NAYYAR (G. P.) v. STATE (DELHI ADMN.)
Citation: [1979] 2 S.C.R. 816; 1978 INSC 262
Court: Supreme Court of India
Bench: P.S. KAILASAM , O. CHINNAPPA REDDY
Judgment date:
Case summary
1978 INSC 262. Supreme Court of India judgment dated 1978-12-14. NAYYAR (G. P.) v. STATE (DELHI ADMN.). Read the judgment and case details on LawSphereX.
Judgment text
818 SUPREME COURT REPORTS (1979] 2 S. C. R. NAYYAR (G. P. ) v. STATE (DELHI ADMN. ) December 14, 1978 (P. S. KAILASAM AND 0. CHINNAPPA REDDY, JJ. ) Prevention of Corruption Act, 1947-Efject of the repeal of section 5(3) 0/ the Act-JVhcther Act 16 of 1967 introducing SPction. 5(1) (e) and with retrospective effect offends Articles 14 and 20(1) of the Constitution. • The appeilant \Vho was charged for the offence'. > (a) under section 120B I. P. C. (b) under section 161 I. P. C. read with > pending trials. G. P. NAYYAR v. DELHI ADMN. (Kailasam, J.
) 821 (1) Notwithstanding- ( a) the substitution of new provision for sub-section (3) of section 5 of the Prevention of Corruption Act, 1947 (here-inafter referred to as the 1947 Act), by section 6(2) (c) of the Anti Corruption Laws (Amendment) Act, 1964 (here-inafter referred to as the 1964 Act); and • • (b) any judgment or order of any court, the said sub-section ( 3) as it stood "immediately before the commencement of the 1964 Act shall apply and shall be deemed always to have applied to and in rela! ion to trial of offences punishable under sub-section (2) of section 5 of the 1947 Act pending before any court immediately before such commencement as if no such new provisions had been substituted for the said sub-section (3); (2) The accused person in any trial to and in relation to which sub-section (1) applies may, at the earliest opportunity available to him after the commencement of this Act, demand that the trial of the offence should proceed from !
he stage at which it was immediately before the commencement of the 1964 Act and on any such demand being made the court shall proceed with the trial from that stage. ( 3) For the removal of doubt it is hereby provided that any court- (i) before which an appeal or application for revision against any judgment or order or sentence passed or made in any trial to which sub-section (1) applies is pending immediately before the commencement of this Act, or (ii) before which an appeal or application for revision against any judgment, order or sentence passed or made before the commencement of this Act in any such trial, is filed after such commencement 'shall remand the case for trial in conformity with the provisions of this section. " • The contention of the learned counsel for the appellant is that Act No. 16 of 1967 is an ex-post-facto legislation creating a new offence retrospectively.
We will first consider the effect of repeal of section 5(3) of the Prevention of Corruption Act, Act 2 of 1947. The nature of section 5(3) has been considered by this Court in several decisions. In Sajjan Singh v. The State of Punjab(') this court referring to the sub- (! ) [1964] 4 S. C. R. 630. ! 4-40SCI /79 section held that the sub-'section provided an additional mode of proving an offence punishable under sub-section 5 (2) for which an accused person is being tried. This Court negatived the contention that section 5 (3) created a new kind of offence of criminal misconduct by a public servant in the discharge of his official duty. It held that the section mere~ prescribed a rule of evidence for the purpose of proving _8 • the offence of criminal misconduct as defined in section 5 (1) for which • an accused person is already 011 trial. The court followed the view held by this Court in C. D. S. Swamy v. The State(') and in Surajpal 2 Singh v. State of U. P.
( ) The question that arises is what is the effect of repeal of the provision under section 5 (3). By Act 40 of 1964 section 5 (3) was repealed prospectively. The statute does not say that the section shall be deemed not to have been in force. at all. Mr. R. K. Garg the learned counsel for the appellant relying on the dissenting judgment of Fazal Ali J. in Keshavan Madhava Menon v. 3 The State of Bombay, ( ) submitted that the effect of a repeal will be that it should be construed as the Act not having been in existence at all. The view of Tindal C. J. that a repeal of the statute obliterated it completely fromijhe records of Parliament as if it had never been passed was followed by Fazal Ali J. Mahajan J. speaking for the majority disagreed with the view holdh1g that " it would be more consonant with reason and justice to say that the law existed and was good at the time when it was passed but that since the date of its repeal it has no longer any effect whatsoever.
" The view taken by the Chief Justice Tindal was abrogated by the enactment of the Interpretation Act, 1889. / Section 32 of the Interpretation Act deals with the effect of repealing an - Act after August 30, 1889. "Such repealing Acts are, unless contrary intention appears, not to effect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed or effect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any enactment so repealed; or affect any investigation, legal proceeding, or remedy in respect of any ~uch right, pri vi! ege, obligation, liability, penalty, forfeiture, or punishment as aforesaid. " • (Maxwell on The Interpretation of Statutes, 12th Ed. , p. 17). In India the General Clauses Act, 1897, contain similar provisions as in the Interpretation Act, 18 89.
Section 6 of the General Clauses Act runs as rollows:- (i)[t%0] I S. C. R. 461. (2) (1961) 2 s. (3) [l9SI] 2 S. C. R. 228 G. P. NAYYAR v. DELHI ADMN. (Kailasam, J. ) 823 -· "6.
Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- ( a) revive anything not in force or existing at the time at which the repeal takes effect; or • L (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or • (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment as aforesaid; .
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any ~uch penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. " '\ Section 6 provides that the repeal shall not affect the previous ope- ~ ration of any enactment so repealed unless a different intention appears. The operation of all the provisions of the Prevention of Corruption Act would continue in so far as the offences that were committed when section 5 (3) was in force. The offences that were committed after the date of the repeal will not come nnder the provisions of section 6(b) of the General Clauses Act. Section 6(c) also preserves all legal proceedings and consequences of such proceedings as if the repealing Act had not been passed.
In this view it is clear that whether Act 16 of 1967 had been brought into force on 20th June, 1967 or not the • rule of evidence as incorporated in section 5 ( 3) would be available regarding offences that were committ. ,,d during the period before the repeal of section 5 ( 3). Mr. R. K. Garg the learned counsel submitted that the provisions of Act 16 of 1967 by virtue of which the rule of evidence enacted in section 5(3) is deemed to have always been in existence is violative of Art. 20(1) of the Constitution. Article 20(1) of the Constitution i~ " as follows:- • ''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. " Article 20(1) deals with ex-post-facto law's though that expression has not. been used in the Article.
Usually, a law prescribes a rule of conduct by which persons ought to be governed in respect of their civil rights. Certain penalties are also imposed under the criminal law for breach of any law. Though a sovereign legislature . has power to legislate retrospectively creation of an offence for an act which at · ~ the time of its commission was not an offence or imposition of a • pen_alty greater than that which was under the law provided violates Art. 20(1). In the well-known case of Phillips v. Eyre(') and also in the American case of Calder v. Bull(') the principle underlying the provision has been fully discussed. All that Art. 20(1) prohibits is ex post facto laws and is designed to prevent a person being punished for an act or omission which was considered innocent when done. It only prohibits the conviction of a person or his being subjected to a penalty under . ex post facto laws. In Rao Shiv Bahadur Singh & Anr. v.
The State of Vindhya Pradesh,(') the Court pointed out that "what is prohibited under Art. 20 ( 1) is only conviction or sentence under an ex post facto Jaw and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a Court different from that which had / competence at the time cannot ipso facto be held to be unconstitu-- · tional. A person accused of the commission of an offence has no fundamental right to trial by a particular Court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved. " Thus the appellant cannot object to a procedure different from what obtained at the time of the commission of the offence. The offence that was committed was when section 5(3) was in force and by Act 16 of 1967 the procedure is revived. It is not as if the pro- • cedure is brought into force for the first time.
"Where an Act is rep.. aled and the repealing enactment is then repealed by another, which manifests no intention that the original Act shall continue repealed, the common law rule was that the repeal of the second Act revived the first ab initio. " Maxwell on the Interpretation of Statutes, (! ) [1870] 6 Q. ,B. D. I, at pp. 23 and 25. (2) 3 Dallas 386; I Law. Ed. 648 at 649. (3) [1953] S. C. R. 1188. G. P. NAYYAR v. DELHI ADMN. (Kailasam, J. ) 82 5 12th Ed. , p. 19)· There can be no objection in law to the revival of the procedure which was in force at the time when the offence was committed. The effect of the amendment is that sub-section (3) of section 5 as it stood before the commencement of 1964 Act shalt apply • and shall be deemed to have' always applied in relation to trial of offences. It may be if by this deeming provision a new offence was created then the prohibition under Article 20(1) may come into operation.
But in this case, as already pointed ont, what is done is no more than reiterating the effect of section 6 (1) of the General Clauses Act. Mr. Garg, the learned counsel, submitted that by amending procedure drastically and giving it retrospective effect a new offence may be created retrospectively. It was contended that by shifting the burden of proof as provided for in section 5 ( 3) of the Prevention of Corruption Act, 194 7, a new offence is created. It is unnecessary for us to consider the larger question as to whether in certain circumstances giving retrospective effect to the procedure may amount to creation of an offence retrospectively. In the present case the old procedure is revived and no new procedure is given retrospective, effect. The procedure given effect to is not of such a nature as to result in creation of a new offence. In the result alt the contentions raised by the learned counsel for the appellant fail and these appeals are dismissed. \. S. R. Appeal dismissed.
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