S.RAVINDRA BHAT, J. - (1.)THE present judgment will dispose off three appeals directed against the judgment dated 5th July 2002 passed by the learned Special Judge in RC 3(A)/96 ACU convicting the three Appellants (Mr. Sukh Ram, Mr. Rama Rao and Ms. Runu Ghosh) for the offence under Section 120-B IPC read with Section 13(1) (d) and Section 13(2) of the Prevention of Corruption Act, 1988 and convicting Mr. Sukh Ram and Ms. Runu Ghosh, the Appellants in Crl. A. Nos. 536 and 482 of 2002 respectively, additionally for the substantive offence under Section 13(1)(d) read with Section 13(2) Prevention of Corruption Act, 1988. THE Appellants (hereafter referred to by their names, for convenience) also challenge the order sentencing them to periods of two and three years? rigorous imprisonment (RI?) and fine of Rs. 1 lakh, in default of which they were to further undergo simple imprisonment (SI?) for six months for the offences. THE appeals were received by the Division Bench, upon a reference regarding the correct interpretation of Section 13 (1) (d) of the Prevention of Corruption Act 1988 (hereafter the 1988 Act).
(2.)BEFORE proceeding it would be necessary to extract the relevant portions of the order (dated 24.09.2009) referring the appeals to the Division Bench. It reads as follows:
The issues that arise 30. In the present case the evidence is essentially in the form of notes on file dated 25th May and 24th July 1993 of Smt.Ghosh and the notes dated 31st August, 19th November and 13th December 1993 of Sri Sukh Ram. There are cases under the PC Act 1988 in which a trap is laid to gather evidence of the public servant accepting illegal gratification or in which a raid is undertaken of the place of residence or work with a view to unearthing the amassing of assets disproportionate to the known sources of income of such public servant. However, according to the CBI, the present case is not linked with the DA case against the Appellants Sri Sukh Ram and Smt.Runu Ghosh. This case is one where the public servant is not shown to have gained any pecuniary benefit but is accused of abusing the official position and obtaining it for another person. The prosecutions case is built around Section 13 (1) (d) (i) to (iii) PC Act 1988. 31. As regards the nature of evidence, to prove the guilt of Sri Sukh Ram, the prosecution relies on the notes on file authored by him and the correspondence involving M/s. ARM. As far as Smt.Runu Ghosh is concerned, apart from the notes on file authored by her, the prosecution relies on the recoveries from her of a set of pearl earrings worth Rs.1500 and two blank letter heads of M/s. ARM in August 1996 from her table drawer. Some of the authors of the various notes on the file have been examined as prosecution witnesses. The offence of criminal conspiracy punishable under Section 120 B is also sought to be proved on the basis of the above evidence. 32. Stemming from the submissions of the learned ASG, an important question that arises for consideration is whether for the purposes of Section 13 (1) (d) (ii) or (iii) PC Act the prosecution has to prove mens rea. The learned ASG has also filed detailed written submissions on this aspect referring to several decisions of the courts, which have dealt with the provisions of some criminal statutes dispensing with the need to prove mens rea. They however do not appear to have had occasion to deal with the question in the context of Section 13 (1) (d) PC Act 1988. In this context the following passage from Principles of Statutory Interpretation by G.P.Singh (9th edition, pp.779-780) is instructive: ?When a statute creates an offence, the question whether the offence involved the existence of mens rea as an essential element of it or whether the statute dispenses with it and creates strict liability are questions which have to be answered on a true construction of the statute. The courts, however, regard it as a fundamental principle that an offence cannot be made out without the existence of mens rea, =unless from a consideration of the term of the statute and other relevant circumstances it clearly appears that that must have been the intention of Parliament. The formulations of the rule of construction which have been accepted by the Privy Council and the Supreme Court are those stated by Wright, J. in Sherras v. De Rutzen, and by Goddard, C.J. in Brend v. Wood. Wright, J. expressed the rule in these words: =There is a presumption that mens rea an evil intention, or knowledge of the wrongfulness of the act, is an essential ingredient of every offence, but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals and both must be considered. And, the formulation by Goddard, C.J. is to the following effect: =It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind. It has also been said that the presumption of existence of mens rea is =a presumption of legality and =in the absence of express words or a truly necessary implication, Parliament must be presumed to legislate on the assumption that the principle of legality will supplement the text. Necessary implication in this context connotes an implication which is compellingly clear. Such an implication may be found in the language used, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence.? As stated by the Privy Council (Lord Scarman) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern and it is further shown that creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act. The climate of both parliamentary and judicial opinion in England has been growing less favourable to the recognition of absolute offences over the last few decades.? (emphasis supplied) 32. The question that arises is whether mens rea is impliedly excluded in Sections 13 (1) (d) (ii) and (iii) of the PC Act 1988? To borrow the words of Lord Nichollas quoted in the above passage, can ?such an implication be found in the language used, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence?? It must be added that according to the learned ASG even if the above question were to be answered in the negative, the notes on file, documents and other attendant circumstances prove mens rea beyond reasonable doubt. 33. That brings up the other aspect of the case which is the nature of the evidence adduced by the prosecution. The case of the prosecution is that the decisions dated 19th November and 13th December 1993 of the MoS (C) and the notes dated 25th May and 24th July 1993 of Smt. Runu Ghosh, in the light of the other evidence including depositions of the witnesses are sufficient to prove the offence of ?criminal misconduct? within the meaning of Section 13 (1) (d) (ii) and (iii) PC Act 1988 beyond reasonable doubt. It was urged that the fact that the price as demanded by M/s. ARM was restored to it by the MoS (C) overriding the advice of his subordinates, which has a financial implication of Rs.1.86 crores for the government was sufficient in itself to characterize the said action as an ?abuse? of official position for the purposes of section 13 (1) (d) (ii) and as being ?without public interest? for the purpose of Section 13 (1) (d) (iii) of the PC Act. The questions that arise in this context are in a government run essentially by an Executive with a Minister heading a Department, and where decisions involving financial implications are taken routinely, when can a decision be said to constitute an ?abuse? of official position? What can be said to be a decision that is not in =public interest? 34. The importance of the above questions becomes apparent on a comparison of the earlier provision i.e. Section 5(1) (d) PC Act, 1947 with Sections 13(1) (d) (i), (ii) and (iii) of the PC Act 1988: Section 5(1)(d) PC Act, 1947 Section 13(1)(d) (i),(ii) and (iii) PC Act, 1988 5. Criminal Misconduct (1) A public servant is said to commit the offence of criminal misconduct (a) *** (b) *** (c) *** (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage 13. Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct, (a) *** (b) *** (c) *** (d) if he, (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; One obvious change is that the words ?abusing his position as a public servant? in Section 13(1) (d) (ii) of the PC Act 1988 are not preceded by the word ?otherwise? as they were in Section 5 (1) (d) of the PC Act 1947. The intention is perhaps to indicate that Sections 13(1) (d) (ii) and (iii) constitute distinct species of offences not related to Section 13(1)(d) (i) which talks of obtaining by ?corrupt or illegal means for himself or for any other person any valuable thing or pecuniary advantage.? The word ?obtains? which is common to Section 13(1)(d) (i) to (iii) is another key element to the ?criminal misconduct?. Does it then connote the gaining of some advantage which is contrary to or not permitted by law? Then we have Section 13 (1) (d) (iii) of the PC Act 1988 which is a new species of offence for which there is no corresponding provision in the PC Act of 1947. Whether the absence of adverbs like ?wilfully?, ?fraudulently?, ?dishonestly?, ?corrupt or illegal means? to qualify the verb ?obtains? in this clause would mean that a public servant commits criminal misconduct if he while holding such office obtains for any person (and not for himself) any pecuniary advantage which is ?without any public interest?? The statute appears to offer no guidance as to what can be said to be a decision or act that is ?without public interest?. 35. The above questions do not appear to have arisen directly for consideration in any of the cases cited at the bar particularly in the context of the PC Act 1988. There is no authoritative pronouncement on the above aspects of the law. Given the importance of the questions and the implications it has for numerous other cases that may be pending at various stages, it is considered appropriate to direct that these appeals should be decided by a larger bench of two Honble judges. It is clarified that the submissions of the counsel for the parties on the evidence in the case and the correctness of the findings of the trial court have not been discussed in this order. Those will also have to be examined notwithstanding the answers to the above questions. The appeals may be placed on 9th October 2009 before the appropriate Division Bench subject to the directions of Honble the Chief Justice.? S. MURALIDHAR, J. SEPTEMBER 24, 2009?
The Facts
Mr. Sukh Ram was the Union Minister of State for Communications [MoS (C)] with independent charge for the period of 18th January 1993 to 16th May 1996. Ms. Runu Ghosh was the Director (FA-V) in the Department of Telecommunications (DoT) at that time. Mr. P. Rama Rao was the Managing Director of Advanced Radio Masts Pvt. Ltd. (M/s.ARM?).

The Department of Telecommunications (DoT?), on 27th December 1991 issued a tender for the supply of 3000 2/15 MARR Shared Radio Systems; the total value of the tender was around Rs.Rs. 106 crores. 1,000 of these systems were directed for purchase for the year 1992-93 and 2,000 for 1993-94. At the time when the tender was issued, there were two known types of MARR sets; one, a crystal version, for which a few suppliers had provisional type approval certificate?, which was already being supplied to the DoT and was in use in various Telecom circles, and the other a synthesized version, for which type approval had not yet been granted. The supply of these sets was a part of the rural telecom project aimed at increasing tele-density and enabling wider reach of telephony to rural populations in the country. Clause 1.1.10 of the tender conditions stated that ?equipment having local oscillators with synthesized frequency control and capability to withstand wide variation of input DC voltage will be preferable.?

(3.)ON 06.01.1992, a Tender Evaluation Committee (TEC?) was constituted to evaluate the bids received pursuant to the above tender. M/s.ARM, M/s. Shyam Antenna Electronics Communications Systems, New Delhi (M/s.Shyam?) and M/s. Punjab Wireless Systems Ltd. Chandigarh (M/s.Punwire?) were among the 35 entities who submitted bids. ARM submitted its bid on 15.03.1992. After scrutiny of reports of the Technical Group and the Commercial and Finance Group, (which examined the bids), the recommendations of the TEC (marked Ex. PW-3/J1 during the trial) as regards the price were that the lowest basic price at Rs.3,54,500 (inclusive of packaging and forwarding) was being offered by a bidder. It is an undisputed fact that ARM had obtained type approval for the crystal version; however type approval for its synthesized version was awaited. ARM had supplied 522 crystal version systems to DoT in the previous years. Of them, 130 had been installed and commissioned in different Telecom circles all over the country.
On 25.11.1992, M/s. Shyam wrote to the DDG (MM) (by a letter, (marked Ex. PW-3/K-9 during the trial) stating that their product i.e. the synthesized version (2/15 Shared Radio System Shyam Make) had been recommended for type approval. The letter annexed a list of features of the Shyam Make Shared Radio System, which explained its advantages over the crystal based system. Pending the finalization of the award of contract pursuant to the tender of 13th January 1992, a provisional purchase order (PO) dated 31st December 1992 for supply of 300 systems of 2/15 MARR was placed by the DoT on M/s. ARM. A similar order for 200 systems was placed on M/s. Shyam.