STATE (DELHI ADMINISTRATION) Vs. G P NAYYAR,

JUDGEMENT

(1.) OLIVEORONA titled his book "Law as Fact" to emphasise that law existed in the consciousness of the people and their law abidingness and that it is not merely dependent on legislative fiat. On the other hand, the omnipotence of Parliament is stressed by De Lolme by saying that by legislation it can do anything except perhaps to make a woman a man and a man a woman. While law cannot change a fact in the physical world. It can do so in the world of law by a legal fiction. The legal fiction we are concerned here is the effect of the repeal of a statute. Chief Justice Tindal in Kay v. Goodwin, (1830) 130 ER 1403 : (6 Bing, 576), trenchantly stated the effect of repeal as follows : -

(2.) THE question before us is whether the repeal of a statute can obliterate the existence of the statute in the past as a fact or only as a legal fiction. It arises as follows : -

(3.) REALISING the weakness of the victim against the power -wielding civil servant end the difficulty of proving the actual act of misconduct of the public servant, the Legislature enacted Sub -Section (3) of Section 5 Which was as follows : - "In any trial of an offence punishable under Sub -Section (2), the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account for, of pecuniary resources or property disproportionate to his known sources of income may be proved and on such proof, the Court shall presume, unless the contrary is proved, that the accused person is guilty of 'criminal misconduct' in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption." The effect was that under Section 5, the offence of criminal misconduct was defined in Sub -Section (1), made punishable by Sub -Section (2) while Sub -Section (3) could be invoked as a rule of evidence to prove the offence, it was somewhat anomalous that the prosecution and the charge for an offence punishable under Section 5(2) had to consist of specific allegations of a definite misconduct committed at a certain time etc., in view of the definition of the offence under Sub -Section (1) while the proof of such an offence could consist entirely of the possession of disproportionate assets in view of Sub -Section (3) and the conviction could be obtained even if there was no evidence at all of the specific ingredients of any of the acts defined in clauses (a), (b), (c) and (d) of Sub -Section (1). Though in law the conviction would be of criminal misconduct as defined in clauses (a), (b), (c) or (d) in substance, it would be a conviction for possession of disproportionate assets within the meaning of Sub -Section (3). To bring the law in accord with reality, Section 6 of the Anti -Corruption Laws (Amendment) Act, 1964, inter alia, added clause (e) after clause (d) in Sub -Section (1) of Section 5 and deleted Sub -Section (3) of Section 5. Thereafter, the prosecution and charge could itself from the very inception be under clause (e) of Sub -Section (1) of Section 5. Either a person could then be prosecuted and charged for specific instances under the first four clauses of Sub -Section (1) of Section 5, or he could be prosecuted and charged merely for the possession of disproportionate assets under the fifth clause of Sub -Section (1) of Section 5. This change came into effect on 18th December, 1964.