No retrospective benefit for those convicted under Section 13(1)(d) of Prevention of Corruption Act, 1988

Shaunak Choudhury | SVKM’s NMIMS Kirit P. Mehta School of Law | 25^th May 2020

Madhu Koda v. State through CBI CRL.M (BAIL) 2273/2017 & CRL.M.A. 38740/2019 

Facts

This case arose from applications made by the Appellant, seeking a stay on the order dated 13^th December 2017 that convicted him of the offence of criminal misconduct under subclauses (ii) and (iii) of clause (d) of sub-section (1) of Section 13 with sub-section (2) of Section 13 of the Prevention of Corruption Act, 1988. He was convicted for abusing his position as a public servant in order to obtain allocation of Rajhara Coal Block in favor of M/s Vini Iron and Steel Udyog Limited (VISUL), without any public interest.

The Appellant wished for a stay because he wanted to contest for election for a seat in the Legislative Assembly of the State of Jharkhand. The Appellant argued that there was no evidence to prove that he demanded any illegal gratification and claimed that demanding illegal gratification is an essential ingredient in proving someone guilty under Section 13(1)(d). The Appellant also asserted that since the Prevention of Corruption (Amendment) Act 2018 removed Section 13(1)(d), his acts do not constitute a crime anymore. The Respondent asserted that there is no need to prove that the Appellant demanded illegal gratification as per Section 13(1)(d) of the PC Act. The Respondents also claimed that since the Appellant was convicted before the 2018 Amendment to the PC Act, Section 13(1)(d) would still apply to him. 

Issues

1. Whether it is necessary to prove that the Appellant demanded illegal gratification, in order to convict him under Section 13(1)(d) of the PC Act. 
2. Whether the Appellant is liable to be acquitted in view of the Prevention of Corruption (Amendment) Act 2018.
3. Whether the conviction of the Appellant is liable to be stayed. 

Judgement

1. The Court found that Section 13(1)(d) itself did not seek any evidence surrounding the accused demanding illegal gratification. The judgements that it went through that did say that demanding illegal gratification is an essential to prove misconduct, looked at Section 7, which explicitly deals with that matter. Under Section 13 alone, the ingredients as per Neera Yadav v. CBI ((2017) 8 SCC 757 do not include the matter of demanding illegal gratification. The accused could have abused their position as a public servant without demanding any such thing and still get some sort of pecuniary advantage. This is in congruence with R. Venkatkrishna v. CBI ((2009) 11 SCC 737) as well. 
2. It is settled law that ex post facto legislation that creates an offence or increases the punishment of an offence cannot be retrospectively utilized against a person as that would violate Article 20(1) of the Constitution. But laws that mitigate the offence can be used for the benefit of the accused. The element of mens rea, which seemed to have been missing prior to the Amendment, already existed through the word ‘abuse’, opined the High Court. It found that as per Section 6(d) of the General Clauses Act 1897, person convicted of committing the offence of criminal misconduct under Section 13 (1)(d) of the PC Act would not be absolved of their offences or liability incurred prior to the PC Act coming into force. So, if the Appellant has abused his position, and that fact has been proven beyond reasonable doubt, then the benefit of PC (Amendment) Act cannot be extended to him.
3. The Court recognized the that a person is innocent until proven guilty, but when taking into consideration the fact that the Appellant wanted to contest in elections, the situation tilted. As per Navtoj Singh Sidhu v. State of Punjab((2007) 2 SCC 574), a stay on a conviction can only be given under extraordinary circumstances where not doing so would lead to injustice and irreversible consequences. The Court noticed a consensus in not allowing people who have criminal charges against them from contesting in election. The Court did not find it appropriate to put a stay on the conviction of the Appellant due to these reasons and thus would let him contest in the elections.