended Sections 7, 8, 9 & 10; alongwith Section 13 respectively of Principal Act by substituting new Provisions in the corresponding Sections of the Principal Act, thus obliterating the erstwhile section of the Principal Act as if, they never existed on the Statute Book.
Hence, in accordance with the Law of interpretation, the substituted provisions of Prevention of Corruption Act would take effect only post 26.07.2018 then a presumption has to be drawn to the effect that the legislature had legislated in Prevention of Corruption (Amendment) Act, 2018 that the amendments being made would be operated only after the date of publication of the said Amendment Act in the Gazette. Since, there is no such averment in the Prevention of Corruption (Amendment) Act, 2018 and the language of the legislature is clear, therefore, treating the amendments only prospective in nature, would be fallacious.
Further, Decision laid down by the Apex Court in Income Tax-I, Ahmedabad v. Gold Coin Health Food Pvt. Ltd., S. B. Bharracharjee v. S. D. Majumdar , Commissioner of Income Tax, Bombay v. M/s. Podar Cement Pvt. Ltd., Zile Singh v. State of Haryana and Union of India v. Sukumar Pyne analyses the Question of Law in detail.
It is a settled principle of law that when there is a dispute with regard to applicability of Act, whether retrospective or prospective, and when the provision is explanatory in nature or clarificatory in nature, the Court shall make an endeavour to interpret the provision keeping in mind the internal aids for construction/interpretation of any law or provision which brought into existence.
Parting Note
Assessment of such a pure Question of Law i.e. ‘Whether PC (Amendment) Act 2018 has Retrospective operation or is only Prospective in Nature’; goes to the root of jurisdiction of the Trial Court proceeding must be expedited for the interest of justice, more so because the issues relating to jurisdiction and application of the respective Penal Provisions of Prevention of Corruption Act, are dependent on such adjudication.
Further. it will not be out of place to mention herein that adjudication of such issues of law would not only save valuable Judicial time but also would facilitate a fair adjudication of the ‘lis’ involved in the concerned cases as if, the adjudication of this issue is being deferred for any reason and is adjudicated at a later stage, then one of the possibility would be a pure waste of judicial time.
Read Part 1 of this Article, Click here or visit: https://legaldesire.com/amendment-of-the-prevention-of-corruption-act-an-overview/
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
