10/20/2020 Benefit Of Amendment In Section 13 Prevention Of Corruption Act 1988 As Amended By The Prevention Of Corruption (Amendment) A…
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Bene t Of Amendment In Section 13
Prevention Of Corruption Act 1988 As Amended
By The Prevention Of Corruption (Amendment)
Act 2018 Can Be Extended To Pending Cases
Anuj Chauhan 31 March 2020 5:26 PM
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The Prevention of Corruption Act 1988 (PC Act 1988) was amended by The Prevention of
Corruption (Amendment) Act 2018 (Amendment Act of 2018) vide which the amendment
to section 13 of the PC Act 1988 was introduced by substituting the text of Section 13(1)
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10/20/2020 Benefit Of Amendment In Section 13 Prevention Of Corruption Act 1988 As Amended By The Prevention Of Corruption (Amendment) A…
with a new de nition for the offence of criminal misconduct. The amendment has taken
away the rigour of criminal law by incorporating the guilty intention as a necessary
ingredient to attract the offence of criminal misconduct as de ned under section 13 of
the PC Act 1988 as amended by the Amendment Act of 2018. The Statement of Objects
and Reasons to The Prevention of Corruption Amendment Bill 2013 mentions that
changes proposed to the aforesaid Act has been necessitated due to rati cation of the
United Nations Convention Against Corruption (UNCAC) in May, 2011 by our country; and
Judicial pronouncements in corruption cases to ll in gaps in description and coverage
of offence of bribery so as to bring it in line with the current international practice.
Also Read - SC Stays Allahabad HC Judgment Which Directed UPPTCL To Release
Bank Guarantee Of Contractor
Full Bench of Hon'ble High Court of Delhi in the matter of Runu Ghosh Vs. CBI
[1] held that there is no requirement of proving mens rea for the offence u/s 13(1)(d)(iii)
of the PC Act 1988 (as it then existed). For offence u/s 13(1)(d)(iii) the test applicable
was when the decision or an act of a public servant, (which results in another obtaining
pecuniary advantage or valuable thing) be without public interest, namely,
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Damages For Unauthorized Occupation Of The Leased Premises
if that action of the public servant is the consequence of her or his manifest failure to
observe those reasonable safeguards against detriment to the public interest, which
having regard to all circumstances, it was his or her duty to have adopted. However the
new(substituted) de nition of Criminal Misconduct puts an additional burden on the
Investigation agency to prove the guilty intention on part of the public servant which is
manifested from the language of the new provision itself.
Also Read - Leaving OTT Communication Services To Their Own Devices
MISUSE OF PROVISION BY THE INVESTIGATING AGENCIES : MISCHIEF PREVAILED IN
COUNTRY
One of the Suggestion taken into consideration by the Standing Committee of Rajya
Sabha was that the provisions under Section13 (1)(d)(iii) of the P C Act, 1988 has been
misused by investigating agencies and is exposed to potential misinterpretation leading
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10/20/2020 Benefit Of Amendment In Section 13 Prevention Of Corruption Act 1988 As Amended By The Prevention Of Corruption (Amendment) A…
to prosecution of honest public servant. Therefore, the concerned Section needs to be
deleted in public interest.
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[2]No guilty intention of public servant was required to be established under the provision
u/s 13(1)(d)(iii) except showing that the public servant has obtained any valuable thing
or pecuniary advantage for any person 'without any public interest'. The de nition thus
leaves open a very wide scope for its misuse by investigating agencies. Accordingly, the
Prevention of Corruption (Amendment) Bill, 2013 had proposed to delete section 13(1)(d)
(iii) of the PC Act 1988.[3] Non requirement of guilty intention for aforesaid provision
raises apprehensions and fears in the mind of public servant which prima facie have the
potential of impeding and slowing down decision making.[4] Due to this there was an
apprehension in the minds of public servant which as there was a potential threat of
prosecution of honest public servants. In order to provide a work friendly environment to
the public servant the section 13(1)(d)(iii) was proposed to be deleted.
Select Committee of Rajya Sabha suggested that Section 13(1) (d)(iii) of the Prevention
of Corruption Act, 1988 covers new species of crime related to corruption which was not
contemplated under Prevention of Corruption Act, 1947. The amendment proposes to
alter the said Section to the extent of deleting Section 13(1)(d)(iii) which may not be
appropriate to contain corruption where bureaucrats in connivance with politician causes
pecuniary bene t to any private party without having proper consideration of public
interest. A three Bench judgement of Delhi High Court in the matter of Runu Ghosh and
others Vs. Central Bureau of Investigation (CBI) has upheld the said Section in 2011
which has not yet been overruled by the Supreme Court. However, most stakeholders
agreed to the amendment proposed by the Government.
[5]
HOW THE RIGOUR OF SECTION 13(1) IS MOLLIFIED
Under the un-amended law guilty intention of the public servant was not required to be
proved for the offence of criminal misconduct , However under the ex-post facto law
mens rea or guilty intention of on the part of public servant is a sine qua non for
attracting the offence of criminal misconduct under section 13(1) PC Act 1988 as
amended by the Amendment Act of 2018.
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The additional requirement of proving guilty intention is the bene t which can be
extended to the earlier cases. What is prohibited under Article 20(1) of the constitution
is the retrospective operation of an ex-post facto law which brings a new offence or
enhances the punishment for an offence. What is not prohibited under Article 20(1) is the
retrospective operation of the ex-post facto law which mitigates the rigor of criminal law.
A rigor of law would include the sentencing structure , standards or ingredients of
de nition of offence , or any other factor responsible for strictness of criminal law. For
example the bene t of probation under The Probation of Offenders Act 1958 is not
applicable to the offences under P C 1988 which enhances its rigor as compared to the
offences wherein the bene t of probation can be granted.
AMENDMENTS THAT MOLLIFIES THE RIGOR OF CRIMINAL LAW CAN BE APPLIED IN
EARLIER CASES.
Hon'ble Supreme Court of India while deciding Trilok Chand v. State of Himachal
Pradesh, Criminal Appeal No. 1831/2010 decided on 01.10.2019, relied on T. Barai
[6]case wherein it was held that a bene cial amendment to an accused could be applied
to earlier cases /trials.
This preposition was rst propounded by Supreme Court in Rattan Lal vs State Of Punjab
[7]. Under Article 20 of the Constitution, no person shall be convicted of any offence
except for violation of a law in force at the time of the commission of that act charged as
an offence, nor be subjected to a penalty greater than that which might have been
in icted under the law in force at the time of the commission of the offence. But an ex
post facto law which only molli es the rigour of a criminal law does not fall within the
said prohibition. If a particular law makes a provision to that effect, though retrospective
in operation, it will be valid. [8] The rule of bene cial construction requires that even ex
post facto law bene cial to the accused should be applied to mitigate the rigour of the
law. The principle is based both on sound reason and common sense. Moreover, the
International Covenant on Civil and Political Rights, 1966, Article 15, Clause-1, rati ed by
India states, "no one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence, under national or international law,
at the time when it was committed. Nor shall heavier penalty be imposed than the one
that was applicable at the time when the criminal offence was committed. If subsequent
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10/20/2020 Benefit Of Amendment In Section 13 Prevention Of Corruption Act 1988 As Amended By The Prevention Of Corruption (Amendment) A…
to the commission of the offence, the provision is made by law for the imposition of
lighter penalty, the offender shall get bene t thereof.
EFFECT OF SUBSTITUTION
Another ground why the amendment in section 13(1) of PC Act 1988 can be applied
retrospectively is that the amendment in Section 13(1) is by way of substitution. The
legislature while making a amending legislation had advisedly used the word
"substitution" in place of the word "addition" or "insertion". The object and purport of the
subsequent amendment by the legislature was, thus, to grant the same bene t (bene t of
guilty intention) which has been introduced by the amendment, to the public servants
facing prosecution without there being any allegation of quid pro quo against them.
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 of a provision results
in repeal of the earlier provision and its replacement by the new provision (see Principles
of Statutory Interpretation, ibid., p. 565). If any authority is needed in support of the
proposition, it is to be found in West U.P. Sugar Mills Assn. v. State of U.P. [(2002) 2 SCC
645] , State of Rajasthan v. Mangilal Pindwal [(1996) 5 SCC 60] , Koteswar Vittal Kamath
v. K. Rangappa Baliga and Co. [(1969) 1 SCC 255] and A.L.V.R.S.T. Veerappa Chettiar v. S.
Michael [AIR 1963 SC 933] . In West U.P. Sugar Mills Assn. case[(2002) 2 SCC 645]
Hon'ble Supreme Court held that the State Government by substituting the new rule in
place of the old one never intended to keep alive the old rule. Having regard to the totality
of the circumstances centering around the issue the Court held that the substitution had
the effect of just deleting the old rule and making the new rule operative. In Mangilal
Pindwal case [(1996) 5 SCC 60] Hon'ble Supreme Court upheld the legislative practice of
an amendment by substitution being incorporated in the text of a statute which had
ceased to exist and held that the substitution would have the effect of amending the
operation of law during the period in which it was in force.
[9] In Government of India v. Indian Tobacco Association, (2005) 7 SCC 396, by referring
to the decision in Zile Singh v. State of Haryana, (2004) 8 SCC 1, it has been clearly held
that substitution would have the effect of amending the operation of law during the
period in which it was in force. What is substituted would stand substituted from
inception Whereas insertion or addition will be relevant to the date of amendment.[10]
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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: rst, 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. No
doubt, in certain situations, the Court having regard to the purport and object sought to
be achieved by the Legislature may construe the word "substitution" as an "amendment"
having a prospective effect. Therefore, we do not think that it is 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.
[11]
APPLICATION OF SECTION 6 GENERAL CLAUSES ACT, 1897 IS EXCLUDED
Section 6 of The General Clauses Act 1897 saves the proceedings under the repealed
enactment unless a different intention appears. Section 6 of the General Clauses Act
could be attracted when an Act or regulation is repealed simpliciter but not always when,
as in the present scenario, the repeal is followed by re-enactment (substitution) and
therefore it is incumbent upon the court to see whether the new legislation on the same
subject manifest a different intention either expressly or by necessary implication.
Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of
the General Clauses Act will follow unless, as the section itself says, a different intention
appears. In the case of a simple repeal there is scarcely any room for expression of a
contrary opinion. But when the repeal is followed by fresh legislation on the same subject
we would undoubtedly have to look to the provisions of the new Act, but only for the
purpose of determining whether they indicate a different intention. The line of enquiry
would be, not whether the new Act expressly keeps alive old rights and liabilities but
whether it manifests an intention to destroy them. We cannot therefore subscribe to the
broad proposition that Section 6 of the General Clauses Act is ruled out when there is
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10/20/2020 Benefit Of Amendment In Section 13 Prevention Of Corruption Act 1988 As Amended By The Prevention Of Corruption (Amendment) A…
repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in
such cases also unless the new legislation manifests an intention incompatible with or
contrary to the provisions of the section.
[12]
The different intention to exclude the application of section 6 of General Clauses Act is
incorporated in the expression substitution itself especially when the reports of standing
committee and select committee manifest that the intention of parliament was to
destroy the provision of section 13(1)(d)(iii) PC Act 1988 (as it then existed) to protect
the honest public servants against the frivolous prosecutions and also to remove
apprehensions and fears in the mind of public servant. Further there is no saving clause
to save the proceedings under the earlier law.
CONCLUSION
The issue whether the bene t of amendment in section 13 of the PC Act 1988 as
amended by the Amendment Act of 2018 is receiving consideration before the Hon'ble
High Court of Delhi. Even if the Amendment in Section 13 (1) of the PC Act 1988 is held
to be prospective, still in view of the law laid down by the Supreme Court the bene t of
amendment (i.e proof of guilty intention) should not be denied to the public servants
facing the rigour of trial/prosecution without there being any allegation of quid pro quo.
In cases, registered under section 13(1)d (as it then existed), wherein there is no
allegation of quid pro quo or demand by the public servant the proceedings should be
quashed qua section 13(1)d.
Anuj Chauhan Is A Delhi Based Advocate.The author's views are personal.
[1] 2011 SCC ONLINE DEL 5501
[2] Sixty Ninth Report, The Prevention Of Corruption (Amendment) Bill, 2013 ,
Department-Related Parliamentary Standing Committee On Personnel, Public Grievances,
Law And Justice
[3] Comment by DoPT, Sixty Ninth Report, The Prevention Of Corruption (Amendment)
Bill, 2013 , Department-Related Parliamentary Standing Committee On Personnel, Public
Grievances, Law And Justice
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[4] Unstarred Question No. 1286, Ministry Of Personnel, Public Grievances And Pensions
Lok Sabha, Web Source : http://164.100.47.194/loksabha/questions/qresult15.aspx?
qref=70079&lsno=16
[5] Report Of The Select Committee Of Rajya Sabha On The Prevention Of Corruption
(Amendment) Bill, 2013
[6] (1983) 1 SCC 177
[7] 1965 AIR SC 444
[8] 1965 AIR SC 444
[9] ZILE SINGH V. STATE OF HARYANA, (2004) 8 SCC 1
[10] SAKTHI MASALA P. LTD. VS. ASSITANT COMMISSIONER, 2013 SCC ONLINE MAD
1508
[11] GOTTUMUKKALA VENKATA KRISHAMRAJU VS. UNION OF INDIA, 2018 SCC ONLINE
SC 1386
[12] STATE OF PUNJAB V. MOHAR SINGH, (1955) 1 SCR 893 : AIR 1955 SC 84 : 1955 CRI
LJ 254
TAGS SECTION 13 PREVENTION OF CORRUPTION ACT 1988
PREVENTION OF CORRUPTION (AMENDMENT) ACT 2018 SECTION13 (1)(D)(III) OF THE P C ACT
SECTION 6 OF THE GENERAL CLAUSES ACT 1897
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SC Stays Allahabad HC Judgment Which
Directed UPPTCL To Release Bank Guarantee
Of Contractor
LIVELAW NEWS NETWORK 20 Oct 2020 4:39 PM
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The Supreme Court granted stay of the operation of the nal judgment and order dated
24.2.2020 passed by the Allahabad High Court passed in the Writ Petition No.125 of
2019 [Cg Power & Industrial Solutions Ltd. Vs. U.P. Power Transmission Corporation Ltd],
challenged and assailed by the Petitioner corporation (UPPTCL) in the Supreme Court of
India vide Special Leave Petition (c) no. 008630 of 2020.
The matter was taken up through Video- Conferencing, and the bench was presided by
JUSTICE UDAY UMESH LALIT, JUSTICE S. RAVINDRA BHAT, and JUSTICE HRISHIKESH
ROY.
The present Special Leave Petition has been preferred against the nal judgment and
order dated 24.02.2020 passed by the High Court of Judicature at Allahabad (Lucknow
Bench, Lucknow) in MISC. BENCH (M/B) No. - 125 of 2019, whereby the Division Bench
of the Hon'ble Allahabad High Court set aside the letters issued by the UPPTCL
(Petitioners herein) to M/s Cg Power & Industrial Solutions Ltd. for payment of
outstanding labour cess computed @1% of the contract value to be deposited with the
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Labour Welfare Board. The High Court had further directed UPPTCL to release the Bank
Guarantee withheld by the corporation for realisation of the outstanding Cess amount. It
had been contended by the Petitioner's M/s Cg Power & Industrial Solutions Ltd. in its the
petition before the Allahabad High Court that the 1% Labour Cess is not applicable on the
cost of supply equipment as per the provisions of the Building and Construction Workers
Welfare Cess Act, 1996.
The principal controversy before the Supreme Court is with respect to the applicability of
labour cess of 1% on the construction cost of the project i.e. including the cost of supply
component, as provided under Section 3 sub-clause (1) and (2) of the Building and
Construction Workers Welfare Cess Act, 1996 read with Section 3, and Section 4 sub-
clause (1), (2) and (3) and (4) of the Building and Other Construction Workers Welfare
Cess Rules, 1998 and Section 2 sub-clause (d) and (g) and (i) of the Building and Other
Construction Workers (Regulation etc.), Act 1996.
The Supreme Court, in addition to granting stay on effect and operation of the impugned
judgment further directed that the Bank Guarantee furnished by Respondent No.1 M/s Cg
Power & Industrial Solutions Ltd. shall be retained by the Petitioner till further orders and
the Bank Guarantee shall always be kept alive by Respondent No.1 till further orders.
An excerpt from the order is reproduced herein below –
"Pending further consideration, there shall be ad-interim stay of the operation of the
nal judgment and order dated 24.2.2020 passed by the High Court, presently under
challenge.
It is also clari ed that the Bank Guarantee furnished by Respondent No.1 shall be
retained by the petitioner till further orders and the Bank Guarantee shall always be
kept alive by the Respondent No.1 till further orders."
The Petitioner UTTAR PRADESH POWER TRANSMISSION CORPORATION LIMITED was
represented by its special counsel Mr. Shishir Prakash, Advocate, Ms. Karuna Krishan
Thareja Advocate and Mr Rahul Bhatia (AOR). The Respondent CG Power & Industrial
Solutions Ltd. was represented by Mr. Ramesh Singh, Adv., Mrs. Monisha Handa, Adv.
And Mr. Mohit D. Ram, AOR. The next date in the matter is xed for 7th December 2020.
Click here to download the Order
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TAGS UPPTCL JUSTICE UDAY UMESH LALIT JUSTICE S. RAVINDRA BHAT
JUSTICE HRISHIKESH ROY
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Case, Says Islamabad High Court [Read Order]
3 SCOTUS Upholds Denial Of Quali ed Immunity To Former County Clerk Who
Refused To Register Same Sex Marriage
4 How Amy Coney Barrett's Con rmation Could In uence The US Supreme Court?
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Violation Cases: Centre Tells Lok Sabha [Read Statement]
3 Operation of Poultry Farms Has Potential to Damage Environment Which Needs to
be Regulated: NGT Issues Directions [Read Order]
Act Against Authorities Who Allowed Construction Of Jharkhand HC And Vidhan
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Sabha Buildings : NGT Asks Govt. To Halt All Construction Work Without EC [Read
4 Order]
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