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HIGH COURT OF CALCUTTA
Nripendra Kumar Bhattacharyya, J.
Jatindra Nath Dum
Versus
CBI/SPE Cal. through State of W. B.
Criminal Revision Nos. 636, 634, 928 & 929 of 1994
Decided On : July 19, 1995
PREVENTION OF CORRUPTION ACT, 1988 - JURISDICTION - SECTION 4, 8, 13, 26 - WEST BENGAL SPECIAL COURTS ACT, 1949 - SECTION 2, 13 - CRIMINAL LAW (AMENDMENT) ACT, 1952 - SECTION 6 - GENERAL CLAUSES ACT - SECTION 8 - CONSTITUTION OF INDIA - ARTICLE 254 - CENTRAL ACT PREVAILS OVER STATE ACT - SPECIAL JUDGE APPOINTED UNDER 1949 ACT LACKS JURISDICTION TO TRY OFFENCES UNDER 1988 ACT.
Fact of the Case:
The petitioners, accused of forgery and other offenses under the Indian Penal Code and the Prevention of Corruption Act, 1988, challenged the jurisdiction of the Special Court to try the cases, arguing that the Special Judge appointed under the West Bengal Special Courts Act, 1949 lacked the authority to try offenses under the 1988 Act.
Finding of the Court:
The court held that the Special Judge appointed under the 1949 Act lacked the jurisdiction to try offenses under the 1988 Act because: * The operation of the Criminal Law (Amendment) Act, 1952, which provided for the appointment of Special Judges to try offenses under the Prevention of Corruption Act, 1947, was excluded in West Bengal by the introduction of section 13 in the 1949 Act. * No Special Judges were appointed under section 6 of the 1952 Act in West Bengal due to the exclusion of its operation by section 13 of the 1949 Act. * The appointment of Special Judges under the 1949 Act was not protected by section 26 of the 1988 Act, which protected the appointment of Special Judges appointed under the 1952 Act. * Section 4 of the 1988 Act expressly provides that offenses under the Act shall be tried only by Special Judges appointed under section 3 of the Act or protected under section 26 of the Act. * The Central Act, being a legislation enacted by the Parliament over the same subject as contained in the State Act, prevails over the State Act in case of conflict, as per Article 254 of the Constitution of India.
Issues: 1. Whether the Special Judge appointed under the West Bengal Special Courts Act, 1949 had the jurisdiction to try offenses under the Prevention of Corruption Act, 1988. 2. Whether the provisions of the 1988 Act, including section 4, which mandates trial of offenses under the Act by Special Judges appointed under the Act, were applicable to the instant case.
Ratio Decidendi: The court applied the following legal principles in reaching its decision: * The provisions of the Prevention of Corruption Act, 1988, including section 4, which mandates trial of offenses under the Act by Special Judges appointed under the Act, are applicable to all offenses under the Act, regardless of the date of the alleged offense. * The appointment of Special Judges under the West Bengal Special Courts Act, 1949 was not protected by section 26 of the 1988 Act, and therefore, the Special Judges appointed under the 1949 Act lacked the jurisdiction to try offenses under the 1988 Act. * In case of conflict between a Central Act and a State Act on the same subject, the Central Act prevails, as per Article 254 of the Constitution of India.
Final Decision: The court allowed the revision petitions filed by the petitioners and quashed the proceedings in the Special Court cases, holding that the Special Judge lacked the jurisdiction to try the offenses under the Prevention of Corruption Act, 1988.
Nripendra Kumar Bhattacharyya, J.
By these 4 revisional applications the petitioners have challenged the Order No. 13 dated 8.3.94 passed by the learned Judge, Calcutta 3rd Special Court in Case No. 4 of 1993 and Order No. 14 dated 8.3.93 passed by the same Judge in Case No.2 of 1993 whereby the learned Judge rejected the applications of the accused persons for discharge on the ground that the said Special Court had no jurisdiction to entertain the case and to take cognizance. As all the four cases viz. 636/94, 634/94, 928/94 and 929/94 involve a common point of law all the cases are taken up together and disposed of by this Judgment.
2. In short the fact of the cases are that the accused persons in conspiracy and conivance with each other as public servant committed forgery and other offences under the Indian Penal Code namely, Ss. 120B/420/ 467/468/471 of the Indian Penal Code and also under s. 13(1)(d) read with s. 13(2) of the Prevention of Corruption Act, 1988. The CBI recorded suo moto information and investigated the cases and thereafter, submitted chargesheet against the accused persons in the months of February, March and June of 1993 for offences under Ss. 120B/420/469/471/477 of the Indian Penal Code and under Ss. 5(2), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, and the learned Special Judge took cognizance of the same.
3. According to the petitioners in the revisions, the learned Judge has neither the authority nor the competence under the law to try the cases and the order of taking cognizance is bad and accordingly the proceedings are liable to be quashed.
4. In order to appreciate the arguments of the parties a brief narration of different legislations both Central and the State, is necessary.
5. The Government of West Bengal by notification under s. 2 of the West Bengal Special Courts Act, 1949 constituted Special Courts in West Bengal and appointed Judges to preside over such Special Courts for trying offences mentioned in the schedule to the said Act.
6. The Criminal Law (Amendment) Act, 1952, a Central Act, came into force under s. 6 of that Act (which Act will be referred to hereinafter as 1952 Act) provisions were made for appointment of Special Judges for trying the offences under Prevention of Corruption Act.
7. By introduction of s. 13 of the West Bengal Special Courts Act, 1949 (which will be referred to as 1949 Act hereinafter) there was virtual exclusion of application of Criminal Law (Amendment) Act, 1952 in West Bengal. Because of such exclusion of the operation of 1952 Act by s. 13 of 1949 Act no appointment of Special Judges under s. 6 of 1952 Act were made by the Government of West Bengal for trying an offence under s. 5 of the Prevention of Corruption Act. 1947.
8. The Prevention of Corruption Act, 1988, a Central Act, came into force in 1988, Under s. 13 of that Act both the Prevention of Corruption Act, 1947 and Criminal Law (Amendment) Act, 1952 stood repealed.
9. A conjoint reading of Ss. 3 and 4 of the Prevention of Corruption Act, 1988 (which term will be referred to hereinafter as 1988 Act) clearly shows than an offence punishable under the said Act can be tried only by a Special Judge appointed under s. 3 of the said Act and not by any other Court, notwithstanding anything contained in any other law for the time being in force.
10. Section 26 of 1988 Act protects the appointment of Special Judges who were earlier appointed as Special Judges under s. 6 of the 1952 Act.
11. As has already been pointed out, no Special Judge was appointed under s. 6 of the 1952 Act in West Bengal, in view of the introduction of s. 13 in 1949 Act.
12. As such, the appointment of Special Judges under 1949 Act had not been protected by s. 26 of the 1988 Act and the Special Judges appointed by notification under s. 2 of the 1949 Act are not competent to try the cases under Prevention of Corruption Act, 1988 and in the matter of taking cognizance for trying offences punishable under 1988 Act.
13.
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