[Delhi HC]: 2018 Amendment to Sec 13 PC Act is not retrospective, no stay of conviction of former Jharkhand CM Madhu Koda

The Delhi High Court on May 22, 2020 {MADHU KODA vs  STATE THROUGH CBI} held that the contention that it is necessary for the prosecution to establish a demand for illegal gratification for sustaining the allegation of an offence under Section 13(1)(d) of the PC Act as in force prior to 26th July 2018, is without merit. It was held that the legislative intent is not to punish a public servant for any erroneous decision; but to punish him for corruption.

The Single Judge of HC, Justice Vibhu Bakhru, further held that a plain reading of sub clause (ii) and sub-clause (iii) of clause (d) sub-section (1) of section 13 of the PC Act indicates that a public servant would commit an offence of criminal misconduct if he, by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. It was held that a plain reading of the sub-clauses of clause (d) of section 13(1) of the PC Act do not indicate that a demand of illegal gratification is a necessary ingredient of the offence of criminal misconduct. Thus, it was held that there is no reason to read-in such a condition in the said sub-clauses.

It was held that since the PC Amendment Act addressed the concerns regarding Sub-clause (iii) of Section 13(1)(d) of the PC Act, it would stand to reason to accept that the legislative intent was always to ensure that mens rea be considered as an integral part of any offence of corruption. It was held that the very definition of corruption, as is commonly understood, includes an element of dishonesty and abuse of power by a public servant.

In the present case, the appellant successfully contested the elections for the Legislative Assembly in the year 2005 and in September 2006 was appointed the Chief Minister of the State of Jharkhand. The Trial Court found that the appellant had abused his position as a public servant in order to obtain the allocation of Rajhara Coal Block in favour of M/s Vini Iron and Steel Udyog Limited (hereafter ‘VISUL’), without any public interest and convicted the appellant. The appellant was seeking stay of conviction, during pendency of the appeal.

The High Court held that it is unable to accept that the PC (Amendment) Act, 2018 seeks to repeal the provisions of Section 13(1)(d) of the Act, as it existed prior to 26.07.2018 ab initio. It was held that Mens rea is an integral part of the offence under Sub-clause (ii) of Section 13(1)(d) of the PC Act. It was held that the use of the word ‘abuse’ in the said Sub clause indicates so. It was held thus, there is no reason to assume that the legislative intent of repealing Section 13 of the PC Act was to exclude the said offence from the scope of PC Act with retrospective effect.

The HC held that Section 6(d) of the General Clauses Act is applicable and persons 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 the liability incurred prior to the PC Act coming into force. It was held that it is also relevant to note that the offence of criminal misconduct as falling under the provisions of Section 13(1)(d) of the PC Act prior to its amendment, is not the same offence as is now covered under the amended provision.

In view of the above, the Court held that it is unable to accept that if it is established beyond reasonable doubt that the appellant had abused his position for securing a pecuniary advantage to VISUL, the benefit of any beneficial construction of the PC (Amendment) Act, 2018 could be extended to him.

It was held that the Court is not persuaded to accept that his conviction is liable to be stayed. It was held that the appellant has been convicted of an offence after trial. It was held that one of the consequences of the conviction is that the appellant is not qualified to run for public office.

In view of the above, it was held by the HC that the application filed for stay of conviction deserves to be dismissed. Accordingly, it was dismissed by the HC.