CASE NO.: Appeal (crl.) 877 of 1998 PETITIONER: State of West Bengal RESPONDENT: Sadan K. Bormal & Anr. DATE OF JUDGMENT: 29/04/2004 BENCH: N. SANTOSH HEGDE & B.P. SINGH JUDGMENT:
J U D G M E N T
B.P. SINGH, J.
The State of West Bengal has preferred this appeal by
Special Leave impugning the judgment and order of the High
Court of Judicature at Calcutta dated 21st February, 1997 in
Criminal Revision No.2578 of 1994 whereby the High Court
quashed the criminal proceedings against the respondents herein
holding that the 3rd Special Court, Calcutta appointed under the
West Bengal Criminal Law Amendment (Special Courts) Act,
1949 for trying offences under the Prevention of Corruption Act,
1947 (for short Act of 1947) had no jurisdiction to try the
respondents for the alleged offences after coming into force of the
Prevention of Corruption Act, 1988 (for short Act of 1988) w.e.f.
9th September, 1998. In substance, it held that though the said
court was earlier empowered to try offences under the Act of 1947,
since no such jurisdiction was conferred upon it afresh after
coming into force of the Act of 1988, which repealed the Act of
1947, it had no jurisdiction to try such offences after coming into
force of the Act of 1988.
The facts of the case which are not in dispute may be briefly
recapitulated. The respondents herein were employees of the State
Bank of India and at the relevant time were working in its Netaji
Subhash Road Branch, Calcutta. A criminal case was registered
against them under the provisions of the Act of 1947 as also under
Sections 120B, 420, 419, 467, 468 and 471 of the IPC. The
offences are alleged to have been committed by them in or about
the month of August, 1988. A month later, on 9.9.1988 the Act of
1988 came into force repealing the Act of 1947. A criminal case
was registered against respondents on 31.10.1988 and a
chargesheet was filed before the Court of the Metropolitan
Magistrate, Calcutta who by his order dated 12.7.1990 took
cognizance and transferred the case to the Metropolitan Magistrate
17th Court for trial. However, on objection raised by the Public
Prosecutor that the said Court had no jurisdiction to try the case as
the same was exclusively triable by the Special Court, the said case
was transferred to the Court of the 3rd Special Judge, Calcutta, a
Court empowered under the West Bengal Criminal Law
Amendment (Special Courts) Act, 1949 to try offences under the
Act of 1947. The 3rd Special Judge took cognizance on 22nd
March, 1993 when the chargesheet was filed before that Court.
The respondents herein challenged the jurisdiction of the 3rd
Special Judge to try the case, as he had not been so empowered
after coming into force of the Prevention of Corruption Act, 1988.
The objection was rejected by the Special Court whereafter the
respondents moved the High Court of Calcutta in its revisional
jurisdiction.
The sole question which arises for consideration before us is
whether an offence committed while the Act of 1947 was in force
can be tried by the Courts empowered to try offences under the Act
of 1947 after coming into force of the Act of 1988 w.e.f. 9.9.1988
repealing the Act of 1947. The case of the respondents before the
High Court was that the Special Courts had been vested with
jurisdiction to try cases under the Act of 1947 by the West Bengal
Special Courts Act, 1949. After coming into force of the Act of
1988 no such jurisdiction had been conferred on those courts and,
therefore, they could not take cognizance or try an offence under
the corresponding provisions of the Act of 1988.
It is, therefore, necessary to notice the relevant
provisions of the Prevention of Corruption Act, 1947 and the
Prevention of Corruption Act, 1988 as also other legal provisions
which have a bearing on this subject. Section 5 of the Act of 1947
defines misconduct while Section 5A enumerates the Police
Officers who shall investigate any offence punishable under
Section 5 of the Act. Section 6 of the Criminal Law Amendment
Act, 1952, a Central Act, provided for appointment of Special
Judges for trying offences under the Act of 1947, but so far the
State of West Bengal is concerned, by reason of the West Bengal
Criminal Law Amendment (Special courts) Amending Act, 1953,
Sections 5 to 10 of the Criminal Law (Amendment), Act, 1952
were made inapplicable to the State of West Bengal. Therefore,
Special Judges under the Criminal Law (Amendment) Act, 1952
were not appointed in the State of West Bengal. However, by the
West Bengal Criminal Law Amendment (Special Courts) Act,
1949, the Provincial Government was empowered by Notification
in the Official Gazette to constitute Special Courts of Criminal
Jurisdiction and from time to time by Notification in the Official
Gazette to allot cases for trial to a Special Judge. The Special
Judge had jurisdiction to try the cases for offences specified in the
Schedule to the Act which included an offence punishable under
Section 5 of the Act of 1947.
It is thus apparent from the above provisions that the offence
under Section 5 of the Act of 1947 was made exclusively triable by
a Special Judge appointed under the West Bengal Criminal Law
Amendment (Special Courts) Act, 1949. It is not in dispute that
the 3rd Special Judge before whom the respondents had been put up
for trial was a Court vested with such jurisdiction.
The Prevention of Corruption Act, 1988 came into effect
from 9th September, 1988. Section 3 of the Act of 1988 empowers
the Central Government or the State Government by Notification
in the Official Gazette to appoint as many Special Judges as may
be necessary for such area or areas or for such case or group of
cases as may be specified in the Notification to try the offences
mentioned therein, which includes any offence punishable under
the Act of 1988. Section 4 makes such cases exclusively triable by
a Special Judge. Section 5 confers jurisdiction on the Special
Judge to take cognizance of offences without the accused being
committed to him for trial and, in trying the accused persons to
follow the procedure prescribed by the Code of Criminal
Procedure, 1973 for the trial of warrant cases by the Magistrates.
Section 26 and 30 of the said Act are relevant which read as
follows:-
“Sec. 26 – Special Judges appointed under Act
46 of 1952 to be special Judges appointed under
this Act Every special Judge appointed under the
Criminal Law Amendment Act, 1952 for any area
or areas and is holding office on the
commencement of this Act shall be deemed to be a
special Judge appointed under section 3 of this Act
for that area or areas and, accordingly, on and from
such commencement, every such Judge shall
continue to deal with all the proceedings pending
before him on such commencement in accordance
with the provisions of this Act.”
“Sec. 30 Repeal and saving : – (1) The
Prevention of Corruption Act, 1947 (2 of 1947)
and the Criminal Law Amendment Act, 1952 (46
of 1952) are hereby repealed.
(2) Notwithstanding such repeal, but without
prejudice to the application of section 6 of the
General Clauses Act, 1897 (10 of 1897), anything
done or any action taken or purported to have been
done or taken under or in pursuance of the Acts so
repealed shall, insofar as it is not inconsistent with
the provisions of this Act, be deemed to have been
done or taken under or in pursuance of the
corresponding provisions of this Act.”
As earlier noticed in the State of West Bengal no Special
Judge was appointed under the Criminal Law Amendment Act,
1952 to try offences under the Act of 1947. However, Special
Judges were appointed under the West Bengal Criminal Law
Amendment (Special Courts) Act, 1949 to try offences under the
Prevention of Corruption Act of 1947.
The High Court took the view that Section 3 and 4 of the
Act of 1988 clearly provided that an offence punishable under the
Act of 1988 was triable only by a Special Judge appointed under
Section 3 of the said Act and not by any other Court,
notwithstanding anything contained in any other law for the time
being inforce. Section 26 of the Act of 1988 only protected the
appointment of Special Judges under Section 5 of the Criminal
Law Amendment Act, 1952 and not the appointment of Special
Judges made under any other Act such as the West Bengal
Criminal Law Amendment (Special Courts) Act, 1949. The Act of
1988 being a Central Legislation had overriding effect over the
provisions of the West Bengal Criminal Law Amendment (Special
Courts) Act, 1949. The learned Judge following earlier decisions
of the Court held that taking cognizance of an offence under the
provisions of the Act of 1988 by a Special Judge appointed under
Section 2 of the West Bengal Criminal Law (Special Courts) Act,
1949 was not permissible in law and, therefore, the order taking
cognizance was bad, illegal and without jurisdiction.
Reliance was placed by the appellant on Notification
No.6614-J dated 23rd April, 1993 issued by the Government of
West Bengal for appointment of Special Judges under Sub-section
(1) of Section 3 of the Act of 1988. By the said notification all the
Judges or Special Courts appointed under Sub-section (2) of
Section 2 read with sub-section (1) of Section 9 of the West Bengal
Criminal Law Amendment (Special Courts) Act, 1949 and
functioning as such Judges were appointed as Special Judges under
the Act of 1988 for the purpose of trial of offences as enumerated
in Clauses (a) and (b) of sub-section (1) of Section 3 of the Act of
1988 in respect of the areas of their respective Courts. The
contention of the appellant was rejected by the learned Judge
holding that the Notification which in effect gave retrospective
operation to Section 3 of the Act of 1988 was not legal and
permissible in law, and that if such effect had to be given it could
be done by a Central Legislation, and not by a Government
Notification, since the Notification could not override the
provisions of law. In this view of the matter the High Court
allowed the Revision Petition and quashed the criminal proceeding
against the respondents.
When the appeal was first argued before us on 6th April,
2004, it was argued on the basis of the provisions of the various
statues noticed by the High Court, and counsel for the respondents
submitted before us that the proceeding had been rightly quashed
by the High Court for lack of jurisdiction in the Court trying them.
On the other hand, counsel for the appellant – State submitted that
the High Court was in error in quashing the proceeding. Relying
upon the Notification of 23.4.1993, it was contended that in any
event the Courts had been vested with jurisdiction to try offences
under the Act of 1988 by the said Notification. In the alternative,
it was submitted that even if the Court came to the conclusion that
no court had been vested with jurisdiction to try offences under the
Act of 1988, rather than quashing the prosecution the same could
have been kept in abeyance till such time as special courts were
empowered to try such offences. It is the submission of the
counsel for the State that an offence committed under the Act of
1947 does not stand obliterated by the repeal of the Act of 1947,
and indeed it could be tried under the corresponding provisions of
the Act of 1988. The only question was about the jurisdiction of
the Court to try an offence under the Act of 1947 after coming into
force of the Act of 1988.
Later, it was brought to our notice by the counsel for the
appellant that the West Bengal Legislature has enacted an Act
known as the Prevention of Corruption (West Bengal Amendment)
Act, 1994. It was published in the Calcutta Gazette on 23rd
December, 1999. The said enactment was not brought to the
notice of the High Court, nor to our notice when the matter was
first argued. We, therefore, reheard the matter and afforded an
opportunity to counsel for the parties to make their
submissions on the basis of the new enactment brought to our
notice.
By Section 2 of the Prevention of Corruption (West
Bengal Amendment) Act, 1994 West Bengal Act No.LVI of
1994, the Prevention of Corruption Act, 1988 in its application
to the State of West Bengal stands amended for the purpose
and in the manner provided under the Act. In the Act of 1988,
Section 26A has been inserted which is as follows:-
“26A- Judges appointed to preside over Special
Courts under West Bengal Act 21 of 1949 to be
deemed to be Special Judges appointed under
this Act.- (1) Every Judge appointed to preside
over a Special Court under the West Bengal
Criminal Law Amendment (Special Courts) Act,
1949 (West Ben. Act 21 of 1949), for any area or
areas and holding office on the commencement of
this Act shall be deemed to be a special Judge
appointed under section 3 of this Act for that area
or areas and, accordingly, on and from such
commencement every such Judge shall continue to
deal with all the proceedings pending before him
on such commencement in accordance with the
provisions of this Act.
(2) Every Judge appointed to preside over a
Special Court under the West Bengal Criminal
Law Amendment (Special Courts) Act, 1949, for
any area or areas, holding office on any date after
the commencement of this Act but before the
commencement of the Prevention of Corruption
(West Bengal Amendment) Act, 1994 (hereinafter
referred to as the said date) and purporting to act
under the provisions of this Act, shall be deemed
to be a Special Judge appointed under section 3 of
this Act, for that area or areas and, accordingly, on
and from the said date, every such Judge shall
continue to deal with all the proceedings pending
before him on the said date in accordance with the
provisions of the Act”.
Section 4 of the West Bengal Amendment Act, 1994
provides as follows:-
“4. Saving and validation
Notwithstanding anything contained in the
principal Act or in any other law for the time being
in force, any order passed, any evidence recorded,
or any action taken under the principal Act by a
Judge of Special Court appointed under the West
Bengal Criminal Law Amendment (Special
Courts) Act, 1949, and purporting to act under the
provisions of the principal Act, before the
commencement of this Act shall be deemed to
have been validly passed, recorded or taken under
the principal Act as amended by this Act as if this
Act were in force when such order was passed or
such evidence was recorded or such action was
taken”.
Sub-section (1) of Section 26A relates to Judges appointed
to preside over Special Courts under the West Bengal Special
Courts Act, 1949 holding office on the commencement of the Act
of 1988. They are deemed to be Special Judges appointed under
Section 3 of the Act of 1988 and, accordingly, on and from such
commencement they shall continue to deal with all the proceedings
pending before them on commencement of the Act of 1988 in
accordance with the provisions of the Act of 1988.
Sub-section (2) of Section 26A relates to Judges appointed
under the West Bengal Special Courts Act, 1949 and holding
office on any date after the commencement of the Act of 1988 but
before the commencement of the Amendment Act of 1994. Such
Special Judges purporting to act under the provisions of the Act of
1988 are deemed to be Special Judges appointed under Section 3
of the Act of 1988. Accordingly, on and from the said date, every
such Judge shall continue to deal with all the proceedings pending
before him on the said date in accordance with the provisions of
the Act of 1988.
It thus appears that sub-section (1) in its application is
confined to a Special Judge appointed under the West Bengal
Special Courts Act, 1949 before the date of commencement of the
Act of 1988, while sub-section (2) confers jurisdiction on a Judge
appointed under the West Bengal Special Courts Act, 1949 on any
date after the commencement of the Act of 1988 but before the
commencement of the Amendment Act of 1994. In both cases
they are deemed to be Special Judges appointed under Section 3 of
the Act of 1988 and are empowered to continue to deal with all the
proceedings pending before them in accordance with the
provisions of the Act of 1988.
Section 4 of the West Bengal Amendment Act, 1994 begins
with a non obstante clause and seeks to save and validate any order
passed, any evidence recorded or any action taken under the Act of
1988 by a Judge of Special Court appointed under the West Bengal
Special Courts Act, 1949 while purporting to Act under the
provisions of the Act of 1988 before the commencement of the
West Bengal Amendment Act of 1994. It is further provided that
all such orders passed, evidence recorded or actions taken shall be
deemed to have been validly passed, recorded or taken under the
Act of 1988 as amended by the West Bengal Amendment Act,
1994 as if the latter Act was in force when such action was taken.
We have, therefore, no doubt that the West Bengal
Amendment Act, 1994 by inserting Section 26A in the Act of 1988
has created a legal fiction whereby a Special Judge appointed
under the West Bengal Special Courts Act, 1949 even before the
commencement of the Act of 1988, or thereafter, but before the
commencement of the West Bengal Amendment Act, 1994, is
deemed to be a Special Judge appointed under Section 3 of the
Prevention of Corruption Act, 1988 and consequently empowered
to continue to deal with all the proceedings pending before him on
the relevant date in accordance with the provisions of the Act.
Section 4 of the West Bengal Amendment Act, 1994 saves and
validates all actions taken by such Special Judges purporting to act
under the provisions of the Prevention of Corruption Act, 1988 as
if the West Bengal Amendment Act, 1994 was in force when such
order was passed or such evidence was recorded or such action
was taken. So viewed, the provisions of the West Bengal
Amendment Act, 1994 provide a complete answer to the
contentions raised before us by learned counsel for the
respondents.
In view of the provisions of the West Bengal Amendment
Act of 1994, we have no doubt that the Special Judge trying the
accused/respondents and who was appointed under the West
Bengal Special Courts Act, 1949 and purported to act under the
Act of 1988, is now vested with jurisdiction to try cases under the
Prevention of Corruption Act, and by operation of law all actions
taken by him purporting to act under the Act of 1988 are saved and
validated as if the Amendment Act of 1994 were in force when
such an order was passed or such evidence was recorded or such
action was taken by him. Giving effect to the legal fiction we must
imagine that Section 26A stood incorporated in the Act of 1988
when it came into effect.
Counsel for the respondents submitted that the fiction
created by the West Bengal Amendment Act, 1994 should not be
given an extended operation. In considering such a statute, the
Court must consider what is the fiction created, what is its purpose,
and what is its effect. He further submitted that on a fair reading
of the provisions of the Act of 1988 as amended by the West
Bengal Amendment Act of 1994, only those proceedings are saved
which were pending before the Special Judge on the date of
commencement of the 1988 Act i.e. on 9th September, 1988. In
this case on the relevant date no proceeding was pending before
the Special Judge as the matter was still under investigation. He,
further, submitted that it is not permissible to read a fiction upon a
fiction in a deeming statute. According to him, a statute can create
only one fiction and therefore, it is not permissible to interpret the
provisions of the Act of 1988 as creating two fictions, firstly that
the Special Judges are deemed to have been appointed under
Section 3 of the Act of 1988, and secondly, to deem that all actions
taken by them were in accordance with corresponding provisions
of the Act of 1988 as if the West Bengal Amendment Act 1994
were in force when such actions were taken.
According to him, any offence committed before the Act of
1988 came into effect and in respect of which no proceeding was
pending before a Special Judge, must lapse and the accused can not
be tried for that offence at all. Counsel has placed reliance upon
three judgments of this Court reported in Mancheri Puthusseri
Ahmed and Ors. Vs. Kuthiravattam Estate Receiver (1996) 6 SCC
185; State of Maharashtra Vs. Laljit Rajshi Shah & Ors. (2000) 2
SCC 699 and Commissioner of Income-tax (Central) Calcutta Vs.
Moon Mills Ltd. AIR 1966 SC 870. We, however, find nothing in
the aforesaid decisions to support the submission urged on behalf
of the respondents.
The submission that only those cases could be tried by the
Special Judges which were actually pending before them on the
date the Act of 1988 came into effect, proceeds on an extraneous
assumption and ignores the clear provisions of sub-section (2) of
Section 26A of the Act of 1988 inserted by the West Bengal
Amendment Act of 1994, which conferred validity on the actions
of Special Courts appointed even after the Act of 1988 coming into
effect.
Even if, it is assumed for the sake of argument (though the
factual position in this case is different) that the Act of 1947
having been repealed by the Act of 1988, and no Special Judge
having been appointed under Section 3 of the Act of 1988 to try
offences under the Prevention of Corruption Act, 1947, the result
would not be that the offences committed stood abated and
consequently the offenders could not be tried at all. In such a
situation, the trial of the offenders had to be postponed till such
time as Special Courts were created to try those offences in
accordance with law. In such a situation the High Court ought to
have kept in abeyance the trial till jurisdiction was conferred upon
a competent Court to try the accused in accordance with law. This
Court had occasion to consider such a situation in State by Central
Bureau of Investigation Vs. Sh. S. Bangarappa (2000) Supp. 4
SCR. This Court observed:
“That apart, if the High Court found that XXI City
Civil and Sessions Judge, Bangalore is not
empowered to try such cases, how could that be a
ground to quash the criminal proceedings? At the
worst that would be a ground to transfer the case
from that Court to the Court having jurisdiction to
try the offence, and if no Court has been
empowered till then, the criminal proceedings can
be kept in abeyance till the Government issues a
notification conferring such power on any other
Court”.
So far as interpretation of a provision creating a legal fiction
is concerned, it is trite that the Court must ascertain the purpose for
which the fiction is created and having done so must assume all
those facts and consequences which are incidental or inevitable
corollaries to the giving effect to the fiction. In construing a
fiction it must not be extended beyond the purpose for which it is
created or beyond the language of the Section by which it is
created. It cannot be extended by importing another fiction. These
principles are well settled and it is not necessary for us to refer to
the authorities on this subject. The principle has been succinctly
stated by Lord Asquith in East End Dwelling Co. Ltd. V. Finsbury
Borough Council, (1951) 2 ALL ER 587, when he observed :-
“If you are bidden to treat an imaginary state of
affairs as real, you must surely, unless prohibited
from doing so, also imagine as real the
consequence and incidents which, if the putative
state of affairs had in fact existed, must inevitably
have flowed from or accompanied it-. The statute
says that you must imagine a certain state of
affairs; it does not say that having done so, you
must cause or permit your imagination to boggle
when it comes to the inevitable corollaries of that
state of affairs”.
The above principle has been approved by this Court in
large number of decisions.
Applying these principles to the provisions of the West
Bengal Amendment Act of 1994 which inserts with retrospective
effect Section 26A in the Act of 1988, we find that the Legislature
was aware of the lacuna created by failure to appoint Special
Judges to try offences under the Prevention of Corruption Act,
1988. Though, offences had been registered, objections were
being taken before the Courts concerned as to their jurisdiction to
try the accused and such objections had been upheld in some cases.
It, therefore, became imperative for the Legislature to step in and
confer jurisdiction upon Special Courts to try offences under the
Act of 1988. Though Special Judges had been appointed in the
State of West Bengal under the West Bengal Special Courts Act,
1949, they could not take cognizance and try offences after the Act
of 1988 came into effect, since the Act of 1947 stood repealed and
Section 26 of the Act of 1988 did not save the Special Courts
created under the West Bengal Special Courts Act, 1949. It was
with this in view that the West Bengal Legislature enacted the
West Bengal Amendment Act of 1994 inserting Section 26A in the
Act of 1988. Since, the Special Courts continued to exercise
jurisdiction over the matters brought before them, the Legislature
by law conferred validity on such actions by a deeming provision.
The submission that a law can create only a single fiction
must also be repelled. This Court in Yellappagouda Shankargouda
Patil Vs. Basangouda Shiddangouda Patil, AIR 1960 SC 808; held
that the Legislature may sometimes create a chain of fictions by
the same Act or by succeeding Acts. If the Legislature is
competent to enact a provision creating a legal fiction, we see no
reason why it cannot create a chain of fictions if necessity arises.
It is true that in interpreting a provision creating a legal fiction it is
not open to the Court to import another fiction.
In the instant case, the amendment of the Act of 1988 by the
West Bengal Amendment Act, 1994 is intended to meet the
situation arising from non-appointment of Special Judges under
the Act of 1988 which repealed the Act of 1947. With a view to
meet this situation the law deemed, subject to the conditions
enumerates therein, the Special Judges appointed under the West
Bengal Special Courts Act, 1949 to have been appointed under
Section 3 of the Act of 1988. With the above purpose in mind it
was further deemed that any order passed, evidence recorded, or
action taken purportedly under the Act of 1988, shall be deemed to
have been validly passed recorded or taken under the Act of 1988
as if the Act of 1988 as amended by the West Bengal Amendment
Act, 1994 were in force at that time. We, therefore, hold that the
Prevention of Corruption (West Bengal Amendment) Act, 1994 by
amending the Act of 1988 inserting Section 26A therein has vested
jurisdiction in the Special Courts appointed under the West Bengal
Criminal Law Amendment (Special Courts) Act, 1949 subject to
conditions laid down therein, to try offences under the Prevention
of Corruption Act, 1988. All actions taken by them are validated
as if the West Bengal Amendment Act, 1994 were in force when
such action was taken. Unfortunately, the aforesaid enactment
which governs the case in hand was not noticed by the High Court.
Counsel for the parties were also remiss in not bringing the West
Bengal Amendment Act of 1994 to the notice of the High Court,
and therefore the judgment rendered by the High Court was per
incuriam.
We, therefore, allow this appeal, set aside the judgment and
order of the High Court quashing the proceeding before the 3rd
Special Judge, Calcutta and direct the said Court to proceed with
the trial in accordance with law.
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