The Delhi High Court on Friday dismissed the plea filed by Ex Jharkhand CM Madhu Koda seeking to stay the conviction order against him in a coal scam case saying the person charged with crimes ought to be disqualified from contesting elections to public offices, till he is finally acquitted. The appeal against the conviction order is still pending for final hearing before the High Court.
A single-judge bench of Justice Vibhu Bhakru said amendments to the Prevention of Corruption Act (PC) Act could not be applied for offences prior to changes in the act’s provisions. The Court also said that the contention of the accused 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.
“The legislative intent is not to punish a public servant for any erroneous decision; but to punish him for corruption. The preamble of the PC Act indicates that it was enacted “to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith,” the Court said.
While dismissing the application for stay of conviction the Court observed that “there is no doubt that this Court does have the power to stay the conviction. However, such power is to be exercised in exceptional circumstances and in cases where this Court is convinced that not staying the conviction would lead to injustice and irreversible consequences. In K.C. Sareen v. CBI, Chandigarh: (2001) 6 SCC 584, the Supreme Court had also explained that the Court while considering the question whether to stay the conviction pending hearing of the appeal, must also consider the wider ramifications of the same.”
Further the High Court opined that “Clearly, if the wider opinion is that persons charged with crimes ought to be disqualified from contesting elections to public offices, it would not be apposite for this Court to stay the appellant’s conviction to overcome the disqualification incurred by him. It would not be apposite to facilitate the appellant to contest elections for any public office, till he is finally acquitted.”
The Ex. Chief Minister Madhu Koda (Appellant) filed application and requested that the order dated 13.12.2017 passed by the learned Special Judge convicting him for the offence of criminal misconduct under sub-clauses (ii) and (iii) of clause (d) of sub-section (1) of section 13 read with sub-section (2) of section 13 of the Prevention of Corruption Act, 1988 (hereafter ‘PC Act’) be stayed.
The appellant’s counsel Abhimanyu Bhandari rests on three points (1) There is neither any allegation nor any evidence to establish, that the appellant had demanded any illegal gratification, which is sine qua non of an offence under Section 13(1)(d) of the PC Act. He stated that in absence of any such finding, the appellant’s conviction under Section 13(1)(d) of the PC Act is ex facie unsustainable.
(2) The PC Act was amended with effect from 26th July 2018 and the provisions of Section 13(1)(d) stand deleted by virtue of the Prevention of Corruption (Amendment) Act, 2018 (hereafter the ‘PC Amendment Act, 2018’). He submited that the allegations made against the appellant no longer constitute an offence and, therefore, he is entitled to be acquitted by virtue of the doctrine of beneficial construction. He relied on the decision of the Supreme Court in T. Barai v enry AH Hoe and Another: (1983) 1 SCC 177 in support of his contention.
(3) The appellant’s conviction rested on the assumption that he was close to one Vijay Joshi who controlled VISUL. It is alleged that the machinery of the Government of Jharkhand had worked to favour VISUL on account of the close relationship between the appellant and Sh. Vijay Joshi. However, he submitted, that there was no admissible evidence, which would even remotely link or establish any such connection between the appellant and Sh. Vijay Joshi. He contended that thus, the allegations of any conspiracy must fail.
Senior counsel R.S. Cheema appeared for CBI and submits that the provisions of Section 13(1)(d) of the PC did not necessarily require establishing that any illegal gratification had been demanded or paid to the public servant. He further submits that the benefit of PC Amendment Act, 2018 could be extended to the appellant. He also referred to Section 6(d) of the General Clauses Act, 1897 (hereafter ‘the General Clauses Act’) and contended that since the appellant had been convicted prior to the PC Amendment Act, 2018 coming into force, the benefit of the same could not be extended to the appellant.
He further submitted that this was a case of conspiracy and the facts of the case clearly established that the appellant was complicit in the offence notwithstanding that his connection with Vijay Joshi had not been irrefutably established and whilst at the interim stage, the sentence awarded to a convict can be suspended on the basis of a prima facie view; his conviction cannot be stayed without considering the wider ramifications.
Justice Vibhu Bakhru said, “this Court 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. Mens rea is an integral part of the offence under Sub-clause (ii) of Section 13(1)(d) of the PC Act. The use of the word ‘abuse’ in the said Sub- clause indicates so. 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.”
Several accused in 2G scam or coal block scam have and other cases have filed several pleas in courts arguing that they should get the benefit of the amended PC Act.
The Court said, “The appellant has been convicted of an offence after trial. One of the consequences of the conviction is that the appellant is not qualified to run for public office. While it is contended that this would lead to injustice and irreversible consequences, the Court must also consider wider ramifications of the same.”
“In recent times, there has been an increasing demand that steps be taken for decriminalization of politics. A large number of persons with criminal antecedents or who are charged with heinous crimes stand for and are elected to Legislative Assemblies and the Parliament. This has been a matter of some concern,” observed the Court.
The single Judge relied on the judgment of Supreme Court in Public Interest Foundation v. Union of India which had extensively referred to the recommendations of the Law Commission and, after noting various decisions, had observed as under:
“118. We have issued the aforesaid directions with immense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. A time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism. The country feels agonized when money and muscle power become the supreme power. Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay.”
Read the judgement here;
Madhu-Koda-judgment.-India Legal Bureau