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Madhya Pradesh High Court · body

2002 DIGILAW 689 (MP)

AMRITLAL PATEL v. STATE OF M. P.

2002-07-19

S.L.KOCHAR

body2002
ORDER S.L. Kochar, J. By this common order, Criminal Revision No. 149/02 (Jayant Awashia vs. State), Cr. Rev. No. 157/02 (Manmohansingh Bais vs. State), Cr. Rev. No. 141/02 (Manmohansingh Bais vs. State), Cr. Rev. No. 242/02 (Hukumchand vs. State), Cr. Rev. No. 243/02 (Hukumchand vs. State), Cr. Rev. No. 244/02 (Hukumchand vs. State) and Cr. Rev. No. 140/02 (Prabhakar Kale vs. State), are also being disposed of as the similar question of law is involved therein under different Session Trial as mentioned in para 2 of this order. The aforesaid Criminal Revisions No. 140/02, 141/02, 242/02, in ST No. 21/96 and in Criminal Revisions No. 132/02, 157/02, 149/02, 243/02 in ST No. 22/96 and in Cri. Rev. No. 244/02 in ST No. 20/96 have been directed against the order dated 2-1-2002 passed by the Special Judge, (I ASJ) Indore thereby framing the charges against the applicants u/s 5(1)(d)/5(2) of the Prevention of Corruption Act, 1947 (for short, 'the old Act') read with section 477A of the Indian Penal Code against the contractor Rameshchandra Sankhla for the offence punishable u/s 120B, Indian Penal Code/section 5(1)(d)/5(2) of the Act and section 120B and section 477A, Indian Penal Code. The prosecution case as narrated in the charge sheet filed u/s 173, Criminal Procedure Code by police M.G. Police Station, Indore that the applicants were serving on different posts and also some of them were contractors for the work allotted for the construction of shopping complex during the year 1979 to 1987 by the Indore Nagar Nigam. Applicants being public servants are having the responsibility of the construction work of the Nagar Nigam. They made false entries in the measurement books, got the construction work done with inferior quality through the contractors and made excess payment for the work done to the contractors. It has also been alleged that some measurement books have been destroyed by these public servants of Nagar Nigam. By misusing of powers as well as illegal means, corrupt practices they have caused wrongful financial loss to the Nagar Nigam and wrongful gain to themselves as well as the contractors. For doing the same, they have also manipulated the relevant documents. By misusing of powers as well as illegal means, corrupt practices they have caused wrongful financial loss to the Nagar Nigam and wrongful gain to themselves as well as the contractors. For doing the same, they have also manipulated the relevant documents. The counsel for the applicants, craved for their discharge mainly on the following grounds:-- That some of the accused persons have been discharged on the ground of illegal and improper sanction whereas by the same sanction order, the applicants are being prosecuted. They were exonerated from the Departmental Enquiry and according to the Lokayukta Act, the matter was investigated after expiry of the period of limitation. On behalf of the contractor, it was argued that against them no criminal case is made out and that they could be held responsible only for civil liabilities. Learned trial Court, after passing a detail order, rejected the prayer of discharge and ordered for framing of charge as mentioned above. Against the impugned order dated 2-1-2002, the applicants/accused persons have filed the aforesaid revisions. It has also been contended that the period of alleged offence, was shown to be between 20-8-1979 and 1981. That the new Act of the Prevention of Corruption Act of 1988 came into force on 9-9- 1988, therefore, this new Act of 1988, cannot be made applicable and no charge could be framed against them under this Act. It has also been submitted that even under the entire provision of the old Act of 1947, charges cannot be framed against the applicants by virtue of section 30 of sub-section (2) of the New Act of 1988. There is no saving clause, therefore, for the alleged charge or offence, charges cannot be framed under the repealed Act. Further contention of the counsel is that the investigation has to be made either by the Deputy Superintendent of Police or Officers of the similar or superior rank as per the old Act of 1947 or even under the new Act of 1988. In the present case, inferior officers have done the investigation. Therefore, the applicants are entitled for discharge on the ground of investigation done by unauthorized police officers. They have also challenged filing of FIR after period of limitation of 5 years, by the officials of Lokayukta office and the enquiry was also not done in accordance with the provisions of Lokayukta Evam Uplokayukta Adhiniyam. Therefore, the applicants are entitled for discharge on the ground of investigation done by unauthorized police officers. They have also challenged filing of FIR after period of limitation of 5 years, by the officials of Lokayukta office and the enquiry was also not done in accordance with the provisions of Lokayukta Evam Uplokayukta Adhiniyam. The FIR was lodged after six months and the delay has not been explained. The sanction was also not given after applying judicial mind, therefore, on invalid sanction, applicants cannot be prosecuted. Some of the applicants were exonerated from the Departmental Enquiry. There is no sufficient material to frame the charges against the applicants in the charge sheet therefore, it would be futile exercise to put the applicants/accused persons on trial. The counsel for the applicants have relied on various decisions as mentioned in the memo of revision in support of their contention. This Court has gone through all the judgments. None of them are found to be on direct point raised by the counsel for the applicants. Therefore, this Court does not feel it necessary to deal with each and every judgment cited by the counsel for the applicants which would make the order lengthy and bulky. On the other hand, Mr. Girish Desai, learned Dy. Advocate General submitted that there is sufficient material in the charge sheet for making out prima facie case for the charges framed by the trial Court. He supported the order passed by the trial Court regarding framing of charges. He relied on the judgments rendered by the Supreme Court in case of M/s. P.V. Mohammad Barmay Sons Vs. Director of Enforcement, and State of Punjab vs. Harnek Singh, (2000) 3 SCC 481 and submitted that in view of section 30 of the Act and section 6 of the General Clauses Act, the applicants have been rightly charged by the trial Court under the old Act. The main ground agitated by the accused/applicants that after repeal of the old Act, now they cannot be charged under the said Act because the same has been repealed by section30 of the New Act of 1988 and there is no saving clause for the act/offence committed within the period of application of an old Act. Therefore, applying the Provisions of section 6 of the General Clauses Act, the applicants cannot be tried. Therefore, applying the Provisions of section 6 of the General Clauses Act, the applicants cannot be tried. Section 30 of the Prevention of Corruption Act coupled with section 6 of the General clauses Act, are reproduced as under: S. 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 1987) 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. Section 6. Effect of repeal. -- Where this Act, or any (Central 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 penalty, forfeiture or punishment as aforesaid; 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. In the case of P. V. Mohammad Barmay Sons case (supra) similar question was raised before the Supreme Court which has been answered in negative. The relevant paragraph is as under:-- Sri Tulsi, learned Addl. Solicitor General placing reliance in O. Abdul Aziz vs. Addl. Director of Enforcement, AIR 1983 Mad. In the case of P. V. Mohammad Barmay Sons case (supra) similar question was raised before the Supreme Court which has been answered in negative. The relevant paragraph is as under:-- Sri Tulsi, learned Addl. Solicitor General placing reliance in O. Abdul Aziz vs. Addl. Director of Enforcement, AIR 1983 Mad. 59 and AKL Labbi Thambi Maraicar vs. Govt, of India, Enforcement Directorate, AIR 1983, Mad 102, contended that in view of section 81(2) of the Act read with section 6 of the General Clauses Act, the power of the respondents to investigate and enforce the liability or penalty incurred under the repealed Act is saved, though the Act 7 of 1947 has been repealed under sub-sec(2) of section 81 of the Act. The contention of the respondent that the Repealed Act after the Act had come into force in 1973, the Repealed Act is a dead corpse and no life into it could be blown with the aid of section 81(2) of the Act or section 6 of the General Clauses Act. We find no force in the contention. The effect of the repealed Act by operation of clause (e) of the General Clauses Act read with sub-sec (2) of section 81 is that though the Act obliterates the operation of Act 7 of 1947, despite its repeal, the penalty, liability, forfeiture or prosecution for acts done while the repealed Act was in force were kept alive, though no action thereunder was taken when the repealed Act was in force. The rights acquired or accrued or the liabilities incurred or any penalty, forfeiture or punishment incurred during its operation are kept alive. Investigations to be made or any remedy which may have been available before the repeal be enforced are also preserved. Such rights, liabilities, penalty, forfeiture, or punishment due to repeal "shall not lapse". The saving clause thus aimed to preserve the legal effect and consequences of thing done though those effects and consequences projected to post repealed period. The things done adumbrated in section 81(2) of section 6 of the General Clauses Act or penalty, or punishment incurred would envisage that the things already done or liability, penalty, punishment or forfeiture incurred though happened before the Act came into force. Section 81(2) of the Act empowers to effectuate the liabilities, penalties etc. The things done adumbrated in section 81(2) of section 6 of the General Clauses Act or penalty, or punishment incurred would envisage that the things already done or liability, penalty, punishment or forfeiture incurred though happened before the Act came into force. Section 81(2) of the Act empowers to effectuate the liabilities, penalties etc. as if they have been in existence and amenable to be pursued under the Act or under the Repealed Act by operation of section 6 of General Clauses Act. What is unaffected by repeal of the Act 7 of 1977 is a right accrued etc. There is distinction between legal proceeding for enforcing a right acquired or accrued or liability, penalty, forfeiture, punishment incurred and the legal proceedings for acquisition of right, the former is saved whereas the latter is not. In spite of repeal the right to investigation or to take legal proceedings remain unaffected and preserved as if the old Act continues to be operative. What remains to be done after the Act came into force, is the quantification, if necessary after due investigation and legal proceedings and if proved to impose the penalty, forfeiture or punishment. The Court takes cognizance of the offence and not the offender or the acts done. What the Court is to enquire into is whether the Act is incompatible with the repealed Act and whether it manifested any contrary intentions to the repealed Act. Unless a different intention has been manifested in the Act, the Repealed Act would continue to be operative. Even in a case of bare repeal accompanied by a fresh legislation on the same subject, the provisions of the new Act will have to be looked into to find where and how far the new Act envisages a contrary intention affecting the operation of section 6 of the General Clauses Act. Unless such contrary intention is manifested, liabilities, penalties, forfeiture or punishment under the Repealed Act will continue to exist and remain in force by operation of section 6 of the General Clauses Act. In the case on hand, the Act did not evince contrary intention. It merely reiterated the earlier law operating the field with some slight changes. Unless such contrary intention is manifested, liabilities, penalties, forfeiture or punishment under the Repealed Act will continue to exist and remain in force by operation of section 6 of the General Clauses Act. In the case on hand, the Act did not evince contrary intention. It merely reiterated the earlier law operating the field with some slight changes. Therefore Clause (d) and (e) of section 6 of the General Clauses Act gets attracted to the acts done or penalty incurred or forfeiture or punishment before repealed enactment though no criminal proceedings actually initiated under the repealed enactment before its repeal. In the present case enquiry was started in the year 1981, therefore, some sort of action commenced to probe into the matter in the year 1981 when the old Act was applicable. In the case of State of Punjab (supra) a single question arose before the Supreme Court and it has been answered that in view of section 30 of Sub-section (2)/section 6 of the General Clauses Act, provisions of old Act will apply for the purpose of acts done by the persons during enforcement of the old Act. With regard to exoneration from the departmental enquiry, in the submission of the learned counsel, there is no force in the arguments. In the case of Superintendent of Police (C.B.I) Vs. Deepak Chowdhary and others, the Supreme Court has held that Departmental exoneration by the Disciplinary Authority is also not relevant. What is necessary and material is whether the facts collected during investigation would constitute the offence for which sanction has been sought for. The Supreme Court in the case of State of Madhya Pradesh and Others Vs. Shri Ram Singh, has held in paragraphs 9 and 10 that it is a social legislation defined to curb illegal activities of the public servants and is designed to be liberally construed so as to advance its object. Procedural delay and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The overall public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and decided cases under it. Procedural delay and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The overall public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and decided cases under it. In the light of the view expressed by the Supreme Court in the State of Punjab (supra) it would not be apt to consider mere technical objection by the applicants for their discharge at the stage of framing of charge. Similar view has been expressed by the Supreme Court in case of State of M.P. Vs. S.B. Johari and Others, quashing the charge would be justified if even on accepting the entire prosecution case the charged offence would not be made out. The Court has only to see whether prima facie there was sufficient ground for proceeding against the accused or not. At this stage appreciation of evidence to arrive at the conclusion, cannot be done. In this matter, order of quashing of charge passed by this Court in revision, has been set aside by the Supreme Court holding that roaming enquiry and meticulous appreciation of evidence at the stage of charge is not permissible. Reliance can also be placed on the decision of this Court in case of P.A. Samual vs. State of M.P. (Cri. Rev. No. 416/99 decided on 2nd July, 2002. In the case of Munna Devi Vs. State of Rajasthan and anr, , the Supreme Court has held that detailed order need not be passed at the stage of framing charge. In the present case, charge sheet has been filed by the local police and not by Lokayukta Establishment Office. Therefore, there is no force in the arguments advanced by the learned counsel for the applicants about questioning the period of limitation for taking cognizance by the Lokayukta. This Court has gone through the documents of the case and came to the conclusion that at present there is sufficient ground to proceed against the applicants. It is not appropriate stage to go into merits of the culpability of the applicant/accused persons though sought to be contended by the counsel for the applicants. In the fairness of the accused, this Court deems it improper to go into merits to express any opinion. It is not appropriate stage to go into merits of the culpability of the applicant/accused persons though sought to be contended by the counsel for the applicants. In the fairness of the accused, this Court deems it improper to go into merits to express any opinion. So far as main contention of the counsel for the applicants that alleged act of corruption was done by the accused persons prior to the enforcement of new Act of the Prevention of Corruption Act of 1988 and by section 30 the old Act, has been repealed, without any saving clause for the act done during application of the new Act. Therefore, charge could not be framed against the applicants under the old Act, has been answered as mentioned above. The record is revealing the fact that the Police Station M.G. Road, Indore has initially registered the offence under Indian Penal Code and started investigation. The moment, offences were registered under the provisions of Prevention of Corruption Act, 1947, the investigation was done by the Dy. Superintendent of Police or duly authorized police officer, as per the provisions of the Prevention of Corruption Act. Therefore, there is no point in the submissions made by the learned counsel for the applicants regarding investigation by the police officer having no jurisdiction to inquire into the matter. In view of the aforesaid discussions on legal and factual position, there is no substance in these revision petitions. Therefore, the aforesaid revisions stand dismissed. However, the trial Court is directed to proceed into trial and complete the same expeditiously looking to the old events giving priority over other matters. It is also observed that what have been stated in this order shall not prejudice the case of either party on merits during the course of trial. Copy of this order be placed in all the aforesaid connected criminal revisions.