# NAYYAR (G. P.) v. STATE (DELHI ADMN.)

- **Citation:** [1979] 2 S.C.R. 816
- **Court:** Supreme Court of India
- **Decided:** 1978-12-14
- **Bench:** P. S. Kailasam, 0. Chinnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nayyar-g-p-v-state-delhi-admn-7641
- **Pages:** 10

## Headnote

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
C
I.P.C. (b)
under section 161 I.P.C. read with
><etio~ 5(2)
and 5(J)(d)
of the Prevention of Corruption Act 1947 and (c) under section 5(2) read
with section 5(1)(a) of the Prevention of Corruption Act 1947 was acquitted
by the special judge holding that neither the charge of conspiracy nor any
other charge against the accused was proved.
But the special Judge held
that the assets of the appellant from !st of July '55 to 30th April 1961
had
exceeded his income by Rs. 33,588.34 and they \Vere disproportionate to the
D
knol.vn sources of income of the petitioner.
The tnai Judge, ho\vever,
found
that as section 5(3) of the Act had been repc!lled on 18-12-1964 and as specific in'llanccs of payinent of bribe to the petitioner could npt be proved the
accused could not be held guilty of the charges.
,\ggrkved by the decision,
the State rreferred an appeal to the Delhi High Cotui on llth April,
1967.
Pending the appeal before the High Court, Act No. 16 of 1967, came into
force on 5th May 1967 re-introducing section 5 ( 1) ( e) in the Act. In the High
E
Court the appellant challenged the vires of Act No. 16 of 1967 on the ground
that revival of section 5 (3) of the Act and making it applicable retrospectively
was void and unconstitutional as it was in violation of Art. 14 and 20(1) of
the Constitution.
A Division Bench of the High Court of Dl!lhi by its
judgment dated 27th November, 1973 aIIowed the appeal upholding the validity
of Act No"
16 of 1967 and remanded the case to be tried from the stage at
which it was pending on 18th December, 1964.
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In E!ppenis by special leave it was contended that (a) Since section 5(3)
of the P.0.1''.A., 1947 was repealed on 18-12-64 the Court below cannot take
into account the provisions of section 5(3) of the Act after the date of its
repeal on 18-12-64 and (b) Act No. 16 of 1964 which gave retrospective
operation to section 5(3) or-the Act is violative of Articles 14 and 20(1) of the
Constitution.
HELD : 1. 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) of the
P.0.F.A., 1947 would be available regarding offences that
were
committed
<luring the period before the repeal of section 5(3). [823 G]
2. Section 5(3) of the Prevention of Corruption
1\ct, 1947
provided an
additional mode of proving an offence punishable under sub-sections 5(2)
for
\Vhich an accused person is being tried and, therefore, prescribes a rule of evidence.
Section 5(3) does not create a new kind of offence of criminal misconduct by a public servant in the discharge of his official duty. [821 H, 822 A].
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G. P. NAYYAR V. DELHI ADMN.
817
G.D. S. Swamy v. State, [1960] 1 SCR 461, Suraipa/ Singh v.
A
State of U.P., [1961] 2 SCR 971 and Sa;;an Singh v. State of Puniab
[1964] 4 S.C.R. 630; applied.
3. While repealing section 5(3) by Act 40 of 1964 the statute did not say
that the section shall be deemed not to have been in force at all.
Section 6
of the General Clauses Act, 1897 provides that the repeal shall not affect the
ll
previous cperation of any enactment so repealed unless a different intention
appears.
The operation of all the provisions of th~ Prevention of Cor;uption
Act would continue in so far as the offences that were committed when section
5 (3) wru; in force.1
The offences that were committed after the date of the
repeal will not come under the provisions of section 6 (b) of the General Clauses
Act.
Sectiou 6(c) also preserves all legal proceedini~s and consequences
of
such proceedings as if the repealing Act had not been passed. [822 C, 823 E-F].
C
Keshavan Madhava Menon v. State of Bon1bay, [1951] 2 SCR
followed.
4. Article 20( 1) o

## Text

A
B
816
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
C
I.P.C. (b)
under section 161 I.P.C. read with
><etio~ 5(2)
and 5(J)(d)
of the Prevention of Corruption Act 1947 and (c) under section 5(2) read
with section 5(1)(a) of the Prevention of Corruption Act 1947 was acquitted
by the special judge holding that neither the charge of conspiracy nor any
other charge against the accused was proved.
But the special Judge held
that the assets of the appellant from !st of July '55 to 30th April 1961
had
exceeded his income by Rs. 33,588.34 and they \Vere disproportionate to the
D
knol.vn sources of income of the petitioner.
The tnai Judge, ho\vever,
found
that as section 5(3) of the Act had been repc!lled on 18-12-1964 and as specific in'llanccs of payinent of bribe to the petitioner could npt be proved the
accused could not be held guilty of the charges.
,\ggrkved by the decision,
the State rreferred an appeal to the Delhi High Cotui on llth April,
1967.
Pending the appeal before the High Court, Act No. 16 of 1967, came into
force on 5th May 1967 re-introducing section 5 ( 1) ( e) in the Act. In the High
E
Court the appellant challenged the vires of Act No. 16 of 1967 on the ground
that revival of section 5 (3) of the Act and making it applicable retrospectively
was void and unconstitutional as it was in violation of Art. 14 and 20(1) of
the Constitution.
A Division Bench of the High Court of Dl!lhi by its
judgment dated 27th November, 1973 aIIowed the appeal upholding the validity
of Act No"
16 of 1967 and remanded the case to be tried from the stage at
which it was pending on 18th December, 1964.
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In E!ppenis by special leave it was contended that (a) Since section 5(3)
of the P.0.1''.A., 1947 was repealed on 18-12-64 the Court below cannot take
into account the provisions of section 5(3) of the Act after the date of its
repeal on 18-12-64 and (b) Act No. 16 of 1964 which gave retrospective
operation to section 5(3) or-the Act is violative of Articles 14 and 20(1) of the
Constitution.
HELD : 1. 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) of the
P.0.F.A., 1947 would be available regarding offences that
were
committed
<luring the period before the repeal of section 5(3). [823 G]
2. Section 5(3) of the Prevention of Corruption
1\ct, 1947
provided an
additional mode of proving an offence punishable under sub-sections 5(2)
for
\Vhich an accused person is being tried and, therefore, prescribes a rule of evidence.
Section 5(3) does not create a new kind of offence of criminal misconduct by a public servant in the discharge of his official duty. [821 H, 822 A].
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G. P. NAYYAR V. DELHI ADMN.
817
G.D. S. Swamy v. State, [1960] 1 SCR 461, Suraipa/ Singh v.
A
State of U.P., [1961] 2 SCR 971 and Sa;;an Singh v. State of Puniab
[1964] 4 S.C.R. 630; applied.
3. While repealing section 5(3) by Act 40 of 1964 the statute did not say
that the section shall be deemed not to have been in force at all.
Section 6
of the General Clauses Act, 1897 provides that the repeal shall not affect the
ll
previous cperation of any enactment so repealed unless a different intention
appears.
The operation of all the provisions of th~ Prevention of Cor;uption
Act would continue in so far as the offences that were committed when section
5 (3) wru; in force.1
The offences that were committed after the date of the
repeal will not come under the provisions of section 6 (b) of the General Clauses
Act.
Sectiou 6(c) also preserves all legal proceedini~s and consequences
of
such proceedings as if the repealing Act had not been passed. [822 C, 823 E-F].
C
Keshavan Madhava Menon v. State of Bon1bay, [1951] 2 SCR
followed.
4. Article 20( 1) of the Constitution deals with ex-post-facto lav,rs
though
that expressjon 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 Jaw.
Though a sovereign legislature has power to legislate
retrospecti\'ely creation of an offence for an act v.:hich at the time of its.
c.ommission was not an offence or imposition of a penalty greater than
that
whjch was under the law provided violates Art. 20(1). AU that Art. 20(1) prohibits is ex-post facto laws and is designed to prevent a person being punished
tor an act or omission which was considered innocent when done. It only pro·
h7.bits the conviction of a person or his being subjected to a penalty under expos/ facto laws. [824 B·DJ.
In the instant case, the appellant cannot object to a procedure different
from v,1hat obtained at the time of the commission of the offence. The offence
E
that was con1mitled was when section 5 (3) was in force and by /\ct 16 of
F
1967 the procedure is revived.
It is not as if the procedure is brought into
force for the first time. [824 F-G].
•
Rao Shiv Bahadur Sinrd1 & Anr. v. The State of Vindlrya 1radesh,
[1953] S.C.R.
1188 applied; Phillips v. Eyre, [1870] 6 Q.B.D. 1,
at
pp. 23 and 25 and Calder v. Bull, 3 Dallas 386; 1 Law Ed. 648 at
649; quoted with approval .
5. There can be no objection in law to the revivnl of the procedure which
\Vas 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 shall apply and shall be deemed to have ahvays 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.
Jn this case what is done is no more than reiterating the effect
of section 6(1) of the General Clauses Act. [825 A-B].
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SUPREME COURT REPORTS
(1979] 2 S.C.R.
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6. In the present case the old procedure is revived and no new procedure
is given retrospective effect.
The procedure given effect to i! not of such a
naturt as to result in creation of a new offence, [825 D].
CRIMINAL APPELLATE JU!WSDICTION : Criminal Appeal Nos.
274-275 of 1974.
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Appeals by Special Leave from the Judgment and Order dated
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27-11-73 and 11-1-1974 of the Delhi High Court in Criminal Appeal
No. 78/67 and Cr!. No. 80/73 respectively.
R. K. Garg, V. !. Francis and D. K. Garg for the Appellant.
Soli !. Sorabji, Add/. Sol. Genl., R. N. Sachthey for the Respondent.
The Judgment of the Court was delivered by
KAILASAM, J. These appeals are by special leave against the
judpnent of the High Court of Delhi in Criminal Appeal No. 78 of
1967 and Order dated 11th January, 1974 in Cr. Misc. (S.C.A.) No.
80 of 1973.
The appellant was chargesheeted on 26th December, 1963 for an
offence under section 120-B, Indian Penal Cod·o, for entering into a
criminal conspiracy with one Sirajuddin and one Rehman to accept
from them illegal gratification in the discharge of his official duties.
He was also charged with specific offences of accepting Rs. 6000 and
Rs. 4000 from Sirajuddin and Rehman being offences punishable
under section 161, Indian Penal Code, read with section 5(2) and f
Section 5 (l) (d) of the Prevention of Corruption Act, 1947. He was
al~o charged for the offence punishable under section 5(2) read with
section 5 ( 1) (a) of the Prevention of Corruption Act that in pursuance of the aforesaid conspiracy, he, during the period from 1955 to
1961 habitually accepted illegal• gratification from the said two coaccused persons.
The Special Judge who tried the case acquitted
the appellant by his order dated 19th January, 1967 holding that
neithu the charge of conspiracy nor any other charge ai.iainst the
accused was proved.
But the Special Judge held that the assets of
the appellant from 1st July, 1955 to 30th April, 1961 had exceeded
hill income by Rs. 33,588.34 and they were di·sproportionate to
th~
known sources of income of the petitioner. The learned Judge, however, found that as i;cction 5(3) of the Act had been repealed on
18th December, 1964 and as specific instances of payment of bribe
to the petitioner could not be proved the accused could not be held
guilty of the charges.
Aggrieved by the decision, the State prefem:d
an appeal to the Delhi High Court on 11th April, 1967.
Pending
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G. P. NAYYAR v. DELHI ADMN. (Kai/asam, J.)
819
the appeal before the High Court, Act No. 16 of 1967, received the
assent of the President on 20th June 1967 and came into effect on
5-5-1967 reintroducing S. 5(3) in the Act w.e.f. 18-12-1964.
In the, High Court the appellant challenged the vires of Act No.
16
-0f 1967 on the ground that survival of section 5(3) of the Act and
maki111 it applicable retrospectively was void and unconstitutional as
it was in violation of Art. 14 and 20( 1) of the Constitution.
A
Division Bench of the High Court of Delhi by its judgment dated
27th. November, 1973 allowed the appeal npholding the validity of
Act No. 16 of 1967 and remanded the case to be tried from
the
~tage at which it was pending on 18th December, 1964. Criminal
Appeal No. 274 of 1974 is against the order of the High Court remandin& the case for fresh trial and Criminal Appeal No. 275 of
1974 is against the order of the Hii:Ji Court refusing to grant a certificate of fitness for appeal to th.is Court.
Mr. R. K. Garg, the learned counsel for the appellant, submitted
that zince section 5(3) of the Prevention of Corruption Act, 1947
was repealed on 18th December, 1964, the Courts below cannot take
into account the provisions of section 5 (3) of the Act after the date
-Of ita repeal on 18th December, 1964.
It was further submitted
that Act No. 16 of 1967 wh.ich gave retrospective operation to section ~(3) of the Act is violative of Arts. 14 and 20(1) of the Constitution. In order to appreciate the contention of the learned counsel
for the appellant it is necessary io set out the relevant provisions of
\
the Act.
Section 5(1) of the Prevention Act, 1947, Act 2 of 1947, 8tates
when a public servant is said to commit the offence of criminal misconduct.
The section before the amendment Act No. 16 of 1967
consisted of four clauses (a), (b), (c) and (d). The appellant was
char&ed for an offence under section 5(l)(a) and section 5(1) (d)
pUnishab2o under section 5(2) of the Act.
Section 5(1)(a), and
section 5 (1)(d) and section 5 (2) read as follows :-
"5. (1) A public servant is said to commit the offence
of criminal misconduct in the discharge of his duty.-
( a) if he habitually accepts or obtains or agrees to
accept or attempts to obtain from any person for
h.imself or for any other person, any gratification
(other than IeiaI remuneration) as a motive or reward such as is mentioned 1n section 161 of the
Indian Penal Code.
(b)
(c)
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820
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SUPREME COURT REPORTS
(1979) 2 S.C.R.
( d) If he, by corrupt or illegal means or by otherwise
abusing his position as public servant, obtains for
himself or for any other person any valuable thing or
pecuniary advantage.
5(2) Any public servant who commits criminal misconduct in
B
the discharge of his duty shall be punishable with imprisonment for
a term which shall not be Jess than one year but which may extend
to seven years and shall also be liable to fine :
Provided that the Court may, for any special reasons recorded in
writing, impoo" a sentence of imprisonment of Jess than one year."
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Section 5(2) provides for the punishment of any public servant
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who commits criminal misconduct as specified in clauses (a) and (d)
of section 5(1). Section 5(3) prescribed a rule of evidence which
runs as follows :-
"5. (3) In any trial of an offenc•o punishable under subsection (2), the fact that the accused person or any other
person on his behalf is in possession, for which the accused
person cannot satisfactorily account, of pecuniary resources
or property disproportionate to his known sources of income
may be proved, and as sudh proof of the Court shall pr"-
sume, unless the contrary is proved, that the accused person
is guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid
by r"ason only that it is based sokly on such presumption."
Section 5 ( 3) wa~ repealed on 18th December, 196-+ by Act 40 of
1964. The Act also introduced a new section, section 5(1) (e) which
reads as follows:-
" ( e) if he or any person on his behalf is in possession or
has at any tim~ during the period of his office, been in possession for which the public servant cannot satisfactorily
account, of pecuniary resources or property disproportionate
to his known sources of income."
Thus on the date when the Special Judge pronounced his order on
19th January, 1967 section 5(3) was not in existence and the Special
Judge acquitted the appellant on the ground that the presumption under
section 5(3) was not available for the prosecution on that date.
Subsequently on 5th May 1967 Act No. 16 of 1967 came into force.
Section 2 of the Act provided as follows:-
"2. Amendment of Anti-Corruption Law in relation to certai1>
pending trials.
I
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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, 194 7 (hereinafter referred to as the 1947 Act), by section 6(2) (c) of
the Anti Corruption Laws (Amendment) Act, 1964 (hereinafter referred to as the 1964 Act); and
(b) any judgment or order of any court, the said subsection ( 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
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822
SUPREME COURT REPORTS
[1979J 2 s.c.R.
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
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
Singh v. State of U. P. (2 )
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.
The State of Bombay, (3) 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 3 2 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.
(3) [l9SI] 2 S.C.R. 228
(2) (1961) 2 s.
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G. P. NAYYAR v. DELHI ADMN. (Kailasam, J.)
823
"6. Where this Act, or any Central Act or Regulation
A
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
B
(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."
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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
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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
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Art. 20(1) of the Constitution.
Article 20(1) of the Constitution i~
"
as follows:-
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SUPREME COURT REPORTS
[1979) 2 s.c.R.
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''No person shall be convicted of any offence except for
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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 procedure 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.
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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.
A
B
c
D