|CITATION||Criminal Appeal 78 of 1967|
|COURT||Supreme Court of India|
|JUDGES/CORAM||Justice P. Kailasam, Justice O. Chinnappa Reddy|
|DATE OF JUDGEMENT||14.12.1978|
The case talks about the legal fiction of the repeal of a statute.
The facts of the case are as follows: The appellant who was charged for the offences under section 120B of I.P.C. and under section 161 of I.P.C. read with section 5(2) and 5(1) of the Prevention of Corruption Act, 1947 and 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 1st of July 1955 to 30th April 1961 had exceeded his income by Rs.33,588.34 and they were disproportionate to the known sources of income of the petitioner. The trial Judge, however, found that as section 5(3) of the Act had been repealed on 18-12-1964 and as specific instances of payment of bribe to the petitioner could not be proved the accused could not be held guilty of the charges.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 preferred an appeal to the Delhi High Court on 11th 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 Court, the appellant challenged 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 Delhi by its judgment dated 27th November, 1973 allowed 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.
In appeals by special leave it was contended that since section 5(3) of the P. O. F. A., 1947 was repealed on 18-12-64 the Court below cannot take into account the provisions of section 5(3) of the Act after the date of its repeal on 18-12-64 and Act No. 16 of 1964 which gave retrospective operation to section 5(3) of the Act is violative of Articles 14 and 20(1) of the Constitution.
The main issues in the case were:
- Whether the repeal of a statute can obliterate the existence of the statute in the past as a fact or only as a legal fiction?
- Whether retrospective operation to section 5(3) of the Act is violative of Articles 14 and 20(1) of the Constitution?
Summary of court decision and judgment
The rule of evidence as incorporated in section 5(3) of the P.O.F.A., 1947 would be available regarding offences that were committed during the period before the repeal of section 5(3). Section 5(3) of the Prevention of Corruption Act, 1947 provided an additional mode of proving an offence punishable under sub-sections 5(2) for which 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. 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.
The instant case of G.P. Nayyar v Delhi Administration has been held as precedent in many cases for example R.K. Chawla and anr. v. Goa Antibiotics and Pharmaceuticals Ltd. and Anr. This case has laid importance on the legal fiction of effect of the repealing a provision in the statute. Such legal fiction could be contrasted with the factual existence of the law only if Section 5(3) had not actually existed as a fact. What is prohibited by Article 20(1) is the creation of legal fiction by retrospective legislation when the fact did not exist at all, i.e., if, by such legal fiction, an act which was not criminal when it was committed is to become punishable as an offence. A legal fiction that Section 5(3) did not exist on the date of the commission of the offence could be introduced by its repeal as was done by Act No. 40 of 1964. Such legal fiction could be contrasted with the factual existence of the law only if Section 5(3) had not actually existed as a fact.
The validity of the effect of repeal was also put in question as regard with Article 20(1) which was laid down as, “what is relevant for the application of Article 20 is not the result brought about by repeal and the retrospective operation thereof, but the factual state of the law as it existed prior to the date when the repeal came into operation: The repeal itself posits the pre-existence of the law, and it is that law which is relevant for our present purpose.”