JUDGMENT
1. In this appeal, the appellant is challenging the judgment dated 21-11-1989 passed by the Sessions Judge, Karawar, Uttara Kannada, in S.C. No. 3/1989, convicting him for an offence under S. 7 of the Prevention of Corruption Act, 1988, and sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for a period of three months.
2. The appellant is a public servant and was working as a school teacher in the Industrial Training Institute (Women), Kasbaga, Belgaum. He was appointed as a Supervisor and Examiner to conduct annual practical examination of the students of electrical branch, Industrial Training Institute of Nandangadda, Karawar. It is the allegation of the prosecution that the appellant being a public servant, demanded money in cash on 22-7-1988 and 25-7-1988 and accepted the same on 26-7-1988 from the students who were about to appear for practical examination of which the appellant was in charge, for showing official favour of promoting them and awarding higher marks to them in the said examination. The learned Sessions Judge, framed a charge on the accused for an offence under S. 7 of the Prevention of Corruption Act, 1988, and after trial convicted and sentenced him as aforesaid. It is this conviction and sentence that is challenged in this appeal.
3. Sri N. B. Bhat, learned counsel for the appellant-accused, contended that the trial conducted by the learned Sessions Judge is vitiated as the appellant has been convicted and sentenced for an offence which was created by the statute long after the alleged date of offence. In other words, the penal provision of law under which the appellant was convicted was not in force on the date of the alleged offence.
4. The alleged dates of offence are 22-7-1988, 25-7-1988 and 26-7-1988. It is not disputed that the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the Act of 1988’) came into force on 9th September 1988. It is also not in dispute that the first information was registered in this case for offences under S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, 1947, and S. 161 of the I.P.C. The contention of Sri N. B. Bhat is that by virtue of clause (1) of Art. 20 of the Constitution of India, a person cannot be convicted for an offence which was not in force at the time of the commission of the act alleged. The said provision reads thus :
“(1) No person shall be convicted for any offence except for violation of the law in force at the time of the commission of the act charged as an offence or be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”
5. The learned High Court Government Pleader, on the other hand, contends that the ingredients of Section 7 of the Act of 1988 are exatly similar to that of Section 161, I.P.C. and, therefore, the charge framed against the appellant, conviction and sentence imposed on the appellant-accused should be taken to have been done under section 161, I.P.C. It is also his contention that no prejudice is caused to the appellant if his conviction is taken as conviction under section 161, I.P.C. Section 161, I.P.C. reads thus :
“161. Public servant taking gratification other than legal remuneration in respect of an official act – Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification, whatever, other than legal remuneration, as a motive or reward for dong or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State, or with any local authority, corporation, or Government company referred to in Section 21 or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.”
Section 7 of the Act of 1988 reads thus :
“7. Public Servant taking gratification other than legal remuneration in respect of an official act :- Wherever being, or expecting to be a Public Servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any Local Authority, Corporation or Government Company referred to in clause (c) of Section 2, or with any Public Servant whether named or otherwise, shall be punishable with imprisonment, which shall not be less than six months but which may extend to five years and shall also be liable to fine.”
6. A reading of both the Sections would indicate that the allegations made against the appellant would have attracted Section 161, I.P.C. But, it is difficult to accept the further contention of the learned High Court Government Pleader that no prejudice is caused to the accused as the charge has not been framed under section 161, I.P.C. The punishment prescribed for an offence under section 161, I.P.C. is imprisonment of either description which may extend to 3 years or with fine, or with both. In the case of an offence under section 7 of the Act 1988, the offender is liable to be punished with imprisonment which shall not be less than six months and which may extend to five years and also liable to fine. Section 7 is placed on a higher pedestal than that of Section 161, I.P.C. Section 7 of the Act of 1988 while enhancing the period of punishment to 5 years, stipulates that the offender shall be compulsorily imprisoned for a period of not less than six months. In the instant case, this aspect was taken note of by the learned Sessions Judge while sentencing the accused for imprisonment for a period of two years. The offence for which a person is sought to be convicted must have been in force at the time when the act with which he is charged was alleged to have been committed. A person therefore cannot be convicted for an act which was not an offence when that act was committed. Section 7 of the Act of 1988 was not in force at the time the appellant-accused is alleged to have demanded and accepted illegal gratification. Contravention of a provision relating to fundamental right cannot be condoned. The trial held against the appellant, therefore, is opposed to Article 20(1) of the Constitution and because of this fundamental defect, the whole trial is vitiated. In such a situation, the only way out is to order retrial invoking Section 386 of the Cr.P.C.
7. Sri N. B. Bhat, learned Counsel for the appellant, pointed out that the alleged offence has taken place in the month of July of 1988, that the trial commenced on 6-10-1989 and came to an end on 10-10-1989, and that we are in the year 1994. It is also pointed out by him that the appellant has already faced the ordeal of a trial and that there may not be any need for directing the accused to face a retrial at this distance of time. Sri Bhat, learned Counsel for the appellant, therefore, wants this Court to invoke the inherent power under section 482, Cr.P.C. to quash the whole proceedings. The appellant has not so far raised the defect in the framing of the charge or trial. For the first time, at the stage of hearing of this appeal, this defect was pointed out. Hence, it cannot be said that the accused was not guilty of any lapses on his part. Serious allegations have been made against the appellant. This is, therefore, not a fit case where the entire proceedings should be quashed.
8. Sections 30 and 31 of the Act of 1988 read thus :
“30. Repeal and saving. – (1) The Prevention of Corruption Act, 1947 and the Criminal Law Amendment Act, 1952 are hereby repealed.
(2) Notwithstanding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 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.
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, shall apply to such omission if the said sections had been repealed by a Central Act.”
It is not disputed that the accused could be tried for the offences alleged to have been committed under section 161, I.P.C. and Section 5(1)(d) read with Section 5(2) of the Act of 1947 even after the coming into force of the Act of 1988. Section 6 of the General Clauses Act, 1897 deals with the effect of the repeal of a central enactment. According to this provision, unless a different intention appears, the repeal shall not affect the previous operation of any enactment so repealed or affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed, or affect any investigation, legal proceeding, or any liability, penalty or punishment incurred under the repealed Act. Section 6 further provides that any such investigation, legal proceeding or remedy may be instituted or continued as if the repealing Act had not been passed.
9. Hence, I pass the following order :
The appeal is allowed. Conviction and sentence imposed on the appellant are set aside. The case is remanded to the learned Sessions Judge and he shall take the case under its original number and try the case afresh in accordance with law and also in the light of the observations made herein and dispose of the same within six months from this date. The appellant shall continue to remain on bail till he appears before the Sessions Judge for retrial and it is open to him to seek fresh bail from the Sessions Judge thereafter.
10. Appeal allowed.