Recently, several amendments have been made to the Prevention of Corruption Act, 1988, through the Prevention of Corruption (Amendment) Act, 2018. One of the amendments is the repeal of Section 13(1)(d). This was the most used provision under the Prevention of Corruption Act, 1988. However, Section 13(1)(d) has now been repealed. The new amendments have come into force with effect from 26 July 2018.
I have been repeatedly asked during last few days, as to what happens to the existing cases which are under investigation or under trial or in various stages of appeal which were previously registered under Section 13(1)(d) which now stands repealed.
Before I answer this question, let me first reproduce Section 13(1)(d) as it existed prior to its repeal on 26 July 2018:
“13. Criminal misconduct by a public servant.—(1) A public servant is said to commit the offence of criminal misconduct,—
*** *** ***
(d) if he,—
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
*** *** ***
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four year but which may extend to ten years and shall also be liable to fine.”
This was the most used provision in the Prevention of Corruption Act, 1988. It was of particular use in cases of corruption at higher places.
Since Section 13(1)(d) has now been repealed and there is no Saving clause in the Amending Act of 2018, in order to find out what happens to the existing cases under this provision (registered prior to 26 July 2018, which may be under investigation, under trial or in different stages of appeal), we have to refer to Section 6 of the General Clauses Act, 1897, which lays down as under:
“6. Effect of repeal.—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
(b) affect the previous operation of any enactment so repealed or any thing duly done or suffered thereunder; or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 such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.”
From the language of Section 6 of the General Clauses Act, it can easily be seen that the repeal of Section 13(1)(d) of the Prevention of Corruption Act does not affect any investigation or any legal proceedings (such as trial or appeal) that was already existing prior to such repeal. Likewise, if any act had already been committed (prior to 26 July 2018) which would amount to an offence under the said 13(1)(d) prior to its repeal, but the FIR was yet to be registered, even in such case the FIR for such act can still be registered even now, even though this legal provision has been repealed. This is quite clear from the language of Section 6 of the General Clauses Act, 1897.
Therefore, it should be quite clear that all existing proceedings under Section 13(1)(d), relating to acts committed prior to its repeal, shall continue to be valid as if this provision had not been repealed.
However, of course, if any act is committed after the repeal of the said provision, i.e., on or after 26 July 2018, which would otherwise have been an offence under that provision, no FIR can be registered now for such act, and no other legal proceeding can now be conducted under Section 13(1)(d) for such new acts.
[Note: Dr. Ashok Dhamija is author of a comprehensive book on Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa, New Delhi (ISBN: 978-81-8038-592-6).]