STATE Vs. S THIUNAVUKKARASU

JUDGEMENT

(1.) THE jurisdictional or foundational facts giving rise to these petitions, as culled out from the materials available on record, may succinctly be stated to resolve in the best of fashion possible, the moot and naughty questions arising for consideration.

(2.) S. Thirunavukkarasu was the Hon'ble Minister for Housing, Government of Tamil Nadu , during the period 1986-87 in the Cabinet headed by the late lamented Dr. M. G. Ramachandran the then Hon'ble Chief Minister of Tamil Nadu. B. Bharathi was attached as his Personal Assistant. In april, 1989, the Government appeared to have received a spate of petitions from the public alleging that the then Minister for Housing, S. Thirunavukkaras u had indulged in corrupt practices in the sanctioning of plans for the construction of buildings in the Madras Metropolitan area either by flouting or relaxing the Development Control Rules without assigning any reasons. The government directed the Inspector General of Police, Crime Branch, C. I. D. , Madras to conduct a preliminary inquiry and find out whether any corrupt or other malpractices have been committed in the sanction of planning permission during the relevant period. The Inspector General of Police, Crime Branch, was said to have submitted a report in August, 1989 revealing that the preliminary inquiry conducted by him disclosed a prima facie case of rceipt of illegal gratification by S. Thirunavukkarasu. The inspector General of Police was stated to have taken up further inquiry in october, 1989 and on his being reminded, a detailed inquiry report had been forwarded to the Government in June, 1992.

(3.) THE question as to whether acts done constituting cognizable offences during the currency of a repaled enactment, that is the old Act, are prosecutable subsequent to repeal by the registration of a case and consequent commencement of investigation for the collection of material in a bid for the formation of opinion to be reflected in the report to be filed under Sec. 173 (2), Criminal procedure Code, may fall for consideration in the arena of discussion. It is not as if the old Act had been repealed once and for all, in the sense of there being no replacement by a new enactment. THE sordid fact is that in order to curb the social menace of ever-pervading corruption in all walks of life, the old Act had been repealed and in its place a new Act had come into existence which contains rather suitable modifications and stringent provisions with a view to cleanse the public life, free from the evils of corruption. In doing so, sufficient care, caution and circumspection had been taken by incorporating certain saving provision in the new Act, as to what is to happen with regard to certain acts done or purported to be done daring the currency of the old Act, subsequent to repeal. THE saving provision, about which I will have the occasion to deal in an elaborate fashion at a subsequent stage, enables institution of prosecution for such acts under certain contingencies. THEre is no denial of the fact that the old Act had been repealed and in its place a new act had come into force on and from the date of such repeal, viz. 9. 9. 1988. Yet another fact about which there is no dispute is that as regards the criminal acts alleged againstS. Thirunavukkarasu and B. Bharathi relatable to the period 1986-87, the period during which the old Act was in force, no action had been taken before the repeal of the old Act. THE plain fact is that action had been taken for such criminal misconduct by the registration of a case on the basis of the first information report launched by the Secretary, Housing and Urban Development department, on 15. 7. 1992, preceded by the holding of a preliminary enquiry which also happened subsequent to repeal such launching of a prosecution, as the special Judge would say, is rather incompetent and such expression of opinion is now under serious challenge by the mounting of a scathing attack on the same by Mr. B. Sriramulu , learned Public Prosecutor. He would say that it is the fundamental canon of criminal jurisprudence that prosecution cannot be launched for certain acts constituting offences as against persons accused of such offences when there is no enactment or legislation constituting such acts as offences at the time when they were said to have been committed, nor was it permissible to subject such persons to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. This sort of canon of criminal jurisprudence, according to him, had been given constitutional recognition by providing a clause therefor in sub-clause (1) of Art. 20 of the constitution of India which prescribes : "no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjcted to a penalty greater man that which might have been inflicted under the law in force at the time of the commission of the offence. &quot THE Parliament in enacting the new Act, taking cognizance of such a constitutional provision, incorporated a repeal and saving provision in Sec. 30 of the new Act which reads as under " (1) THE Prevention of Corruption Act, 1947 and the criminal Law Amendment Act, 19s2, are hereby repealed. (2) Notwithstanding such repeal, but without prejudice to the application of Sec. 6 of the General Clauses Act, 1897, anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so for as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of this Act&quot Omission of certain sections of Act 45 of 1860 had been provided for in Sec. 31 of the Act and it is couched in the following terms "secs. 161 to 165-A (both inclusive) of the Indian penal Code shall be omitted, and Sec. 6 of the General Clauses Act, 1897, shall apply to such omission as if the said sections had been repealed by a Central act". It is necessary to refer at this juncture to the preamble of the new Act (Act 49 of 1988) which reads "an Act to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. &quot