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2004(3) Crimes 161 (SC)
Supreme Court of India
(From Calcutta High Court)
N. Santosh Hegde & B.P. Singh, JJ.
State of West Bengal —Appellant
versus
Sadan K. Bormal & Anr. —Respondents
Criminal Appeal No. 877 of 1998
Decided on 29-4-2004
Held : 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. (Paras 18 and 19)
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Act, 1994 is intended to meet the situation arising from non-appointment of Special Judges under the Act of 1988 which repealed the Act of 1947.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 of the notice of the High Court, and therefore the judgment rendered by the High Court was per incuriam. (Para 28)
Result : Appeal allowed.
Judgment
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.
2. 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.
3. 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.
4. 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.
5. 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
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