9911796707
TMI Blog2004 (4) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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Act of 1947, since no such jurisdiction was conferred upon it afresh after coming into force of the Act of 1988, which repealed the Act of 1947, it had no jurisdiction to try such offences after coming into force of the Act of 1988.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 charges heet was filed before the Court of the Metropolitan Magistrate, Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Act of 1988 as if the West Bengal Amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, 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 :- 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 exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
