Baman Prasad Mishra v. State of M. P. — 1994 DIGILAW 162 (MP)

ORDER M. V. Tamaskar, J.--1. This is a matter within the jurisdiction of a Single Judge under this Court's Rules and Orders, but Chouhan, J., who originally heard the case, felt that the matter involved in the case is of considerable importance and should be decided authoritatively. The matter has, therefore, been referred to the Division Bench to decide the following question of law:- "Where offence under section 5 (1) (b) and 5 (2) of the Prevention of Corruption Act, 1947 and section-161 of Indian Penal Code was committed, when the said Act of 1947, was in force and the sanction for prosecution of the accused for the above said offences was granted by the State Government under the said Act of 1947, but on a date when the said Act stood repealed after coming into force of Prevention of Corruption Act, 1988 with effect from 9.9.1988 whether such sanction may be said to be void, having been accorded under a repealed Act?" 2. The facts necessary for determination of the aforesaid question are that on 30.10.1987, the Lokayukt Establishment arranged a trep against the applicant, who was allegedly accepting a bribe of Rs. 200/- from one Agrabijram Nagwanshi for releasing house building advance. During the trep, the applicant was apprehended and consequently a case u/s. 5 (1) (b) & 5 (2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the repealed Act) and section 161 I.P.C. was registered. It appears that before the investigation of the aforesaid offences could be completed and prosecution launched, the said Act was repealed and replaced by the Prevention of Corruption Act, 1988 (hereinafter referred to as the New Act), w.e.f. 9.9.1988. It appears that the respondent State Government was of the view that all further proceedings in relation to the offences aforesaid had to be continued under the Repealed Act and hence granted sanction for prosecution of the applicant u/s. 5 (1) (d) & section 5 (2) of the Repealed Act read with section 161 I.P.C., by order dated 8th November, 1990 (Document No. 1). The aforesaid sanction was granted u/s. 6 (1) (b) & (c) of the Repealed Act, new section 19 of the New Act and its operative part reads as under:-" ^^vr,o Hkz”Vkpkj fuokj.k vf/kfu;e] 1947 ¿1947 dk la- dh /kkjk 6¼1½ ¼ch½ ,oa ¼lh½À vc /kkjk 19 Hkz”Vkpkj fuokj.k vf/kfu;e] 1988 ¼}kjk inLr ‘kfDr;ksa dk ç;ksx djrs gq;s jkT; ‘kklu vkjksih Jh okeu çlkn feJk] fodkl [kaM ftyk vf/kdkjh eq[;] ftyk nqxZ dks Hkkjrh; naM lafgrk] 1960 dk la- 45½ dh /kkjk 161 ,oa Hkz”Vkpkj fuokj.k vf/kfu;e] 1947 dh /kkjk 5¼1½ ¼Mh½ lgifBr /kkjk 5¼2½ ds varxZr naMuh; vijk/k ds fy;s ,oa çHkko’khy vf/kfu;eksa vFkkZr ,sls vijk/k ;k vijk/kksa ds fy;s] tks çek.k ls fl) gksa] vkjksfir djus dh LohÑfr çnku djrk gSA** Thereafter, a charge-sheet was filed before the Special Judge alleging commission of the offence under the Repealed Act. The learned Spl. Judge took cognizance of the offence and framed, on 29.8.1992, two charges against the applicant, charging him with offence punishable u/s. 5 (1) (d) of the Repealed Act and section 161 of the Indian Penal Code, also repealed. 3. It appears that one Hariram Patel was also facing similar trial under the Repealed Act and had challenged legal validity of the same in this Court in Misc. Cr. Case No. 1366/1991. The said case was heard by one of us (Gupta, J) and decided by order dated 13.9.1991. Court took the view that the New Act has a repealing provision of its own, i.e., section 30 and, therefore, consequence of the repeal of the earlier Act has to be regulated in accordance with the said provision. The Court also noticed that section 30 of the New Act clearly and specifically provides that the consequences mentioned therein were "without prejudice to the application of section 6 of the General Clauses Act, 1897". Interpreting the aforesaid provisions and following the decisions of the Supreme Court in Kashavan v. State of Bombay ( AIR 1951 SC 128 ) & Natabar Parida & others v. State of Orissa ( AIR 1975 SC 1465 ), it was held that there was no inconsistency in the instant case and, therefore, action taken before coming into force of the new Act would be deemed to have been taken under the corresponding provision 0 f the New Act and further proceedings would also be continued under the New Act. It was, therefore, held that "clearly, therefore, the prosecution, if at all, against the applicant, could have been launched under the corresponding provisions of 1988 Act only, which unfortunately has not been done." In view of the aforesaid, the proceedings were quashed. It is thereafter that the applicant had approached this Court u/s. 482 Cr.P.C., claiming that proceedings being under the repealed law, were invalid and should be quashed. The case came up for consideration of P.N.S. Chouhan, J. and the decision of this Court in Hariram Patel's case was cited. Chouhan, J., however, noticed that section 6 of the General Clauses Act has been clearly and specifically saved u/s. 30 (2) of the New Act and, therefore, felt that the matter deserves to be decided authoritatively. That is how the reference has been made for decision of this Division Bench. 4. The new Act is an Act to consolidate and amend the law relating to prevention of corruption and matters connected therewith. From the statement of objects and reasons, it is clear that the New Act aims at widening the scope of the definition of "Public Servant" and enhancing penalty for the offence provided under the old Act. The New Act incorporates all provisions of the repealed Act, including those sections 161 to 165-A of the I.P.C. and makes the New Act a complete Code on the law of corruption by public servant. Though there is some difference in penalty provided by the New Act, there is none, in so far as the offences are concerned. Under the circumstances, what was offence under the law before the comencement of the New Act is also the offence under the new law, though the provisions under which the accused person has to be charged are different. Section 161 I.P.C. (now repealed) is covered by Sec. 7 of the New Act; section 162 IPC (now repealed) by section 8 of the new Act; section 163 IPC (now repealed) by sec. 9 of the New Act; section 165 IPC (now repealed) by Sec. 11 of the New Act and section 165-A IPC (now repealed) by section 12 of the New Act. It must, however, be mentioned that the penalty provided for some these offences are more than provided under the repealed provision. Both the Repealed Act and the New act provide for prosecution after obtaining sanction of the State Government. It must, however, be mentioned that the penalty provided for some these offences are more than provided under the repealed provision. Both the Repealed Act and the New act provide for prosecution after obtaining sanction of the State Government. The sanction was required u/s. 6 (c) of the Repealed Act which provision is now contained in section 19 of the New Act. It would, therefore, appear that except for quantum of punishment in some cases, the new law covers almost the entire field covered by the Repealed Act. It is well settled that if a later statute again describes an offence created by an earlier statute and imposes a different punishment or varies the procedure, the earlier statute is repealed by implication. It is equally well-settled that where a statute deals with a particular class of offences and a subsequent Act is passed, which deals with precisely the same offences and a different punishment is imposed by the later Act, the legislature is intended to have declared that the new law will be substituted for the earlier law. The principle may have no application where offence described in the later Act is not the same, as described in the earlier Act. It is, however, not necessary to go into the general principles, as in the instant case, the repeal is by a specific provision made in the New Act. Section 30 & 31 being the provision are reproduced herein under for ready reference:- "Section 30. Repeal and saving.-(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 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." "Section 31. Omission of certain sections of Act 45 of 1860 – Sections 161 to 165-A (both inclusive) of the Indian Penal Code 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." Sub-section (1) of section 30 & section 31 clearly and unambiguously provide that the earlier law stands repealed. Section 30 (2) of the Act however provides for certain consequences notwithstanding the repeal. It specifically provides that "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 provisions of this Act." In other words, if the action taken under the repealed Act could also be taken under the new Act because of a similar provision contained therein, then the said action would be deemed to have been taken under the said provision of the new Act. If this was the only provision, there would have been no difficulty in the matter, but this provision makes the aforesaid, consequences "without prejudice to the application of section 6 of the General Clauses Act, 1897". 5. Section 6 of the General Clauses Act provides that notwithstanding the repeal of any law, investigation, legal proceeding or remedy may be instituted, continued or enforced, and penalty, for which punishment maybe imposed under the repealed law, as if the repealing Act has not been passed. The provision reads as under:- "6. Effect of repeal. 5. Section 6 of the General Clauses Act provides that notwithstanding the repeal of any law, investigation, legal proceeding or remedy may be instituted, continued or enforced, and penalty, for which punishment maybe imposed under the repealed law, as if the repealing Act has not been passed. The provision reads as under:- "6. Effect of repeal. -Where this Act, or any Cenetral Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (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. " It would, therefore, appear that in so far as the matters covered by this provision are concerned, they will have to be dealt with under the Repealed Act on the assumption that the repealing Act, i.e., the New Act, has not been passed. We are, therefore, faced with a situation where section 30 (2) provides for two consequences of the repeal of earlier law, namely, - (i) matters covered u/s. 6 of the General Clauses Act will have to be continued further under the repealed law; & (ii) matters, which are not inconsistent with the provisions of the New Act, further action on them will have to be taken under the New Act, even though the cause of action for them may have arisen before the new enactment; The first situation continues the Act, which has been repealed and the second situation makes the new law some-what retrospective in nature, without there being any specific provision in the Act making it retrospective. The Acts of this nature, though apparently prospective, are really not retrospective. The Acts of this nature, though apparently prospective, are really not retrospective. They take effect prospectively, but based on antecedent facts, which is permissible. It is, however, the settled law that unless the legislative intent is clear and compulsive, no retrospective operation could be given to a statute. Again, we have no difficulty in the matter because of the clear effect of section 30 (2) of the New Act. Under the circumstances, the repeal of the earlier Acts has two different consequences clearly intended by the legislature. 6. In view of the aforesaid, it will have to be ascertained as to which field would be allotted for operation to the aforesaid two different procedures. There are cases where based on doctrine of predominant intention, one of the two procedures becomes the choice of those who are responsible for giving effect to the provision. But the same cannot be accepted as a normal rule. The matter indeed is that of the intention of the legislature. In the instant case, it is apparent that the legislature did not intent to avoid the consequence of section 6 of the General Clauses Act. The intention of the legislature, on the contrary is to give effect to it. The legislature at the same time wishes to provide for situations mentioned in sub-sec. (2) of section 30 of the Act. Under the circumstances, it is clear that the legislature intends that both the consequences should be respected and given effect to. As far as the continuance of actions initiated under the Repealed Act, in accordance with the corresponding provision in the New Act, the intention of the legislature is clear the language used in the provision therein. The line of distinction is to be found in the phrase "in so far as it is not inconsistent with the provisions of this Act", i.e., things done or action taken under the repealed Act, in so far as they are not inconsistent with the provisions of the New Act, will be deemed to have been taken under the corresponding provisions of the New Act and continued further under the New Act, but if things done or action taken be inconsistent with the provisions of the New Act, they would be continued under the Old Acts, as if those Acts have not been repealed. The intention of the legislature is not to leave out anyghing, which was covered by the repealed Act nor is there any intention on the part of the legislature to grant reprieve to anyone committing any offence under the repealed provisions. The intention clearly and specifically is to punish all offenders under the Old Act. Under the circumstances, no one, who has committed an offence under the Old Act can claim immunity from punishment only because of the repeal of the said law. This intention being clear and unambiguous has to be kept in view, while deciding the controversy. 7. As far as sanction for prosecution is concerned, there is really no change in law. The sanction was required not only under the repealed Act, but is required also under the New Act. Not even manner, mode or the authority is changed. Under the circumstances sanction given under any of the provisions would be legal and valid in either of the situations. If the proceedings have to be continued under Old Act and the sanction is granted u/s. 19 of the New Act, the same would not be invalid as the sanction is for prosecution for the offence and nothing more. Mere mention of a wrong provision is not enough to invalidate the sanction. In this connection, the decision of the Supreme Court in Jaswant Singh v. State of Punjab ( AIR 1958 SC 124 ) deserves mention, wherein object of the provision for sanction was clarified by holding that it provides as opportunity to the authority to consider for itself the evidence before it to come to the conclusion whether prosecution in the said context be sanctioned or forbidden. The object of the aforesaid provision appears to be to afford a reasonable protection to the public servants in discharge of their official functions and save them from harassment by vexatious proceedings. But, if the case for grant of sanction be made out on the basis of evidence collected during investigation, the object of grant of sanction would be to assure the public that no one is above law. In either case, the sanction has a public interest and for this reason, the provision has been treated to be mandatory and absence of sanction held fatal to the prosecution. (See Raghubir Singh v. State of Haryana (AIR 1974 SC 1516). In either case, the sanction has a public interest and for this reason, the provision has been treated to be mandatory and absence of sanction held fatal to the prosecution. (See Raghubir Singh v. State of Haryana (AIR 1974 SC 1516). But considering the public interest involved, even a prosecution declared invalid for want of sanction can be launched again with proper sanction, as would be clear from Baij Nath Prasad Tripathi v. State of Bhopal & another ( AIR 1957 SC 494 ). This should, therefore sufficiently indicate that grant of sanction is not a mere formality nor it is a matter of mere form. It is a serious exercise intended to achieve a particular purpose, which does not depend on mere mentioning of a wrong provision of law. A valid sanction should indicate that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based and these facts should normally appear on the face of the sanction. Even where those facts do not appear on the face of sanction, they may be proved by extraneous evidence. (See Madan Mohan Singh v. State of U.P. (AIR 1954 SC637) & Major Som Nath v. Union of India & another ( AIR 1971 SC 1910 ). Under the circumstances, if the letter granting sanction discloses application of mind by the authority to the facts and circumstances of the case, including evidence available on record, the same would not be rendered invalid merely because it mentions a wrong provision of law. In such a case, the matter would require examination of the trying Judge whether the charge framed by him during trial is covered by the particular sanction. The sanction is not required to be in any particular form and hence in some conceivable cases, such an exercise may become necessary, but the same is permissible in law as was clarified by the Supreme Court in Biswabhusan Naik v. State of Orissa ( AIR 1954 SC 359 ). In this view of the matter, even if the sanction was granted under the repealed Act and the trial has to be continued under the New Act, the trial would not be incompetent only for that reason. If the sanction covers the offence in question, the trial would be in accordance with law. In this view of the matter, even if the sanction was granted under the repealed Act and the trial has to be continued under the New Act, the trial would not be incompetent only for that reason. If the sanction covers the offence in question, the trial would be in accordance with law. The decision may, however, be different if the charge framed against the accused person may not be covered by the sanction. 8. There is yet another reason why the sanction should be interpreted as aforesaid. There is an essential distinction between an offence and prosecution for the said offence. The offence forms part of substantive law, but prosecution for that offence is a part of procedural law. No party has a vested right to any particular procedure and hence the procedure can be changed even retrospectively. In this connection, the following passage from AIR 1958 SC 993 (Kapur Chand Pokhraj v. State of Bombay) is of importance and is, therefore, quoted for ready reference:- "On the basis of the aforesaid provisions, the argument of the learned counsel for the appellant is that as the State Government appointed the Additional Collector as Collector of Sales Tax in exercise of the power conferred on it under the Ordinance III of 1952 and not under the power conferred on it by the repealed Act, the sanction given by the Additional Collector to prosecute the appellant is invalid. The first answer to this contention is that, as the State Government had the power to appoint any person including an Additional Collector as Collector of Sales Tax both under the repealed Act as well as the Ordinance III of 1952, the appointment may reasonably be construed to have been made in exercise of the relevant power in respect of the offence saved under the Ordinance. The second answer is more fundamental. There is an essential distinction between an offence and the prosecution for an offence. The former forms part of the substantive law and the latter of procedural law. An offence is an aggregate of acts or omissions punishable by law while prosecution signified the procedure for obtaining on adjudication of Court in respect of such act" or omissions. Sanction or prior approval of an authority is made a condition precedent to prosecute in regard to specified offences. Prosecution without that requisite sanction makes the entire proceeding ab initio void. Sanction or prior approval of an authority is made a condition precedent to prosecute in regard to specified offences. Prosecution without that requisite sanction makes the entire proceeding ab initio void. It is intended to be a safeguard against frivolous prosecutions and also to give an opportunity to the authority concerned to decide in the circumstances of a particular case whether prosecution is necessary. Sanction to prosecute for an offence is not, therefore, an ingredient of the offence, but it really pertains to procedure. In Maxwell's Interpretation of Statutes, the following passage appears at page 225: "Although to make a law punish that which, at the time when it was done, was not punishable, is contrary to sound principle, a law which merely alters the procedure may, with perfect propriety, be made applicable to post as well as future transactions." In the instant case when the repealing Act did not make any change either in the offence or in the procedure prescribed to prosecute for that offence and expressly saved the offence committed under the repealed Act, the intention can be legitimately imputed to the Legislature that the procedure prescribed under the new Act should be followed, even in respect of offences committed under the repealed Act. If so, it follows that, as sanction pertains to the doma in of procedure, the sanction given by the Additional Collector appointed by the State as Collector of Sales Tax was valid." (para-9). In view of the aforesaid decision, no right of an accused person is to be affected by change in the law regarding sanction for prosecution. This is, however, not to say that any real change has taken place in law on the subject. As has been mentioned earlier, neither the mode nor manner nor authority in the matter has been changed. Indeed, this can be said of the entire procedural aspect of the prosecution. The repealed Act only provided the substantive law creating offence in relation to the conduct of public servants. The procedure for trial of those offences was the procedure prescribed under the Code of Criminal Procedure, which remained unaffected by the repeal of the said law. Under the circumstances what has been affected is the substantive law creating offences in relation to conduct of public servants and hence a comperative study of the repealed Act and the New Act is of fundamental importance in the matter. 9. Under the circumstances what has been affected is the substantive law creating offences in relation to conduct of public servants and hence a comperative study of the repealed Act and the New Act is of fundamental importance in the matter. 9. In this view of the matter, the law as at the present summarised, as under:- (i) Offence committed under the repealed Act are neither wiped out nor obliterated and a person committing offence under the repealed Act will have to be punished either under the old Act or under the New Act, depending on the facts of the particular case; (ii) The sanction granted either under the repealed Act or under the New Act will be good for prosecution under either of them provided the same is otherwise valid and in accordance with law. Mere mentioning of a wrong provision of law would not, in our opinion, invalidate the sanction, if the authority has applied its mind to the facts and circumstances of the case and granted sanction for prosecution of the offence based thereupon. The difference will, however, arise in the matter of framing of charge and proceedings subsequent thereto. If the charge-sheet filed against the accused person be under the provisions of the repealed Act and the same be not inconsistent with the provisions of the New Act, the Court trying the accused will have to proceed under the New Act, but if the same be inconsistent with the provisions of the New Act, the trial will have to be for offences under the repealed Act. This view of the matter, the question referred to us for our consideration is answered as under:- "The sanction granted under section 6 of the Prevention of Corruption Act, 1947 for prosecution of accused persons for offences under section 5 (1) (b) and section 5 (2) of the said Act or section 161 I.P.C. would not he rendered invalid only because of the repeal of the said Act that the same was granted after the enforcement of the Prevention of Corruption Act, 1988. The said sanction would be valid even if the trial of the said offence has to be continued under the corresponding provision of the New Act after its enforcement on 9.9.1988." 10. Let the matter be placed before Hon'ble the Single Judge for consideration of the same, in accordance with law. Per Gulab C. Gupta, .T. 11. The said sanction would be valid even if the trial of the said offence has to be continued under the corresponding provision of the New Act after its enforcement on 9.9.1988." 10. Let the matter be placed before Hon'ble the Single Judge for consideration of the same, in accordance with law. Per Gulab C. Gupta, .T. 11. I am in full agreement with the aforesaid answer to the question referred to the Division Bench. Since the aforesaid question is contrary to the decision rendered by me earlier in Misc. Cr. Case No. 1366/1991 decided on 13.9.1991, I would like to add a few lines by way of explanation. The said decision had turned on its own facts. As far as law is concerned, the view in the said decision is not different than the view taken by us in the instant case. Indeed in para-8 of the said judgment, I had clearly mentioned that the New Act permitted continuance of section if the same was not inconsistent with the provisions of the New Act and treated the said action even though the same arose before the commencement of the New Ad, to have been taken under the corresponding provision of the New Act. I had, therefore, not agreed with the proposition that the action initiated earlier under the repealed Act was inconsistent with the provisions of the New Ad and, therefore, further action thereupon could only be continued under the repealed Act. This factual aspect of the matter had made the difference in the conclusion. The intention, however, is not to bar prosecution, which can be done even now after grant of proper sanction.