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PETITIONER:

NAR BAHADUR BHANDARI ETC.

Vs.

RESPONDENT:

STATE OF SIKKIM AND OTHERS

DATE OF JUDGMENT: 13/05/1998

BENCH:

M. SRINIVASAN, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

SRINIVASAN, J.

Leave granted.

The common question in these petitions relates to the

competence of Special Judge (P.C. Act) Sikkim to try the

cases registered against the petitioners herein under

Section 5(2) read with Section 5(1)(e) of the Prevention of

Corruption Act. 1947 corresponding to Section 13(2) read

with Section 13(1)(e) of the prevention of Corruption Act,

1988. The petitioner in S.L.Ps 146-148 of 1998 is the third

respondent in S.L.Ps 149-150 of 1998 and the petitioner in

the later petitions is the third respondent in S.L.Ps 146-

148. The petitioner in the earlier petitions was the Chief

Minister of Sikkim and the petitioner in the later petitions

was a Member of Indian Administrative Service(Sikkim cadre)

working at the relevant time as a Secretary to the Rural

Development Department, Government of Sikkim.

2. Cases were registered against the petitioners by C.B.I.

on 26.5.84 and 7.8.84 under Section 5(2) read with Section

5 (1)(e) and Section 5 (2) read with Section 5 (1)(d) of

the prevention of Corruption Act 1947. On 7.1.87 the State

of Sikkim issued a Notification withdrawing the consent

given under Section 6 of the Delhi Special Police

Establishment Act, 1946 to the C.B.I. for exercising powers

and jurisdiction the State of Sikkim for investigations of

offences punishable under the provisions of the Indian Penal

Code specified therein as well as offences under the

Prevention of Corruption Act, 1947. The said Notification

was challenged in a writ petition filed under Article 32 of

the Constitution of India. This Court by its judgment dated

March 29, 1994 allowed the writ petition and declared that

the Notification dated 7.1.87 withdrawing the consent given

by the Government of Sikkim earlier operated only

prospectively and the said withdrawal would not apply to

cases which were pending investigation on the date of

issuance of the said Notification. The Court observed that

the Notification dated 7.1.87 did not preclude the C.B.I

from submitting the report in the competent court under

Section 173 Cr.P.C. on the basis of the investigation

conducted in RC 5/84- CIU (A) and RC 8/84- CIU (A). The

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judgment of this Court is reported in Kazi Lhendup Dorji

Versus Central Bureau of Investigation and others 1994 Supp

(2) S.C.C. 116.

3. It should be mentioned here that even before the said

writ petition was filed, the prevention of Corruption Act,

1947 (hereinafter referred to as 'The Act of 1947)' ) was

repealed and the prevention of Corruption Act, 1988

(hereinafter referred to as 'The Act of 1988') came into

force. The Act of 1947 was extended to the State of Sikkim

with effect from 1.9.76. The Delhi Special Police

Establishment Act 1946 had been extended to the State of

Sikkim with effect from 15.5.76. The Act of 1988 became

applicable to the State of Sikkim from the date it came into

force namely 9.9.88. On 13.9.1994 the following Acts were

made applicable to the State of Sikkim.

1. Cr. P.C. 1973

2. Indian Penal Code 1860

3. Indian Evidence Act 1972

On the same day, the State of Sikkim issued

Notification under Section 3 of The Act of 1988 appointing

Shri A. P. Subba as Special Judge for trying cases referred

to in clauses (a) and (b) of Section 3(1) of the said Act

for the Whole of the State of Sikkim.

4. On 14.9.94 the C.B.I. filed its report before the said

Special Judge as permitted by this Court in its judgment

dated March 29,1994. The Special Judge passed a detailed

order on 11.8.95 holding that on the basis of materials on

record he was of the view that prima facie there was ground

for presuming that the accused had committed an offence

punishable under Section 5(2) read with Section 5 (1)(e) of

the Act of 1947 corresponding to Section 13(2) read with

Section 13 (1)(e) of the Act of 1988 and accordingly

charges had to be framed. Thereafter the petitioners raised

a preliminary objection to the competence of the Special

Judge to try the aforesaid offences. After hearing arguments

on both sides the special Judge passed on order on 1.7.97

upholding the preliminary objection and expressing the view

that the Court not having been constituted under Criminal

Law (Amendment) Act, 1952 hereinafter referred to as the

'Act of 1952' lacked jurisdiction to take cognizance of and

to try the offences in the present case. Consequently, it

held that further proceedings in both the cases stood

dropped and the accused be discharged from their respective

bail bonds.

5. That other of the Special Judge was challenged before

the high Court in Criminal Revision Nos. 1,3 and 4 of 1997

by the State and the C.B.I. The learned Chief Justice of the

High Court on 24.9.1997 allowed the revision petitions and

held that the Special Judge appointed under Section 3 of the

act of 1988 had jurisdiction entertain the chargesheet filed

under the provisions of the Act of 1988 with regard to the

offences committed under the Act of 1947 and directed the

special Judge to dispose of the criminal case pending on

his file in accordance with law. It is that order of the

High Court which is challenged in these S.L.Ps.

6. Learned counsel for the petitioner in S.L.Ps 146-148 of

1998 has contended as follows:- Before the passing of the

Act 1988 there were two enactments which dealt with the

offences in question, namely, the Act of 1947 and the Act of

1952. The Act of 1952 provided for constitution of Special

Courts to try the offences under the Act of 1947 and

excluded the jurisdiction of other Courts. The Act of 1952

was not extended to the State of Sikkim. No special Court

was constituted in the State of Sikkim to try the offences

under the Act of 1947. Consequently, when the Act of 1988

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was passed repealing both the Act of 1947 and the Act of

1952 and bringing into force a consolidated and amalgamated

Legislation providing not only for the ingredients of the

offences but also for the constitution of Special Courts to

try the same, the Special Court constituted under Section 3

of the Act of 1988 has jurisdiction only to try the offences

punishable under the said act. Such a Court cannot try the

offences punishable under the Act of 1947 unless the

proceeding in relation to such offences had commenced before

a Special Judge appointed under the Act of 1952. In the

absence of such Special Judge under the Act of 1952 in the

State of Sikkim, Section 26 of the Act of 1988 is not

applicable and the present proceeding will not be governed

thereby. Section 30 of the Act of 1988 is not applicable to

the facts of the case in as much as the repeal under Sub-

sec. (1) of Section 30 is a joint repeal of both the Acts,

namely, the Act of 1947 and the Act of 1952. sub--sec. (2)

of Section 30 will come into play only if sub-sec. 91) is

applicable. In the State of Sikkim the Act of 1952 was not

in force so as to be repealed by sub-sec (1) of Section 30

and consequently sub-section 2 will not apply. It is also

contended the Section 6 of the General Clauses Act will not

help the prosecution in the present case in as much as the

provisions of the Act of 1988 indicate a different intention

as contemplated by the first part of the said Section 6.

According to the learned counsel if the provisions of the

Act of 1988 are perused, it will be seen that the

legislative intention is not to make Section 6 of the

General Clauses Act applicable to the repeal of Act of 1947.

In this connection reliance is placed on the judgment of

this Court in State of Punjab Versus Mohar Singh (1955) 1

S.C.R. 893.

7. Learned counsel for the petitioners in S.L.Ps 149-150

of 1998 has contended that Section 30(2) of the Act of 1988

can apply only if a proceeding had been initiated before the

said Act came into force so that it could be continued and

in the present case the proceeding was instituted only after

the said Act came into force and consequently the Special

Court had no jurisdiction. It is also contended by him that

the prosecution had conceded before the High Court that the

alleged offence is punishable under Section 5(1) (d) and 5

(2) of the Act of 1947 and not under the Act of 1988 and

therefore the special court has no jurisdiction.

8. Per contra, learned Additional Solicitor General has

contended that Section 3 of the Act of 1988 has to be read

along with Section 30(2) of the said Act and that it will be

clear therefrom that the Special Court is competent to try

the offences under the Act of 1947 as well as the Act of

1988. According to him a legal fiction is created by Section

30(2) by which the Act of 1988 is deemed to have been in

force at the time when the offences were committed and the

investigation done. Reliance is placed by him on the

judgment of this Court in B.N. Kohli and others Versus State

of Uttar Pradesh and others 1966 (2) S.C.R. 158. Our

attention is also drawn to the judgment of this Court in

C.B.I versus Subodh Kumar Dutta and another (1997) 10 S.C.C.

567 and it is contended that the matter is concluded by the

judgment in that case.

9. The contentions urged on behalf of the petitioners are

based on a wrong understanding of provisions of the Act of

1988. No doubt, section 3 of the said Act refers only to

offences punishable under the Act and the Special Courts

constituted under Section 3 will have jurisdiction to try

the offences punishable under the Act but Section 3 cannot

be read in isolation. It should be read along with other

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provisions of the Act to understand the scope thereof.

Section 30(1) of the Act of 1988 repeals the Acts of 1947

and 1952. that does not mean that any offence which was

committed under the At of 1947 would cease to be triable

after the repeal of the said Act. Normally Section 6 of the

General Causes Act would come into play and enable the

continuation of the proceedings including investigation as

if the repealing Act had not been passed. As per the

provisions of Section 6 of the General Clauses Act the

position will be as if the Act of 1947 continues to be in

force for the purpose of trying the offence within the

meaning of the said Act. Section 6 of the General Causes Act

however makes it clear that the said position will not

obtain if a different intention appears in the repealing

Act. In the present case, the Act of 1988 is the repealing

Act. Sub-sec. (2) of Section 30 reads as follows:

(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 purported to

have been done or taken under or in

pursuance of the Acts so repealed

shall, in so far 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 provision of

this Act."

The said sub-section while on the one hand ensures that the

application of Section 6 of the General Clauses Act is not

prejudiced, on the other it expresses a different intention

as contemplated by the said Section 6. The last part of the

above sub-section introduces a legal fiction whereby

anything done or action taken under or in pursuance of the

Act of 1947 shall be deemed to have been done or taken under

or in pursuance of corresponding provisions of the Act of

1988. That is, the fiction is to the effect that the Act of

1988 had come into force when such thing was done or action

was taken.

10. This aspect of the matter was clearly elucidated by the

Constitution Bench in B. N. Kohli's case(supra). In that

case Ordinance 27/49 repealed Ordinance 12/49. The relevant

provision in the repealing Ordinance was sub-sec.(3) of

Section 58. That read as follows:

" The repeal by this Act of

the Administration of Evacuee

property Ordinance, 1949 or the

Hyderabad Administration of Evacuee

property, Regulation or of any

corresponding law shall not affect

the previous operation of that

Ordinance, Regulation or

Corresponding law, and subject

thereto, anything done or any

action taken in the exercise of any

power conferred by or under that

ordinance, Regulation or

corresponding law, shall be deemed

to have been done or taken in the

exercise of the powers conferred by

or under this Act as if this act

were in force on the day on which

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such thing was done or action was

taken."

11. While construing the said sub-section, the Court

observed as follows:

"... By the first part of S.58(3)

repeal of the statutes mentioned

therein did not operate to vacate

things done or action taken under

those statutes. This provision

appears to have been enacted with a

view to avoid the possible

application of the rule of

interpretation that where statute

expires or is repealed, in the

absence of a provision to the

contrary, it is regarded as having

never existed except as to matters

and transactions past and closed:

(see Surtees versus Ellison (1829)

9 B & C 752). This rule was altered

by an omnibus provision in General

Clauses Act, 1897, relating to the

effect of repeal of statutes by any

Central Act or Regulation. By s.6

of the General Clauses Act, it is

provided, in so far as it is

material, that any; central Act of

Regulation made after the

commencement of the General Clauses

Act or Regulation made after the

commencement of the General Clauses

Act repeals any enactment, the

repeal shall not affect the

previous operation of any enactment

so repealed or anything duly done

or suffered thereunder, or affect

any right, privilege, obligation or

liability acquired, occurred or

incurred under any enactment so

repealed or affect any

investigation legal proceeding or

remedy in respect of any such

right, privilege, obligation,

liability, penalty, forfeiture or

punishment as aforesaid; and any

such investigation, legal

proceeding or remedy may be

instituted, continued or enforced,

any such penalty forfeiture or

punishment may be imposed. as if

the Repealing Act or Regulation had

not been passed. But the rule

contained in Section 6 applies only

if a different intention does not

appear, and by enacting Section

58(3) the Parliament has expressed

a different intention, for whereas

the General Clauses Act keeps alive

the previous operation of the

enactment repealed, and things done

and duly suffered, the rights,

privileges, obligations or

liabilities acquired or incurred,

and authorities the investigation,

legal proceeding and remedies in

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respect of rights, privileges,

obligations, liabilities,

penalties, forfeitures and

punishment and if the repealing Act

or Regulation had not been passed,

Section 58 (3) of Act 31 of 1950

directs that things done or actions

taken in exercise of power

conferred by the repealed statutes

shall be deemed to be done or taken

under the repealing Act as if that

latter Act were in force on the day

on which such thing was done or

action was taken. The rule so

enunciated makes a clear departure

from the rules enunciated in

Section 6 or the General Clauses

Act, 1897. By the first part of

Section 58(3) which is in terms

negative, the previous operation of

the repealed statutes survives the

repeal. Thereby matters and

transactions past and closed remain

operative; so does the previous

operation of the repealed statute.

But as pointed out by this Court in

Indira Sohanlal's case (1955) 2

S.C.R. 1117 at P.1133, the saving

of the previous operation of the

repealed statute. But as pointed

out by this Court in Indira

Sohanlal's case (1955) 2 S.C.R.

1117 at P. 1113, the saving of the

previous operation of the repealed

law is not to be read as saving the

future operation of the previous

law. The previous law stands

repealed, and it has not for the

future the partial operation as it

is prescribed by Section 6 of

General Clauses Act. All things

done and actions taken under the

repealed statute are deemed to be

done or taken in exercise of powers

conferred by or under the repealing

Act, as if that Act were in force

on the day on which that thing was

done or action was taken. it was

clearly the intention of the

parliament that matters and

transactions past and closed were

not to be deemed vacated by the

repeal of the statute under which

they were done. The previous

operation of the statute repealed

was also affirmed expressly but

things done or actions taken under

the repealed statute are to be

deemed by fiction to have been

donor taken under the repealing

Act."

12. On the basis of the above reasoning the Court held that

the Custodian- General had jurisdiction to entertain a

revision against an order passed by the Deputy Custodian of

the Evacuee property under Section 6 of Ordinance 12/49

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which was repealed by Ordinance 27/49.

13. Applying the said ratio of the Constitution Bench, we

arrive at the conclusion that the Special Court constituted

under Section 3 of the Act of 1988 has competence to try the

offences under the Act of 1947.

14. The judgment in State of Punjab versus Mohar singh

(supra) relied on by the learned counsel for the petitioner

does not help him in any manner. The Court has only held in

that case that in order to ascertain the different intention

within the meaning of section 6 of the General Clauses Act

the Court has to read the provisions of repealing enactment.

15. In our view, the matter has been set at rest by the

judgment of this Court in C.B.I. Versus Subodh Kumar Dutta

and another (supra). That was an appeal by the C.B.I. from

the judgment of the High Court of Calcutta allowing a

criminal revision filed by the respondent therein quashing

the proceedings of the Special Court constituted under the

West Bengal Special Courts Act, 1950 for trying the offences

under the Act of 1947. A case was registered in November

1987 by the C.B.I. before the special Court and cognizance

of the offence was taken by the Special Judge on 9.7.88.

When the Act of 1988 came into force on 9.9.88 an objection

was taken to the competence of a Special Court to continue

with the case. A Criminal Revision Petition was filed by the

accused before the High Court seeking to quash the

proceeding before the Special Judge. The High Court accepted

the contention of the accused and opined that Section 26 of

the Act of 1988 saved only proceedings before the Special

Courts constituted under the Act of 1952 and not other

Special Courts. Consequently the proceeding was quashed.

16. Reversing that judgment of the High Court this Court,

held that by virtus of the provisions of sub-sec. (2) of

Section 30 the proceeding initiated under the Act of 1947

shall be deemed to have been taken under the corresponding

provisions of the Act of 1988 and consequently the Court had

jurisdiction to continue the Same. The relevant passage in

the judgment reads as follows:

" A bare look at the provisions of

sub-sec. (2) of Section 30 shows

that anything done or any action

taken or purported to have been

taken under or in pursuance of the

prevention of Corruption Act, 1947

shall be deemed to have been taken

under or in pursuance of the

corresponding provision of the

Prevention of Corruption Act 1988.

In view of this specific provision,

cognizance of the offence taken by

the Special Court stood saved. It

appears that the attention of the

learned Single Judge of the High

Court was not invited to Section 30

(supra) or had it been so invited,

we have no doubt that the

proceedings which were saved by the

1988 Act would not have been

quashed. The learned Single Judge

has only deferred to Section 26 of

the 1988 Act and we agree that

under that Section, the cognizance

taken by the Special Court was not

saved. Section 26 of the 1988 Act

has no application to this case.

The order of the High Court in view

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of the clear provisions of Section

30 (supra) cannot be sustained and

we, therefore, accept this appeal

and set aside the order of the High

Court impugned before us. Since the

High Court did not express any

opinion on the other points raised

in the revision petition, we deem

it appropriate to remand the matter

to the High Court for deciding the

Criminal revision petition, filed

by Respondent No.1, afresh on

merits after hearing the parties in

the light of the observations made

by us above..... "

17. The present one is an afortiori case. when a Special

Court constituted under an enactment other than the Act of

1952 can continue the proceedings by virtue of Section 30(2)

of the Act of 1988, it goes without saying that the special

Court constituted under the Act of 1988 can take cognizance

of the report filed before it and try the offences

particularly when this Court had in its judgment dated March

29, 1994 held that the filing of such report was not

precluded (vide 1994 Supp. (2) S.C.C. 116).

18. We have no hesitation to hold that the special Judge

(P.C. Act) Sikkim is competent to try the offences for which

the appellants stand charged. Hence these appeals are

dismissed.