[CASE NUMBER] (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARAYANA AT CHANDIGARH [CASE NUMBER] (O&M) Date of Decision: August 29, 2014 [ENTITY] Petitioner Versus [ENTITY] and another Respondents Present: Shri [ENTITY], Amicus Curiae. Shri [ENTITY], Advocate, for respondent No.1. Shri [ENTITY], Advocate, for respondent No.2. CORAM: HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR. JUSTICE [ENTITY] 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? [ENTITY], J.
Challenge in the present writ petition is to the vires of [SECTION] of the [ACT] (for short `the Act'), inter-alia, on the ground that the same is violative of [SECTION] of the [ACT], whereby a citizen is protected against ex-post facto [ENTITY] penal Statutes.
2014.08.29 12:31 I attest to the accuracy of this document [CASE NUMBER] A crime report No. 15 dated 6.8.1990 was recorded by the Delhi Police Establishment (Chandigarh Branch) under [SECTION] of the Act. It is asserted by the petitioner that the registration of the case and the filing of the report resulted in serious penal consequences and the petitioner, who was then serving as a Colonel, was dismissed from service on 17.1.1993, though such order has been set aside in separate proceedings by this Court.
It is asserted that the allegations in the FIR and the subsequent charge-sheet are to the effect that the petitioner has been found to be in possession of pecuniary resources and the properties disproportionate to his known sources of income but such charges are leveled on the basis of the provisions of the Act though, in terms of the provisions of the [ACT], it could not said that the petitioner has committed any offence. Thus it is alleged that the petitioner is being prosecuted for an offence which was not an offence on the date of its commission, therefore, the prosecution launched against the petitioner violates the protection given to the citizens under [SECTION] of the [ACT].
The petitioner asserts that he was promoted to the rank of Lt. Colonel on 11.10.1980 and to the rank of Colonel on 25.5.1986. The petitioner was approved for promotion to the high rank of Brigadier when he was posted as Chief Engineer 1 Corps on 12.7.1990 with the acting rank of Brigadier. The assertion of the petitioner is that he has sufficient sources of income and that the properties owned by him are from his known sources of income. With this background, the petitioner has challenged the legality of [SECTION] of Act. Challenge is to the explanation appended to [SECTION] of the said Act, whereby it is provided that the income [ENTITY] 2014.08.29 12:31 I attest to the accuracy of this document [CASE NUMBER] received from the lawful sources, but not shown in the departmental returns has been taken out from the definition of the lawful income.
It is alleged that by excluding certain receipts forming part of lawful income altogether a new definition of disproportionate assets has been brought into existence under the garb of the second part of the explanation. It is, thus, alleged that had this case been registered prior to the coming into effect of the Act, under [SECTION] of the 1947 Act, it would have been legitimate for a public servant to set up a valid defence on the basis of the income from the sources mentioned in the explanation. Thus, retrospective ex-post facto nature of [SECTION] of the Act, is writ large, which is illegal and ultra-vires of the protection given in [SECTION] of the [ACT].
We have heard Shri [ENTITY], the learned Amicus Curiae and the learned counsel for the respondents.
The provisions of [SECTION] of the Act, are pari- materia same as were contained in [SECTION] of the 1947 Act, as originally enacted. [SECTION] of the 1947 Act, was omitted by [ACT] and clause (e) was inserted in [SECTION] of 1947 Act. The relevant provisions of the statute as existed in the year 1947 in juxtaposition to the provisions of the Act, read as under:-
[ACT] [ACT]
5. Criminal misconduct in discharge of 13. Criminal misconduct by a public official duty. (1) A public servant is said servant. (1) A public servant is said to to commit the offence of criminal commit the offence of criminal misconduct in the discharge of his misconduct,
duties- (a) if he habitually accepts or (a) if he habitually accepts or obtains or agrees to accept or [ENTITY] obtains or agrees to accept or attempts to obtain from any 2014.08.29 12:31 I attest to the accuracy of this document [CASE NUMBER] attempts to obtain from any person for himself or for any person for himself or for any other person any gratification other person, any gratification other than legal remuneration as (other than legal remuneration) a motive or reward such as is as a motive or reward such as is mentioned in [SECTION]; or mentioned in [SECTION] of the [ACT], or (b) if he habitually accepts or (b) if he habitually accepts or obtains or agrees to accept or obtains or agrees to accept or attempts to obtain for himself or attempts to obtain for himself or for any other person, any for any other person, any valuable thing without valuable thing without consideration or for a consideration or for a consideration which he knows consideration which he knows to be inadequate from any to be inadequate, from any person whom he knows to have person whom he knows to have been, or to be, or to be likely to been, or to be, or to be likely to be concerned in any proceeding be concerned in any proceeding or business transacted or about or business transacted or about to be transacted by him, or to be transacted by him, or having any connection with the having any connection with the official functions of himself or official functions of himself or of any public servant to whom of any public servant to whom he is subordinate, or from any he is subordinate, or from any person whom he knows to be person whom he knows to be interested in or related to the interested in or related to the person so concerned; or person so concerned, or (c) if he dishonestly or (c) if he dishonestly or fraudulently mis-appropriates or fraudulently misappropriates or otherwise converts for his own otherwise converts for his own use any property entrusted to use any property entrusted to him or under his control as a him or under his control as a public servant or allows any public servant or allows any other person so to do, or other person so to do; or (d) if he, by corrupt or illegal (d) if he, means or by otherwise abusing (i) by corrupt or illegal his position as a public servant, means, obtains for obtains for himself or for any himself or for any other other person any valuable thing person any valuable thing or pecuniary advantage, or pecuniary advantage; (e) if he, or any person on his behalf is or in possession of or has, at any time (ii) by abusing his position as during the period of his office, been in a public servant, obtains possession, for which the public servant for himself or for any cannot satisfactorily account, of other person any valuable pecuniary resources or property thing or pecuniary disproportionate to his known sources advantage; or of income. (iii) while holding office as a [ENTITY] 2014.08.29 12:31 I attest to the accuracy of this document [CASE NUMBER] (2) xx xx xx public servant, obtains for any person any (3) In any trial of an offence valuable thing or punishable under sub-section(2) the pecuniary advantage fact that the accused person or any without any public other person on his behalf is in interest; or possession, for which the accused (e) if he or any person on his person cannot satisfactorily account of behalf, is in possession or has, at pecuniary resources or property any time during the period of his disproportionate to his known sources office, been in possession for of income may be proved, and on such which the public servant cannot proof the court shall presume, unless satisfactorily account, of the contrary is proved, that the accused pecuniary resources or property person is guilty of criminal misconduct disproportionate to his known in the discharge of his official duty and sources of income. his conviction therefore shall not be invalid by reason only that it is based Explanation. For the purposes of solely on such presumption. this section, "known sources of income" means income received from "(3) Whoever habitually commits any lawful source and such receipt
(i) an offence punishable under Section has been intimated in [SECTION] or [SECTION] of the Indian with the provisions of any law, rules Penal Code, or or orders for the time being applicable to a public servant
(ii) an offence punishable under (Emphasis Supplied).
[SECTION] of the [ACT], shall be punishable with imprisonment for a term which shall (2) Any public servant who commits not be less than one year but which criminal misconduct shall be punishable may extend to seven years, and shall with imprisonment for a term which also be liable to fine: shall be not less than one year but Provided that the Court may, for any which may extend to seven years and special reasons recorded in writing, impose a shall also be liable to fine. sentence of imprisonment of less than one year.
[Note: Italicized portion added by [ACT] ]"
As per the explanation appended to [SECTION], the known sources of income have been defined to mean income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. It is the later part of the explanation, which is the subject [ENTITY] 2014.08.29 12:31 I attest to the accuracy of this document [CASE NUMBER] matter of challenge. The grievance is that the failure to intimate the lawful sources of income to the departmental authorities would be treated to be unlawful which gives retrospective effect to the income, which was lawful earlier and ceased to be lawful only for the reason that that it was not intimated in accordance with the law, rules or orders the time being applicable to a public servant.
The provisions of the 1947 Act, as originally enacted, came up for consideration of the Hon'ble Supreme Court in [ENTITY] v. The State, AIR 1960 SC 7. The Court held that [SECTION] of the 1947 Act does not create a new offence, but only lays down a rule of evidence enabling the Court to raise presumption of guilt in certain circumstances contrary to the well established principle of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged. The Court also observed that the expression "known sources of income" must have reference to the sources known to the prosecution on a thorough investigation of the case and it was not and could not be contended that known sources of income means sources known to the accused. It was held to the following effect:-
"4. It is true that [SECTION] of the Act, does not create a new offence but only lays down a rule of evidence, enabling the court to raise presumption of guilt in certain circumstances - a rule which is a complete departure from the established principle of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged and that the burden never shifts on to the accused to disprove the charge framed against him."
xx xx xx [ENTITY] 2014.08.29 12:31 I attest to the accuracy of this document [CASE NUMBER]
6. Another argument bearing on the same aspect of the case, is that the prosecution has not led evidence to show as to what are the known sources of the appellant's income. In this connection, our attention was invited to the evidence of the Investigating Officers, and with reference to that evidence, it was contended that those officers have not said, in terms, as to what were the known sources of income of the accused, or that the salary was the only source of his income. Now, the expression "known sources of income" must have reference to sources known to the prosecution on a thorough investigation of the case. It was not, and it could not be, contended that "known sources of income" means sources known to the accused. The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of [SECTION] of the [ACT] After the conditions laid down in the earlier part of [SECTION] of the Act, have been fulfilled by evidence to the satisfaction of the Court, as discussed above, the Court has got to raise the presumption that the accused person is guilty of criminal misconduct in the discharge of his official duties, and this presumption continues to hold the field unless the contrary is proved, that is to say, unless the Court is satisfied that the statutory presumption has been rebutted by cogent evidence. Not only that, the section goes further and lays down in forceful words that "his conviction therefore shall not be invalid by reason only that it is based solely on such presumption."
In Five Judges' Bench judgment in [ENTITY] v. State of U.P.AIR 1961 SC 583, the Court approved the earlier view taken in [ENTITY]'s case (supra), that [SECTION] of the 1947 Act, does not create a new offence, but only lays down a rule of evidence, which empowers the Court to presume the guilt of the accused in certain circumstances, contrary to the well known principle of criminal law that the burden of proof is always on the prosecution and never shifts on to the accused person. It was held to the following effect:-
[ENTITY] 2014.08.29 12:31 I attest to the accuracy of this document [CASE NUMBER] "8. We consider that the above argument of learned counsel for the appellant is correct and must be accepted. This Court pointed out in [ENTITY] that [SECTION] of the [ACT], does not create a new offence but only lays down a rule of evidence which empowers the Court to presume the guilt of the accused in certain circumstances, contrary to the well known principle of Criminal law that the burden of proof is always on the prosecution and never shifts on to the accused person. In [ENTITY] case there were charges for the offence of criminal misconduct under two heads, clause (a) and clause (d). The trial court held the accused person in that case not guilty of the offence under clause (a) but guilty of the offence under clause (d) by invoking the Rule of presumption laid down in [SECTION]."
In [PRECEDENT], an argument was raised that when the Section speaks of the accused being in possession of pecuniary resources or property disproportionate to his known sources of income only pecuniary resources or property acquired after the date of the 1947 Act is meant, otherwise, to think so would be to give the Act retrospective operation and for this there is no justification. The Court found that to take into consideration the pecuniary resources or property in the possession of the accused or any other person on his behalf which are acquired before the date of the Act is in no way giving the Act a retrospective operation. The argument that [SECTION] does not create a new kind of offence of criminal misconduct by a public servant in the discharge of his official duty was found to be not tenable. It was held that sub-section (3) merely prescribes a rule of evidence for the purposes of proving the offence of criminal misconduct as defined in [SECTION] of the Act, for which an accused person is already under trial. The relevant extracts from the said judgment read as under:-
[ENTITY] 2014.08.29 12:31 I attest to the accuracy of this document [CASE NUMBER] "13. A statute cannot be said to be retrospective 'because a part of the requisites for its actions is drawn from a time antecedent to its passing". (Maxwell on Interpretation of Statutes, 11th Edn., p. 211; see also [PRECEDENT]. Notice must be taken in this connection of a suggestion made by the learned counsel that in effect [SECTION] creates a new offence in the discharge of official duty, different from what is defined in the four clauses of [SECTION]. It is said that the act of being in possession of pecuniary resources or property disproportionate to known sources of income, if it cannot be satisfactorily accounted for, is said by this sub-section to constitute the offence of criminal misconduct in addition to those other acts mentioned in [SECTION] which constitute the offence of criminal misconduct. On the basis of this contention the further argument is built that if the pecuniary resources or property acquired before the date of the Act is taken into consideration under sub-section 3 what is in fact being done is that a person is being convicted for the acquisition of pecuniary resources or property, though it was not in violation of a law in force at the time of the commission of such act of acquisition. If this argument were correct a conviction of a person under the presumption raised under [SECTION] in respect of pecuniary resources or property acquired before the [ACT] would be a breach of fundamental rights under [SECTION] of the [ACT] and so it would be proper for the court to construe [SECTION] in a way so as not to include possession of pecuniary resources or property acquired before the Act for the purpose of that sub-section. The basis of the argument that [SECTION] creates a new kind of offence of criminal misconduct by a public servant in the discharge of his official duty is however unsound. The sub-section does nothing of the kind. It merely prescribes a rule of evidence for the purpose of proving the offence of criminal misconduct as defined in [SECTION] for which an accused person is already under trial. It was so held by this Court in C.D.S. [ENTITY] v. State and again in [ENTITY] v. State of U.P It is only when a trial has commenced for criminal misconduct by doing one or more of the acts mentioned in [SECTION] that sub-section 3 can come into operation. When [ENTITY] 2014.08.29 12:31 I attest to the accuracy of this document [CASE NUMBER] there is such a trial, which necessarily must be in respect of acts committed after the [ACT] came into force, sub-section 3 places in the hands of the prosecution a new mode of proving an offence with which an accused has already been charged.
14. Looking at the words of the section and giving them their plain and natural meaning we find it impossible to say that pecuniary resources and property acquired before the date on which the [ACT] came into force should not be taken into account even if in possession of the accused or any other person on his behalf. To accept the contention that such pecuniary resources or property should not be taken into consideration one has to read into the section the additional word "if acquired after the date of this Act" after the word "property". For this there is no justification."
[SECTION] of the 1947 Act, has been found to be laying down a rule of evidence and is not a provision of creating an offence. Though [SECTION] of the 1947 Act, is differently worded, but purport and substance of the said sub-section, can be said to be same as is contained in second part of the explanation to [SECTION]. The explanation, the subject matter of challenge in the present writ petition, is also a rule of evidence and not a new offence. The offences are contained in [SECTION], which are pari-materia with the provisions of the 1947 Act. Since the provisions of [SECTION] of the Act, have been found to be a rule of evidence, therefore, the explanation, which also raises a presumption for the purposes of determining the known sources of income, does not suffer from any illegality.
It may be noticed that the possession of assets disproportionate to the known sources of income is continuing offence as [ENTITY] 2014.08.29 12:31 I attest to the accuracy of this document [CASE NUMBER] against the offences affecting the human body as contained in [SECTION] of the [ACT], where the offence is generally complete, the moment it is committed. The possession of the assets disproportionate to income might have commenced when 1947 Act was in force but it continued even after the Act was enacted. Whether a particular offence is a continuing offence or an offence committed once and for all necessarily depends on the language of the statute which governs the offence, the nature of the offence and above all the purpose which was intended to be achieved by constituting the particular act as an offence.
The Hon'ble Supreme Court in [PRECEDENT] examined the question as to what is meant by the words "continuing offence". It was held:-
"5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobediance or non- compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all."
[ENTITY] 2014.08.29 12:31 I attest to the accuracy of this document [CASE NUMBER] The words "continuing offence" is not defined anywhere in the Code. If an act committed by accused constitutes an offence and if that act continues from day to day, a fresh offence is committed by the accused every day so long as the lapse continues. A continuing offence is distinguishable from the offence committed once. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and, therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when act or omission is committed once and for all. Therefore, the possession of assets disproportionate to one's income is a continuing offence, which is to be seen on the day when a public servant is charged for such an offence.
The Hon'ble Supreme Court in [PRECEDENT] has held that an offence under [SECTION] [ACT] is a continuing offence, meaning thereby that bar of limitation for such an offence cannot be extended. In [PRECEDENT], it has been held that a complaint under [SECTION] and [SECTION] [ACT], can be entertained by the Court even after the statutory period of limitation, provided the Court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice, as stipulated by [SECTION] of the [ACT].
The [ACT] is an enactment to ensure probity and transparency in the administration. The explanation which [ENTITY] 2014.08.29 12:31 I attest to the accuracy of this document [CASE NUMBER] advances the cause of enactment is to be accepted. The explanation only raises a presumption. It is always open to an accused to rebut the presumption by producing such evidence as in his possession, even in respect of the second part of the explanation.
Mr. [ENTITY], learned Amicus Curiae, has referred to the judgment of the Hon'ble Supreme Court in [PRECEDENT], wherein it has been held that the presumption to be raised under [SECTION] of Act, was not available to be raised under [SECTION] of the 1947 Act. That was a case where the accused was prosecuted pursuant to an FIR registered when 1947 Act was in force and after [SECTION] of the 1947 Act, was substituted vide [ACT]. The said judgment has no applicability to the facts of the present case, where the FIR was registered after the coming into force of the Act. The Hon'ble Supreme Court in the cases of [ENTITY]; [ENTITY] and [PRECEDENT] (supra) has held that such provisions are the rule of evidence and not a penal provision.
In view of the above, we do not find any merit in the present writ petition and the same is accordingly dismissed.
[ [ENTITY] ] JUDGE [ [ENTITY]] JUDGE August 29, 2014 ds [ENTITY] 2014.08.29 12:31 I attest to the accuracy of this document [CASE NUMBER]