A bench of Justice Brijesh Sethi continued to hear the arguments submitted by Senior Advocates Atmaraam Nadkarni, N. Hariharan, and Advocate Vijay Aggarwal on the point of a grant of “leave to appeal” in the pleas against the acquittal of all accused in the 2G case.
Nadkarini started his submissions by stating that Section 13(1)(d) of the Prevention of Corruption Act had been amended and substituted with another Section. Consequently, by an Order 21.12.2017, the accused had been acquitted and there was no relationship between the prosecutor and the accused. “In July 2018, the Section is amended. This becomes relevant because though I am not a public servant, I’ve been charged with conspiracy. The CBI started the investigation in January 2020, but they haven’t referred to the amendment”, submitted Nadkarni.
He referred to two maxims of criminal law- “whatever is not a crime, cannot be made an offense” and “A person cannot be touched if that is not a crime on that date”. Nadkarni thereafter submitted that there were no pending proceedings and the only pending thing was the leave to appeal, and an application to leave to appeal did not come under pending proceedings.
“My prayer is that,
- This very point is pending before the Division Bench, therefore the matter should be referred to DB The validity of the amendment is pending before the SC
- For arguendo purposes, my submissions would be on merits of the Application.”
With regard to the Amendment Act, it was submitted by Nadkarni that “there is no repeal and saving clause. You may note that the intention of the legislature is evident from the provisions of the Act. They had in their wisdom chosen to not provide for something that they usually provide in others. It’s not like they were not aware. They were aware of the pending proceedings and prosecutions.”