It is a cardinal principle of construction that every statute
is prospective, unless it is expressly or by necessary implication
made to have retrospective operation. There is a presumption
against retrospectivity. An express provision should ordinarily be
made to make a statute retrospective. The presumption against
retrospectivity may also be rebutted by necessary implication as
held by this Court in Akram Ansari vs. Chief Election Officer
reported in (2008) 2 SCC 95, which has been referred to and relied
upon by the Kerala High Court in its judgment in K.R. Ramesh vs.
Central Bureau of Investigation and Another reported in 2020 SCC
Online Kerala 2529. The device of a legal fiction can also be used
to introduce retrospective operation. Generally, it is considered
that every statute dealing with substantive rights is prima facie
prospective unless it is expressly or by necessary implication made
retrospective. {Para 7}
8. In T.N. Bettaswamaiah vs. State of Karnataka being W.P.
No.29176/2019 (GM-RES), decided on 20.12.2019, which is reported reported in MANU/KA/9503/2019, the Karnataka High Court referred to the judgment of this Court in Hitendra Vishnu Thakur vs. State of Maharashtra & Ors. reported in (1994) 4 SCC 602, and rightly held :
“21. … But in Hitendra Vishnu Thakur & Ors.
vs. State of Maharashtra and Others (1994) 4
SCC 602 it is held that a statute which not
only changes the procedure but also creates
new rights and liabilities shall be
construed to be prospective in operation
unless otherwise provided either expressly
or by necessary implication. A careful
reading of both Section 17A as also Section
19 do not contain any express provision to
show that they are retrospective in nature
nor it is so discernable by implication.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1647 OF 2021
STATE OF RAJASTHAN Vs TEJMAL CHOUDHARY
Author: INDIRA BANERJEE, J.
Leave granted.
2. This appeal is against the final judgment and order dated
07.04.2020 passed by the High Court of Judicature for Rajasthan at
Jabalpur, allowing S.B. Criminal Miscellaneous Petition
No.1163/2018, filed by the respondent and quashing FIR No.1/2018,
registered against the respondent under Section 13(1)(g) and 13(2)
of the Prevention of Corruption Act, 1988 (hereinafter referred to
as the “PC Act”) read with Sections 420, 467, 468, 471 and 120B of
the Indian Penal Code.
3. By the aforesaid judgment and order, three miscellaneous
petitions involving identical questions of law being S.B. Criminal
Miscellaneous Petition No.1163/2018 referred to above, S.B.
Criminal Miscellaneous Petition No.159/2018 and S.B. Criminal
Miscellaneous Petition No.953/2018 have been disposed of. The
petitioners in Criminal Miscellaneous Petition No. 159/2018 and
Criminal Miscellaneous Petition No.953/2018 are also accused named
in FIR 1/2018.
4. The said FIR has been quashed mainly on the ground that the
Investigating Authorities had failed to obtain previous approval of
the State Government under Section 17(A) of the PC Act before
registering the said FIR against the accused persons.
5. Section 17(A) of the PC Act, which is set out hereinafter for
convenience, has been incorporated by amendment of the Prevention
of Corruption Act, 1988, with effect from 26th July, 2018. It reads
as under :
“17A. Enquiry or Inquiry or investigation of
offences relatable to recommendations made or
decision taken by public servant in discharge of
official functions or duties.—No police officer
shall conduct any enquiry or inquiry or
investigation into any offence alleged to have
been committed by a public servant under this
Act, where the alleged offence is relatable to
any recommendation made or decision taken by such
public servant in discharge of his official
functions or duties, without the previous
approval—
(a) in the case of a person who is or was
employed, at the time when the offence was
alleged to have been committed, in
connection with the affairs of the Union, of
that Government;
(b) in the case of a person who is or was
employed, at the time when the offence was
alleged to have been committed, in
connection with the affairs of a State, of
that Government;
(c) in the case of any other person, of the
authority competent to remove him from his
office, at the time when the offence was
alleged to have been committed:
Provided that no such approval shall be necessary
for cases involving arrest of a person on the
spot on the charge of accepting or attempting to
accept any undue advantage for himself or for any
other person:
Provided further that the concerned authority
shall convey its decision under this section
within a period of three months, which may, for
reasons to be recorded in writing by such
authority, be extended by a further period of one
month.”
6. In this case, the FIR was filed on 01.01.2018 before the said
provision came into force. The main question involved in these
appeals is whether Section 17A of the PC Act would apply to an
investigation which had commenced before Section 17A was
enacted/enforced.
7. It is a cardinal principle of construction that every statute
is prospective, unless it is expressly or by necessary implication
made to have retrospective operation. There is a presumption
against retrospectivity. An express provision should ordinarily be
made to make a statute retrospective. The presumption against
retrospectivity may also be rebutted by necessary implication as
held by this Court in Akram Ansari vs. Chief Election Officer
reported in (2008) 2 SCC 95, which has been referred to and relied
upon by the Kerala High Court in its judgment in K.R. Ramesh vs.
Central Bureau of Investigation and Another reported in 2020 SCC
Online Kerala 2529. The device of a legal fiction can also be used
to introduce retrospective operation. Generally, it is considered
that every statute dealing with substantive rights is prima facie
prospective unless it is expressly or by necessary implication made
retrospective.
8. In T.N. Bettaswamaiah vs. State of Karnataka being W.P.
No.29176/2019 (GM-RES), decided on 20.12.2019, which is reported
reported in MANU/KA/9503/2019, the Karnataka High Court referred to
the judgment of this Court in Hitendra Vishnu Thakur vs. State of
Maharashtra & Ors. reported in (1994) 4 SCC 602, and rightly held :
“21. … But in Hitendra Vishnu Thakur & Ors.
vs. State of Maharashtra and Others (1994) 4
SCC 602 it is held that a statute which not
only changes the procedure but also creates
new rights and liabilities shall be
construed to be prospective in operation
unless otherwise provided either expressly
or by necessary implication. A careful
reading of both Section 17A as also Section
19 do not contain any express provision to
show that they are retrospective in nature
nor it is so discernable by implication.
22. In Dr. Subramanian Swamy vs. Dr.
Manmohan Singh and Another (2012) 3 SCC 64
it is held that any anti-corruption law has
to be interpreted in such a fashion as to
strengthen fight against corruption and
where two constructions are eminently
reasonable, the Court has to accept the one
that seeks to eradicate corruption than the
one which seeks to perpetuate it.”
9. Reference may also be made to the judgment of this Court in GJ
Raja vs. Tejraj Surana” reported in (2019) 19 SCC 469, cited by Mr.
Saurav Roy, learned counsel appearing on behalf of the appellant,
where this Court followed the judgment of this Court in Hitendra
Vishnu Thakur (supra) and held that a statute which affect
substantive rights is presumed to be prospective in operation
unless made retrospective and unless textually impossible a statute
which merely affects procedure is presumed to be retrospective.
However, a statute which not only changes the procedure but also
creates new rights or liabilities is to be construed to be
prospective in operation, unless otherwise provided either
expressly or by necessary implication.
10. In State of Telangana vs. Managipet alias Mangipet Sarveshwar
Reddy reported 2019 (19) SCC 87, this Court rejected the arguments
that amended provisions of the PC Act would be applicable to an
FIR, registered before the said amendment came into force and found
that the High Court had rightly held that no grounds had made out
for quashing the proceedings.
11. It is a well settled principle of interpretation that the
legislative intent in the enactment of a statute is to be gathered
from the express words used in the statue unless the plain words
literally construed give rise to absurd results. This Court has to
go by the plain words of the statute to construe the legislative
intent, as very rightly argued by Mr. Roy. It could not possibly
have been the intent of the legislature that all pending
investigations upto July, 2018 should be rendered infructuous.
Such an interpretation could not possibly have been intended.
12. In his usual fairness, learned Senior Counsel appearing on
behalf of the respondent does not seriously dispute the proposition of law that Section 17A does not have retrospective operation.
Learned Senior Counsel, however, argues that the Court might have
looked into the merits and, in particular, the fact that
investigation had ultimately been closed. We need not go into that
aspect since the High Court has quashed the proceedings only on the
ground of permission not having been obtained under Section 17A of
the PC Act.
13 The appeals are, accordingly, allowed and the impugned
judgment and order is accordingly set aside.
……………………………………….. J.
[INDIRA BANERJEE}
……………………………………….. J.
[J.K. MAHESHWARI}
New Delhi;
December 16, 2021.
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