W.P (CRIMINAL) NOS. 765/2010 & 871/2010 1 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + WRIT PETITION (CRIMINAL) NO. 765 OF 2010 Reserved on : 10th September, 2010. % Date of Decision :22nd November, 2010. VIRENDER SINGH .... Petitioner Through Mr. Sidhartha Luthra, Sr. Advocate with Mr. Anurag Ahluwalia, Advocate. VERSUS CENTRAL BUREAU OF INVESTIGATION ... Respondent. Through Mr. Vikas Pahwa, Standing Counsel with Ms. Suchiti Chandra, Advocate. AND WRIT PETITION (CRIMINAL) NO. 871 OF 2010 NAVEEN KUMAR ... Petitioner Through Mr. Sanjay Mann and Mr. R.K. Pillai, Advocates. VERSUS STATE THR. CENTRAL BUREAU OF INVESTIGATION ...Respondent Through Mr. Vikas Pahwa, Standing Counsel with Ms. Suchiti Chandra, Advocate. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? YES 3. Whether the judgment should be reported in the Digest ? YES SANJIV KHANNA, J.: 1. Virender Singh and his son Naveen Kumar have filed the present writ petitions impugning the order dated 13th December, 2007 passed by the Special Judge, CBI directing that charges be framed against both of them under Section 120B/419/467/471 of the Indian Penal Code, 1860 W.P (CRIMINAL) NOS. 765/2010 & 871/2010 2 (hereinafter referred to as IPC, for short) and Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act,1988, for short). Substantive charges have also been directed to be framed against the petitioner-Virender Singh under Section 13(2) read with Section 13(1)(e) of the PC Act, 1988 and against Naveen Kumar under Section 109 IPC read with Section 13(2) read with Section 13(1)(e) of the PC Act, 1988 and Section 419/467/471 IPC. 2. The allegation against the petitioner-Virender Singh in the charge sheet is that during the check period 1st July, 1982 to 12th May, 2000 he had acquired and was found to be in possession of assets disproportionate to his known sources of income to the extent of 2,62,68,298/. The charge sheet sets out the career profile of Virender Singh, who was inducted and joined Indian Administrative Services (IAS) in July, 1969. The charge sheet sets out details of the income earned by Virender Singh, his wife Geeta Singh, his son Naveen Kumar as well as the assets owned by them to arrive at the said conclusion/finding. It is alleged in the charge sheet that Naveen Kumar had actively participated and abetted Virender Singh in acquisition of assets, which were found disproportionate to the known sources of income. Specific instances have been discussed later on. 3. In brief, it is submitted on behalf of the petitioners that the PC Act, 1988 came into force with effect from 9th September, 1988 and consequent thereto the Prevention of Corruption Act, 1947 (PC Act, 1947 for short) was repealed. Accordingly the check period between July, 1982 to 12th May, 2000 partly includes period prior to enforcement of the PC Act, 1988 with effect from 9th September, 1988 during the period when the PC Act, 1947 was in force. It was submitted that for the period prior to 9th September, 1988, provisions of Section 13(1)(e) of the PC Act, 1988 read with W.P (CRIMINAL) NOS. 765/2010 & 871/2010 3 Explanation cannot be applied as it would amount to violation of the constitutional right under Article 20(1) of the Constitution of India. Reliance is placed upon Jagan M. Seshadri versus State of Tamil Nadu, (2002) 9 SCC 639. It was argued that PC Act, 1988 should not be given retrospective effect as the Explanation to Section 13(1)(e) of the PC Act, 1988 has brought about and creates a new offence which is not similar or the same offence as was defined and covered by Section 5(1)(e) of the PC Act, 1947. 4. Article 20(1) of the Constitution of India, reads: “20.(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor 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. Interpreting the said Article in Rao Shiv Bahadur Singh and Another versus The State of Vindhya Pradesh, AIR 1953 SC 394, it has been held that this Article in broad import, prohibits conviction and sentence under ex post facto laws. No one should be punished for something, which was lawful when it was done or omitted. This would be highly inequitable, unjust and contrary to the universal notion of fairness and justice. In the aforesaid case, the Supreme Court noticed the difference in language of Article 20(1) of the Constitution of India and Sections 9(3) and 10 of Article 1 of the American Constitution and it was held that the Article 20(1) of the Indian Constitution prohibits conviction of a person or his subjection to a sentence under ex post facto laws. Accordingly, it was observed:- “12. In this context it is necessary to notice that what is prohibited under Article 20 is only conviction or sentence under ex post facto law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the W.P (CRIMINAL) NOS. 765/2010 & 871/2010 4 commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved.” (emphasis supplied) 6. Following this judgment, the Supreme Court in Sajjan Singh versus State of Punjab, AIR 1964 Supreme Court 464 examined the effect of Section 5(3) of the PC Act, 1947. In the said case, the contention raised was that the PC Act, 1947 was enforced on 11th March, 1947 and, therefore, Section 5(3) of the PC Act, 1947 cannot be basis for conviction by taking into consideration assets and income acquired prior to the said date. Section 5(1), (2) and (3) of the PC Act, 1947 as originally enacted and enforced with effect from 11th March, 1947, read as under:- “5. (1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty- (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Indian Penal Code, or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own W.P (CRIMINAL) NOS. 765/2010 & 871/2010 5 use any property entrusted to him or under his control as a public servant or allows any other person so to do, or (d) if he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. (2) Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both. (3) In any trial of an offence punishable under sub-section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefore shall not be invalid by reason only that it is based solely on such presumption.” 7. The Supreme Court in Sajjan Singh’s case (supra) has held that the PC Act, 1947 did not have retrospective operation, but was unable to agree that taking into consideration pecuniary resources or property in possession of the accused or any other person on his behalf before the PC Act, 1947 was enacted was in any way giving the PC Act, 1947 a retrospective operation. It was observed that a statute cannot be said to be retrospective because a part of the requisites of its action is drawn from a time antecedent to its passing. It has been held in Sajjan Singh (supra) as under:- “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 Prevention of Corruption 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 W.P (CRIMINAL) NOS. 765/2010 & 871/2010 6 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. 15. It may also be mentioned that if pecuniary resources or property acquired before the date of commencement of the Act were to be left out of account in applying sub-section (3) of S.5 it would be proper and reasonable to limit the receipt of income against which the proportion is to be considered also to the period after the Act. On the face of it this would lead to a curious and anomalous position by no means satisfactory or helpful to the accused himself………... 16. Mention has next to be made of the learned Counsel‟s submission that the section is meaningless. According to the learned Counsel, every pecuniary resource or property is itself a source of income and therefore it is a contradiction in terms to say that the pecuniary resources or property can be disproportionate to the known sources of income. This argument is wholly misconceived. While it is quite true that pecuniary resources and property are themselves sources of income that does not present any difficulty in understanding a position that at a particular point of time the total pecuniary resources or property can be regarded as assets, and an attempt being made to see whether the known sources of income including, it may be, these very items of property in the past could yield such income as to explain reasonably the emergence of these assets at this point of time.” 8. In Sajjan Singh’s case (supra), the Supreme Court had examined the contention whether Section 5(3) of the PC Act created a new offence and this contention was rejected holding, inter alia, that the said Section places in the hands of the prosecution a new mode of proving an offence under Section 5(1) of the PC Act, 1947 with which the accused were already charged. It was accordingly observed :- “13........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-sec. (3) what is in fact being done is that a person is being convicted for the W.P (CRIMINAL) NOS. 765/2010 & 871/2010 7 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 S. 5(3) in respect of pecuniary resources or property acquired before the Prevention of Corruption Act would be a breach of fundamental rights under Art. 20(1) of the Constitution and so it would be proper for the Court to construe S. 5(3) 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 S. 5(3) 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 S. 5(1) for which an accused person is already under trial....” (emphasis supplied) 9. Learned counsel for the petitioner has submitted that Section 5(3) of the PC Act, 1947 as originally enacted was deleted vide the Anti Corruption Laws (Amendment) Act, 1964 and substituted by a new sub-section. The original clause 5(3) of the PC Act, 1947 was modified and re-enacted as Section 5(1)(e) of the PC Act, 1947 and in this connection my attention was drawn to the effect of enactment of Section 5(1)(e) of the PC Act, 1947 as a result of the Anti Corruption Laws (Amendment) Act, 1964 in State of Maharashtra versus Kaliar Koil Subramaniam Ramaswamy, (1977) 3 SCC 524. In the said case, the residential premises of the accused were searched on 17th May, 1964 and a lot of assets were detected. While the matter was still pending investigation, the PC Act, 1947 underwent amendment on 18th December, 1964 with enactment of Anti Corruption Laws (Amendment) Act, 1964, which resulted in insertion of clause (e) to Section 5(1), which became a new offence punishable under Section 5(2) of the PC Act, 1947. The Supreme Court has in paragraph 3 of the judgment W.P (CRIMINAL) NOS. 765/2010 & 871/2010 8 observed that the High Court on an appeal filed by the accused had come to the conclusion that offences under Section 5(1)(a), (b) and (d) of the PC Act, 1947 were not made out. He was acquitted under the said Sections. A question arose whether accused could be convicted under Section 5(1)(e) of the PC Act, 1947, which came into force on 18th December, 1964. The Supreme Court held that the accused could not be convicted under Section 5(1)(e) of PC Act, 1947 in the absence of any evidence on record to show that the appellant had acquired or was found to be in possession of pecuniary sources of property disproportionate to his known sources of income after coming into force of the Anti Corruption (Amendment) Act,1964 with effect from 18th December, 1964 in view of Article 20(1) of the Constitution. As noticed above, the search was conducted in the premises of the accused on 17th May, 1964 i.e. before the Anti Corruption (Amendment) Act,1964 was enforced. The Supreme Court in the case of Kaliar Koil Subramaniam Ramaswamy (supra) has observed as under:- “20.......So when there was no law in force at the time when the accused was found in possession of disproportionate, assets by the search which was made on May 17,1964, under which his possession could be said to constitute an offence, he was entitled to the protection of clause (1) of Article 20 and it was not permissible for the trial court to convict him of an offence under clause (e) of sub- section (1) of Section 5 as no such clause was in existence at the relevant time. The accused could not therefore be said to have committed an offence under clause (e) of sub-section (1) of Section 5 read with sub-section (2) of that section.” 10. In Kaliar Koil Subramaniam Ramaswamy’s case (supra), the Supreme Court distinguished the decision in the case of Sajjan Singh (supra) as originally Section 5(3) of the PC Act, 1947 was merely prescribing a rule of evidence for the purpose of proving the offence of criminal misconduct as defined under Section 5(1) of the PC Act, 1947. The W.P (CRIMINAL) NOS. 765/2010 & 871/2010 9 original Section 5(3) of the PC Act, 1947 did not constitute an offence in itself. 11. It may be relevant to notice here the legislative history and enactment of the Anti Corruption Laws (Amendment) Act, 1967, which was deemed to come into force with effect from 5th May, 1967. Section 2 of the said 1967 Act reads as under:- “2. Amendment of Anti-Corruption Law in relation to certain pending trials.- (1) Notwithstanding- (a) The substitution of new provisions for sub- section (3) of Sec. 5 of the Prevention of Corruption Act, 1947 (hereinafter referred to as the 1947-Act) by Sec. 6(2)(c) of the Anti-Corruption Laws (Amendment) Act, 1964. (hereinafter referred to as the 1964-Act), and (b) Any judgment or order of any Court, the said sub-section (3) as it stood immediately before the commencement of the 1964 Act, shall apply and shall be deemed always to have applied to and in relation to trials of offences punishable under sub- section (2) of Sec. 5 of the 1947 Act pending before any Court immediately before such commencement as if no such new provisions had been substituted for the said sub-section (3). (2) The accused person in any trial to and in relation to which sub-section (1) applies may, at the earliest opportunity available to him after the commencement of this Act, demand that the trial of the offence should proceed from the stage at which it was immediately before the commencement of the 1964 Act and on any such demand being made the Court shall proceed with the trial from that stage. (3) For the removal of doubt it is hereby provided that any Court- (i) before which an appeal or application for revision against any judgment, order or sentence passed or made in any trial to which sub-section (1) applies is pending immediately before the commencement of this Act, or (ii) before which an appeal or application for revision against any judgment, order or sentence passed or made before the commencement of this W.P (CRIMINAL) NOS. 765/2010 & 871/2010 10 Act in any such trial, is filed after such commencement. Shall remand the case for trial in conformity with the provisions of this section.” 12. The aforesaid 1967 Act and the effect thereof were made subject matter of challenge before the Delhi High Court, but the challenge was rejected. Appeal before the Supreme Court was dismissed in the decision G.P. Nayar versus State, (1972) 2 SCC 593, observing as under:- “7........Article 20(1) deals with ex post facto laws though that expression has not been used in the Article. Usually, a law prescribes a rule of conduct by which persons ought to be governed in respect of their civil rights. Certain penalties are also imposed under the criminal law for breach of any law. Though a sovereign legislature has power to legislate retrospectively, creation of an offence for an act which at the time of its commission was not an offence or imposition of a penalty greater than that which was under the law provided violates Article 20(1). In the well-known case of Phillips v. Eyre and also in the American case of Calder v. Bull the principle underlying the provision has been fully discussed. All that Article 20(1) prohibits is ex post facto laws and is designed to prevent a person being punished for an act or omission which was considered innocent when done. It only prohibits the conviction of a person or his being subjected to a penalty under ex post facto laws. In Rao Shiv Bahadur Singh v. State of Vindhya Pradesh the Court pointed out that “what is prohibited under Article 20(1) is only conviction or sentence under an ex post facto law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except insofar as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved.” W.P (CRIMINAL) NOS. 765/2010 & 871/2010 11 Thus the appellant cannot object to a procedure different from what obtained at the time of the commission of the offence. The offence that was committed was when Section 5(3) was in force and by Act 16 of 1967 the procedure is revived. It is not as if the procedure is brought into force for the first time. “Where an Act is repealed and the repealing enactment is then repealed by another, which manifests no intention that the original Act shall continue repealed, the common law rule was that the repeal of the second Act revived the first ab initio.” There can be no objection in law to the revival of the procedure which was in force at the time when the offence was committed. The effect of the amendment is that sub-section (3) of Section 5 as it stood before the commencement of the 1964 Act shall apply and shall be deemed to have always applied in relation to trial of offences. It may be if by this deeming provision a new offence was created, then the prohibition under Article 20(1) may come into operation. But in this case, as already pointed out, what is done is no more than reiterating the effect of Section 6(1) of the General Clauses Act. Mr Garg, the learned counsel, submitted that by amending procedure drastically and giving it retrospective effect a new offence may be created retrospectively. It was contended that by shifting the burden of proof as provided for in Section 5(3) of the Prevention of Corruption Act, 1947, a new offence is created. It is unnecessary for us to consider the larger question as to whether in certain circumstances giving retrospective effect to the procedure may amount to creation of an offence retrospectively. In the present case the old procedure is revived and no new procedure is given retrospective effect. The procedure given effect to is not of such a nature as to result in the creation of a new offence.” 13. Section 13(1)(e) of the PC Act, 1988 and 5(1)(e) of the PC Act, 1947 are identical and pari materia (except for two changes or additions noticed below). It is, therefore, not possible to accept the contention that Section 13(1)(e) of the PC Act, 1988 enacts a new offence. It does not make any difference if the check period overlaps the PC Act, 1947 and the PC Act, 1988. It is not possible to accept the contention that the check period in the W.P (CRIMINAL) NOS. 765/2010 & 871/2010 12 case in question is prior to 9th September, 1988 and, therefore, the PC Act, 1988 is being given retrospective effect in view of the authoritative pronouncement of the Supreme Court in Sajjan Singh’s case (supra). As noticed above, the Supreme Court in the case of Kaliar Koil Subramaniam Ramaswamy (supra) was dealing with altogether different aspect i.e. enactment of a new offence with introduction of Section 5(1)(e) of PC Act,1947. The two changes/additions in Section 13(1)(e) of the PC Act,1988 are the Explanation and removal of the clause giving discretion to the Courts to award punishment of less than one year for reasons to be recorded in writing.