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High Court Of Delhi
SUKHWANT SINGH - Appellant
Versus
UNION OF INDIA - Respondent
Decided On : 05/01/1996
PREVENTION OF CORRUPTION ACT, 1988 - Applicability - Retrospectivity - Offence committed prior to enactment of Act - Conviction under Act - Validity.
Fact of the Case:
Petitioner, a Border Security Force (BSF) officer, was charged with three offences under Section 7 of the Prevention of Corruption Act, 1988 (Act of 1988). The charges related to accepting gratification for providing safe passage for smuggling, agreeing to provide safe passage for smuggling of weapons, and voluntarily omitting to inform his superior officer about a design to smuggle weapons from Pakistan. The petitioner challenged the conviction and sentence, arguing that the Act of 1988 could not be applied retrospectively to offences committed prior to its enactment in 1988.
Finding of the Court:
The Court held that the provisions of Section 7 of the Act of 1988 could not be applied retrospectively to the petitioner's case, as the alleged offences were committed in 1986, prior to the enactment of the Act. The Court noted that Section 31 of the Act of 1988 clearly omitted the provisions of Section 161 to 165(a) of the Indian Penal Code, which were applicable to the petitioner's case, and that the saving provisions of Section 30 of the Act would not apply as the provisions of Section 7 of the Act of 1988 and Section 161 of the Indian Penal Code were inconsistent.
Issues: 1. Whether the provisions of Section 7 of the Prevention of Corruption Act, 1988 could be applied retrospectively to offences committed prior to its enactment. 2. Whether the petitioner could be convicted under Section 7 of the Act of 1988 for offences committed in 1986.
Ratio Decidendi: 1. The Court held that the provisions of Section 7 of the Prevention of Corruption Act, 1988 could not be applied retrospectively to offences committed prior to its enactment, as this would violate the principle of non-retrospectivity and the petitioner's fundamental right under Article 20(1) of the Constitution of India. 2. The Court held that the petitioner could not be convicted under Section 7 of the Act of 1988 for offences committed in 1986, as the provisions of the Act were not in force at the time of the alleged offences.
Final Decision: The Court allowed the writ petition in part, quashing the conviction and sentence under Charge No. 1, which was based on Section 7 of the Act of 1988. The Court upheld the conviction and sentence with regard to Charges No. 2 and 3, which were based on other provisions of law.
( 1 ) THIS petitioner was charged with three offences punishable under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter called the act of 1988 ). The first charge against him is that he accepted gratification for providing safe passage to one Shri Partap Singh for smuggling of gold. Secondly he agreed to provide safe passage to one Shri Charan Singh for smuggling of weapons from Pakistan, who had a design to purchase Naka to smuggle weapons from Pakistan. Thirdly the petitioner voluntarily omitted to inform about the said design to his superior officer. Proceedings before General Security Force Court were held under the Border Security Force Act,1968. After affording full opportunity to the petitioner, the proceeding of conviction was submitted. Authority sentenced the petitioner to suffer rigorous imprisonment for four years and also dismissed from service. This sentence was confirmed by the appropriate authority. It is against this conviction and sentence that petitioner has felt aggrieved. He has approached this Court for setting aside the same.
( 2 ) IN order to appreciate the challenge by the petitioner to the impugned order, we must have a quick glance to the relevant facts of this case. The petitioner, Sukhwant Singh, was working in the Border Security Force in 0ctober,1966. In December,1991 while serving as Junior Staff Officer (Water Wing) he was posted to perform the duties as the Personal Officer of the Inspector General, Frontier Head Quarters, B. S. F. at Jammu. At the relevant time the petitioner was placed under Closed Arrest under the orders of the Inspector General, Frontier Head Quarters, B. S. F. , Jammu. On 3rd December,1991 he was taken from Jammu to New Delhi under an armed escort and from there on 4th December,1991 to Bangalore. There he was handed over to the Commandant, S. T. C. , B. S. F. , Bangalore on 6th December,1991 where also he was placed under Closed Arrest on 4th and 5thjanuary,1992. Shri L. S. Bisht, Commandant, 33 Battalion, B. S. F. held the proceedings of Recording of Evidence (ROE) under the provisions of Rule 48 of the B. S. F. Rules,1969, at Bangalore. Statements of the witnesses on oath were recorded. Questions were asked from the witnesses for the purpose of clarification. On the basis of the proceedings of the Record of Evidence, the Said Shri L. S. Bisht on 29th January,1992, submitted the proceedings implicating the petitioner. On the basis of ROE charge sheet was prepared. Mr. L. S. Bisht applied to the Inspector General (Head Quarters) B. S. F,, under Rule 52 of the B. S. F. Rules in the prescribed form for issuing a convening order for the assembly of a General Security Force Court for the trial of the petitioner. The convincing order was issued on 3rd February,1992 for the assembly of General Security Force Court at New Delhi. This was issued on 12th February,1992 for the purpose of trying the petitioner. As per the convincing order dated 3rd February,1992 Shri L. S. Bisht, Commandant who had earlier presided over and conducted the proceedings of the recording of evidence at Bangalore was appointed as a prosecutor to prosecute the petitioner during the trial of the case before the General Security Force Court.
( 3 ) MR. DINESH Mathur, Senior Advocate appearing for the petitioner besides assailing the order of conviction and sentence has also challenged the procedure adopted by the respondent in prosecuting the petitioner. From this arguments following points emerge for consideration, namely:
1. Whether the offence which was allegedly committed in March,1986, can it be covered under the provision of Section 7 of the Prevention and Corruption Act,1988. 2. Whether the said Shri L. S. Bisht, who held the proceeding and recorded ROE could preside as Prosecutor, Will it amount to taking undue advantage of the material facts which were in his personal knowledge while recording the ROE? 3. Whether on the basis of uncorroborated testimony petitioner coul
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