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1991 DIGILAW 21 (BOM)

Asaram v. The State of Maharashtra

1991-01-15

R.G.SINDHAKAR

body1991
ORDER:- By this application, the applicant challenges the order passed by the learned Special Judge, Buldana on 20-7-1990 on an application (Exh. 19) presented on behalf of the State in Special Case No. 1/84 pending on his file. Charge was framed in that case u/ S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, 1947 and S. 161 of the Indian Penal Code. The Prevention of Corruption Act, 1988 placed on the Statute book, came into force on September 9, 1988. On behalf of the State, therefore, an application was made for amending the charge and requested that the charge under Ss. 13(1)(d) and 13(2) read with S. 7 of the Prevention of Corruption Act, 1988 be framed instead of one u/ S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, 1947 and S. 161 of the Indian Penal Code. It appears that the prosecution apprehended that in view of the provisions of the new enactment contained in S. 30 thereof, the old Act having been repealed and substituted by the new Act, the prosecution will fail on the charge framed earlier. The learned Special Judge after hearing the parties agreed with the submissions made on behalf of the State and consequently amended the charge and substituted the new Sections for the old ones. 2. The learned Advocate appearing for the applicant submits that this order passed by the learned Special Judge calls for interference and if allowed to stand will prejudice his client's case. According to him, there was no need for framing the new charge by replacing the old one. In order to enable me to appreciate his line of argument, it is better to reproduce S. 30 of the Prevention of Corruption Act, 1988 which reads thus - "Repeal and, Saying - (1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed. In order to enable me to appreciate his line of argument, it is better to reproduce S. 30 of the Prevention of Corruption Act, 1988 which reads thus - "Repeal and, Saying - (1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed. (2) Notwithstanding such repeal, but without prejudice to the application of S. 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, insofar 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." The apprehension felt by the State was because of the provisions of S. 30. However, it is argued on behalf of the applicant by Shri Sirpurkar that there was sufficient safeguard for continuing the prosecution on the old charge in view of the provisions of sub-sec. (2) of S. 30 which save operation of S. 6 of the General Clauses Act, 1897 (10 of 1897). S. 6 of the General Clauses Act to which reference has been made reads thus - "Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hither to made or hereafter to be made, then, unless a different intention appears, the repeal shall not -(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." The provision, therefore, clearly shows that the legal proceedings could have been continued without any difficulty and the penalty contemplated by the provisions of S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, 1947 and S. 161 of the Indian Penal Code could have been imposed in spite of repeal of the said enactments. I, therefore, find considerable force in the submission made on behalf of the applicant that the apprehension of the State was misconceived and the order passed by the learned Special Judge was not justified. I, therefore, find considerable force in the submission made on behalf of the applicant that the apprehension of the State was misconceived and the order passed by the learned Special Judge was not justified. 3. The order passed by the learned Special Judge is in contravention of the provisions of Art. 20(1) of the Constitution which reads thus - "No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than which might have been inflicted under the law in force at the time of the commission of the offence." It is plain from the reading of the two corresponding provisions in two enactments that if the charge is allowed to stand and if ultimately order of conviction is passed on the basis of the amended charge, then the applicant would have to undergo greater penalty than the one which could have been imposed upon him under the old Act and that new enactment also provides for a minimum penalty which was not in contemplation of the legislature at the time of the earlier enactment. Considering from either point of view, I find that the order passed by the learned Special Judge requires to be quashed and set aside under the provisions of the Code of Criminal Procedure including S. 482 of the Code of Criminal Procedure. 4. The order dated 20-7-1990 passed by the Special Judge, Buldana is set aside and the earlier charge is restored. The trial may now proceed on the charge framed earlier. Order accordingly.