CRL.REF. 1/2019 Page 1 of 58

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 03.07.2026

Pronounced on: 06.08.2026

# CNR No. DLHC010082512019

+ CRL.REF. 1/2019

COURT ON ITS OWN MOTION .....Petitioner

Through: Mr.Siddharth Yadav, Sr. Adv.

(Amicus Curiae) with

Mr.Narender Lodiwal and

Mr.Wasim Ashraf, Advs.

versus

STATE .....Respondent

Through: Mr.Aditya Wadhwa and

Ms.Shivani Pegatraju, Advs. for

accused no.1

Mr.Anupam S. Sharrma, SPP

with Ms.Harpreet Kalsi,

Mr.Prakarsh Airan, Mr.Vashisht

Rao, Ms.Amisha P. Dash,

Mr.Abhiyant Singh and

Mr.Mayank Tyagi, Advs. for

CBI

Mr.N. Hariharan, Sr. Adv. with

Dr.Sushil Gupta, Ms.Sunita

Gupta, Ms.Anshika Kumari,

Ms.Aditi Ranjan and

Mr.Apoorv Chaudhry, Advs.

Mr.Anuj Chauhan, Ms.Sweety

Chauhan, Ms.Geetika Verma,

Mr.Harsh Kumar and Mr.Sunil

Yadav, Advs.

Mr.Harsh K. Sharma,

CRL.REF. 1/2019 Page 2 of 58

Ms.Vaibhavi Sharma,

Mr.Lakshay Parasher,

Ms.Kashish Jain, Mr.Ujjwal

Krishna, Mr.Ranjeet Singh,

Advs.

Mr.Sushil Gupta and Ms.Sunita

Gupta, Advs.

Ms.Sima Gulati, Mr.Manish

Vashist and Ms.Diksha Narula,

Advs.

Mr.Hitendra Nahata, Adv.

Mr.Sudarshan Rajan and

Mr.Kashish, Advs.

Mr.Ripudaman Bhardwaj,

CGSC with Mr.Kushagra

Kumar and Mr.Amit Kumar

Rana, Advs. for UOI

Mr.Vedansh Anand, SPC with

Mr.Kush Garg and Mr.Mohit

Bhardwaj, Advs.

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

HON'BLE MR. JUSTICE RAVINDER DUDEJA

J U D G M E N T

NAVIN CHAWLA, J.

I. REFERENCE

1. The present reference under Section 395 read with Section 482

of the Code of Criminal Procedure, 1973 (hereinafter referred to as,

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“Cr.P.C.”) has been made by the learned Special Judge (PC Act), CBI-

01, Central District, Tis Hazari Courts, Delhi on the following

questions of law:

“1. Whether under the Prevention of Corruption

(Amendment) Act, 2018 (which is a Special Statute

and overrides the General Law) the cognizance of

the offence is taken or cognizance of the offence

against the offender is taken [Ref.: Dilawar Singh

Vs. Parvinder Singh (Supra) and Abhay Singh

Chautala Vs. C.B.I (Supra)]?

2. (a) What is the relevant date for application

of Prevention of Corruption (Amendment) Act,

2018 in cases pending trial?

(b) Whether the amendment to Section 19 of

Prevention of Corruption Act, 1988 dated

26.07.2018 is to be read retrospectively being

beneficial to the accused? [Ref.:Basheer

@N.P. Basheer Vs. State of Kerala (Supra)]

3. Whether sanction as contemplated under

Section 19 of the Prevention of the Corruption

Act (Amendment) Act, 2018 is necessary for

prosecuting a Former/ Ex Public Servant

where the cognizance of the offence has

already been taken by the competent court

prior to 26.07.2018 i.e. the date on which the

amendment came into effect?

4. Any other issue of law which arises relating

to vires of the Prevention of Corruption

(Amendment) Act, 2018 (16 of 2018) which

came into effect on 26.07.2018 particularly in

relation to Section 19 of the Prevention of

Corruption Act.”

2. The learned Special Judge has narrated the facts giving rise to

the present reference, as also his opinion on the questions referred to

this Court. We do not deem it necessary to reproduce the same in our

judgment. We further clarify that we are not considering the facts of

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the case on which the reference has been made. Once we answer the

questions that have been referred to us, it would be for the learned

Special Judge to consider the facts of the case and apply the law

thereto.

3. To answer the reference, we shall first take a look at the

evolution of the law relating to penalising corruption by Public

Servants.

II. EVOLUTION OF LAW ON SANCTION

INDIAN PENAL CODE

4. Historically, the law dealing with bribery and corruption by

public servants was governed by Chapter IX: Sections 161 to 165A of

the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”).

Section 197 of the Cr.P.C. prohibited the Courts from taking

cognizance of the above offences against a public servant without the

previous sanction of the Central or the State Government, as the case

may be.

PREVENTION OF CORRUPTION ACT, 1947

5. To deal with the growing complaints of corruption by public

servants, and to make the law against it to be more effective, the

Prevention of Corruption Act, 1947 (hereinafter referred to as the

„1947 Act‟) was promulgated.

6. Section 6 of the 1947 Act provided for the necessity of previous

sanction for a Court to take cognizance of an offence alleged to have

been committed by a public servant. We reproduce the same as under:

“6. Previous Sanction Necessary for

Prosecution.- (1) No court shall take

CRL.REF. 1/2019 Page 5 of 58

cognizance of an offence punishable under S.

161 or S. 164 or S. 165 of the Indian Penal

Code, or under sub-section (2) or sub-section

(3-A) of S. 5 of this Act, alleged to have been

committed by a public servant, except with the

previous sanction,-

(a) in the case of a person who is

employed in connection with the affairs

of the Union and is not removable from

his office save by or with the sanction of

the Central Government, of the Central

Government;

(b) in the case of a person who is

employed in connection with the affairs

of a State and is not removable from his

office save by or with the sanction of the

State Government, of the State

Government ;

(c) in the case of any other person, of

the authority competent to remove him

. from his office.

(2) Where for any reason whatsoever any

doubt arises whether the previous sanction as

required under sub-section (1) should be given

by the Central or State Government or any

other authority, such sanction shall be given

by that Government or authority which would

have been competent to remove the public

servant from his office at the time when the

offence was alleged to have been committed.”

7. Interpreting the provisions of Section 6 of the 1947 Act, the

Supreme Court has consistently held that a prior sanction is required

only where the accused had committed the offence when he was a

public servant and continues to be a public servant in the same

capacity when the Court is called upon to take cognizance of such

offence. It has been held that there is no requirement of obtaining a

CRL.REF. 1/2019 Page 6 of 58

prior sanction where, at the time cognizance is taken by the Court, the

accused has ceased to be a public servant or is a public servant in a

different capacity from the one held by him when the offence is

alleged to have been committed. We shall refer to a few of these

judgments hereinafter.

8. In S.A. Venkataraman v. State, 1957 SCC OnLine SC 38, the

Supreme Court considered whether there was any necessity for a

sanction under Section 6 of the 1947 Act before a Court could take

cognizance of an offence under Section 161 of the IPC or Section 5(2)

of the 1947 Act, or both, alleged to have been committed by a person

who, at the time the Court was asked to take cognizance, was not a

public servant but was one at the time of the commission of the

offence. The Supreme Court held that, in construing the provisions of

a statute, it is essential for the Court, in the first instance, to give effect

to the natural meaning of the words used therein if those words are

clear enough. It is only in cases of an ambiguity that the Court is

entitled to ascertain the intention of the legislature by construing the

provisions of the statute as a whole and taking into consideration other

matters and the circumstances which led to the enactment of the

statute. It was further held that if a general power to take cognizance

of an offence is vested in a Court, any prohibition on the exercise of

that power by any provision of law, must be confined to the terms of

the prohibition, and unless the conditions contained therein are

complied with, no such prohibition is to be implied. The Court further

held that for attracting Section 6 of the 1947 Act, two conditions must

be fulfilled: first, that the offence mentioned therein must have been

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committed by a public servant, and second, that the person is

employed in connection with the affairs of the Union or a State and is

not removable from his office save by or with the sanction of the

Central Government or the State Government, or is a public servant

who is removable from office by any other competent authority. It was

held that if either of these conditions is lacking, the essential

requirements of Section 6 are wanting, and the provisions of the

Section 6 do not stand in the way of a Court taking cognizance

without a previous sanction. The Court further held that at the time a

Court is asked to take cognizance of an offence under the 1947 Act,

the offence must not only be committed by a public servant, but the

accused must also still be a public servant removable from his office

by the Central Government/State Government/Competent Authority,

as the case may be. We quote from the judgment as under:

14. When the provisions of Section 6 of the

Act are examined it is manifest that two

conditions must be fulfilled before its

provisions become applicable. One is that

the offences mentioned therein must be

committed by a public servant and the other

is that that person is employed in

connection with the affairs of the Union or

a State and is not removable from his office

save by or with the sanction of the Central

Government or the State Government or is

a public servant who is removable from his

office by any other competent authority.

Both these conditions must be present to

prevent a court from taking cognizance of

an offence mentioned in the section without

the previous sanction of the Central

Government or the State Government or the

authority competent to remove the public

servant from his office. If either of these

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conditions is lacking, the essential

requirements of the section are wanting and

the provisions of the section do not stand in

the way of a court taking cognizance

without a previous sanction. An offence

under Section 161 of the Penal Code can be

committed by a public servant or by a

person expecting to be a public servant, but

Section 6 of the Act refers only to an

offence committed by a public servant

under that section. If, therefore, at the time

a court was asked to take cognizance of an

offence under Section 161 of the Penal

Code, the accused is a public servant but

was not so at the time that the offence was

committed, but at which time he was merely

expecting to be a public servant, a previous

sanction would be unnecessary before a

court could take cognizance, as the

provisions of the section would be

inapplicable. Conversely, if an offence

under Section 161 of the Penal Code was

committed by a public servant, but, at the

time a court was asked to take cognizance

of the offence, that person had ceased to be

a public servant, one of the two

requirements to make Section 6 of the Act

applicable would be lacking and a previous

sanction would be unnecessary. The words

in Section 6(1) of the Act are clear enough

and they must be given effect to. There is

nothing in the words used in Section 6(1) to

even remotely suggest that previous

sanction was necessary before a court

could take cognizance of the offences

mentioned therein in the case of a person

who had ceased to be a public servant at

the time the court was asked to take

cognizance, although he had been such a

person at the time the offence was

committed. It was suggested that clause (c)

in Section 6(1) refers to persons other than

those mentioned in clauses (a) and (b). The

words “is employed” are absent in this

clause which would, therefore, apply to a

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person who had ceased to be a public

servant though he was so at the time of the

commission of the offence. Clause (c)

cannot be construed in this way. The

expressions “in the case of a person” and

“in the case of any other person” must

refer to a public servant having regard to

the first paragraph of the sub-section.

Clauses (a) and (b), therefore, would cover

the case of a public servant who is

employed in connection with the affairs of

the Union or a State and is not removable

from his office save by or with the sanction

of the Central Government or the State

Government and clause (c) would cover the

case of any other public servant whom a

competent authority could remove from his

office. The more important words in clause

(c) are “of the authority competent to

remove him from his office”. A public

servant who has ceased to be a public

servant is not a person removable from any

office by a competent authority. Section 2 of

the Act states that a public servant, for the

purpose of the Act, means a public servant

as defined in Section 21 of the Penal Code.

Under clause (c), therefore, anyone who is

a public servant at the time a court was

asked to take cognizance, but does not come

within the description of a public servant

under clauses (a) and (b), is accused of an

offence committed by him as a public

servant as specified in Section 6 would be

entitled to rely on the provisions of that

section and object to the taking of

cognizance without a previous sanction. To

read clause (c) in the way suggested on

behalf of the appellants, would be to give a

meaning to this clause which is not justified

by the words employed therein.

16. In Purvez Ardeshir Poonawalla v. State

of Bombay, dealt with by another judgment,

where a similar question had been raised,

the appellant had suggested that two defects

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appearing in Section 197 of the Criminal

Procedure Code were intended to be

remedied by the Act: (1) that Section 197

did not apply to a public servant who had

ceased to be a public servant at the time of

the taking of cognizance of an offence and

(2) that an offence under Section 161 of the

Penal Code committed by a public servant

was not covered by Section 197 of the

Code, as such offence could not be said to

have been committed by him while acting or

purporting to act in the discharge of his

official duty, having regard to the decisions

of the courts in India and of the Privy

Council. We cannot see how this assists us

in construing Section 6 of the Act. Whatever

the phraseology of Section 197 of the Code

may have been in the past, the decisions of

the courts in India that Section 197 of the

Code does not apply to a person who had

ceased to be a public servant at the time a

court was asked to take cognizance were

based upon the words used in that section

at the time the judgments were pronounced.

These decisions laid emphasis on the words

“when any person who is a Judge within

the meaning of Section 19 of the Penal

Code … or when any public servant who is

not removable from his office…”. It was

held in these decisions that these words

meant that the person must be a public

servant at the time a court was asked to

take cognizance, although he may have

been a public servant at the time of the

commission of the offence. It is true that

unlike Section 197 of the Code, Section 6 of

the Act does not contain the words “while

acting or purporting to act in the discharge

of his official duty”. We have to construe

Section 6 of the Act as we find it and the

absence of these words from the section

renders us no assistance in its

construction.”

(Emphasis supplied)

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9. In R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183, the Supreme

Court was considering a case where the accused was alleged to have

committed the offence while holding the office of the Chief Minister,

from which he had resigned with effect from 20.01.1982, however,

had continued to retain his seat as an MLA. A contention was,

therefore, raised that as the accused continued to be a public servant, a

prior sanction was still required. The Court framed, inter alia, the

following questions for its consideration:

“(a) What is the relevant date with

reference to which a valid sanction is a

prerequisite for the prosecution of a public

servant for offences enumerated in Section

6 of the 1947 Act?

(b) If the accused holds plurality of offices

occupying each of which makes him a

public servant, is sanction of each one of

the competent authorities entitled to remove

him from each one of the offices held by

him necessary and if anyone of the

competent authorities fails or declines to

grant sanction, is the court precluded or

prohibited from taking cognizance of the

offence with which the public servant is

charged?

(c) Is it implicit in Section 6 of the 1947 Act

that sanction of that competent authority

alone is necessary, which is entitled to

remove the public servant from the office

which is alleged to have been abused or

misused for corrupt motives?”

10. In answering question (a), the Supreme Court reiterated that the

relevant date with reference to which a valid sanction is a prerequisite

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for prosecution of a public servant is when the Court takes cognizance

of the offence. The Supreme Court held as under:

“19. Section 6 bars the court from taking

cognizance of the offences therein enumerated

alleged to have been committed by a public

servant except with the previous sanction of

the competent authority empowered to grant

the requisite sanction. Section 8 of 1952 Act

prescribes procedure and powers of Special

Judge empowered to try offences set out in

Section 6 of 1947 Act. Construction of Section

8 has been a subject to vigorous debate in the

cognate appeal. In this appeal we will proceed

on the assumption that a Special Judge can

take cognizance of offences he is competent to

try on a private complaint. Section 6 creates a

bar to the court from taking cognizance of

offences therein enumerated except with the

previous sanction of the authority set out in

clauses (a), (b) and (c) of sub-section (1). The

object underlying such provision was to save

the public servant from the harassment of

frivolous or unsubstantiated allegations. The

policy underlying Section 6 and similar

sections, is that there should not be

unnecessary harassment of public servant.

(See C.R. Bansi v. State of Maharashtra.)

Existence thus of a valid sanction is a

prerequisite to the taking of cognizance of the

enumerated offences alleged to have been

committed by a public servant. The bar is to

the taking of cognizance of offence by the

court. Therefore, when the court is called upon

to take cognizance of such offences, it must

enquire whether there is a valid sanction to

prosecute the public servant for the offence

alleged to have been committed by him as

public servant. Undoubtedly, the accused must

be a public servant when he is alleged to have

committed the offence of which he is accused

because Sections 161, 164, 165 IPC and

Section 5(2) of the 1947 Act clearly spell out

that the offences therein defined can be

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committed by a public servant. If it is

contemplated to prosecute public servant who

has committed such offences, when the court is

called upon to take cognizance of the offence,

a sanction ought to be available otherwise the

court would have no jurisdiction to take

cognizance of the offence. A trial without a

valid sanction where one is necessary under

Section 6 has been held to be a trial without

jurisdiction by the court. (See RespondentsR.

Chari v. State of U.P. and S.N. Bose v. State of

Bihar.) In Mohd. Iqbal Ahmad v. State of

A.P. it was held that a trial without a sanction

renders the proceedings ab initio void. But

the terminus a quo for a valid sanction is the

time when the court is called upon to take

cognizance of the offence. If therefore, when

the offence is alleged to have been committed,

the accused was a public servant but by the

time the court is called upon to take

cognizance of the offence committed by him as

public servant, he has ceased to be a public

servant, no sanction would be necessary for

taking cognizance of the offence against him.

This approach is in accord with the policy

underlying Section 6 in that a public servant is

not to be exposed to harassment of a frivolous

or speculative prosecution. If he has ceased to

be a public servant in the meantime, this vital

consideration ceases to exist. As a necessary

corollary, if the accused has ceased to be a

public servant at the time when the court is

called upon to take cognizance of the offence

alleged to have been committed by him as

public servant, Section 6 is not attracted. This

aspect is no more res integra. In S.A.

Venkataraman v. State this Court held as

under:

“In our opinion, in giving effect to the

ordinary meaning of the words used

in Section 6 of the Act, the conclusion

is inevitable that at the time a court is

asked to take cognizance not only the

offence must have been committed by

a public servant but the person

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accused is still a public servant

removable from his office by a

competent authority before the

provisions of Section 6 can apply. In

the present appeals, admittedly, the

appellants had ceased to be public

servants at the time the court took

cognizance of the offences alleged to

have been committed by them as

public servants. Accordingly, the

provisions of Section 6 of the Act did

not apply and the prosecution against

them was not vitiated by the lack of a

previous sanction by a competent

authority.”

And this view has been consistently followed

in C.R. Bansi case and K.S.

Dharmadatan v. Central Government. It

therefore appears well-settled that the relevant

date with reference to which a valid sanction

is sine qua non for taking cognizance of an

offence committed by a public servant as

required by Section 6 is the date on which the

court is called upon to take cognizance of the

offence of which he is accused.”

20. The accused tendered resignation of his

office as Chief Minister and ceased to hold the

office of Chief Minister with effect from

January 20, 1982. The complaint from which

the present appeal arises and which was

registered as Criminal Case No. 24/82

appears to have been filed on August 9, 1982

and the cognizance was taken by the learned

Magistrate on the same day. It unquestionably

transpires that long before the date on which

the cognizance was taken by the learned

Special Judge, the accused had ceased to hold

the office of the Chief Minister and as such

had ceased to be a public servant. In other

words, he was not a public servant in his

capacity as Chief Minister on August 9, 1982

when the court took cognizance of the offence

against him. A fortiori no sanction as

contemplated by Section 6 was necessary

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before cognizance of the offence could be

taken against the accused for offences alleged

to have been committed in his former capacity

as public servant.”

(Emphasis supplied)

11. In answer to question nos. (b) and (c), the Supreme Court held

as under:

“26. Therefore, upon a true construction of

Section 6, it is implicit therein that sanction of

that competent authority alone would be

necessary which is competent to remove the

public servant from the office which he is

alleged to have misused or abused for corrupt

motive and for which a prosecution is intended

to be launched against him.

27. In the complaint filed against the accused

it has been repeatedly alleged that the accused

as Chief Minister of Maharashtra State

accepted gratification other than legal

remuneration from various sources and thus

committed various offences set out in the

complaint. Nowhere, not even by a whisper, it

is alleged that the accused has misused or

abused for corrupt motives his office as MLA.

Therefore, it is crystal clear that the complaint

filed against the accused charged him with

criminal abuse or misuse of only his office as

Chief Minister. By the time, the court was

called upon to take cognizance of the offences,

so alleged in the complaint, the accused had

ceased to hold the office of the Chief Minister.

On this short ground, it can be held that no

sanction to prosecute him was necessary as

former Chief Minister of Maharashtra

State.....”

12. The above judgments were rendered while interpreting Section

6 of the 1947 Act.

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PREVENTION OF CORRUPTION ACT, 19 88

13. The 1947 Act was repealed by the 1988 Act, with Section 19 of

the same providing for the necessity of previous sanction before a

Court could take cognizance of an offence punishable under the

specified provisions of the said Act alleged to have been committed by

a public servant. We reproduce Section 19(1) of the 1988 Act, as it

stood prior to its amendment in 2018, as under:

“19. Previous sanction necessary for

prosecution.—(1) No court shall take

cognizance of an offence punishable under

Sections 7, 10, 11, 13 and 15 alleged to have

been committed by a public servant, except

with the previous sanction:

(a) in the case of a person who is employed in

connection with the affairs of the Union and is

not removable from his office save by or with

the sanction of the Central Government, of

that Government:

(b) in the case of a person who is employed in

connection with the affairs of a State and is

not removable from his office save by or with

the sanction of the State Government, of that

Government:

(c) in the case of any other person, of the

authority competent to remove him from his

office.”

14. In Parkash Singh Badal & Anr. v. State of Punjab & Ors.,

(2007) 1 SCC 1, the Supreme Court again considered a case where the

appellant therein was the Chief Minister when the offence was alleged

to have been committed, while at the time of taking of cognizance, he

was a Member of Parliament. The Supreme Court held that Section

19(1) of the 1988 Act is time and offence related. The Court further

held that, though pursuant to the 41

st

Report of the Law Commission

CRL.REF. 1/2019 Page 17 of 58

of India, an amendment was made in 1969 to Section 197 of the

Cr.P.C., Section 19(1) of the 1988 Act, enacted on 09.09.1988, was

virtually the same as Section 6 of the 1947 Act. The Court, therefore,

again rejected the submission that if the offending act was committed

by a public servant in his former capacity and he had not abused his

subsequent office, such a public servant would still be entitled to the

protection of Section 19(1) of the 1988 Act.

15. In Abhay Singh Chautala v. Central Bureau of Investigation,

(2011) 7 SCC 141, the appellant therein had held the post of an MLA

and Member of Parliament during the check period, and was again

elected as an MLA when cognizance had been taken by the Court. The

Court reiterated the principle laid down in R.S. Nayak (supra) and

Parkash Singh Badal (supra) and rejected the submissions made to

the contrary on the requirement of prior sanction, holding that the

same was not required. It was held as under:

“42. The learned Senior Counsel Shri Mukul

Rohatgi as well as Shri U.U. Lalit arguing for

the appellants, in support of their argument

that Antulay case requires reconsideration,

urged that that interpretation deprives the

entire class of public servants covered by the

clear words of Sections 6(1)/19(1) of a

valuable protection. It was further urged that

such interpretation would have a disastrous

effect on the careers of the public servants and

the object of law to insulate a public servant

from false, frivolous, malicious and motivated

complaints of wrongdoing would be defeated.

It was also urged that such an interpretation

would amount to rewriting of Section 19(1)

and as if a proviso would be added to Section

19(1) to the following effect:

“Provided that nothing in this sub-

section shall apply to a case where at the

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time of cognizance, the public servant is

holding a different post with a different

removing authority from the one in

which the offence is alleged to have been

committed.”

Lastly, it was urged that such an interpretation

would negate the very foundation of criminal

law, which requires a strict interpretation in

favour of the accused.

43. Most of these questions are already

answered, firstly, in Antulay case and

secondly, in Parkash Singh Badal v. State of

Punjab. Therefore, we need not dilate on them.

We specifically reject these arguments on the

basis of Antulay case itself which has been

relied upon in Parkash Singh Badal v. State of

Punjab. The argument regarding the addition

of the proviso must also fall as the language of

the suggested proviso contemplates a different

“post” and not the “office”, which are entirely

different concepts. That is apart from the fact

that the interpretation regarding the abuse of

a particular office and there being a direct

relationship between a public servant and the

office that he has abused, has already been

approved of in Antulay case and the other

cases following Antulay case including

Parkash Singh Badal v. State of Punjab. We,

therefore, reject all these arguments.

44. It was also urged that a literal

interpretation is a must, particularly, to sub-

section (1) of Section 19. That argument also

must fall as sub-section (1) of Section 19 has

to be read with in tune with and in light of

clauses (a), (b) and (c) thereof. We, therefore,

reject the theory of litera regis while

interpreting Section 19(1). On the same lines,

we reject the argument based on the word “is”

in clauses (a), (b) and (c). It is true that the

section operates in praesenti; however, the

section contemplates a person who continues

to be a public servant on the date of taking

cognizance. However, as per the

CRL.REF. 1/2019 Page 19 of 58

interpretation, it excludes a person who has

abused some other office than the one which

he is holding on the date of taking cognizance,

by necessary implication. Once that is clear,

the necessity of the literal interpretation would

not be there in the present case. Therefore,

while we agree with the principles laid down

in Robert Wigram Crawford v. Richard

Spooner, Bidie, In re, Bidie v. General

Accident Fire and Life Assurance Corpn. Ltd.

and Bourne (Inspector of Taxes) v. Norwich

Crematorium Ltd., we specifically hold that

giving the literal interpretation to the section

would lead to absurdity and some unwanted

results, as had already been pointed out in

Antulay case (see the emphasis supplied to

para 24 of Antulay judgment).”

(Emphasis supplied)

16. The question of interpretation of Section 19(1) of the 1988 Act

prior to its amendment, again arose before the Supreme Court in L.

Narayana Swamy v. State of Karnataka & Ors., (2016) 9 SCC 598.

The Court framed, inter alia, the following issue:

“10.2 (ii) Whether a public servant who is not

on the same post and is transferred (whether

by way of promotion or otherwise to another

post) loses the protection under Section 19(1)

of the PC Act, though he continues to be a

public servant, albeit on a different post?”

17. The Court, in answering the same, placed reliance on the above

referred judgments and held as under:

“23. In the case of the present appellants,

there was no question of the appellants'

getting any protection by a sanction. The

High Court was absolutely right in relying

on the decision in Parkash Singh Badal to

hold that the appellants in both the appeals

had abused entirely different office or

CRL.REF. 1/2019 Page 20 of 58

offices than the one which they were

holding on the date on which cognizance

was taken and, therefore, there was no

necessity of sanction under Section 19 of

the PC Act. Where the public servant had

abused the office which he held in the check

period but had ceased to hold “that office”

or was holding a different office, then a

sanction would not be necessary. Where the

alleged misconduct is in some different

capacity than the one which is held at the

time of taking cognizance, there will be no

necessity to take the sanction.”

PREVENTION OF CORRUPTION (AMENDMENT) ACT, 2018

18. Section 19(1) of the 1988 Act was amended by the Prevention

of Corruption (Amendment) Act, 2018 (hereinafter referred to as, the

„Amendment Act‟), which came into effect from 26.07.2018. It made

the following substitutions and insertions in Section 19 of the 1988

Act:

“14. In section 19 of the principal Act, in sub-

section (1),—

(i) for the words and figures “sections 7,

10, 11, 13 and 15”, the words and figures

"sections 7, 11, 13 and 15" shall be

substituted;

(ii) in clause (a), for the words "who is

employed", the words “who is employed, or as

the case may be, was at the time of commission

of the alleged offence employed” shall be

substituted;

(iii) in clause (b), for the words “who is

employed”, the words “who is employed, or as

the case may be, was at the time of commission

of the alleged offence employed” shall be

substituted;

(iv) after clause (c), the following shall

be inserted, namely:—

“Provided that no request can be made, by a

person other than a police officer or an officer

CRL.REF. 1/2019 Page 21 of 58

of an investigation agency or other law

enforcement authority, to the appropriate

Government or competent authority, as the

case may be, for the previous sanction of such

Government or authority for taking

cognizance by the court of any of the offences

specified in this sub-section, unless—

(i) such person has filed a

complaint in a competent court about the

alleged offences for which the public servant is

sought to be prosecuted; and

(ii) the court has not dismissed

the complaint under section 203 of the Code of

Criminal Procedure, 1973 and directed the

complainant to obtain the sanction for

prosecution against the public servant for

further proceeding:

Provided further that in the case of request

from the person other than a police officer or

an officer of an investigation agency or other

law enforcement authority, the appropriate

Government or competent authority shall not

accord sanction to prosecute a public servant

without providing an opportunity of being

heard to the concerned public servant:

Provided also that the appropriate

Government or any competent authority shall,

after the receipt of the proposal requiring

sanction for prosecution of a public servant

under this sub-section, endeavour to convey

the decision on such proposal within a period

of three months from the date of its receipt:

Provided also that in case where, for the

purpose of grant of sanction for prosecution,

legal consultation is required, such period

may, for the reasons to be recorded in writing,

be extended by a further period of one month:

Provided also that the Central Government

may, for the purpose of sanction for

prosecution of a public servant, presecribe

such guidelines as it considers necessary.

Explanation.—For the purposes of sub-section

(1), the expression "public servant" includes

such person—

(a) who has ceased to hold the office

CRL.REF. 1/2019 Page 22 of 58

during which the offence is alleged to have

been committed; or

(b) who has ceased to hold the office

during which the offence is alleged to have

been committed and is holding an office other

than the office during which the offence is

alleged to have been committed.".”

19. We quote the amended Section 19(1) of the 1988 Act as under:

“19. Previous sanction necessary for

prosecution.— (1) No court shall take

cognizance of an offence punishable under

Sections 7, 11, 13 and 15 alleged to have been

committed by a public servant, except with the

previous sanction,—

(a) in the case of a person who is employed,

or as the case may be, was at the time of

commission of the alleged offence employed

in connection with the affairs of the Union

and is not removable from his office save by

or with the sanction of the Central

Government, of that Government;

(b) in the case of a person who is employed,

or as the case may be, was at the time of

commission of the alleged offence employed

in connection with the affairs of a State and

is not removable from his office save by or

with the sanction of the State Government,

of that Government;

(c) in the case of any other person, of the

authority competent to remove him from his

office:

Provided that no request can be made, by a

person other than a police officer or an

officer of an investigation agency or other

law enforcement authority, to the

appropriate Government or competent

authority, as the case may be, for the

previous sanction of such Government or

authority for taking cognizance by the court

of any of the offences specified in this sub-

section, unless—

(i) such person has filed a complaint in a

competent court about the alleged offences

CRL.REF. 1/2019 Page 23 of 58

for which the public servant is sought to be

prosecuted; and

(ii) the court has not dismissed the

complaint under section 203 of the Code of

Criminal Procedure, 1973 (2 of 1974) and

directed the complainant to obtain the

sanction for prosecution against the public

servant for further proceeding:

Provided further that in the case of request

from the person other than a police officer

or an officer of an investigation agency or

other law enforcement authority, the

appropriate Government or competent

authority shall not accord sanction to

prosecute a public servant without

providing an opportunity of being heard to

the concerned public servant:

Provided also that the appropriate

Government or any competent authority

shall, after the receipt of the proposal

requiring sanction for prosecution of a

public servant under this sub-section

endeavour to convey the decision on such

proposal within a period of three months

from the date of its receipt:

Provided also that in case where, for the

purpose of grant of sanction for

prosecution, legal consultation is required,

such period may, for the reasons to be

recorded in writing, be extended by a

further period of one month:

Provided also that the Central Government

may, for the purpose of sanction for

prosecution of a public servant, prescribe

such guidelines as it considers necessary.

Explanation.—For the purposes of sub-

section (1), the expression “public servant”

includes such person—

(a) who has ceased to hold the office

during which the offence is alleged to have

been committed; or

(b) who has ceased to hold the office

during which the offence is alleged to have

been committed and is holding an office

CRL.REF. 1/2019 Page 24 of 58

other than the office during which the

offence is alleged to have been committed.”

20. As would be evident from a bare reading of the amended

Section 19(1) of the 1988 Act, by insertion of the words “was at the

time of commission of the alleged offence employed”, in connection

with the affairs of the Union or State in Sub-Section (a) and (b) of

Section 19(1) of the 1988 Act, now the protection is granted even to a

former public servant and to an accused who is, on the date of

cognizance, holding a different office.

21. An Explanation has also been added to Section 19(1) to clarify

that the expression “public servant” includes a person who has ceased

to hold the office during which the offence is alleged to have been

committed or is holding an office other than the office during which

the offence is alleged to have been committed.

22. The effect of the above amendments is to extend the protection

even to a former public servant or to a public servant holding such a

position in a capacity different from the one held at the time of the

alleged commission of offence.

23. While all the learned counsels who have made submissions

before us, are ad idem and do not dispute that post the Amendment

Act and the amended Section 19(1) coming into force, even an

erstwhile public servant, or a public servant who holds a post different

from the one held by him during the period when the offence is

alleged to have been committed, is entitled to protection by the

requirement of previous sanction, and the Court is prohibited from

taking cognizance of the offences mentioned in the said Section

CRL.REF. 1/2019 Page 25 of 58

without prior sanction, they are at variance on whether the said

protection also applies retrospectively, that is, to cases where

cognizance already stands taken by the Special Judge. In this regard, a

question is also posed as to whether, under the 1988 Act, cognizance

is taken of the offence or of the offence by a named accused.

III. DISCUSSION & FINDING S ON THE QUESTIONS

REFERRED

24. This brings us to the specific questions referred to us by the

learned Special Judge.

QUESTION NO. 1

25. The learned Amicus Curiae, Mr. Siddharth Yadav, Senior

Advocate, has submitted that cognizance is taken of an offence and

not of the offender. In support, he has placed reliance on the

judgments of the Supreme Court in Raghubans Dubey v. State of

Bihar, AIR 1967 SC 1167; SWIL Ltd. v. State of Delhi & Anr.,

(2001) 6 SCC 670; and Parkash Singh Badal (supra). He submits that

the Prevention of Corruption Act, being a special legislation, the

Supreme Court in Dilawar Singh v. Parvinder Singh @ Iqbal Singh

& Anr., (2005) 12 SCC 709, has held that the provisions of Section 19

of the 1988 Act have an overriding effect over Section 190 of the

Cr.P.C.

26. He submitted that in State of Goa v. Babu Thomas, (2005) 8

SCC 130, the Supreme Court rejected the argument that, if sanction

for prosecution has been granted qua one accused, then any other

CRL.REF. 1/2019 Page 26 of 58

public servant, for whose prosecution no sanction has been granted,

can also be summoned.

27. He further submitted that when the criminal act is performed by

a person using his public office as a mere cloak for unlawful gains,

such acts are not protected. In support, he has placed reliance on the

judgment of the Supreme Court in Station House Officer,

CBI/ACB/Bangalore v. B.A. Srinivasan & Anr., (2020) 2 SCC 153.

He submits that such protection is further watered down when the

accused, besides the offences under the Prevention of Corruption Act,

is also charged with offences under the IPC.

28. The other learned counsels adopted the submissions of the

learned Amicus insofar as he submitted that the Prevention of

Corruption Act being a special legislation, the general law that

cognizance is taken of an offence and not the offender, would not

apply and that on the date of taking cognizance against an offender,

the prohibition of Section 19 would be applicable.

29. As far as the proposition that the 1947 Act and the 1988 Act

being special legislation, the general law that cognizance is taken of

the offence and not the offender, is not applicable, is no longer res

integra and has, in fact, been settled way back in Dilawar Singh

(supra), where the Supreme Court, while considering Section 19(1) of

the 1988 Act, held as under:

“4. … This section creates a complete bar

on the power of the court to take

cognizance of an offence punishable under

Sections 7, 10, 11, 13 and 15 alleged to

have been committed by a public servant,

except with the previous sanction of the

CRL.REF. 1/2019 Page 27 of 58

competent authority enumerated in clauses

(a) to (c) of this sub-section. If the sub-

section is read as a whole, it will clearly

show that the sanction for prosecution has

to be granted with respect to a specific

accused and only after sanction has been

granted that the court gets the competence

to take cognizance of an offence punishable

under Sections 7, 10, 11, 13 and 15 alleged

to have been committed by such public

servant. It is not possible to read the section

in the manner suggested by the learned

counsel for the respondent that if sanction

for prosecution has been granted qua one

accused, any other public servant for whose

prosecution no sanction has been granted,

can also be summoned to face prosecution.

xxx

8. The contention raised by learned counsel

for the respondent that a court takes

cognizance of an offence and not of an

offender holds good when a Magistrate

takes cognizance of an offence under

Section 190 CrPC. The observations made

by this Court in Raghubans Dubey v. State

of Bihar were also made in that context.

The Prevention of Corruption Act is a

special statute and as the preamble shows,

this Act has been enacted to consolidate

and amend the law relating to the

prevention of corruption and for matters

connected therewith. Here, the principle

expressed in the maxim generalia

specialibus non derogant would apply

which means that if a special provision has

been made on a certain matter, that matter

is excluded from the general provisions.

(See Godde Venkateswara Rao v. Govt. of

A.P., State of Bihar v. Dr. Yogendra Singh

and Maharashtra State Board of Secondary

and Higher Secondary Education

v. Paritosh Bhupeshkumar Sheth.)

Therefore, the provisions of Section 19 of

the Act will have an overriding effect over

the general provisions contained in Section

CRL.REF. 1/2019 Page 28 of 58

190 or 319 CrPC. A Special Judge while

trying an offence under the Prevention of

Corruption Act, 1988, cannot summon

another person and proceed against him in

the purported exercise of power under

Section 319 CrPC if no sanction has been

granted by the appropriate authority for

prosecution of such a person as the

existence of a sanction is sine qua non for

taking cognizance of the offence qua that

person.”

(Emphasis supplied)

30. As far as the above position in law is concerned, there is no

change brought about by the Amendment Act in Section 19(1) of the

1988 Act.

31. In view of the above, question no.1 referred by the learned

Special Judge is answered thus:

“Q1. Whether under the Prevention of Corruption (Amendment)

Act, 2018 (which is a Special Statute and overrides the general

law), the cognizance of the offence is taken or cognizance of the

offence against the offender is taken? [Ref.: Dilawar Singh Vs.

Parvinder Singh (Supra) and Abhay Singh Chautala Vs. C.B.I

(Supra)]

Ans. Dilawar Singh (supra) clearly holds that the general law that

cognizance of an offence is taken and not of the offender, is not

applicable to Section 19(1) of the 1988 Act, whether pre or post its

amendment. Accordingly, no cognizance of an offence under

Sections 7, 11, 13 and 15 alleged to have been committed by a

public servant can be taken except with a previous sanction

granted for the prosecution of such a public servant.

CRL.REF. 1/2019 Page 29 of 58

QUESTION NOS. 2 & 3

32. At the outset, we would note that Question no. 2(a), as framed

by the learned Special Judge, is rather expansive and not specific to

Section 19(1) of the 1988 Act as amended by the Amendment Act. We

therefore, shall confine our answer only in the context of the

amendment made to Section 19(1) of the Act and shall refrain from

giving a general answer on the operation, whether prospective or

retrospective, of the other provisions amended by the Amendment

Act.

33. With the above caveat, we now proceed further to answer

question nos. 2(b) and 3.

34. We may, at the outset, note that what is relevant for Section

19(1) of the 1988 Act is the date on which the Court takes cognizance

of the alleged offence and not the date on which the alleged offence is

stated to have been committed by a public servant. Of course, the date

of the offence is relevant only because the offence must also have

been committed by the accused in his capacity as a public servant.

This flows from the judgments in S.A. Venkataraman (supra), R.S.

Nayak (supra), Parkash Singh Badal (supra), and others, which we

have taken note of in the preceding part of our judgment.

35. Mr. N. Hariharan, the learned Senior Counsel has, however,

submitted that the Amendment Act made an amendment to Section

19(1) of the 1988 Act to not only address an anomaly that had been

created by a misreading of the then Section 19 of the 1988 Act, but

also by adding a clarification in the form of an Explanation to Section

19(1) of the Act specifically stating that the term “public servant” in

CRL.REF. 1/2019 Page 30 of 58

Section 19 of the Act shall be deemed to include such a person who

has ceased to hold the office during which the offence is alleged to

have been committed, or who has ceased to hold the office during

which the offence is alleged to have been committed and is holding an

office other than the office during which the offence is alleged to have

been committed. He submitted that the Explanation and the change in

Section 19(1) of the 1988 Act are intended to negate the effect of the

above-referred judgments in S.A. Venkataraman (supra), R.S. Nayak

(supra), Parkash Singh Badal (supra), etc., which had held to the

contrary while interpreting the then existing Section 19 of the Act. He

submits that, therefore, Section 19 of the Act, as amended, has to be

given a retrospective effect and be made applicable to cases where the

Court has already taken cognizance of the offence without prior

sanction of the competent authority.

36. Placing reliance on the judgments of the Supreme Court in

Shyam Sunder & Ors. v. Ram Kumar & Anr., (2001) 8 SCC 24;

National Agricultural Cooperative Marketing Federation of India

Ltd. & Anr. v. Union of India & Ors., (2003) 5 SCC 23;

Commissioner of Income Tax, Bombay & Ors. v. Podar Cement Pvt.

Ltd. & Ors., (1997) 5 SCC 482; Allied Motors (P) Ltd. v.

Commissioner of Income Tax, Delhi, (1997) 3 SCC 472; Zile Singh

v. State of Haryana & Ors., (2004) 8 SCC 1; and State Bank of India

v. V. Ramakrishnan & Anr., (2018) SCC OnLine SC 963, he submits

that as the Amendment Act is declaratory in nature and is intended to

set aside what the Parliament deemed to have been a judicial error, it

would have a retrospective effect.

CRL.REF. 1/2019 Page 31 of 58

37. Mr. Anuj Chauhan, the learned counsel, submits that the object

of bringing about the amendment was to extend the protection to

retired public servants. It was, therefore, intended to address a

particular omission/mischief and, as a matter of general principle,

should be given a retrospective effect.

38. He submits that, even otherwise, the legislature in the

Amendment Act intentionally uses the word „substitution‟ while

making amendment to Section 19(1) of the 1988 Act. Placing reliance

on the judgment of the Supreme Court in Government of India &

Ors. v. Indian Tobacco Association, (2005) 7 SCC 396, he submits

that a „substitution‟ would have the effect of amending the operation

of the law during the period in which it was in force and what is

substituted would stand substituted from the inception of such

provision, thereby giving it a retrospective effect.

39. Placing reliance on the judgment of the Supreme Court in

Rattan Lal @ Ram Rattan v. State of Punjab, 1964 SCC OnLine SC

40, he submits that as the amendment is intended to grant protection

from vexatious prosecution. It being beneficial in nature, must be

given a retrospective effect.

40. Mr. Anupam S. Sharrma, the learned SPP appearing for the

CBI, on the other hand, submits that the Amendment Act in Section

1(2) thereof specifically states that the Act shall come into effect from

such date as may be appointed by notification in the Official Gazette,

which was 26.07.2018. He submits that therefore, it shall not have a

retrospective effect. In support, he places reliance on the judgment of

CRL.REF. 1/2019 Page 32 of 58

the Supreme Court in Maharaja Chintamani Saran Nath Shahdeo v.

State of Bihar & Ors., (1999) 8 SCC 16.

41. He submits that this has also been the view of the other High

Courts. He refers to the judgment of the Andhra Pradesh High Court

in V.D. Rajagopal v. State of Telangana, 2018 SCC OnLine Hyd 403,

wherein the Court held that, as the amended Section 19(1) of the 1988

Act casts a new duty on the prosecution to obtain sanction to

prosecute a retired government servant and attaches a disability to the

prosecution in prosecuting such persons, the same has to be treated as

prospective. He further submits that a similar view has been taken by

the Telangana High Court in Katti Nagaseshanna v. State of Andhra

Pradesh (judgment dated 16.11.2018 in Crl.P. 9044/2018).

42. He submits that while an amendment made to a procedural law

may have a retrospective effect, in terms of Section 6 of the General

Clauses Act, 1897 (hereinafter referred to as, the “General Clauses

Act”), a statute which creates new disabilities or obligations or

imposes new duties in respect of transactions which were complete at

the time the amending Act came into force, must be given a

prospective effect. In support, he places reliance on the judgments of

the Supreme Court in Nani Gopal Mitra v. State of Bihar, 1968 SCC

OnLine SC 44; Hitendra Vishnu Thakur & Ors. v. State of

Maharashtra & Ors., (1994) 4 SCC 602; and Commissioner of

Income Tax (Central)-I, New Delhi v. Vatika Township Pvt. Ltd.,

(2015) 1 SCC 1.

43. The learned Amicus Curiae, placing reliance on the judgment of

the Supreme Court in State of Telangana v. Managipet Alias

CRL.REF. 1/2019 Page 33 of 58

Mangipet Sarveshwar Reddy, (2019) 19 SCC 87, submitted that it is

the statute as existing on the date of the offence, that is to be applied

and, therefore, the Amendment Act can have only prospective effect.

He also submits that to hold otherwise would cause an anomaly,

inasmuch as the prosecution may have advanced to different stages

and would have to restart if such provision is given a retrospective

effect.

44. We have considered the submissions made by the learned

counsels for the parties.

45. The Amendment Act, in Section 1(2) thereof, clearly provides

that the same shall come into force on such date as the Central

Government may by notification in the Official Gazette appoint.

Section 1(2) of the Amendment Act is reproduced hereinunder:

“1. (2) It shall come into force on such date as

the Central Government may, by notification

in the Official Gazette, appoint.”

46. The Central Government issued a notification dated 26.07.2018,

appointing 26.07.2018 as the date on which the provisions of the said

Act shall come into force.

47. It is the general law contained in Section 5 of the General

Clauses Act that where any Central Act is not expressed to come into

force on a particular day, then it shall come into operation on the day

on which it receives the assent of the President. Equally, under Section

6 of the General Clauses Act, the repeal of any enactment shall, unless

a different intention appears, not affect, inter alia, any right, privilege,

obligation or liability acquired, accrued, incurred, or affect any

CRL.REF. 1/2019 Page 34 of 58

investigation, legal proceedings or remedy in respect of such right,

privilege, obligation, or liability, etc. While interpreting the said

provisions, the Supreme Court in Hitendra Vishnu Thakur (supra)

culled out the principles with regard to the ambit and scope of an

amending Act and its retrospective operation, as under:

“26. The Designated Court has held that the

amendment would operate retrospectively and

would apply to the pending cases in which

investigation was not complete on the date on

which the Amendment Act came into force and

the challan had not till then been filed in the

Court. From the law settled by this Court in

various cases, the illustrative though not

exhaustive principles which emerge with

regard to the ambit and scope of an Amending

Act and its retrospective operation may be

culled out as follows:

(i) A Statute which affects substantive

rights is presumed to be prospective in

operation, unless made retrospective,

either expressly or by necessary

intendment, whereas a Statute which

merely affects procedure, unless such a

construction is textually impossible is

presumed to be retrospective in its

application, should not be given an

extended meaning, and should be

strictly confined to its clearly defined

limits.

(ii) Law relating to forum and limitation

is procedural in nature, whereas law

relating to right of action and right of

appeal, even though remedial, is

substantive in nature.

(iii) Every litigant has a vested right in

substantive law, but no such right exists

in procedural law.

(iv) A procedural Statute should not

generally speaking be applied

retrospectively, where the result would

be to create new disabilities or

CRL.REF. 1/2019 Page 35 of 58

obligations, or to impose new duties in

respect of transactions already

accomplished.

(v) A Statute which not only changes the

procedure but also creates a new rights

and liabilities, shall be construed to be

prospective in operation, unless

otherwise provided, either expressly or

by necessary implication."

48. In Vatika Township Pvt. Ltd. (supra), the Supreme Court held

that one established rule of interpretation of statutes is that, unless a

contrary intention appears, a legislation is presumed not to be intended

to have retrospective operation. Legislations which impose obligations

or new duties or attach new disabilities, unless the legislative intent is

clearly to give the enactment a retrospective effect or unless the

legislation is for the purpose of supplying an obvious omission in a

former legislation or for explaining a former legislation, have to be

treated as prospective. If a legislation confers a benefit on some

persons, but without inflicting a corresponding detriment on some

other persons or on the public generally, then the presumption would

be that such a legislation has a retrospective effect. Procedural

provisions are, therefore, generally read to have a retrospective effect.

A particular amendment can be treated to be clarificatory or

declaratory in nature, in which case it is usually held to be

retrospective. We quote from the judgment as under:

“27. A legislation, be it a statutory Act or a

statutory rule or a statutory notification, may

physically consists of words printed on papers.

However, conceptually it is a great deal more

than an ordinary prose. There is a special

peculiarity in the mode of verbal

CRL.REF. 1/2019 Page 36 of 58

communication by a legislation. A legislation

is not just a series of statements, such as one

finds in a work of fiction/non-fiction or even in

a judgment of a court of law. There is a

technique required to draft a legislation as

well as to understand a legislation. Former

technique is known as legislative drafting and

latter one is to be found in the various

principles of “interpretation of statutes”. Vis-

à-vis ordinary prose, a legislation differs in its

provenance, layout and features as also in the

implication as to its meaning that arise by

presumptions as to the intent of the maker

thereof.

28. Of the various rules guiding how a

legislation has to be interpreted, one

established rule is that unless a contrary

intention appears, a legislation is presumed

not to be intended to have a retrospective

operation. The idea behind the rule is that a

current law should govern current activities.

Law passed today cannot apply to the events of

the past. If we do something today, we do it

keeping in view the law of today and in force

and not tomorrow's backward adjustment of it.

Our belief in the nature of the law is founded

on the bedrock that every human being is

entitled to arrange his affairs by relying on the

existing law and should not find that his plans

have been retrospectively upset. This principle

of law is known as lex prospicit non respicit :

law looks forward not backward. As was

observed in Phillips v. Eyre, a retrospective

legislation is contrary to the general principle

that legislation by which the conduct of

mankind is to be regulated when introduced

for the first time to deal with future acts ought

not to change the character of past

transactions carried on upon the faith of the

then existing law.

29. The obvious basis of the principle against

retrospectivity is the principle of “fairness”,

which must be the basis of every legal rule as

was observed in L'Office Cherifien des

Phosphates v. Yamashita-Shinnihon Steamship

CRL.REF. 1/2019 Page 37 of 58

Co. Ltd. Thus, legislations which modified

accrued rights or which impose obligations or

impose new duties or attach a new disability

have to be treated as prospective unless the

legislative intent is clearly to give the

enactment a retrospective effect; unless the

legislation is for purpose of supplying an

obvious omission in a former legislation or to

explain a former legislation. We need not note

the cornucopia of case law available on the

subject because aforesaid legal position

clearly emerges from the various decisions

and this legal position was conceded by the

counsel for the parties. In any case, we shall

refer to few judgments containing this dicta, a

little later.

30. We would also like to point out, for the

sake of completeness, that where a benefit is

conferred by a legislation, the rule against a

retrospective construction is different. If a

legislation confers a benefit on some persons

but without inflicting a corresponding

detriment on some other person or on the

public generally, and where to confer such

benefit appears to have been the legislators'

object, then the presumption would be that

such a legislation, giving it a purposive

construction, would warrant it to be given a

retrospective effect. This exactly is the

justification to treat procedural provisions as

retrospective. In Govt. of India v. Indian

Tobacco Assn., the doctrine of fairness was

held to be relevant factor to construe a statute

conferring a benefit, in the context of it to be

given a retrospective operation. The same

doctrine of fairness, to hold that a statute was

retrospective in nature, was applied in Vijay v.

State of Maharashtra. It was held that where a

law is enacted for the benefit of community as

a whole, even in the absence of a provision the

statute may be held to be retrospective in

nature. However, we are (sic not) confronted

with any such situation here.

31. In such cases, retrospectivity is attached to

benefit the persons in contradistinction to the

CRL.REF. 1/2019 Page 38 of 58

provision imposing some burden or liability

where the presumption attaches towards

prospectivity. In the instant case, the proviso

added to Section 113 of the Act is not

beneficial to the assessee. On the contrary, it

is a provision which is onerous to the assessee.

Therefore, in a case like this, we have to

proceed with the normal rule of presumption

against retrospective operation. Thus, the rule

against retrospective operation is a

fundamental rule of law that no statute shall

be construed to have a retrospective operation

unless such a construction appears very

clearly in the terms of the Act, or arises by

necessary and distinct implication.

Dogmatically framed, the rule is no more than

a presumption, and thus could be displaced by

outweighing factors.

32. Let us sharpen the discussion a little more.

We may note that under certain circumstances,

a particular amendment can be treated as

clarificatory or declaratory in nature. Such

statutory provisions are labelled as

“declaratory statutes”. The circumstances

under which provisions can be termed as

“declaratory statutes” are explained by

Justice G.P. Singh in the following manner:

“Declaratory statutes

The presumption against retrospective

operation is not applicable to

declaratory statutes. As stated in Craies

and approved by the Supreme

Court: „For modern purposes a

declaratory Act may be defined as an

Act to remove doubts existing as to the

common law, or the meaning or effect of

any statute. Such Acts are usually held

to be retrospective. The usual reason for

passing a declaratory Act is to set aside

what Parliament deems to have been a

judicial error, whether in the statement

of the common law or in the

interpretation of statutes. Usually, if not

invariably, such an Act contains a

Preamble, and also the word

CRL.REF. 1/2019 Page 39 of 58

“declared” as well as the word

“enacted”.‟ But the use of the words „it

is declared‟ is not conclusive that the

Act is declaratory for these words may,

at times, be used to introduced new

rules of law and the Act in the latter

case will only be amending the law and

will not necessarily be retrospective. In

determining, therefore, the nature of the

Act, regard must be had to the substance

rather than to the form. If a new Act is

„to explain‟ an earlier Act, it would be

without object unless construed

retrospective. An explanatory Act is

generally passed to supply an obvious

omission or to clear up doubts as to the

meaning of the previous Act. It is well

settled that if a statute is curative or

merely declaratory of the previous law

retrospective operation is generally

intended. The language „shall be

deemed always to have meant‟ is

declaratory, and is in plain terms

retrospective. In the absence of clear

words indicating that the amending Act

is declaratory, it would not be so

construed when the pre-amended

provision was clear and unambiguous.

An amending Act may be purely

clarificatory to clear a meaning of a

provision of the principal Act which was

already implicit. A clarificatory

amendment of this nature will have

retrospective effect and, therefore, if the

principal Act was existing law which the

Constitution came into force, the

amending Act also will be part of the

existing law.”

The above summing up is factually based on

the judgments of this Court as well as English

decisions.”

49. In Nani Gopal Mitra (supra), the Supreme Court reiterated that

though as a general rule, an amendment relating to procedure is

CRL.REF. 1/2019 Page 40 of 58

retrospective, at the same time, where the amending Act creates new

disabilities or obligations or imposes new duties in respect of

transactions which were complete at the time the amending Act came

into force, the said principle would not apply. We quote from the said

judgment as under:

“5. It was in the first place contended on

behalf of the appellant that Section 5(3) of the

Act was repealed by Parliament while the

appeal was pending in the High Court and the

presumption enacted in Section 5(3) of the Act

was not available to the prosecuting

authorities after the repeal of the sub-section

on December 18, 1964. The argument was

stressed that it was not open to the High Court

to invoke the presumption contained in Section

5(3) of the Act in considering the case against

the appellant. It was also said that the

presumption contained in Section 5(3) of the

Act was a Rule of procedural law and not a

Rule of substantive law and alterations in the

form of procedure are always retrospective in

character unless there is some good reason or

other why they should not be. It was, therefore,

submitted that the judgment of the High Court

was defective in law as it applied to the

present case the presumption contained in

Section 5(3) of the Act even after its repeal.

We are unable to accept the contention put

forward on behalf of the appellant as correct.

It is true that as a general Rule alterations in

the form of procedure are retrospective in

character unless there is some good reason or

other why they should not be. In James

Gardner v. Edward A. Lucas Lord Blackburn

stated:

“Now the general Rule, not merely of

England and Scotland, but, I believe, of

every civilized nation, is expressed in the

maxim, „Nova constitutio futuris formam

imponere debet non prae teritis‟ — prima

facie, any new law that is made affects

CRL.REF. 1/2019 Page 41 of 58

future transactions, not past ones.

Nevertheless, it is quite clear that the

subject-matter of an Act might be such that,

though there were not any express words to

show it, it might be retrospective. For

instance, I think it is perfectly settled that if

the legislature intended to frame a new

procedure, that instead of proceeding in

this form or that, you should proceed in

another and a different way; clearly there

bygone transactions are to be sued for and

enforced according to the new form of

procedure. Alterations in the form of

procedure are always retrospective, unless

there is some good reason or other why

they should not be. Then, again, I think that

where alterations are made in matters of

evidence, certainly upon the reason of the

thing, and I think upon the authorities also,

those are retrospective, whether civil or

criminal.”

In King v. Chandra Dharma Lord Alverstone,

C.J. observed as follows:

“The Rule is clearly established that, apart

from any special circumstances appearing

on the face of the statute in question,

statutes which make alterations in

procedure are retrospective. It has been

held that a statute shortening the time

within which proceedings can be taken is

retrospective (The Ydun, 1899 p. 236), and

it seems to me that it is impossible to give

any good reason why a statute extending

the time within which proceedings may be

taken should not also be held to be

retrospective. If the case could have been

brought within the principle that unless the

language is clear a statute ought not to be

construed so as to create new disabilities or

obligations, or impose new duties in respect

of transactions which were complete at the

time when the Act came into force, Mr

Compton-Smith would have been entitled to

CRL.REF. 1/2019 Page 42 of 58

succeed; but when no new disability or

obligation has been created by the statute,

but it only alters the time within which

proceedings may be taken, it may be held to

apply to offences completed before the

statute was passed. That is the case here.”

It is, therefore, clear that as a general Rule the

amended law relating to procedure operates

retrospectively. But there is another equally

important principle viz. that a statute should

not be so construed as to create new

disabilities or obligations or impose new

duties in respect of transactions which were

complete at the time the amending Act came

into force — (See In re a Debtor and In re

Vernazza). The same principle is embodied in

Section 6 of the General Clauses Act which is

to the following effect:

“6. Effect of repeal — Where this Act or

any Central Act or Regulation made

after the commencement of this Act,

repeals any enactment hitherto made or

hereafter to be made, then, unless a

different intention appears, the repeal

shall not—

* * *

(b) affect the previous operation of any

enactment so repealed or anything duly

done or suffered thereunder; or

* * *

(e) affect any investigation, legal

proceeding or remedy in respect of any

such right, privilege, obligation,

liability, penalty, forfeiture or

punishment as aforesaid;

* * *

and any such investigation, legal

proceeding or remedy may be instituted,

continued or enforced, and any such

penalty, forfeiture or punishment may be

imposed as if the repealing Act or

Regulation had not been passed.”

CRL.REF. 1/2019 Page 43 of 58

6. The effect of the application of this principle

is that pending cases although instituted under

the old Act but still pending are governed by

the new procedure under the amended law, but

whatever procedure was correctly adopted

and concluded under the old law cannot be

opened again for the purpose of applying the

new procedure. In the present case, the trial of

the appellant was taken up by the Special

Judge, Santhal Parganas when Section 5(3) of

the Act was still operative. The conviction of

the appellant was pronounced on March 31,

1962 by the Special Judge, Santhal Parganas

long before the amending Act was

promulgated. It is not hence possible to accept

the argument of the appellant that the

conviction pronounced by the Special Judge,

Santhal Parganas has become illegal or in any

way defective in law because of the

amendment to procedural law made on

December 18, 1964. In our opinion, the High

Court was right in invoking the presumption

under Section 5(3) of the Act even though it

was repealed on December 18, 1964 by the

amending Act. We accordingly reject the

argument of the appellant on this aspect of the

case.”

50. As far as amendment to Section 19(1) of the 1988 Act is

concerned, it creates a new prohibition on the Court from taking

cognizance of certain offences committed by an accused who has

ceased to be a public servant or is a public servant in a capacity other

than the one which he held when the alleged offence had been

committed. The said prohibition and consequential protection to an

accused, prior to its amendment in 2018, was not applicable to a

person who had ceased to be a public servant or who was not a public

servant in the same capacity. This remained the consistent position

CRL.REF. 1/2019 Page 44 of 58

under Section 6 of the 1947 Act and the pre-amended Section 19(1) of

the 1988 Act. The continuation of this restricted protection in Section

19(1) of the 1988 Act, as it stood before its amendment with effect

from 26.07.2018, therefore, cannot be said to be a case of omission,

but was a conscious decision of the Legislature, till the amendment,

not to extend such benefit to the persons who had ceased to be public

servants or who held a different office on the date of the Court taking

cognizance of the offence against them.

51. It may be true that the Legislature, while amending the 1988

Act by the Amendment Act, wished to extend the protection even to

persons who had ceased to be public servants or who held a different

office as public servant on the date the Court is asked to take

cognizance of the particular offence against them, but it did not make

it retrospective, either expressly or by any necessary implication. In

fact, as noted hereinabove, the Amendment Act was specifically

brought into force with effect from 26.07.2018 and, therefore, was not

intended to affect the cases where cognizance already stood taken

against accused for whom prior sanction was not required by the then

existing law. It is a settled principle of interpretation of statutes that a

statute must be given a literal meaning and the Court must not add or

subtract words therefrom. A literal interpretation of the amended

Section 19(1) of the 1988 Act does not make it retrospective so as to

reopen the cases where cognizance already stands taken by the Court.

52. The general principle of prospective application is, therefore,

fully applicable to the amended Section 19(1) of the 1988 Act,

meaning thereby that, where cognizance already stands taken by the

CRL.REF. 1/2019 Page 45 of 58

Court, the amended provision will not be applicable, but where the

Court is called upon to take cognizance after the amendment, the

amended Section 19(1) of the 1988 Act would be applicable, and if the

person against whom cognizance is to be taken falls within the ambit

of the said Section, cognizance cannot be taken by the Court without

prior sanction of the competent authority.

53. The invocation of principle of a declaratory statute having a

retrospective effect, would have no application to the application of

amended Section 19(1) of the 1988 Act. Though, by the Amendment

Act, an Explanation has been added to Section 19(1) of the 1988 Act,

there is no indication therein that the definition of “public servant”

now inserted is to apply retrospectively. It does not state that such

definition shall be deemed to apply with a retrospective effect. The

Legislature would always have been aware of the then existing law

and in case it wished to change the law with a retrospective effect so

as to do away with the judgments which had taken a consistent

interpretation of Section 19(1) of the 1988 Act as it stood prior to its

amendment, it would have specifically said so. Neither from the

Statement of Objects and Reasons of the Amendment Act nor

otherwise from a reading of the provision, do we find any such

intention of the legislature.

54. In Shyam Sunder (supra), the Supreme Court explained the

concept of a declaratory legislation and its retrospective effect, as

under:

“39. Lastly, it was contended on behalf of the

appellants that the amending Act whereby new

Section 15 of the Act has been substituted is

CRL.REF. 1/2019 Page 46 of 58

declaratory and, therefore, has retroactive

operation. Ordinarily when an enactment

declares the previous law, it requires to be

given retroactive effect. The function of a

declaratory statute is to supply an omission or

to explain a previous statute and when such an

Act is passed, it comes into effect when the

previous enactment was passed. The

legislative power to enact law includes the

power to declare what was the previous law

and when such a declaratory Act is passed,

invariably it has been held to be retrospective.

Mere absence of use of the word

“declaration” in an Act explaining what was

the law before may not appear to be a

declaratory Act but if the court finds an Act as

declaratory or explanatory, it has to be

construed as retrospective. Conversely where

a statute uses the word “declaratory”, the

words so used may not be sufficient to hold

that the statute is a declaratory Act as words

may be used in order to bring into effect new

law.

40. Craies on Statute Law, 7th Edn. stated the

statement of law thus:

“If a doubt is felt as to what the common

law is on some particular subject, and

an Act is passed to explain and declare

the common law, such an Act is called a

declaratory Act.”

41. G.P. Singh on Principles of Statutory

Interpretation quoting Craies stated thus:

“„For modern purposes a declaratory

Act may be defined as an Act to remove

doubts existing as to the common law, or

the meaning or effect of any statute.

Such Acts are usually held to be

retrospective. The usual reason for

passing a declaratory Act is to set aside

what Parliament deems to have been a

judicial error, whether in the statement

of the common law or in the

CRL.REF. 1/2019 Page 47 of 58

interpretation of statutes. Usually, if not

invariably, such an Act contains a

preamble, and also the word “declared”

as well as the word “enacted”.‟ But the

use of the words „it is declared‟ is not

conclusive that the Act is declaratory for

these words may, at times, be used to

introduce new rules of law and the Act in

the latter case will only be amending the

law and will not necessarily be

retrospective. In determining, therefore,

the nature of the Act, regard must be had

to the substance rather than to the form.

If a new Act is „to explain‟ an earlier

Act, it would be without object unless

construed retrospective. An explanatory

Act is generally passed to supply an

obvious omission or to clear up doubts

as to the meaning of the previous Act. It

is well settled that if a statute is curative

or merely declaratory of the previous

law retrospective operation is generally

intended.”

42. In Keshavlal Jethalal Shah v. Mohanlal

Bhagwandas this Court while interpreting

Section 29(2) of the amending Act, held thus:

(AIR p. 1339, para 8)

“An explanatory Act is generally passed

to supply an obvious omission or to clear

up doubts as to the meaning of the

previous Act. Section 29(2) before it was

enacted was precise in its implication as

well as in its expression; the meaning of

the words used was not in doubt, and

there was no omission in its phraseology

which was required to be supplied by the

amendment.”

43. In R. Rajagopal Reddy v. Padmini

Chandrasekharan it was held thus: (SCC

Headnote)

CRL.REF. 1/2019 Page 48 of 58

“Declaratory enactment declares and

clarifies the real intention of the

legislature in connection with an earlier

existing transaction or enactment, it

does not create new rights or

obligations. If a statute is curative or

merely declaratory of the previous law

retrospective operation is generally

intended. … A clarificatory amendment

of this nature will have retrospective

effect and, therefore, if the principal Act

was existing law when the Constitution

came into force the amending Act also

will be part of the existing law. If a new

Act is to explain an earlier Act, it would

be without object unless construed

retrospective. An explanatory Act is

generally passed to supply an obvious

omission or to clear up doubts as to the

meaning of the previous Act.”

44. From the aforesaid decisions, the legal

principle that emerges is that the function of a

declaratory or explanatory Act is to supply an

obvious omission or to clear up doubts as to

meaning of the previous Act and such an Act

comes into effect from the date of passing of

the previous Act. Learned counsel for the

appellants strongly relied upon a decision of a

two-Judge Bench of this Court in Mithilesh

Kumari v. Prem Behari Khare in support of

his argument. In the said decision, it was held

by this Court that the Benami Transactions

(Prohibition) Act, 1988 being a declaratory

Act, the provisions of Section 4 of the Act have

retroactive operation. The reliance on this

decision by the appellants' counsel is totally

misplaced as this decision was overruled in R.

Rajagopal Reddy v. Padmini

Chandrasekharan wherein it was held that the

Act was not passed to clear any doubt that

existed as to the common law or the meaning

of effect of any statute and it was, therefore,

not a declaratory Act.

CRL.REF. 1/2019 Page 49 of 58

45. We have already quoted substituted

Section 15 of the amending Act but do not find

that the amending Act either expressly or by

necessary implication intended to supply an

omission or to clear up a doubt as to the

meaning of the previous Section 15 of the

parent Act. The previous Section 15 of the

parent Act was precise, plain and simple.

There was no ambiguity in it. The meaning of

the words used in Section 15 of the parent Act

was never in doubt and there was no omission

in its phraseology which was required to be

supplied by the amending Act. Moreover, the

amending Act either expressly or by

implication was not intended to be retroactive

and for that reason we hold that amending Act

10 of 1995 is not a declaratory Act and,

therefore, it has no retrospective operation.

46. For the aforestated reasons, we approve

the view of law taken in Didar Singh v. Ishar

Singh and further hold that the decision in the

case of Ramjilal v. Ghisa Ram does not lay

down the correct view of law.

47. The result of the aforesaid discussion is

that the amending Act being prospective in

operation does not affect the rights of the

parties to the litigation on the date of

adjudication of the pre-emption suit and the

appellate court is not required to take into

account or give effect to the substituted

Section 15 introduced by the amending Act.”

(Emphasis supplied)

55. In National Agricultural Cooperative Marketing Federation of

India Ltd. (supra), the Supreme Court held that the Legislature is

competent to overcome a judicial decision by removing the statutory

basis of the decision and to correct the statute so as to more correctly

represent its intention; such an amendment would have a retrospective

CRL.REF. 1/2019 Page 50 of 58

effect. However, as noted by us hereinabove, we do not find any such

intention of the Legislature in the Amendment Act to give the

Explanation a retrospective effect so as to reopen the cases where

cognizance already stands taken. The Explanation has been added

only to remove all doubts for the future and not to undo the past.

56. In Keshavlal Jethalal Shah (2) v. Mohanlal Bhagwandas &

Anr., 1968 SCC OnLine SC 14, the Supreme Court, while rejecting a

similar contention with respect to the substituted Section 29(2) of the

Bombay Rents, Hotel and Lodging House Rates Control Act, 57 of

1947, held as under:

“14. Counsel for the respondent also

submitted that Section 29(2) as amended was

intended to have retrospective operation,

because the amending Act was in the nature of

explanatory legislation.

15. There is nothing in the language of Section

29(2) as amended, which may indicate that it

was intended to be retrospective in operation.

Section 29(2) as amended in terms confers

jurisdiction upon the High Court to call for the

record of a case for the purpose of satisfying

itself that the decision in appeal was

according to law, which the High Court did

not possess before the date of the amending

Act. The amending clause does not seek to

explain any pre-existing legislation which was

ambiguous or defective. The power of the High

Court to entertain a petition for exercising

revisional jurisdiction was before the

amendment derived from Section 115 of the

Code of Civil Procedure, and the legislature

has by the amending Act attempted to explain

the meaning of that provision. An explanatory

Act is generally passed to supply an obvious

omission or to clear up doubts as to the

meaning of the previous Act. Section 29(2)

before it was enacted, was precise in its

CRL.REF. 1/2019 Page 51 of 58

implication as well as in its expression : the

meaning of the words used was not in doubt,

and there was no omission in its phraseology

which was required to be supplied by the

amendment.”

(Emphasis supplied)

57. In Zile Singh (supra), the Supreme Court took note of another

well-recognized practice employed in legislative drafting, that is, of

„substitution‟, and held that substitution would have the effect of

amending the operation of law during the period in which it was

enforced. We quote from the said judgment as under:

“24. The substitution of one text for the other

pre-existing text is one of the known and well-

recognised practices employed in legislative

drafting. "Substitution" has to be distinguished

from "supersession" or a mere repeal of an

existing provision.

25. Substitution of a provision results in repeal

of the earlier provision and its replacement by

the new provision (see Principles of Statutory

Interpretation, ibid., p. 565). If any authority is

needed in support of the proposition, it is to be

found in West U.P. Sugar Mills Assn. v. State

of U.P., State of Rajasthan v. Mangilal

Pindwal, Koteswar Vittal Kamath v. Κ.

Rangappa Baliga and Co. and A.L.V.R.S.T.

Veerappa Chettiar v. S. Michael. In West U.P.

Sugar Mills Assn. case a three-Judge Bench of

this Court held that the State Government by

substituting the new rule in place of the old

one never intended to keep alive the old rule.

Having regard to the totality of the

circumstances centring around the issue the

Court held that the substitution had the effect

of just deleting the old rule and making the

new rule operative. In Mangilal Pindwal case

this Court upheld the legislative practice of an

amendment by substitution being incorporated

CRL.REF. 1/2019 Page 52 of 58

in the text of a statute which had ceased to

exist and held that the substitution would have

the effect of amending the operation of law

during the period in which it was in force. In

Koteswar case a three-Judge Bench of this

Court emphasised the distinction between

"supersession" of a rule and "substitution" of a

rule and held that the process of substitution

consists of two steps: first, the old rule is made

to cease to exist and, next, the new rule is

brought into existence in its place.”

58. In Gottumukkala Venkata Krishamraju v. Union of India &

Ors., (2019) 17 SCC 590, the Supreme Court held that the use of the

words „substitute‟ or „substitution‟ is not conclusive. The Court,

having regard to the purpose and object sought to be achieved by the

Legislature, may construe the words „substitution‟ as an „amendment‟,

having a prospective effect. We quote from the said judgment as

under:

“16. In the first instance, we have to bear in

mind the language/terminology which the

legislature used while inserting new Section 6

with effect from 1-9-2016. This section stands

"substituted" with the old section. The word

"substituted" has its own significance. In

Union of India v. Indian Tobacco Assn., this

Court noted dictionary meaning of the word

"substitute" as can be seen from para 15 of the

said judgment: (SCC p. 400)

"15. The word "substitute" ordinarily

would mean 'to put (one) in place of

another'; or 'to replace'. In Black's Law

Dictionary, 5th Edn., at p. 1281, the

word "substitute" has been defined to

mean 'to put in the place of another

person or thing', or 'to exchange'. In

Collins English Dictionary, the word

"substitute" has been defined to mean 'to

serve or cause to serve in place of

CRL.REF. 1/2019 Page 53 of 58

another person or thing'; 'to replace (an

atom or group in a molecule) with

(another atom or group)'; or 'a person

or thing that serves in place of another,

such as a player in a game who takes the

place of an injured colleague'."

17. This expression has also come up for

interpretation by the courts in Zile Singh v.

State of Haryana, the import and impact of

substituted provision were discussed in the

following manner: (SCC p. 12, paras 23-24)

"23. The text of Section 2 of the Second

Amendment Act provides for the word

"up to" being substituted for the word

"after". What is the meaning and effect

of the expression employed therein-

"shall be substituted"?

24. The substitution of one text for the

other pre-existing text is one of the

known and well-recognised practices

employed in legislative drafting.

"Substitution" has to be distinguished

from "supersession" or a mere repeal of

an existing provision."

18. Ordinarily wherever the word "substitute"

or "substitution" is used by the legislature, it

has the effect of deleting the old provision and

make the new provision operative. The process

of substitution consists of two steps: first, the

old rule is made to cease to exist and, next, the

new rule is brought into existence in its place.

The rule is that when a subsequent Act amends

an earlier one in such a way as to incorporate

itself, or a part of itself, into the earlier, then

the earlier Act must thereafter be read and

construed as if the altered words had been

written into the earlier Act with pen and ink

and the old words scored out so that thereafter

there is no need to refer to the amending Act at

all. No doubt, in certain situations, the Court

having regard to the purport and object sought

to be achieved by the legislature may construe

the word "substitution" as an "amendment"

CRL.REF. 1/2019 Page 54 of 58

having a prospective effect. Therefore, we do

not think that it is a universal rule that the

word "substitution" necessarily or always

connotes two severable steps, that is to say,

one of repeal and another of a fresh enactment

even if it implies two steps. However, the

aforesaid general meaning is to be given effect

to, unless it is found that the legislature

intended otherwise. Insofar as present case is

concerned, as discussed hereinafter, the

legislative intent was also to give effect to the

amended provision even in respect of those

incumbents who were in service as on 1-9-

2016.

19. The effect, thus, would be to replace

Section 6 as amended with the intention as if

this is the only provision which exist from the

date of introduction and the earlier provision

was not there at all. The effect of this would be

that all those incumbents who are holding the

post of Presiding Officer on 1-9-2016 would

be governed by this provision.

20. When we examine the matter in the

aforesaid perspective, the question as to

whether Section 6, as amended, is to be given

retrospective effect or not, does not arise for

consideration. The petitioners are right in

submitting that persons who demitted the

office prior to the amendment are not sought

to be covered by the amendment. Had the

provision been retrospective then it would

have benefitted those persons as well. No such

case is set up by any of the petitioners or any

other person, it is only the incumbents who are

serving as on the date of the amendment are

sought to be covered.”

59. In the present case as well, though the Amendment Act uses the

word „substitution‟, it, in effect, inserts a new obligation of taking

prior sanction even with respect to the former public servants or public

CRL.REF. 1/2019 Page 55 of 58

servants who hold a different office when the cognizance of the

offence is taken by the Court. It thus inserts a new obligation on the

prosecution and does not give any indication of having a retrospective

effect, except to the fact that even though the offence may relate to a

period prior to the amendment, the protection would enure to the

benefit of such former public servants when the Court is to take

cognizance of the offence after the Amendment Act has come into

force.

60. In view of the above, we answer question nos. 2 and 3 posed to

us as under:

Q2. (a) What is the relevant date for application of Prevention of

Corruption (Amendment) Act, 2018 in cases pending trial?

(b) Whether the amendment to Section 19 of Prevention of

Corruption Act, 1988 dated 26.07.2018 is to be read

retrospectively being beneficial to the accused? [Ref.: Basheer

@N.P. Basheer Vs. State of Kerala (Supra)]

Q3. Whether sanction as contemplated under Section 19 of the

Prevention of the Corruption Act (Amendment) Act, 2018 is

necessary for prosecuting a Former/ Ex Public Servant where the

cognizance of the offence has already been taken by the competent

court prior to 26.07.2018 i.e. the date on which the amendment

came into effect?

Ans. The relevant date for the application of the amended Section

19(1) of the 1988 Act is with effect from 26.07.2018. The

Amendment Act, as far as amendment to Section 19(1) of the 1988

Act, is retrospective to the extent that the benefit thereunder would

enure even where the offence is alleged to have been committed

prior to its coming into force, however, it is prospective to the

effect that, where cognizance of such offence already stands taken

CRL.REF. 1/2019 Page 56 of 58

before 26.07.2018, the same shall not be reopened and there would

be no fresh requirement of prior sanction in such cases. The

requirement of taking sanction would be applicable only where the

Court is yet to take cognizance of the offence mentioned in

Section 19(1) of the Act as on 26.07.2018 and thereafter.

QUESTION NO. 4

61. A general question of reference is also made in the following

words, which we do not intend to answer, as it is not specific to

answer:

“4. Any other issue of law which arises

relating to vires of the Prevention of

Corruption (Amendment) Act, 2018 (16 of

2018) which came into effect on 26.07.2018

particularly in relation to Section 19 of the

Prevention of Corruption Act.”

IV. SUMMARY/CONCLUSION

62. We summarise our answers to the reference as under:

Q1. Whether under the Prevention of

Corruption (Amendment) Act, 2018 (which

is a Special Statute and overrides the General

Law) the cognizance of the offence is taken

or cognizance of the offence against the

offender is taken [Ref.: Dilawar Singh Vs.

Parvinder Singh (Supra) and Abhay Singh

Chautala Vs. C.B.I (Supra)]?

Ans. Dilawar Singh (supra) clearly holds that the general law

that cognizance of an offence is taken and not of the offender, is

not applicable to Section 19(1) of the 1988 Act, whether pre or

post its amendment. Accordingly, no cognizance of an offence

CRL.REF. 1/2019 Page 57 of 58

under Sections 7, 11, 13 and 15 alleged to have been committed

by a public servant can be taken except with a previous sanction

granted for the prosecution of such a public servant.

Q2. (a) What is the relevant date for

application of Prevention of Corruption

(Amendment) Act, 2018 in cases pending

trial?

(b) Whether the amendment to Section 19 of

Prevention of Corruption Act, 1988 dated

26.07.2018 is to be read retrospectively

being beneficial to the accused? [Ref.:

Basheer @N.P. Basheer Vs. State of

Kerala (Supra)]

Q3. Whether sanction as contemplated under

Section 19 of the Prevention of the

Corruption Act (Amendment) Act, 2018 is

necessary for prosecuting a Former/ Ex

Public Servant where the cognizance of the

offence has already been taken by the

competent court prior to 26.07.2018 i.e. the

date on which the amendment came into

effect?

Ans. The relevant date for the application of the amended Section

19(1) of the 1988 Act is with effect from 26.07.2018. The

Amendment Act, as far as amendment to Section 19(1) of the 1988

Act, is retrospective to the extent that the benefit thereunder would

enure even where the offence is alleged to have been committed

prior to its coming into force, however, it is prospective to the

effect that, where cognizance of such offence already stands taken

before 26.07.2018, the same shall not be reopened and there would

be no fresh requirement of prior sanction in such cases. The

CRL.REF. 1/2019 Page 58 of 58

requirement of taking sanction would be applicable only where the

Court is yet to take cognizance of the offence mentioned in

Section 19(1) of the Act as on 26.07.2018 and thereafter.

Q4. Any other issue of law which arises

relating to vires of the Prevention of

Corruption (Amendment) Act, 2018 (16 of

2018) which came into effect on 26.07.2018

particularly in relation to Section 19 of the

Prevention of Corruption Act.

Ans. Not answered.

63. The reference having been answered, the file of the case be

transmitted to the concerned Special Judge for proceeding further with

the case. The same shall be listed before the concerned Special Judge

on 10

th

September, 2026.

64. We express our gratitude to the learned Amicus Curiae for

rendering assistance to us in answering the questions referred.

65. The reference is disposed of in the above terms.

NAVIN CHAWLA, J

RAVINDER DUDEJA, J

AUGUST 6, 2026/ns/Yg