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Madhya Pradesh High Court · body

2007 DIGILAW 708 (MP)

Devendra Singh v. State of M. P.

2007-07-10

W.A.SHAH

body2007
ORDER 1. Shri S.C. Bagadiya, learned Govt. Advocate for the respondent State. Final arguments are heard. Perused the record. This revision by the accused/applicant arises out of order dated 24.1.2003 passed by learned First Additional Sessions Judge and Special Judge, Indore in Special Case No. 2/1993 thereby he framed the charge against the accused/applicant for offence punishable under section 5 (1)(e) read with section 5 (2) of the Prevention of Corruption Act, 1947 and in the alternative under section 13 (1) (e) read with section 13 (2) of the Prevention of Corruption Act, 1988. 2. Before the learned Court below the accused/applicant has been charge-sheeted for possessing property disproportionate to his known sources of income, as Public Servant. From the record it is apparent that the check period is between 1.4.1976 to 31.9.1987. In these circumstances it is submitted by the learned counsel for the applicant that as the Act of 1988 came into force on 9.9.1988 the alternative charge framed by the learned Court below cannot be allowed to stand. He further submits that under the provisions of the New Act under section 13 (1) (e) read with Explanation, the provision is that the Public Servant can only explain the known sources of his income if under the Departmental Rules he filed the required returns. He further submits that this is a provision which is new under the 1988 Act and it did not exist at the time when the 1947 Act was holding the field. Further his submission is that the provision of the New Act puts the accused/applicant in a position which is detrimental to his interest and he can never meet the requirement which has been made compulsory by the provisions of the New Act. He has, therefore, emphasized that the provisions under reference of the New Act cannot be retrospectively applied. He has also submitted that it is the well known principle of Criminal jurisprudence that no liability can be retrospectively created and that too in the manner which could never be met by the accused/ applicant. He has also submitted that the provision of the New Act repealing the Old Act are clear enough that they do not cover the Old Act. He has referred to section 30 of the New Act regarding repeal. 3. He has also submitted that the provision of the New Act repealing the Old Act are clear enough that they do not cover the Old Act. He has referred to section 30 of the New Act regarding repeal. 3. The learned counsel for the applicant also argued that the entire charge in question cannot be allowed to stand because in view of the order passed by the learned I.T.A.T., the question of assets being disproportionate does not arise. 4. I would like to first deal with the second argument to negative only by expressing that the same is a question of fact since the identity of the parties is required to be established for application of the judgment of the ITAT in question. Accordingly this argument has no force and on this count the learned Court below did not commit any mistake in framing the charge under reference. 5. So far as the first argument is concerned, looking to the check period under reference and the date of the application of the Act of 1988 and the scope of the provisions of section 30 of the New Act relating to the repeal and the nature of the penal provision sought to be applied of the New Act, the case stands only squarely covered so far as of the framing of the charge is concerned for offence punishable under section 5 (1)(e) read with section 5(2) of the Prevention of corruption Act, 1947. The charge under section 13 (1) (e) read with section 13 (2) of the Prevention of Corruption Act, 1988 is ill founded, the alternative charge under the New Act is, therefore, liable to be set-aside. 6. In view of what has been stated above, this revision is allowed only to the extent that the alternative charge under the 1988 Act stands struck down. Only the charge under the provisions of section 5(1)(e) read with section 5(2) of the Prevention of Corruption Act, 1947 is retained and the trial shall go on with reference thereto. It is also observed that in the circumstances of the case there need be no denovo trial. 7. Accordingly this revision stands disposed of.