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CASE NO.:

Appeal (crl.) 1138 of 2002

PETITIONER:

Vasant Arjunrao Bhandak

RESPONDENT:

State of Karnataka

DATE OF JUDGMENT: 12/11/2002

BENCH:

Umesh C. Banerjee & B.N. Agrawal.

JUDGMENT:

JUDGMENT

Banerjee, J.

Leave granted.

A short but an interesting question of law falls for

consideration in this appeal against the order of the High Court of

Karnataka, wherein the High Court dismissed the Petition filed

under Section 482 Cr.P.C. for quashing of the proceedings pending

before the Principal Sessions Judge, Belgaum in Special Case

No.22/94 : the question of law noticed above pertains to whether

issuance of a notification under Section 26 of the Criminal Law

Amendment Act, 1952, appointing the Special Judge for any

specified area to try offences under the Prevention of Corruption

Act, 1947 would also hold good for the purpose of Section 3 of the

Act of 1988 (Prevention of Corruption Act, 1988) as well?

Adverting to the factual score briefly at this juncture it

appears that the Appellant being charge-sheeted by the Respondent

Authorities was prosecuted in the Court of Principal Sessions

Judge, Belgaum in Special Case No.22/94 for the offences

punishable under Sections 7 and 13(1)(d) read with Section 13(2)

of the Prevention of Corruption Act, 1988. The factual score

further depicts that during the pendency of the proceedings the

appellant filed an application under Sections 3, 4 and 17 of the Act

of 1988 read with Sections 173, 190 and 216 of the Cr.P.C.

praying therein to discharge him, on the ground that the learned

trial Judge had no jurisdiction to entertain and try the case against

him since the appointment of the learned Judge cannot be termed

or said to be an appointment as a Special Judge within the meaning

of Section 3 of the Act of 1988. It was further contended that in

any event the investigating officer who filed the charge-sheet, was

not duly authorised under Section 17 to investigate into the matter.

The learned trial Judge however rejected the petition.

The appellant thereafter moved the High Court under Section

482 Cr.P.C. for quashing the proceedings upon setting aside the

order as passed by the learned trial Judge. The High Court,

however, with a detailed and reasoned judgment negated such a

plea and consequently the petition was dismissed. It is by reason

of the dismissal of the matter by the High Court, this Court was

moved under Article 136 of the Constitution and upon hearing the

submissions, this Court thought it fit to dispose of the petition at

the admission stage itself.

Coming to the matter under consideration, certain statutory

provisions ought to be noticed at the initial stage and reference to

Section 26 of The Prevention of Corruption Act, 1988, would be

apposite and which reads as below :

"26. Special Judges appointed under Act 46 of 1952

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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."

It is the appellant's definite contention that the applicability

of Section 26 is restrictive in its nature and thus applicable only to

prior proceedings pending before the Special Judge on the

commencement of the Act. Mr. S.S. Javali, learned Senior

Advocate appearing for the appellant contended that any other

construction would render the legislative intent a complete otiose

and thus a fresh notification under Section 3 of the Act is required

to enable the appointment of Special Judges for proceeding with

the new cases under the Act. We are, however, unable to record

our concurrence therewith. In order to have proper efficacy to the

statutory intent the Act shall have to be read as a whole and

introduction of Section 26 in the Statute Book has brought into

existence a deeming fiction which have to be given effect to and

any contra view would lead to a violent departure from the normal

canons of construction and interpretation of statutes. The deeming

fiction cannot but be read into the statute to include the situation as

envisaged presently. The situation however would stand clarified

in any event by having a look at the repeal and saving provision in

particular sub-section (2) of Section 30 which reads as below :

"30(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, 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."

Mr. Sanjay R. Hegde, learned Advocate appearing for the

State Government being Respondent herein contended that on an

analogy of reasoning, the appointment of the Special Judge for an

area by a notification issued under Section 6 of the Criminal Law

Amendment Act, 1952 be deemed to be the appointment of a

Special Judge appointed under Section 3 of the Act for that area or

areas. Strong reliance is also placed on the decision of this Court

in Nar Bahadur Bhandari & Anr. v. State of Sikkim & Ors. (1998

(5) SCC 39), in support by Mr. Hegde, wherein Srinivasan, J,

speaking for the Bench in paragraph 10 of the Report stated :

"10. The contentions urged on behalf of the

petitioners are based on a wrong understanding of the

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

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 Act of 1947 would

cease to be triable after the repeal of the said Act.

Normally Section 6 of the General Clauses Act would

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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 Clauses 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-section (2) of Section 30 reads as

follows :

"30(2) "

(omitted to avoid repetition by reason of

earlier inclusion)

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 the

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."

Significantly, in Nar Bahadur (supra) this Court did refer to a

decision of the Constitution Bench in B.N. Kohli (Bishambar Nath

Kohli & Ors. v. State of Uttar Pradesh & Ors. (1966 (2) SCR 158),

wherein the repealing of Ordinance 12/49 was effected by

Ordinance 27/49. Section 58(3) of the repealing Ordinance

provided as below :

"58(3) 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 such thing was done or action was taken."

It is while interpreting the aforesaid provision, Shah, J.

speaking for the Constitution Bench observed as below :

"By the first part of Section 58(3) repeal of the

statutes mentioned therein did not operate to vacate

things done or actions 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 a 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 v.

Ellison (1829 (9) B&C 750)]. This rule was altered by

an omnibus provision in General Clauses Act, 1897,

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relating to the effect of repeal of statutes by any Central

Act or Regulation. By Section 6 of the General

Clauses Act, it is provided, insofar as it is material, that

any Central 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, accrued 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) 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 authorises the investigation, legal

proceedings and remedies in respect of rights,

privileges, obligations, liabilities, penalties, forfeiture

and punishment, as 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

the 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 rule

enunciated in Section 6 of 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 case (Indira

Sohanlal v. Custodian of Evacuee Property 1955 (2)

SCR 1117) at p. 1133, the saving of the previous

operation of the repealed law is not to be read, as

saving of 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 the General Clauses Act. All things done and

actions taken under the repealed statute are deemed to

be done or taken in exercise of the 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 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 done or taken under the

repealing Act."

It is on the above perspective that the reasoning put forth by

the High Court ought also to be noticed :

"The provision in Section 26 clearly postulates

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that any notification issued by the State Govt. u/s 26 of

the Criminal Law Amendment Act, appointing the Spl.

Judge for any specified area, to try the offences under

the Prevention of Corruption Act, 1947, would hold

good for the purpose of Section 3 of the Act of 1988 as

well. The ambit of Section 26 does not admit narrow

interpretation so as to restrict its area of operation only

to those cases under the old Act of 1897 which were

actually pending before the Spl. Judge as on the date of

commencement of the New Act of 1988. Therefore,

the State Government Notification dated 19.11.88 is to

be held as a valid notification for the purpose of Section

3 of the Act of 1988, and that the Prl. Dist. and Sessions

Judge, Belgaum, who is appointed thereunder as the

Spl. Judge has jurisdiction and is competent to try the

offences under the Act. The conclusion so arrived at

by the learned Trial Judge by his impugned order, is,

therefore, entitled to be upheld."

On consideration of the above and having regard to the

provisions of law as enunciated hereinbefore, in particular Section

26 thereof, the question of there being a contra view, apart from

what has been observed above does not and cannot arise and

consequently issuance of fresh notification appointing the Judges,

does not and cannot arise and thus the Principal Sessions Judge,

Belgaum has the authority and jurisdiction to entertain the

complaint. The other issue though argued before the High Court

as regards the status of the Investigation Officer by reason of

provision of Section 17(c) has not been seriously raised and we

also accordingly need not detain ourselves on that score. Suffice it

however to say that negation of such a contention does have our

concurrence.

On the wake of the aforesaid, this appeal thus fails and is

dismissed.