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Judgment
Per: Justice Vivek Agarwal
This bunch of petitions has been filed by the petitioners, who claim themselves to be former Government servants invoking the inherent jurisdiction of this High Court under Section 482 of Code of Criminal Procedure (hereinafter referred to as Cr.P.C. for short), challenging the order dated 19.06.2023, passed by the learned Special Judge (Prevention of Corruption) Act, Jabalpur, in Special Case (LOK) No.06/2020, by which an application filed by the applicant under Section 216 of the Cr.P.C., has been dismissed.
Petitioners are also challenging the order dated 09.03.2022, passed in Special Case (LOK) No.06/2020, by which charges were framed against the applicant for offences under Section 7(a) and Section 13(1)(b) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (hereafter referred to as Act for short).
Shri Anil Khare, learned Senior Advocate, led the arguments on behalf of various applicants and submits that the orders impugned are bad in law. It is submitted that when there are allegations in respect of accepting illegal gratification, offence under Section 13(1)(b) of the Act will not be made out and at best charges could have been framed only under Section 7(a) of the Act and not under Section 13(1)(b) and 13(2) of the Act.
It is submitted that decision of the High Court of Madhya Pradesh in Radheshyam Gupta Vs. State of M.P. in Criminal Revision No.1666/2021, decided on 6.4.2022, wherein, it is held that where allegations are in respect of accepting illegal gratification, charge under Section 13(1)(b) of the Act, is not sustainable, will be applicable in full force. It is submitted that even a SLP filed by the State of Madhya Pradesh before the Hon'ble Supreme Court of India against the order dated 6.4.2022 passed in case of Radheshyam Gupta was dismissed by the Hon'ble Supreme Court and, therefore, no further indulgence is called for.
Learned Public Prosecutor for the State, in his turn, supports the impugned order and submits that impugned orders do not call for any interference.
As far as Section 216 of Cr.P.C., is concerned, it deals with power of the Court to alter charge. It provides that any Court may alter or add to any charge at any time before judgment is pronounced. The only requirement is that such alteration or addition towards charge should be read and explained to the accused.
As far as judgment in case of M/s Rayala Corporation (P) Ltd. and another Vs. The Director of Enforcement, New Delhi (AIR 1970 SC 494), is concerned, the same dealt with the aspect of the provisions contained in Foreign Exchange Regulation Act (1947), Sections 4(1), 5(1), 9, 23-D(1) and proviso, and 23(3), wherein it is held that :-
"The complaint made to the Court without having any material which could lead to the opinion that Director of Enforcement will not be in a position to impose adequate penalty, was deemed to be an act, inasmuch as, Hon'ble Supreme Court held that it was argued on behalf of the appellant that "even if there was a contravention of rule 132A (2), by the accused, when that Rule was in force, the act of contravention cannot be held to be a "thing done or omitted to be done under that Rule", so that, after that Rule has been omitted, no prosecution in respect of that contravention can be substituted. He conceded the possibility that, if a prosecution had already been started while Rule 132A was in force, that prosecution might have been competently continued. Once the Rule was omitted altogether, no new proceeding by way of prosecution could be initiated even though it might be in respect of an offence committed earlier during the period that the rule was in force. We are inclined to agree with the submission of Mr. Sen that the language contained in clause 2 of the Defence of India (Amendment) Rules, 1965 can only afford protection to action already taken while the rule was in force, but cannot justify initiation of a new proceeding which will not be a thing done or omitted to be done under the rule but a new act of initiating a proceeding after the rule had ceased to exist. On this interpretation, the complainant made for the offence under Rule 132A(4) of the Defence of India Rules, after 1st April, 1965, when the rule was omitted, has to be held invalid."
The Hon'ble Apex Court relied on its earlier judgment in case of S. Krishnan Vs. State of Madras, 1951 SCR 621=AIR 1951 SC 301, relating to temporary enactment, in the following words:-
"The general rule in regards to a temporary statute is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires."
However, Federal Court in Jotindranath Vs. Province of Bihar, AIR 1949 FC 175 and Supreme Court in District Mining Officer Vs. Tata Iron and Steel Company (AIR 2001 SC 3134), noted that :-
"A statute is either perpetual or temporary. It is perpetual no time is fixed for its duration, and such a statute remains in force until its repeal which may be express or implied."
In Hebbert V. Purchas (1871) LR 3 PC 605 (PC) . It is held that a perpetual statute is not perpetual in the sense that it cannot be repealed; it is perpetual in the sense that it is not abrogated by efflux of time or by non-user. On the other hand, in the case of Jotindranath (supra), it is noted that a statute is temporary when its duration is only for a specified time and such a statute expires on the expiry of the specified time unless it is repealed earlier.
Thus, it is evident that Prevention of Corruption Act, being not a temporary statute, law laid down by Hon'ble Apex Court in M/s Rayala Corporation (P) Ltd. (supra), being in a different context will have no application to the facts and circumstances of the case.
As far as judgment of Coordinate Bench in Radheshyam Gupta (supra), is concerned, copy of the order has been enclosed as Annx.A/4. In that case allegation on the petitioner Radheshyam Gupta was that while serving on the post of Incharge Principal of Madhya Pradesh Govt. Girls College, Karera, District Shivpuri, during the period 13.8.2018 to 16.8.2018, he had allegedly demanded an amount of Rs.4,000/- (illegal gratification), for release of payment of the amount under sanctioned bill after finalisation of difference of arrears of revised pension from 1976 to 2015 and pensionary benefits payable to the complainant.
It was argued that for a singular act of demanding bribe, charge could not have been split into three parts, firstly under Section 7(a), secondly under Section 7(b) and thirdly, under Section 13(1)(b) r/w Section 13(2) of the Act.
It was the case of the petitioner that charges at the most may be covered under the scope of Section 7(a) and 7(b) of the Act, but charges under Section 13(1)(b) r/w Section 13(2) of the Act, could not have been framed.
It was argued before the Hon'ble Coordinate Bench that Section 13(1)(b) of the Act talks of intentional enrichment illicitly during the period of his office. Explanation-1, below Section 13(1)(b) of the Act, provides for the meaning attributed to words "intentionally enrichment" i.e. "a person shall be presumed to have illicitly enriched himself intentionally if he or any other person on his behalf either is in possession of or has, at any time during the period of his office has been in possession of pecuniary resources of property disproportionate to his known source of income which the public servant cannot satisfactorily account for."
In this backdrop, the Coordinate Bench at Gwalior split the words 'pecuniary resources' in two parts and referring to various dictionaries like Black's Law Dictionary, 9th Edition, Oxford Advance Lerner's Dictionary, New 8th Edition, Legal Glossary, 2015, Merriam Webster Online Dictionary, reached to a conclusion that a person will be deemed to be presumed to have intentionally enriched himself illicitly if he is in possession of pecuniary resources or property disproportionate to his known sources of his income, which the public servant could not satisfactorily account for, and thus, agreeing with the submission made by the counsel allowed the revision.
As far as, Hon'ble Apex Court is concerned, it dismissed the SLP filed on behalf of the State vide order dated 7.2.2023, but kept the question of law open.
As far as, this hair splitting is concerned, Hon'ble Coordinate Bench tried to split the word 'pecuniary resources' into two parts to arrive at a conclusion, whereas in our opinion, Section 13(1)(b) of the Act talks of intentional enrichment in an illicit manner during the period of his office. Explanation-2 has not been touched by Hon'ble Coordinate Bench. Explanation-1 below Section 13(1)(b) of the Act provides that "a person shall be presumed to have intentionally enriched himself illicitly, if he or any other person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources of property disproportionate to his known sources of income which the public servant cannot satisfactorily account for."
However, Explanation-2 below Section 13(2)(b) of the Act cannot be overlooked, inasmuch as, it provides that "the expression" "known sources of income" means income received from any lawful sources.
When Explanation-2 is read along with Explanation-1 below Section 13(1)(b) of the Act, then bribe being not illegal thing for a person holding his office, demand of bribe will definitely fall under the provision of an intentional enrichment for himself in an illicit manner during the period of his office. When this is examined in the light of Explanation-2, then bribe being not covered under the "known sources of income", will be covered under Section 13(1)(b) of the Act.
Thus, meaning and import of Section 13(1)(b) of the Act is not only to cover cases of disproportionate assets, but it also covers cases where there are instances of illicit intentional enrichment by virtue of receipt of income from sources other than any lawful sources and when interpreted in this light, then on the touchstone of the judgment of this very High Court in Dhan Raj Malvi (D.R. Lavi) Vs. State of Madhya Pradesh decided in Criminal Revision No.4147/2019, on 11.09.2019, where the Hon'ble Division Bench was dealing with an issue that "Whether the substitution of a statutory provision by an amendment will lead to obliteration of the provision substituted and whether substituted provision will be effective from retrospective date or from the date when it is substituted ?" A view was taken by the Hon'ble Division Bench at Gwalior of which one of us (Justice Vivek Agarwal), was a Member, then that covers the field. Unfortunately, our order dated 11.09.2019, being delivered at an earlier point of time before the judgment of another Coordinate Bench in Radheshyam Gupta (supra) came to be delivered in Criminal Revision No.1666/2021 on 06.04.2022, does not find any reference either on behalf of the learned Senior counsel who argued that matter or on behalf of the learned Special Public Prosecutor for SPE leaves no iota of doubt that without taking into consideration earlier judgment passed in case of Dhanraj Malvi (supra), subsequent judgment will not have a binding force.
Accordingly, when tested in this light, especially when Hon'ble Apex Court has left the issue open. When this aspect is tested in the light of judgment of the Hon'ble Apex Court in Kunhayammed and others Vs. State of Kerala and Another (AIR 2000 SC 2587), wherein it is held that "the exercise of jurisdiction conferred on Supreme Court by Article 136 of the Constitution consists of two steps : (i) granting special leave to appeal; and (ii) hearing the appeal. This distinction is clearly demonstrated by the provisions of Order XVI of the Supreme Court Rules framed in exercise of the power conferred by Article 145 of the Constitution. Thus, a the petition seeking grant of special leave to appeal and the appeal itself, though both dealt with Article 136 of the Constitution are two clearly distinct stages. The legal position which emerges in paras 14 & 43 of the judgment of Hon'ble Apex Court in Kunhayammed (supra) as under :-
"14.The exercise of jurisdiction conferred on this Court by Article 136 of the Constitution consists of two steps : (i) granting special leave to appeal; and (ii) hearing the appeal. This distinction is clearly demonstrated by the provisions of Order XVI of the Supreme Court Rules framed in exercise of the power conferred by Article 145 of the Constitution. Thus, a the petition seeking special leave to appeal filed before the Supreme Court under Article 136 of the Constitution shall be in form No.28. No separate application for interim relief need be filed, which can be incorporated in the petition itself. If notice is ordered on the special leave petition, the petitioner should take steps to serve the notice on the respondent. The petition shall be accompanied by a certified copy of the judgment or order appealed from and an affidavit in support of the statement of facts contained in the petition. Under Rule 10 the petition for grant of special leave shall be put up for hearing ex-parte unless there be a caveat. The court if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition. Under Rule 13, the respondent to whom a notice in special leave petition is issued or who had filed a caveat, shall be entitled to oppose the grant of leave or interim orders without filing any written objections. He shall also be at liberty to file his objections only by setting out the grounds in opposition to the questions of law or grounds set out in the S.L.P.. On hearing the Court may refuse the leave and dismiss the petition for seeking special leave to appeal either ex-parte or after issuing notice to the opposite party. Under Rule 11, on the grant of special leave, the petition for special leave shall, subject to the payment of additional court fee, if any, be treated as the petition of appeal and it shall be registered and numbered as such. The appeal shall then be set down for hearing in accordance with the procedure laid down thereafter. Thus, a petition seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article 136 of the Constitution, are two clearly distinct stages. In our opinion, the legal position which emerges is as under :-
1.While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave;
2.If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out;
3.If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be JJ called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the court may dismiss the appeal without noticing the respondent.
4.In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge.
43.We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage. To sum up our conclusions are :-
(i)Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii)The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.
(iii)Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv)An order refusing special leave to appeal may be a nonspeaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v)If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi)Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii)On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C."
Thus, it is evident that merely refusal to grant leave does not mean that order impugned is affirmed. When this aspect is taken into consideration, then it cannot be said that mere refusal to grant leave amounts to affirmation of the order of the Hon'ble Coordinate Bench in Radheshyam (supra). Therefore, when tested, then judgment of Radheyshyam (supra) having failed to consider the earlier judgment in Dhanraj (supra), cannot be treated as a binding precedent and for the reasons stated above, there appears to be no illegality in framing of the charges under Section 13(1)(b) r/w Section 13(2) of the Act.
Accordingly, petitions fail and are dismissed.