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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coming into force of the Act of 1988, which repealed the Act of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

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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 \026 Every special Judge appointed under the

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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

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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

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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 \026

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

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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

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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 :-

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"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

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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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