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TMI Blog1999 (8) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... ha are being prosecuted before certain Special Courts for the offence, inter alia, under Section 13(1)(e) of the Prevention of Corruption Act, 1988 (for short "the P.C. Act"). The former speaker of the Tamil Nadu Legislative Assembly (when Smt. Jayalalitha was the Chief Minister) is also facing a similar charge. They are indicted on the premise that they were public servants during the relevant time and that each one has amassed wealth disproportionate to his/her known sources of income, for which he/she is unable to account. But in all such cases, some of their kith and kin are also being arraigned as co-accused to face the said offence read with Section 109 of the Indian Penal Code (for short "the Penal Code"). Appellants herein are all those kith and kin who are now being proceeded against for the said offences in conjunction with the public servant concerned. They raised preliminary objections before the Special Courts on various grounds for pre-charge exoneration, but the Court repelled all such objections. They moved the High Court of Madras against such orders, but a learned Single Judge who heard the motions together, along with certain other petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia was made a respondent before the Madras High Court and one Under Secretary to the Government of India had filed a counter affidavit therein on 1-12-1998 conceding to the legal position espoused by the appellants. But Shri V.R. Reddy, learned senior counsel now appearing for the Union of India strongly supported the stand adopted by the State of Tamil Nadu. The volte-face of the Union of India cannot be frowned at, for, it is open to the State or Union of India or even a private party to retrace or even resile from a concession once made in the court on a legal proposition. Firstly, because the party concerned, on a reconsideration of the proposition could comprehend a different construction as more appropriate. Secondly, the construction of statutory provision cannot rest entirely on the stand adopted by any party in the lis. Thirdly, the parties must be left free to aid the court in reaching the correct construction to be placed on a statutory provision. They cannot be nailed to a position on the legal interpretation which they adopted at a particular point of time because saner thoughts can throw more light on the same subject at later stage. Before dealing with the contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sections 10 and 12 of the P.C. Act. Those sections are extracted below: "10. Punishment for abetment by public servant of offences defined in section 8 or 9.- Whoever, being a public servant, in respect of whom either of the offences defined in section 8 or section 9 is committed, abets the offence, whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine." "12. Punishment for abetment of offences defined in section 7 or 11.- Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine." According to the learned counsel since no other type of abetment is made specifically punishable under the P.C. Act there cannot be any question of a non-public servant abetting the offence under Section 13(1)(e) of the P.C. Act. It is true that Section 11 deals with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 165-A of the Penal Code which were part of Chapter IX of that Code under the title "All offences by or relating to public servants". Those sections were deleted from the Penal Code contemporaneous with the enactment of Section 31 of the P.C. Act (vide Section 31 of the P.C. Act). It is appropriate to point out here that in the original old P.C. Act there was no provision analogous to Section 13(1)e), but on the recommendation of Santhanam Committee the said Act was amended in 1964 by incorporating Section 5(1)(e) in the old P.C. Act. Parliament later proceeded to "consolidate and amend the law relating to prevention of corruption" and in the Bill introduced for that purpose the following was declared as per the Statement of Objects and Reasons thereof: "The prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam Committee. There are provisions in Chapter IX of the Indian Penal Code to deal with public servants and those who abet them by way of the criminal misconduct, there are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable attachment of ill-gotten wealth. The Bill seeks to incorporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of such income should have been intimated by the public servant in accordance with the provisions of any law applicable to such public servant at the relevant time. So a public servant cannot now escape from the tentacles of Section 13(1)(e) of the P.C. Act by showing other legally forbidden sources, albeit such sources are outside the purview of clauses (a) to (d) of the sub-section. There is no force in the contention that the offences under Section 13(1)(e) cannot be abetted by another person. "Abetment" is defined in Section 107 of the Penal Code as under: "107. Abetment of a thing.- A person abets the doing of a thing, who- First.- Instigates any person to do that thing; or Secondly,- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing." For the "First" clause (i.e. instigation) the following Explanation is added to the section: "Explanation 1.- A person who, by willful misrepresen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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