1978 Supreme(SC) 422

SUPREME COURT OF INDIA
P.S. KAILASAM AND O. CHINNAPPA REDDY, JJ.
G. P. Nayyar, Appellant
Versus
State (Delhi Admn.), Respondent
Criminal Appeals Nos. 274-275 of 1974, D/- 14-12-1978.
Advocates appeared
M/s R. K. Garg, V. J. Francis and D. K. Garg, Advocates, for Appellant; Mr. Soli J. Sorabji, Addl. Sol. Genl. (Mr. R. N. Sachthey, Advocate with him), for Respondent.

Headnote:

Indian Penal Code, 1860 – Sections 161, 120-B – Prevention of Corruption Act, 1947 – Section 5 – Constitution of India, 1950 – Articles 14 and 20 – Criminal Conspiracy – Illegal Gratification – Appellant was charge-sheeted for an offence under Section 120-B, Indian Penal Code, for entering into a criminal conspiracy with one Sirajuddin and one Rahman to accept from them illegal gratification in the discharge of his official duties. – He was also charged with specific offences of accepting Rs. 6,000 and Rs. 4,000 from Sirajuddin and Rehman being offences punishable under Section 161, Indian Penal Code, read with Section 5 (2) and Section 5 (1) (d) of the Prevention of Corruption Act, 1947. – He was also charged for the offence punishable under Section 5 (2) read with Section 5 (1) (a) of the Prevention of Corruption Act, that in pursuance of the aforesaid conspiracy, he, during the period from 1955 to 1961 habitually accepted illegal gratifications from the said two co-accused persons. – Special Judge who tried the case acquitted the appellant by the order holding that neither the charge of conspiracy nor any other charge against the accused was proved. – But the Special Judge held hat the assets of the appellant from 1st July, 1955 to 30th April 1961 had exceeded his income by Rs. 33,588.34 and they were disproportionate to the known sources of income of the petitioner. – Judge, however, found that as Section 5 (3) of the Act had been repealed and as specific instances of payment of bribe to the petitioner could not be proved the accused could not be held guilty of the charges. – Aggrieved by the decision, the State preferred an appeal to the Delhi High Court on 11th April, 1967. Pending the appeal before the High Court, Act, came into force introducing Section 5 (1) (e) in the Act. – In the High Court the appellant challenged the vires of Act on the ground that revival of Section 5 (3) of the Act and making it applicable retrospectively was void and unconstitutional as it was in violation of Arts. 14 and 20 (1) of the Constitution. – A Division Bench of the High Court of Delhi by its judgment allowed the appeal upholding the validity of Act No. 16 of 1967 and remanded the case to be tried from the stage at which it was pending – Criminal Appeal is against the order of the High Court remanding the case for fresh trial and Criminal Appeal is against the order of the High Court refusing to grant a certificate of fitness for appeal to this Court. – Held, 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." (Maxwell on the Interpretation of Statutes, 12th Edn. p.19). – 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-sec. (3) of S. 5 as it stood before the commencement of 1964 Act shall apply and shall be deemed to have always applied in relation to trial of offence. – It may be if by this deeming provision a new offence was created then the prohibition under Art. 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 S. 6 (1) [S. 6 (a)?] 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 S. 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 creation of a new offence. – Appeals Dismissed