Shri Rajendra Jonko vs The Superintendent Of Police, ...
2004 Latest Caselaw 688 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard Mr. Agrawal for the accused/appellant, Mr. Satpute for Respondent No. 1, and Mr. Shringarpure, APP, for the State.

2. This appeal is filed by the accused against his conviction in C.B.I. Special Case No. 27 of 1990 by judgment dated 18th April 2001 by which he came to be convicted of the offence punishable under Section 13(2) r/w Section 13(1)(e) of the Prevention of Corruption Act, 1988 and was sentenced to suffer R.I. for the period of four years and to pay a fine of Rs. 50,000/- in default to suffer further R.I. for six months.

3. Only one submission was made by Mr. Agrawal in this appeal. According to him and from the record it is clear that the offence of amassing the assets disproportionate to his known source of income to the extent of Rs. 4,61,000/- and odd was of the check period from 15.11.1979 till 12.11.1987. Therefore, according to Mr. Agrawal, The Prevention of Corruption Act, 1947 was applicable. Even the charge under Section 5(2) r/w Section 5(1) (e) of the said Act of 1947 was framed against the accused. However, the trial Court i.e. the Special Judge tried the case, as is to be seen from para 1 of the judgement, for the offence punishable under Section 13(2) r/w Section 13(1)(e) of the Prevention of Corruption Act, 1988.

4. Therefore, according to Mr. Agrawal, if the offence was allegedly committed by the accused when the old Act of 1947 was in force and when the charge was also framed under the old Act of 1947, then trying the accused under Section 13(2) r/w Section 13(1)(e) of the Amended Act of 1988 results in vitiating the entire trial.

5. At this juncture it is to be noted that the accused has, in the paper book prepared, filed the copies of Roznama before the Special Court. On page 27 of the said paper book, Roznama dated 24/9/96 has been reproduced. It shows that the accused had filed Misc. Application No. 1052/95 on different grounds for claiming discharge. One of the submissions made by the accused was that he cannot be charged Under Section 5(2) r/w Section 5(1) (c) of the P.C. Act, 1947 and that he should be charged Under Section 13(1)(c). The Special Court rejected his contention and also rejected his application. Consequently the charge framed under the old Act remained in force. If that is so, then, according to Mr. Agrawal, trying the accused under the New Act was totally wrong. It was substantially and materially affected the right of the accused and, on the basis of the judgment of Supreme Court the trial has to be vitiated.

6. The case of the Supreme Court that was relied upon by Mr. Agrawal is reported in 2022 Cri.L.J.2982 [Jagan M. Seshadri v. State of Tamil Nadu]. The case against the accused before the Supreme Court was that during the check period from 11.5.1977 to 31.3.1984, the appellant/accused who was serving as a Superintendent of Police had acquired assets disproportionate to his known source of income. The charges under the Old Act of 1947 were framed against him. Evidence was led. Accused was acquitted of all the charges. The State filed an appeal against the acquittal before the High Court of Madras and the High Court accepted the contention of the State reversing the order of acquittal and the appellant came to be convicted under Section 13(1)(e) of the New Act and was sentenced accordingly. Against this order of the High Court, the accused Seshadri went before the Supreme Court and raised similar objection that if the charge was framed under the Old Act, the accused could not be tried under the New Act and this illegal trial has to be vitiated.

7. In para 4 of the aforesaid judgment the Supreme Court has observed as under:-

"There is no dispute that when the offence was committed it was the 1947 Act which was in operation. It is also not in dispute that at the time when FIR was lodged, it was also the 1947 Act which was in operation. Reliance on Section 30(2) of the 1988 Act to hold that offence for which the appellant should have been charged was one which fell under Section 13 of the 1988 Act is wholly misplaced."

Thereafter in para 5 of the said judgment the Supreme has observed and held as under:-

"Section 13 both in the matter of punishment as also by the addition of the explanation to Section 13(1)(e) is materially different from Section 5 of the 1947 Act. The presumption permitted to be raised under the explanation to Section 13(1)(e) was not available to be raised under Section 5 (1) (e) of the 1947 Act. This different can have a material bearing on the case."

Therefore, in that background of the matter, the judgment of conviction of Madras High Court was set aside and that the judgment of the trial Court i.e. about acquittal was upheld.

8. The Supreme Court has observed and held in para 5 of the said judgment as under:-

"5. A bare reading of Section 30(2) of the 1988 Act shows that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act, shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of the Act. It does not substitute Section 13 in place of Section 5 of the 1947 Act. Section 30(2) is applicable "without prejudice to the application of Section 6 of the General Clauses Act, 1897." In our opinion, the application of Section 13 of the 1988 Act to the fact situation of the present case would offend Section 6 of the General Clauses Act, which, inter alia provides that repeal shall not (i) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder or (ii) affect any investigation, legal proceedings or remedy in respect of any such rights, privilege, obligation, penalty, forfeiture or punishment. Section 13 both in the matter of punishment as also by the addition of the explanation to Section 13(1)(e) is materially different from Section 5 of the 1947 Act. The presumption permitted to be raised under the explanation to Section 13(1)(e) was not available to be raised under Section 5 (1) (e) of the 1947 Act. This difference can have a material bearing on the case."

Thereafter in para 7 of the said judgment the Supreme Court has held and observed as under:-

"We have, with the assistance of learned counsel for the parties, carefully perused the evidence, particularly, the evidence of P.W. 19, P.W. 27, P.W. 30, P.W. 31, besides P.W. 34. In our opinion, the appreciation of evidence by the trial Court of these witnesses is sound and proper. On the other hand, the High Court has fallen into an error by treating the case as one under Section 13(1)(e) read with Section 13(2) of the 1988 Act by proceeding to hold the appellant guilty by invoking the explanation to Section 13(1)(e), which explanation is conspicuous by its absence in so far as Section 5 (1) (e) of the Act is concerned."

9. As against this, Mr. Satpute, appearing for Respondent No. 1, has relied upon the judgment of the Supreme Court [M.W. Mohiuddin v. State of Maharashtra] where the Supreme Court while interpreting similar provision of Old Act as well as the New Act came to the conclusion in para 9 that no prejudice has been caused to the accused since the gravamen of the charges under the relevant provisions of both the Acts in respect of these offences are the same in substance and at any rate the appellant cannot raise such a contention for the first time in this Court when in fact no prejudice has been caused to him. However, this judgment will be of no use to the prosecution in view of Full Bench Judgment of the Supreme Court in Jagan Seshadri's case referred to above.

10. Mr. Satpute also relied upon the judgment of Karnataka High Court reported in 1994 Cr. L.J. 2696 [R.S. Kalakapur v. State of Karnataka] where in the similar circumstances the Karnataka High Court remanded the case for fresh trial. In that case the appellant, who was the accused and was working as a school teacher in the Industrial Training Institute (Women), was appointed to conduct annual practical examination of the students. He demanded bribe from the students who were to appear for practical examination and, therefore, he was charged for an offence under Section 7 of the Prevention of Corruption Act, 1988 i.e. for demanding bribe. The trial Court found him guilty and convicted him under Section 7 of the said Act. Therefore, the matter went before the Karnataka High Court. It was contended on behalf of the accused that the trial was vitiated because the offence for which it was created by statute long after the alleged date of offence. In other words, the penal provision of law under which the appellant was convicted was not in force on the dates of the alleged offences which were 22-7-88; 25-7-88 and 26-7-88 whereas the Prevention of Corruption Act, 1988 came into force on 9th September 1988. In para 6 of the judgment it was observed by the High Court that Section 7 of the Act of 1988 was not in force at the time the appellant accused was allege to have demanded and accepted illegal gratification. The trial held against the appellant, therefore, was opposed to Article 20(1) of the Constitution and because of this fundamental defect, the whole trial was vitiated. But the Karnataka High Court resorted to Section 386 of the Cr.P.C. and remanded the case to the Sessions Judge for trying it under the Old Act i.e. Section 5 (2) of the Act of 1947.

11. Mr. Satpute, therefore, on the basis of aforesaid judgment of the Karnataka High Court contended that in this case also the accused did not take any exception to the charge framed and, therefore, the matter should be remanded back for fresh trial.

12. I do not find any reason to remand the case now. In fact, it was the contention of the accused before the trial Court, as has been found and noted by me above from the Roznama dated 24/9/96 that the accused wanted the charge to be framed under the New Act whereas the charge was already framed under the Old Act. His contention was rejected by the Court and the trial was continued on the basis of charge framed under the Act of 1947. However, it was, the judge while delivering the judgment in very first para, noted that the accused was facing the trial for the offence punishable under Section 13(2) r/w Section 13(1)(e) of P.C. Act, 1988. Therefore, here was no question of accused raising any objection. There was no question of framing charge under the New Act. The charge under the Old Act was already framed, then in that case, it was wholly illegal and improper on the part of the trial Court to try the trial as one under Section 13(2) r/w Section 13(1)(e) of the New Act of 1988. The accused has undergone full trial. Therefore, now there is no question of remanding the matter to the trial Court again. In Seshadri's case, referred to above, that exercise has not been done by the Supreme Court. It may be, there was no prayer for remand. But when the trial itself stands vitiated and no fault can be found with the accused in that regard, then prayer of Mr. Satpute is required to be rejected. Therefore, now relying upon the judgment of Supreme Court in Jagan Seshadri's case, this appeal is allowed. The judgment of conviction and sentence is set aside. The accused/appellant is acquitted of the charges framed against him. He is on bail. His bail stands cancelled. Fine, if any, and the Muddemal Property be returned to the accused. Certified copy expedited.

13. After the judgment was pronounced in Court, Mr. Satpute, appearing for Respondent No. 1, prayed for staying the operation of this order for a period of 12 weeks. Prayer is granted.