IMPORTANT POINT
A person can not be convicted for an act which was not an offence when that act was committed.

JUDGMENT

B. Jagannatha Hegde, J. - 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 Section 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 Section 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 aw under which the appellant was convicted was not in force on the ate of the alleged offence.

4. he 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 Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947, and Section 161 of the I.P.C. The contention of Sri N.B. Bhat is that by virtue of clause (1) of Article 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 expect 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 exactly 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 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 or any State Government or Parliament or the Legislatur