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2023 Supreme(Online)(MP) 12681
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON’BLE SHRI JUSTICE HIRDESH
MCRC No.24473 of 2023
BETWEEN:-
U.S. (UPJEET SINGH) ARORA, S/O SHRI
MAYA SINGH ARORA, AGED ABOUT 62
YEARS,
OCCUPATION:
RETIRED
ASSISTANT ENGINEER, R/O B-1, SHANTI
VILLA COLONY, REWA (M.P.)
.....PETITIONER
(BY SMT. SHOBHA MENON, SR. ADVOCATE WITH MS. RITU
JANJANI - ADVOCATE)
AND
1.
STATE OF MADHYA PRADESH THROUGH
SPECIAL
POLICE
ESTABLISHMENT,
OFFICE
OF
LOKAYUKT,
BHOPAL
DIVISION, DISTRICT- BHOPAL (M.P.)
2.
DEPUTY SUPERINTENDENT OF POLICE,
SPECIAL
POLICE
ESTABLISHMENT,
OFFICE
OF
LOKAYUKT,
BHOPAL
DIVISION, DISTRICT- BHOPAL (M.P.)
.....RESPONDENTS
(BY SHRI ABHIJEET AWASTHY - ADVOCATE)
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Reserved on
:
06.10.2023
Pronounced on
:
15.12.2023
----------------------------------------------------------------------------------------
This petition having been heard and reserved for orders,
coming on for pronouncement this day, Hon’ble Shri Justice Sheel
Nagu pronounced the following:
Rahul Choubey,
The substitution of an unamended statutory provision by an amended provision does not lead to a vacuum in law, and offences committed prior to the substitution would be dealt with by the unamended provision.
Headnote:
QUASHING OF CHARGE-SHEET - PREVENTION OF CORRUPTION ACT, 1988 - SECTION 13(1)(d) - INDIAN PENAL CODE - SECTION 120-B - SUBSTITUTION OF UNAMENDED SECTION 13 BY AMENDED SECTION 13 - OBLITERATION OF UNAMENDED SECTION 13(1)(d) - APPLICABILITY TO OFFENCES COMMITTED PRIOR TO SUBSTITUTION - RULE OF LAW - NO VACUUM IN LAW - ARTICLE 20(1) OF THE CONSTITUTION - MENS REA - FALSE INSPECTION REPORT - CRIMINAL INTENT - LOSS TO GOVERNMENT - FINANCIAL ADVANTAGE TO PRIVATE PERSON - JUSTIFIED VIEW OF INVESTIGATING AGENCY - NO INTERFERENCE BY COURT.
Fact of the Case:
Petitioner, an Assistant Engineer in the Department of Energy, Government of M.P., was charged with offences under Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (PC Act) read with Section 120-B of the Indian Penal Code (IPC) for allegedly submitting a false inspection report regarding the receipt of lanterns by the department. The petitioner challenged the charge-sheet and the order taking cognizance of the offences, arguing that the allegations did not disclose any cognizable offence and that the transaction was purely contractual with no element of criminality.
Finding of the Court:
The court found that the bare reading of the charge-sheet revealed that the petitioner was not involved in the process of inviting, considering, or deciding the tender regarding the purchase of lanterns but that the inspection report inter alia signed by the petitioner disclosed that up to 30th June, 1996, 1,000 lanterns were received by the department. The allegation further revealed that despite the aforesaid report submitted inter alia by the petitioner about 1,000 lanterns were actually not been received by the department till 30th June, 1996. Resultantly, a doubt was cast upon the said inspection report submitted inter alia by the petitioner and on further investigation it was revealed that the petitioner and other signatories of the said inspection report were found prima facie guilty of submitting a false inspection report to cause loss to government and corresponding financial benefit to the tenderer.
Issues: 1. Whether the allegations in the charge-sheet disclose any cognizable offence under the PC Act or the IPC?2. Whether the transaction lying at the foundation of the offences alleged is purely contractual with no element of criminality?3. Whether the petitioner had any power or authority to accept the NIT in question or to disburse the amount, and thus whether any offence is made out against the petitioner?4. Whether the amendment to Section 13 of the PC Act with effect from 26.07.2018 substitutes the unamended provision u/S 13(1)(d) of the PC Act thereby erasing the said unamended Section 13(1)(d) from the statute book, and whether no offence under unamended Section 13(1)(d) of the PC Act could have been alleged against the petitioner in the impugned order and charge-sheet?
Ratio Decidendi: 1. The court held that the bare reading of the charge-sheet revealed that the petitioner was not involved in the process of inviting, considering, or deciding the tender regarding the purchase of lanterns but that the inspection report inter alia signed by the petitioner disclosed that up to 30th June, 1996, 1,000 lanterns were received by the department. The allegation further revealed that despite the aforesaid report submitted inter alia by the petitioner about 1,000 lanterns were actually not been received by the department till 30th June, 1996. Resultantly, a doubt was cast upon the said inspection report submitted inter alia by the petitioner and on further investigation it was revealed that the petitioner and other signatories of the said inspection report were found prima facie guilty of submitting a false inspection report to cause loss to government and corresponding financial benefit to the tenderer.2. The court held that the transaction lying at the foundation of the offences alleged is not purely contractual with no element of criminality, as the petitioner submitted a false inspection report regarding the receipt of lanterns by the department, which was found to be at variance with the actual number of lanterns delivered.3. The court held that the petitioner, though not involved in the process of receipt, consideration of tender and award of contract, submitted a false report as regards receipt of certain number of Lantern which was found to be incorrect. The inspection report submitted by petitioner was found to be at variance to the actual number of Lanterns delivered. Any false report exposes the signatory of the report to civil as well as criminal action.4. The court held that the substitution of the unamended Section 13(1)(d) of the PC Act by amended Section 13(1)(d) of the PC Act admittedly leads to obliterating the unamended Section 13(1)(d) from the Statute Books w.e.f. 26.07.2018. Meaning thereby that offences which have taken place on or after 26.07.2018 would now be dealt with by the amended Section 13(1)(d) of the PC Act. Whereas the offences which occurred prior to 26.07.2018 would be dealt with by unamended Section 13(1)(d) of the PC Act. This view is bolster by provisions of Article 20(1) of the Constitution which reads thus:“20. Protection in respect of conviction for offences.-(1) No person shall be convicted of any offence except for violation of a 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.”
Final Decision: The court dismissed the petition, holding that the trial court did not commit any illegality or impropriety in taking cognizance and framing charges against the petitioner in regard to the said offences.
This petition invoking inherent powers of this Court u/S 482 of the
Criminal Procedure Code seeks quashment of charge-sheet bearing
No.1/2005 dated 17.01.2005 emanating from Crime No.35/1998 registered
at Special Police Establishment (Lokayukt), Bhopal. Further challenge is
made to the order dated 20.09.2010 (Annexure A/26) taking cognizance of
the offences punishable u/S 13(1)(d) and 13(2) of the Prevention of
Corruption Act, 1988 (hereinafter referred to as “PC Act”) read with
Section 120-B of the Indian Penal Code (for short “IPC”) and to the order
dated 19.11.2010 (Annexure A/7) of framing charge qua the said offences.
2.
Learned counsel for rival parties Smt. Shobha Menon, Senior
Advocate alongwith Ms. Ritu Janjani, Advocate and Shri Abhijeet
Awasthy, Advocate are heard on the question of admission so also final
disposal.
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3.
Learned senior counsel Smt. Shobha Menon, Senior Advocate
alongwith Ms. Ritu Janjani, has essentially raised following grounds in
support of aforesaid challenge:
(i)
Bare reading of allegations in the charge-sheet do not disclose
any cognizable offence either under the PC Act or under the IPC.
(ii)
The transaction lying at the foundation of the offences alleged
is purely contractual with no element of criminality.
(iii)
Petitioner in his capacity as Assistant Engineer in the
Department of Energy, Government of M.P. had no power or
authority to accept the NIT in question nor had any power to
disburse the amount and thus no offence is made out against
petitioner.
(iv)
Amendment to Section 13 of the PC Act with effect from
26.07.2018 substitutes the unamended provision u/S 13(1)(d) of the
PC Act thereby erasing the said unamended Section 13(1)(d) from
the statute book and; as such, no offence under unamended Section
13(1)(d) of the PC Act could have been alleged against petitioner in
the impugned order and charge-sheet.
4.
The contents of petition, the documents annexed thereto and the
arguments of learned counsel for rival parties are heard and perused. With
the consent of learned counsel for rival parties, this petition is finally heard
and decided in the following terms.
5.
Bare reading of the charge-sheet dated 17.01.2005 (Annexure A/25)
where petitioner is a named accused, reveals that though petitioner was not
involved in the process of inviting, considering or deciding the tender
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regarding purchase of Lantern but the inspection report inter alia signed by
petitioner disclosed that upto 30th June, 1996, 1,000 Lanterns were
received by the department. The allegation further reveals that despite
aforesaid report submitted inter alia by petitioner about 1,000 Lanterns
were actually not been received by the department till 30th June, 1996.
Resultantly, a doubt was cast upon the said inspection report submitted
inter alia by petitioner and on further investigation it was revealed that
petitioner and other signatories of the said inspection report were found
prima facie guilty of submitting a false inspection report to cause loss to
government and corresponding financial benefit to the tenderer. As such,
based upon the material collected by the Investigating Agency, the trial
Court while taking cognizance and framing charge found that a false
inspection report submitted inter alia by petitioner was one of the links in
the entire chain of events which took place starting from calling of tender
upto delivery of Lanterns to the department. Suspicion of petitioner’s
involvement arose due to the false inspection report and therefore, learned
Trial Judge took cognizance and framed charges as aforesaid.
6.
Whether the suspicion is strong enough to support the impugned
charges framed or not is a question of degree of complicity which cannot
be decided at this early stage since this exercise is to be left alone for the
trial Court to be conducted after collection and marshalling of evidence.
7.
This Court in view of above does not feel that any illegality or
impropriety was
