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1976 DIGILAW 322 (CAL)

K. M. Wahi v. STATE OF WEST BENGAL

1976-09-09

S.K.Datta, S.P.Mitra

body1976
Judgment 1. THIS is an appeal from a judgment of Sabyasachi mukharji, J. dated 30 March, 1976, on an application under Article 228 of the Constitution. The appellant was the petitioner before the Trial Judge. He has challenged a trial before a special Court constituted under the West Bengal Criminal Law Amendment (Special Courts) Act 1949, hereinafter called the "special Courts Act." 2. THE question involved in this case is whether in a trial on police Report by a Special Court for the Prevention of Corruption, the provisions of Sec. 251a of the Code of Criminal Procedure, hereinafter called the "code" are to be followed. It would be necessary in this case to go into some of the developments relating to the Code, the Special Courts Act as also the Prevention of Corruption Act 1947. 3. SUB-SECTION (2) of Section 5 of the Code provides that all offences under any law other than the Indian penal Code shall be investigated, enquired into, tried or otherwise dealt with according to the same provisions i. e. those of the Code of Criminal Procedure but subject to any enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. 4. IN the original Code for trial of warrant Cases, Magistrates had to follow the procedure laid down in Section 251. On 11 March, 1947, the Prevention of Corruption Act, 1947 came into force. Section 5 of this Act inter alia defines what criminal misconduct is and also provides for punishment to be inflicted in cases of such misconduct. Section 5 created new offence but did not prescribe any procedure for trial of these offences. Section 5 (2) of the Code therefore, applied to these trials. On the 23rd June 1949, the Special Courts Act came into force. By Section 2 of the Special Courts Act the State Government constitute such courts : section 4 of the Act deals with offences to be tried by Special Courts, These offences have been specified in the Schedule to the Act. Item No. 7 in the Schedule specifics an offence punishable under Section 5 of the prevention of Corruption Act 1947. Section 5 of the Act lays down the procedure and powers of Special Courts and the procedure is that of Warrant Cases under the Code. Item No. 7 in the Schedule specifics an offence punishable under Section 5 of the prevention of Corruption Act 1947. Section 5 of the Act lays down the procedure and powers of Special Courts and the procedure is that of Warrant Cases under the Code. Then comes Section 10 which lays down that the provisions of the Prevention of Corruption act 1947 shall apply to trials under this Act. These are provisions relating inter alia to onus under the said Act. On the 1st January, 1956, by the Code of Criminal Procedure (Amendment)Act 1955 (26 of 1955) Sections 251 and 251a were substituted for Section 251. The amended Section 251 reads : - "in the trial of warrant-cases by Magistrates, the Magistrate shall : - (a) in any case instituted on a police report, followed the procedure specified in section 251a: and (b) in any other case, follow the procedure specified in the other provisions of this Chapter" (i.e. Chapter XXI. Section 251a) gives the details or the procedure to be adopted in warrant cases on a police report. The result of this amendment was that in a case before a Special Court on a police report the procedure laid down in Section 251a had to he followed. The West Bengal Legislature, however, on 24th August, 1956 by the West Bengal Criminal Law Amendment act 1956 (Act XXXI of 1956) made certain changes in Section 5 (1) of the Special Courts Act. Section 5 (1) as it originally stood was as follows : - "a Special Court may take cognizance of offences in the manner laid down in clauses (a) and (b) of sub-section (1) of section 190 of the Code of Criminal Procedure, 1898, without the accused being committed to his court for trial, and in trying accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898, for the trial of warrant cases by Magistrates." 5. IN view of the amendment of the Code on the 1st January, 1956, referred to above, Section 251a had to be followed by the Special Courts. In order that Special Courts may not have to follow Section 251a, by the said amendment Act (XXVI of 1956), the words "instituted otherwise than on a police report" were added to the portion of section 5 (1) quoted above. In order that Special Courts may not have to follow Section 251a, by the said amendment Act (XXVI of 1956), the words "instituted otherwise than on a police report" were added to the portion of section 5 (1) quoted above. The Amendment Act (XXXI of 1956) had the assent of the President of India. The result was that the old position was restored and the procedure other than the one contained in Section 251a of the Code was to be followed for trial of warrant cases on a police report by the Special Courts. 6. IN view of those provisions it was clear that so far as Special Courts were concerned there was no question of following the procedure laid down by Section 251a of the Code for trial of warrant cases on police report. Oh the 18th December, 1964, by act 40 of 1964, Section 7a was inserted into Prevention of Corruption Act 1947, the new Section runs thus:- "7a. The Code of Criminal Procedure 1898, to apply subject to certain modifications." The provisions of the Code of Criminal Procedure, 1898 (5 of 1898), shall, in their application to any proceeding in relation to an offence punishable under section 161, section 165 or section 165a of the Indian Penal Code (45 of 1860) or under section 5 of this Act have effect as if:- (a) in sub-section (8) of section 251a, for the words "the accused then shall be called upon" the words "the accused shall then be required to give in writing at once or within such time as the Magistrate may allow, a list of the persons (if any) whom he proposes to examine as witnesses and of the documents (if any) on which he proposes to rely and he shall then be called upon" had been substituted; 7. IT is argued before us on behalf of the appellant that by reason of the introduction of section 7a into the Prevention of Corruption Act, it was no longer open to the Special Courts to follow the procedure other than in section 251a inasmuch an after the said introduction the amended section of section 5 (1) of the Special Courts Act, we have referred to, did not receive further Presidential Assent as required by Article 254 of the Constitution. 8. MR. 8. MR. Justice Sabyasachi Mukharji has repelled this argument by following the decision of a Division Bench of this Court in Criminal revision Case No. 1407 of 1974 (K. B. Debnath Vs. The State)delivered on the 12th February 1976. The point to be specially noted is that the new section 7a of the Prevention of Corruption Act 1947 clearly prescribes that the provisions of the Code of Criminal Procedure 1898 shall in their application to any proceeding, inter alia, under section 5 of the Prevention of Corruption Act 1947, have effect as provided in the said Section. The words "in their application to any proceeding" are significant. They mean that in a proceeding to which section 251a of the Code does not apply the new Section 7a of the Prevention of Corruption Act 1947 is not attracted. 9. THE second point to be noted is that Section 10 of the Special Courts Act has laid down that the provisions of the Prevention of Corruption Act 1947 shall apply to trials under this Act. This is a piece of legislation by incorporation. It is well known that where a subsequent Act incorporates the provisions of a previous Act then the borrowed provisions become an integral. and independent part of the subsequent act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply : (a) where the subsequent Act and the previous Act are supplemental to each other ; (b) where the two Acts are in pan material; (c) where the amendment in the previous Act, if not imported into the subsequent Act also, render the subsequent Act wholly unworkable and ineffectual; and (d) where the amendment of the previous Act, either expressly or by necessary intendment applies the said provisions to the subsequent Act. These principles have been laid down in a series of decisions both of Courts in England and in India. The latest decision is the decision of the Supreme Court in the State of Madhya Pradesh-Vs-M. V. Narasimham 1975 Cr. L. J. 1639. 10. IF we apply these principles to the instant case, we find that section 7a of the Prevention of Corruption Act, 1947, does not come within any of the exceptions referred to above. The latest decision is the decision of the Supreme Court in the State of Madhya Pradesh-Vs-M. V. Narasimham 1975 Cr. L. J. 1639. 10. IF we apply these principles to the instant case, we find that section 7a of the Prevention of Corruption Act, 1947, does not come within any of the exceptions referred to above. In 1949 when section 10 of the Special Courts Act was enacted, Section 7a was not a part of the Prevention of Corruption Act, 1947. It is, therefore, implicit in section 10 of the Special Courts Act that only those provisions of the Prevention of Corruption Act which are consistent with the mode of trial prescribed by Section 5 of the former Act would apply to trials by Special Courts. In other words, the procedure laid down in section 5 of the Special Courts Act would remain unaffected by the introduction of section 7a of the Prevention of Corruption Act, 1947. The same conclusions were reached by the Division bench referred to above. In these premises, this appeal is dismissed. All interim orders are vacated. There will be no order as to costs. Appeal dismissed.