10/20/2020 Benefit Of Amendment In Section 13 Prevention Of Corruption Act 1988 As Amended By The Prevention Of Corruption (Amendment) A…

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Home / Lawyers & Law Firms / Bene t Of Amendment...

LAWYERS & LAW FIRMS

Bene t Of Amendment In Section 13

Prevention Of Corruption Act 1988 As Amended
By The Prevention Of Corruption (Amendment)
Act 2018 Can Be Extended To Pending Cases
Anuj Chauhan 31 March 2020 5:26 PM

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The Prevention of Corruption Act 1988 (PC Act 1988) was amended by The Prevention of

Corruption (Amendment) Act 2018 (Amendment Act of 2018) vide which the amendment

to section 13 of the PC Act 1988 was introduced by substituting the text of Section 13(1)

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10/20/2020 Benefit Of Amendment In Section 13 Prevention Of Corruption Act 1988 As Amended By The Prevention Of Corruption (Amendment) A…

with a new de nition for the offence of criminal misconduct. The amendment has taken

away the rigour of criminal law by incorporating the guilty intention as a necessary

ingredient to attract the offence of criminal misconduct as de ned under section 13 of

the PC Act 1988 as amended by the Amendment Act of 2018. The Statement of Objects

and Reasons to The Prevention of Corruption Amendment Bill 2013 mentions that

changes proposed to the aforesaid Act has been necessitated due to rati cation of the

United Nations Convention Against Corruption (UNCAC) in May, 2011 by our country; and

Judicial pronouncements in corruption cases to ll in gaps in description and coverage

of offence of bribery so as to bring it in line with the current international practice.

Also Read - SC Stays Allahabad HC Judgment Which Directed UPPTCL To Release

Bank Guarantee Of Contractor

Full Bench of Hon'ble High Court of Delhi in the matter of Runu Ghosh Vs. CBI

[1] held that there is no requirement of proving mens rea for the offence u/s 13(1)(d)(iii)

of the PC Act 1988 (as it then existed). For offence u/s 13(1)(d)(iii) the test applicable

was when the decision or an act of a public servant, (which results in another obtaining

pecuniary advantage or valuable thing) be without public interest, namely,

Also Read - Scope Of Enquiry And Judicial Notice While Granting Mesne Pro ts And

Damages For Unauthorized Occupation Of The Leased Premises

if that action of the public servant is the consequence of her or his manifest failure to
observe those reasonable safeguards against detriment to the public interest, which
having regard to all circumstances, it was his or her duty to have adopted. However the
new(substituted) de nition of Criminal Misconduct puts an additional burden on the

Investigation agency to prove the guilty intention on part of the public servant which is

manifested from the language of the new provision itself.

Also Read - Leaving OTT Communication Services To Their Own Devices

MISUSE OF PROVISION BY THE INVESTIGATING AGENCIES : MISCHIEF PREVAILED IN

COUNTRY

One of the Suggestion taken into consideration by the Standing Committee of Rajya

Sabha was that the provisions under Section13 (1)(d)(iii) of the P C Act, 1988 has been

misused by investigating agencies and is exposed to potential misinterpretation leading

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10/20/2020 Benefit Of Amendment In Section 13 Prevention Of Corruption Act 1988 As Amended By The Prevention Of Corruption (Amendment) A…

to prosecution of honest public servant. Therefore, the concerned Section needs to be

deleted in public interest.

Also Read - Associate Vacancy At Lawmen & White, Advocate & Solicitors

[2]No guilty intention of public servant was required to be established under the provision

u/s 13(1)(d)(iii) except showing that the public servant has obtained any valuable thing

or pecuniary advantage for any person 'without any public interest'. The de nition thus

leaves open a very wide scope for its misuse by investigating agencies. Accordingly, the

Prevention of Corruption (Amendment) Bill, 2013 had proposed to delete section 13(1)(d)

(iii) of the PC Act 1988.[3] Non requirement of guilty intention for aforesaid provision

raises apprehensions and fears in the mind of public servant which prima facie have the

potential of impeding and slowing down decision making.[4] Due to this there was an

apprehension in the minds of public servant which as there was a potential threat of

prosecution of honest public servants. In order to provide a work friendly environment to

the public servant the section 13(1)(d)(iii) was proposed to be deleted.

Select Committee of Rajya Sabha suggested that Section 13(1) (d)(iii) of the Prevention

of Corruption Act, 1988 covers new species of crime related to corruption which was not

contemplated under Prevention of Corruption Act, 1947. The amendment proposes to

alter the said Section to the extent of deleting Section 13(1)(d)(iii) which may not be

appropriate to contain corruption where bureaucrats in connivance with politician causes

pecuniary bene t to any private party without having proper consideration of public

interest. A three Bench judgement of Delhi High Court in the matter of Runu Ghosh and

others Vs. Central Bureau of Investigation (CBI) has upheld the said Section in 2011

which has not yet been overruled by the Supreme Court. However, most stakeholders

agreed to the amendment proposed by the Government.

[5]

HOW THE RIGOUR OF SECTION 13(1) IS MOLLIFIED

Under the un-amended law guilty intention of the public servant was not required to be

proved for the offence of criminal misconduct , However under the ex-post facto law

mens rea or guilty intention of on the part of public servant is a sine qua non for

attracting the offence of criminal misconduct under section 13(1) PC Act 1988 as

amended by the Amendment Act of 2018.

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10/20/2020 Benefit Of Amendment In Section 13 Prevention Of Corruption Act 1988 As Amended By The Prevention Of Corruption (Amendment) A…

The additional requirement of proving guilty intention is the bene t which can be

extended to the earlier cases. What is prohibited under Article 20(1) of the constitution

is the retrospective operation of an ex-post facto law which brings a new offence or

enhances the punishment for an offence. What is not prohibited under Article 20(1) is the

retrospective operation of the ex-post facto law which mitigates the rigor of criminal law.

A rigor of law would include the sentencing structure , standards or ingredients of

de nition of offence , or any other factor responsible for strictness of criminal law. For

example the bene t of probation under The Probation of Offenders Act 1958 is not

applicable to the offences under P C 1988 which enhances its rigor as compared to the

offences wherein the bene t of probation can be granted.

AMENDMENTS THAT MOLLIFIES THE RIGOR OF CRIMINAL LAW CAN BE APPLIED IN

EARLIER CASES.

Hon'ble Supreme Court of India while deciding Trilok Chand v. State of Himachal

Pradesh, Criminal Appeal No. 1831/2010 decided on 01.10.2019, relied on T. Barai

[6]case wherein it was held that a bene cial amendment to an accused could be applied

to earlier cases /trials.

This preposition was rst propounded by Supreme Court in Rattan Lal vs State Of Punjab

[7]. Under Article 20 of the Constitution, no person shall be convicted of any offence

except for violation of a law in force at the time of the commission of that act charged as

an offence, nor be subjected to a penalty greater than that which might have been

in icted under the law in force at the time of the commission of the offence. But an ex

post facto law which only molli es the rigour of a criminal law does not fall within the

said prohibition. If a particular law makes a provision to that effect, though retrospective

in operation, it will be valid. [8] The rule of bene cial construction requires that even ex

post facto law bene cial to the accused should be applied to mitigate the rigour of the

law. The principle is based both on sound reason and common sense. Moreover, the

International Covenant on Civil and Political Rights, 1966, Article 15, Clause-1, rati ed by

India states, "no one shall be held guilty of any criminal offence on account of any act or

omission which did not constitute a criminal offence, under national or international law,

at the time when it was committed. Nor shall heavier penalty be imposed than the one

that was applicable at the time when the criminal offence was committed. If subsequent

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10/20/2020 Benefit Of Amendment In Section 13 Prevention Of Corruption Act 1988 As Amended By The Prevention Of Corruption (Amendment) A…

to the commission of the offence, the provision is made by law for the imposition of

lighter penalty, the offender shall get bene t thereof.

EFFECT OF SUBSTITUTION

Another ground why the amendment in section 13(1) of PC Act 1988 can be applied

retrospectively is that the amendment in Section 13(1) is by way of substitution. The

legislature while making a amending legislation had advisedly used the word

"substitution" in place of the word "addition" or "insertion". The object and purport of the

subsequent amendment by the legislature was, thus, to grant the same bene t (bene t of

guilty intention) which has been introduced by the amendment, to the public servants

facing prosecution without there being any allegation of quid pro quo against them.

The substitution of one text for the other pre-existing text is one of the known and well-

recognised practices employed in legislative drafting. Substitution of a provision results

in repeal of the earlier provision and its replacement by the new provision (see Principles

of Statutory Interpretation, ibid., p. 565). If any authority is needed in support of the

proposition, it is to be found in West U.P. Sugar Mills Assn. v. State of U.P. [(2002) 2 SCC

645] , State of Rajasthan v. Mangilal Pindwal [(1996) 5 SCC 60] , Koteswar Vittal Kamath

v. K. Rangappa Baliga and Co. [(1969) 1 SCC 255] and A.L.V.R.S.T. Veerappa Chettiar v. S.

Michael [AIR 1963 SC 933] . In West U.P. Sugar Mills Assn. case[(2002) 2 SCC 645]
Hon'ble Supreme Court held that the State Government by substituting the new rule in

place of the old one never intended to keep alive the old rule. Having regard to the totality

of the circumstances centering around the issue the Court held that the substitution had

the effect of just deleting the old rule and making the new rule operative. In Mangilal

Pindwal case [(1996) 5 SCC 60] Hon'ble Supreme Court upheld the legislative practice of
an amendment by substitution being incorporated in the text of a statute which had

ceased to exist and held that the substitution would have the effect of amending the

operation of law during the period in which it was in force.

[9] In Government of India v. Indian Tobacco Association, (2005) 7 SCC 396, by referring

to the decision in Zile Singh v. State of Haryana, (2004) 8 SCC 1, it has been clearly held

that substitution would have the effect of amending the operation of law during the

period in which it was in force. What is substituted would stand substituted from

inception Whereas insertion or addition will be relevant to the date of amendment.[10]

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Ordinarily wherever the word 'substitute' or 'substitution' is used by the legislature, it has

the effect of deleting the old provision and make the new provision operative. The

process of substitution consists of two steps: rst, the old rule is made to cease to exist

and, next, the new rule is brought into existence in its place. The rule is that when a

subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of

itself, into the earlier, then the earlier Act must thereafter be read and construed as if the

altered words had been written into the earlier Act with pen and ink and the old words

scored out so that thereafter there is no need to refer to the amending Act at all. No

doubt, in certain situations, the Court having regard to the purport and object sought to

be achieved by the Legislature may construe the word "substitution" as an "amendment"

having a prospective effect. Therefore, we do not think that it is a universal rule that the

word 'substitution' necessarily or always connotes two severable steps, that is to say, one

of repeal and another of a fresh enactment even if it implies two steps. However, the

aforesaid general meaning is to be given effect to, unless it is found that legislature

intended otherwise.

[11]

APPLICATION OF SECTION 6 GENERAL CLAUSES ACT, 1897 IS EXCLUDED

Section 6 of The General Clauses Act 1897 saves the proceedings under the repealed

enactment unless a different intention appears. Section 6 of the General Clauses Act

could be attracted when an Act or regulation is repealed simpliciter but not always when,

as in the present scenario, the repeal is followed by re-enactment (substitution) and

therefore it is incumbent upon the court to see whether the new legislation on the same

subject manifest a different intention either expressly or by necessary implication.

Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of

the General Clauses Act will follow unless, as the section itself says, a different intention

appears. In the case of a simple repeal there is scarcely any room for expression of a

contrary opinion. But when the repeal is followed by fresh legislation on the same subject

we would undoubtedly have to look to the provisions of the new Act, but only for the

purpose of determining whether they indicate a different intention. The line of enquiry

would be, not whether the new Act expressly keeps alive old rights and liabilities but

whether it manifests an intention to destroy them. We cannot therefore subscribe to the

broad proposition that Section 6 of the General Clauses Act is ruled out when there is

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10/20/2020 Benefit Of Amendment In Section 13 Prevention Of Corruption Act 1988 As Amended By The Prevention Of Corruption (Amendment) A…

repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in

such cases also unless the new legislation manifests an intention incompatible with or

contrary to the provisions of the section.

[12]

The different intention to exclude the application of section 6 of General Clauses Act is

incorporated in the expression substitution itself especially when the reports of standing

committee and select committee manifest that the intention of parliament was to

destroy the provision of section 13(1)(d)(iii) PC Act 1988 (as it then existed) to protect

the honest public servants against the frivolous prosecutions and also to remove

apprehensions and fears in the mind of public servant. Further there is no saving clause

to save the proceedings under the earlier law.

CONCLUSION

The issue whether the bene t of amendment in section 13 of the PC Act 1988 as

amended by the Amendment Act of 2018 is receiving consideration before the Hon'ble

High Court of Delhi. Even if the Amendment in Section 13 (1) of the PC Act 1988 is held

to be prospective, still in view of the law laid down by the Supreme Court the bene t of

amendment (i.e proof of guilty intention) should not be denied to the public servants

facing the rigour of trial/prosecution without there being any allegation of quid pro quo.

In cases, registered under section 13(1)d (as it then existed), wherein there is no

allegation of quid pro quo or demand by the public servant the proceedings should be

quashed qua section 13(1)d.

Anuj Chauhan Is A Delhi Based Advocate.The author's views are personal.

[1] 2011 SCC ONLINE DEL 5501

[2] Sixty Ninth Report, The Prevention Of Corruption (Amendment) Bill, 2013 ,

Department-Related Parliamentary Standing Committee On Personnel, Public Grievances,

Law And Justice

[3] Comment by DoPT, Sixty Ninth Report, The Prevention Of Corruption (Amendment)

Bill, 2013 , Department-Related Parliamentary Standing Committee On Personnel, Public

Grievances, Law And Justice

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[4] Unstarred Question No. 1286, Ministry Of Personnel, Public Grievances And Pensions

Lok Sabha, Web Source : http://164.100.47.194/loksabha/questions/qresult15.aspx?

qref=70079&lsno=16

[5] Report Of The Select Committee Of Rajya Sabha On The Prevention Of Corruption

(Amendment) Bill, 2013

[6] (1983) 1 SCC 177

[7] 1965 AIR SC 444

[8] 1965 AIR SC 444

[9] ZILE SINGH V. STATE OF HARYANA, (2004) 8 SCC 1

[10] SAKTHI MASALA P. LTD. VS. ASSITANT COMMISSIONER, 2013 SCC ONLINE MAD

1508

[11] GOTTUMUKKALA VENKATA KRISHAMRAJU VS. UNION OF INDIA, 2018 SCC ONLINE

SC 1386

[12] STATE OF PUNJAB V. MOHAR SINGH, (1955) 1 SCR 893 : AIR 1955 SC 84 : 1955 CRI

LJ 254

TAGS SECTION 13 PREVENTION OF CORRUPTION ACT 1988 

PREVENTION OF CORRUPTION (AMENDMENT) ACT 2018  SECTION13 (1)(D)(III) OF THE P C ACT 

SECTION 6 OF THE GENERAL CLAUSES ACT 1897 

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SC Stays Allahabad HC Judgment Which

Directed UPPTCL To Release Bank Guarantee
Of Contractor
LIVELAW NEWS NETWORK 20 Oct 2020 4:39 PM

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The Supreme Court granted stay of the operation of the nal judgment and order dated

24.2.2020 passed by the Allahabad High Court passed in the Writ Petition No.125 of

2019 [Cg Power & Industrial Solutions Ltd. Vs. U.P. Power Transmission Corporation Ltd],

challenged and assailed by the Petitioner corporation (UPPTCL) in the Supreme Court of

India vide Special Leave Petition (c) no. 008630 of 2020.

The matter was taken up through Video- Conferencing, and the bench was presided by

JUSTICE UDAY UMESH LALIT, JUSTICE S. RAVINDRA BHAT, and JUSTICE HRISHIKESH

ROY.

The present Special Leave Petition has been preferred against the nal judgment and

order dated 24.02.2020 passed by the High Court of Judicature at Allahabad (Lucknow

Bench, Lucknow) in MISC. BENCH (M/B) No. - 125 of 2019, whereby the Division Bench

of the Hon'ble Allahabad High Court set aside the letters issued by the UPPTCL

(Petitioners herein) to M/s Cg Power & Industrial Solutions Ltd. for payment of

outstanding labour cess computed @1% of the contract value to be deposited with the

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10/20/2020 Benefit Of Amendment In Section 13 Prevention Of Corruption Act 1988 As Amended By The Prevention Of Corruption (Amendment) A…

Labour Welfare Board. The High Court had further directed UPPTCL to release the Bank

Guarantee withheld by the corporation for realisation of the outstanding Cess amount. It

had been contended by the Petitioner's M/s Cg Power & Industrial Solutions Ltd. in its the

petition before the Allahabad High Court that the 1% Labour Cess is not applicable on the

cost of supply equipment as per the provisions of the Building and Construction Workers

Welfare Cess Act, 1996.

The principal controversy before the Supreme Court is with respect to the applicability of

labour cess of 1% on the construction cost of the project i.e. including the cost of supply

component, as provided under Section 3 sub-clause (1) and (2) of the Building and

Construction Workers Welfare Cess Act, 1996 read with Section 3, and Section 4 sub-

clause (1), (2) and (3) and (4) of the Building and Other Construction Workers Welfare

Cess Rules, 1998 and Section 2 sub-clause (d) and (g) and (i) of the Building and Other

Construction Workers (Regulation etc.), Act 1996.

The Supreme Court, in addition to granting stay on effect and operation of the impugned

judgment further directed that the Bank Guarantee furnished by Respondent No.1 M/s Cg

Power & Industrial Solutions Ltd. shall be retained by the Petitioner till further orders and

the Bank Guarantee shall always be kept alive by Respondent No.1 till further orders.

An excerpt from the order is reproduced herein below –

"Pending further consideration, there shall be ad-interim stay of the operation of the
nal judgment and order dated 24.2.2020 passed by the High Court, presently under
challenge.

It is also clari ed that the Bank Guarantee furnished by Respondent No.1 shall be
retained by the petitioner till further orders and the Bank Guarantee shall always be
kept alive by the Respondent No.1 till further orders."

The Petitioner UTTAR PRADESH POWER TRANSMISSION CORPORATION LIMITED was

represented by its special counsel Mr. Shishir Prakash, Advocate, Ms. Karuna Krishan

Thareja Advocate and Mr Rahul Bhatia (AOR). The Respondent CG Power & Industrial

Solutions Ltd. was represented by Mr. Ramesh Singh, Adv., Mrs. Monisha Handa, Adv.

And Mr. Mohit D. Ram, AOR. The next date in the matter is xed for 7th December 2020.

Click here to download the Order

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TAGS UPPTCL  JUSTICE UDAY UMESH LALIT  JUSTICE S. RAVINDRA BHAT 

JUSTICE HRISHIKESH ROY 

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िनधा रत सीमा अविध की अनदे खी करने वाली सरकारों के िलए सु ीम कोट तफरीह की जगह नही ं हो
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