Prevention of corruption Act,1947

Murli Manohar Prasad (Querist) 16 September 2008 This query is : Resolved
What is the corresponding section in Prevntion of Corruption Act,1988 of Section 5(2) of the Prevention of Corruption Act,1947 ?

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KamalNayanSaxena (Expert) 16 September 2008
No corresponding Section.

The framing of charge by the trial Court under S. 5(1)(e) read with S. 5(2) of the 1947 Act shall not be 'deemed' to have been charged for offences under S.13(1)(e) read with S. 13(2) of the 1988 Act.

K.C.Suresh (Expert) 17 September 2008
By the second amendement to sec.5 of the PC Act, 1947 vide Sec.3 of the Criminal Law Amendement Act, 1958 the orginal Sub-section (2) was deleted and replaced by sub-section (2 and (2A). By the third amendemnt vide Anti-Corruption Lawes (amendemnet) Act, 1964 the words"in discharge of hios duty" was delted from the orginal sub sections (1) and (2) of Sec.5. SAfter clause (d) in Sec.5 Clause (e) was inserted. By adding Clause (e) to sub-section (1) of sec.5 the p[ossession of assets disproportionalte to the known sources of income of the public servant has been made a substantive offence.
Corresponding section to 5(2) in 1947 Act is 13(2) in 1988 Act by the insertion of 13(1)(e)

KamalNayanSaxena (Expert) 17 September 2008
Sorry Mr. Suresh, I do not agree with your contention

A bare reading of S. 30(2) of the 1988 Act shows that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act, shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the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 the Act. It does not substitute S. 13 in place of S. 5 of the 1947 Act. Section 30(2) is applicable "without prejudice to the application of S. 6 of the General Clauses Act, 1897". The application of S. 13 of the 1988 Act would offend S. 6 of the General Clauses Act, which, inter alia provides that repeal shall not

(i) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder or
(ii) affect any investigation, legal proceedings or remedy in respect of any such rights, privilege, obligation, penalty, forfeiture or punishment.

Section 13 both in the matter of punishment as also by the addition of the explanation to S.13(1)(e) is materially different from S. 5 of the 1947 Act. The presumption permitted to be raised under the explanation to S. 13(1)(e) was not available to be raised under S. 5(1)(e) of the 1947 Act. This difference can have a material bearing on the case.