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2022 DIGILAW 198 (ALL)

Suneel Kumar Yadav v. C. B. I. /A. C. B. /Lucknow

2022-02-15

MANISH KUMAR

body2022
JUDGMENT : 1. Instant petition under Section 482 of the Cr.P.C. has been preferred by the petitioner for quashing of the impugned order dated 20.01.2020 passed by the learned court of Special Judge, Anti Corruption, West, UP., Lucknow initiated in case no. 2 of 2015 arising out of crime no. RC006/2015/A/0002 under Sections 7 & 13(2) r/w 13 (1)(d)of Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act 1988'). 2. Learned counsel for the petitioner has submitted that the impugned order was passed without considering the submissions raised on behalf of the petitioner. It is further submitted that the Prevention of Corruption Act has lastly been amended w.e.f. 26.07.2018 and Section 13(1)(d) of the Act 1988 has been substituted by Section 7 of the Act 1988. In Section 13(1)(d), the punishment provided was not less than four years but which may extend to ten years and shall also be liable to fine, whereas by making an amendment, the punishment which has been provided under Section 7 of the Act 1988 is less than three years but which may extend to seven years and shall also be liable to fine. After the amendment in the Act, the applicant has moved an application for alteration of charge in the light of Amendment Act, 1988 since Section 13(1)(d) of the Act 1988 has been omitted and prayed for dropping of the charge under Section 13(1)(d) of the Act 1988. In support of his submission, learned counsel for the petitioner has relied upon the judgment in the case of T. Barai v. Henry Ah Hoe and another reported in 1983 CRI.L.J. 164 SC on the issue if the punishment has been made lesser in the subsequent statute, the same will be applicable in the pending cases. 3. On the other hand, learned counsel for the CBI has submitted that there is no illegality in the order passed by the Special Judge, Anti-Corruption and has submitted that the amendment has been made vide notification dated 26.07.2018 and the same is not retrospective. 3. On the other hand, learned counsel for the CBI has submitted that there is no illegality in the order passed by the Special Judge, Anti-Corruption and has submitted that the amendment has been made vide notification dated 26.07.2018 and the same is not retrospective. In the present case, the FIR was lodged against the petitioner on 05.02.2015; the charge-sheet was filed on 20.03.2015 and the charges were framed on 08.08.2016, whereas the notification of amendment has come into effect on 26.07.2018 and the amendment has not been given retrospective effect and hence the case of the present petitioner is governed by the provisions of the Act, which was in force prior to the amendment. In support of his submission, learned counsel has relied upon the judgment of the Apex Court in the case of State of Telangana v. Managipet alias Mangipet Sarveshwar Reddy reported in (2019) 19 SCC 87 . 4. After hearing the learned counsels for the respective parties, it is found that the judgment relied by learned counsel for the applicant is not applicable in the present case. The facts of that case were different and the issue before the Apex Court was with regard to the repugnancy between the State law and the Union law and the question to be decided was which law will prevail and the provisions of the Prevention of Food Adultration Act was under challenge whereas the judgment relied by learned counsel for the respondent in the case of State of Telangana v. Managipet alias Mangipet Sarveshwar Reddy (supra) is on the issue which is on a point which is under consideration in the present case and the Apex Court in paragraph 37 has held as under:- "37. Mr. Guru Krishna Kumar further refers to a Single Bench judgment of the Madras High Court in M. Soundararajan v. State through the Deputy Superintendent of Police, Vigilance and Anti Corruption, Ramanathapuram20 to contend that amended provisions of the Act as amended by Act XVI of 2018 would be applicable as the Amending Act came into force before filing of the charge sheet. We do not find any merit in the said argument. In the aforesaid case, the learned trial court applied amended provisions in the Act which came into force on 26 th July, 2018 and acquitted both the accused from charge under Section 13(1)(d) read with 13(2) of the Act. We do not find any merit in the said argument. In the aforesaid case, the learned trial court applied amended provisions in the Act which came into force on 26 th July, 2018 and acquitted both the accused from charge under Section 13(1)(d) read with 13(2) of the Act. The High Court found that the order of the trial court to apply the amended provisions of the Act was not justified and remanded the matter back observing that the offences were committed prior to the amendments being carried out. In the present case, the FIR was registered on 9th November, 2011 much before the Act was amended in the year 2018. Whether any offence has been committed or not has to be examined in the light of the provisions of the statute as it existed prior to the amendment carried out on 26.7.2018." 5. The Apex Court in the case of State of Rajasthan vs. Tejmal Choudhary passed in Criminal Appeal No. 1647 of 2021 vide its judgment dated 16.12.2021, where the fact of the case was that the FIR was lodged on 01.01.2018 against the respondents under Section 13(1)(g) and 13(2)of the Prevention of Corruption Act, 1988 read with provisions of IPC and by amendment in the year 2018, Section 17A has been inserted which provides for previous approval for initiation of any proceedings and investigations against a public servant in discharge of official functions. The Apex Court has held that it is a cardinal principal of construction that every statute is prospective, unless it is expressly or by necessary implication made to have retrospective operation and has relied upon the judgments in the case of Akram Ansari vs. Chief Election Officer [ (2008) 2 SCC 95 ]; K.R. Ramesh vs. Central Bureau of Investigation and another [(2020) SCC Online Kerala 2529]. The judgment in the case of G J Raja vs. Tejraj Surana [ (2019) 19 SCC 469 ] where the Apex Court followed the judgment of Hitendra Vishnu Thakur vs. State of Maharashtra and Ors. [ (1994) 4 SCC 602 ] and held that a statute which affect substantive rights is presumed to be prospective in operation unless made retrospective. The relevant paragraph of the judgment in the case of State of Rajasthan vs. Tejmal Choudhary (supra) is reproduced herein below:- "11. [ (1994) 4 SCC 602 ] and held that a statute which affect substantive rights is presumed to be prospective in operation unless made retrospective. The relevant paragraph of the judgment in the case of State of Rajasthan vs. Tejmal Choudhary (supra) is reproduced herein below:- "11. It is a well settled principle of interpretation that the legislative intent in the enactment of a statute is to be gathered from the express words used in the statue unless the plain words literally construed give rise to absurd results. This Court has to go by the plain words of the statute to construe the legislative intent, as very rightly argued by Mr. Roy. It could not possibly have been the intent of the legislature that all pending investigations upto July, 2018 should be rendered infructuous. Such an interpretation could not possibly have been intended." 6. It is an undisputed fact in the present case is that the FIR was lodged against the petitioner on 05.02.2015; the charge-sheet was filed on 20.03.2015 and the charges were framed on 08.08.2016 that is much prior to the amendment in the Act which has came into effect since 26.07.2018. In the present case, the proceedings uptil the framing of charges was prior to the amendment and it is not provided in the amendment which is retrospective in effect and as per the law laid down by the Apex Court in catena of judgments as discussed above that if it is not expressly provided that the provisions of the amended Act will have retrospective effect, the same shall be applicable prospectively and the pending cases shall proceed as per the pre-amended law as existed when the offence is said to have been committed. 7. In so far as the present case is concerned, the amendment does not help the petitioner in any manner, which may entitle him for grant of prayer i.e. dropping of the charge under Section 13(1)(d) of the Act 1988. The petition lacks merit. Hence, this Court finds no illegality in the order passed by the learned Special Judge, Anti Corruption, West, UP., Lucknow and no interference is required in the present petition under Section 482 Cr.P.C. Petition is dismissed accordingly.