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2020 Supreme(Del) 1315
IN THE HIGH COURT OF DELHI AT NEW DELHI
Vibhu Bakhru, J.
Madhu Koda - Appellant
Versus
State Through CBI - Respondent
Criminal Appeal No. 1186 of 2017
Decided On : 22-05-2020
Abhimanyu Bhandari, Advocate, Gauri Rishi, Advocate, Srishti Juneja, Advocate, Aashima Singhal, Advocate, Vinay Prakash, Advocate, R.S. Cheema, Advocate, Tarannum Cheema, Advocate, Smrithi Suresh, Advocate, Hiral Gupta, Advocate, Akshay Nayarajan, Advocate
Demand of illegal gratification is not a necessary ingredient of the offence of criminal misconduct under Section 13(1)(d) of the PC Act.
Headnote:
PREVENTION OF CORRUPTION ACT, 1988 - SECTION 13(1)(D) - CRIMINAL MISCONDUCT - DEMAND OF ILLEGAL GRATIFICATION - ESSENTIAL INGREDIENT - SUBSTITUTION OF SECTION 13 - EFFECT - STAY OF CONVICTION - EXCEPTIONAL CIRCUMSTANCES - WIDER RAMIFICATIONS.
Fact of the Case:
Appellant, a former Chief Minister of Jharkhand, was convicted under Section 13(1)(d) of the Prevention of Corruption Act, 1988 (PC Act) for abusing his position to obtain allocation of a coal block in favor of a private company. He sought a stay of his conviction, arguing that demand of illegal gratification was a necessary ingredient of the offence and that the amendment of Section 13 in 2018 decriminalized his conduct.
Finding of the Court:
1. Demand of illegal gratification is not a necessary ingredient of the offence of criminal misconduct under Section 13(1)(d) of the PC Act. The plain language of the provision indicates that a public servant can be convicted for abusing his position to obtain a valuable thing or pecuniary advantage for himself or another person, even without demanding or accepting illegal gratification. 2. The amendment of Section 13 in 2018 substituted the entire section and did not have a retrospective effect. Therefore, the appellant's conviction under the previous version of Section 13(1)(d) was not affected by the amendment. 3. The court has the power to stay a conviction in exceptional circumstances, but such power should be exercised sparingly. In this case, the court found that staying the appellant's conviction would have wider ramifications, as it would allow him to contest elections for public office despite his conviction for a serious offence.
Issues: 1. Whether demand of illegal gratification is a necessary ingredient of the offence of criminal misconduct under Section 13(1)(d) of the PC Act? 2. Whether the amendment of Section 13 in 2018 decriminalized the appellant's conduct? 3. Whether the court should stay the appellant's conviction?
Ratio Decidendi: 1. The plain language of Section 13(1)(d) of the PC Act does not indicate that demand of illegal gratification is a necessary ingredient of the offence of criminal misconduct. The provision criminalizes the abuse of position by a public servant to obtain a valuable thing or pecuniary advantage for himself or another person. 2. The amendment of Section 13 in 2018 substituted the entire section and did not have a retrospective effect. Therefore, the appellant's conviction under the previous version of Section 13(1)(d) was not affected by the amendment. 3. The court has the power to stay a conviction in exceptional circumstances, but such power should be exercised sparingly. In this case, the court found that staying the appellant's conviction would have wider ramifications, as it would allow him to contest elections for public office despite his conviction for a serious offence.
Final Decision: The appellant's applications for a stay of his conviction were dismissed.
JUDGMENT
Vibhu Bakhru, J. - The appellant has filed the present applications, inter alia, praying that the operation of the impugned order dated 13.12.2017 passed by the learned Special Judge convicting the appellant of the offence of criminal misconduct under sub-clauses (ii) and (iii) of clause (d) of sub-section (1) of section 13 read with sub-section (2) of section 13 of the Prevention of Corruption Act, 1988 (hereafter ''PC Act''), be stayed.
2. The appellant desires to contest for election to public offices, including contest elections for the Legislative Assembly of the State of Jharkhand but is disqualified to do so on account of his conviction. The appellant states that he was elected as a member of Bihar Legislative Assembly for the first time in the year 2000. On 15.11.2000, the State of Jharkhand was carved out from the erstwhile State of Bihar. The appellant held the office of the Minister of the State for Rural Engineering Organization thereafter and continued to do so till the year 2003. It is stated that thereafter, he held the office of Minister of Panchayati Raj of Special Arrangement. The appellant successfully contested the elections for the Legislative Assembly in the year 2005 and in September 2006 was appointed the Chief Minister of the State of Jharkhand. He continued to hold the said office till 23.08.2008.
3. The appellant has been convicted by the impugned order in a case captioned "CBI v. M/s Vini Iron and Steel Udyog Limited and Ors."arising from FIR No. RC 219 2012E 0012. The Trial Court found that the appellant had abused his position as a public servant in order to obtain the allocation of Rajhara Coal Block in favour of M/s Vini Iron and Steel Udyog Limited (hereafter ''VISUL''), without any public interest.
Submissions
4. Mr Abhimanyu Bhandari, learned counsel appearing for the appellant advanced contentions on, essentially, three fronts. First, he submitted that there is neither any allegation nor any evidence to establish, that the appellant had demanded any illegal gratification, which is sine qua non of an offence under Section 13(1)(d) of the PC Act. He stated that in absence of any such finding, the appellant''s conviction under Section 13(1)(d) of the PC Act is ex facie unsustainable. He relied on the deicions of the Supreme Court in Khaleel Ahmed vs State of Karnataka, (2015) 16 SCC 350 ; B.Jayaraj vs State of Andhra Pradesh, (2014) 13 SCC 55 ; P Satyanarayana Murthy v Dist Inspector of Police and Others, (2015) 10 SCC 152 ; Mrs Neeraj Dutta vs State (Govt. of NCT of Delhi); and State of Maharashtra v Dyaneshwar Laxman, (2009) 15 SCC 200 in support of his contention that demand of illegal gratification was a necessary ingredient of an offence under Section 13(1)(d) of the PC Act.
5. Second, he submitted that the PC Act was amended with effect from 26th July 2018 and the provisions of Section 13(1)(d) stand deleted by virtue of the Prevention of Corruption (Amendment) Act, 2018 (hereafter the ''PC Amendment Act, 2018''). He submited that the allegations made against the appellant no longer constitute an offence and, therefore, he is entitled to be acquitted by virtue of the doctrine of beneficial construction. He relied on the decision of the Supreme Court in T. Barai v enry AH Hoe and Another, (1983) 1 SCC 177 in support of his contention.
6. Third, he submitted that the appellant''s conviction rested on the assumption that he was close to one Vijay Joshi who controlled VISUL. It is alleged that the machinery of the Government of Jharkhand had worked to favour VISUL on account of the close relationship between the appellant and Sh. Vijay Joshi. However, he submitted, that there was no admissible evidence, which would even remotely link or establish any such connection between the appellant and Sh. Vijay Joshi. He contended that thus, the allegations of any conspiracy must fail.
7. Mr R.S. Cheema, learned senior counsel appearing for CBI countered the aforesaid submissions. He stated tha
