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1993 DIGILAW 339 (CAL)

H. D. Barman v. STATE OF WEST BENGAL

1993-07-16

G.R.Bhattacharjee

body1993
JUDGMENT 1. IT appears that the CBI recorded FIR against the present petitioner and others on 30th November, 1989 under sections 120b/420 IPC and Section 13 of the Prevention of corruption Act, 1988 and took up investigation. It also appears that after investigation a case was started against the present petitioner under the prevention of Corruption Act, 1988 in the 3rd Special Court, Calcutta, being special case no. 5/93. It further appears that in the said case the judge 3rd Special Court, Calcutta issued summons to the petitioner as accused on the 29th March, 1993. 2. IN this revisional application the petitioner has challenged the proceeding in the court below on the ground that the Judge, Special Court had no jurisdiction to entertain a case under the Prevention of Corruption act, 1988 for trial. Earlier there was a Central legislation called the prevention of Corruption Act, 1947. The said legislation was enacted for making 'more effective provision for the prevention of bribery and corruption'. Section 5 of the said Prevention of Corruption Act 1947 defined criminal misconduct of public servant in discharge of official duty and provided for punishment of the same. There was however no provision in the said Act regarding the court empowered to try the said offence or for that matter, the offences punishable under sections 161, 162, 163, 164, 165 and 165a of the Indian Penal Code. Subsequently the State of West Bengal enacted a State legislation called the West Bengal Criminal Law amendment Special Courts Act. 1949 (West Bengal Special Courts Act. 1949, for short) for the purpose of making provision for speedy trial and more effective punishment' of certain offences specified in the Schedule to the Act. The offences punishable under Sections 161, 162, 163, 164, 165 and 165a I.P.C., Sections 409, 417 and 420 I.P.C. committed by a public servant or other persons mentioned Therein, an offence punishable under section 5 of the prevention of Corruption Act, 1947 as well as any offence of conspiracy attempt or abetment in respect of any such offence are included in the said Schedule. Section 4 of the West Bengal Special Courts act, 1949 provides that offences Specified in the Schedule to the Act shall be triable by Special Courts only and when trying any such case the special Court may also try any other offence with which the accused may, under the Code of Criminal Procedure, be charged at the same trial. Section 2 of the West Bengal Special Courts Act, 1949 empowers the State government to constitute by notification in the official gazette one or more special Courts and to appoint a Judge to preside over a Special Court. In 1952 the Parliament enacted the Criminal Law (Amendment) Act, 1952 with the object of amending. the Indian Penal Code and the Code of criminal Procedure and of providing for a more speedy trial of certain offences. Section 6 of the said Act empowered the State Government, to appoint by notification in the official gazette, Special Judges to try the offences said section of the Criminal Law (Amendment) Act, 1952 by the state Government in West Bengal for trying an offence under section 5 of the prevention of Corruption Act, 1947. In 1988 a Central Act, namely, the prevention of Corruption Act, 1988 came into force and by Section 13. repealed both the prevention of corruption Act, 1947 and the Criminal Law (Amendment) Act, 1952. Parliament enacted the Prevention of Corruption Act, 1988 to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith'. By Section 31 of the said 1988 Act Sections 161, 162, 163, 164, 165, and 165a of the Indian Penal Code were omitted of course, the provisions relating to those offences were re-enacted in the 1988 Act, with some modifications, in Sections 7, 8, 9, 10 and 11. The maximum punishment prescribed for those offences in the Indian Penal code was enhanced in each case under the Prevention of Corruption Act, 1988 and this Act also made provision for minimum punishment for such offences which was not there in the Indian Penal Code. Section 13 of 1988 act defines criminal misconduct of a public servant and provides for punishment of the same. Section 13 of 1988 act defines criminal misconduct of a public servant and provides for punishment of the same. Section 4 of the 1988 Act provides that 'notwithstanding anything contained in the Code of Criminal Procedure, 1973, or in any other law for the time being in force', the offences specified in section 3 (1) shall be tried by Special Judges only and when trying any such case a special Judge may also try any other offence with which the accused may under the Code of Criminal Procedure; be charged at the same trial. Section 3 of the 1988 Act provides that the Central Government or the state Government may, by notification in the official gazette, appoint special Judges for trying the offences punishable under the said Act including the offence of conspiracy or attempt to commit such offence or any abetment thereof. Sections 3 and 4 of the Prevention of Corruption Act, 1983 read together clearly show that an offence punishable under the said act can be tried 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 in force". Now the question arises whether the Judges of the Special Court, appointed under Section 2 of the west Bengal Special Courts Act, 1949, by virtue of such appointment, can take cognizance of and try offences punishable under the prevention of corruption Act, 1988. In this connection, we may refer to Section 26 of the prevention of Corruption Act, 1988 which provides that every Special judge appointed under the Criminal Law (Amendment) Act, 1952 shall be deemed to be a Special Judge appointed under Section 3 of the 1988 Act and every such Judge shall continue to deal with all proceedings pending before him on commencement of the said act in accordance with the provisions of the Act. Section 26 of the 1988 act thus protects the appointment of those Judges only who were earlier appointed under Section 6 of the Criminal Law (Amendment) Act, 1952. As we have already seen in west Bengal section 6 of the Criminal Law (Amendment) Act 1952 was not applicable and no appointment of a Special Judge could be or was in fact made by the State Government under the said section 6 of the Criminal law (Amendment) Act, 1952. As we have already seen in west Bengal section 6 of the Criminal Law (Amendment) Act 1952 was not applicable and no appointment of a Special Judge could be or was in fact made by the State Government under the said section 6 of the Criminal law (Amendment) Act, 1952. On the other hand, Judges of the Special courts were appointed by the Government of West Bengal under the West Bengal Special Courts Act, 1949. Obviously, such Judges appointed not under Section 6 of the Criminal Law (Amendment) Act, 1952 but under section 2 of the West Bengal special Courts Act, 1949 cannot be treated either under Section 26 of the 1988 Act or otherwise, as Special Judges appointed under Section 3 of the 1988 Act for taking cognizance and for trying offences punishable under the said 1988 Act. 3. IN this connection, my attention has been drawn by the learned advocate appearing for the opposite party to Section 8 of the General clauses Act, 1897 which provides that where any Central Act repeals and re-enacts with or without modification, any provision of a former enactment then reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. It is argued on behalf of the opposite party that in view of section 8 of the General Clauses Act references in the West Bengal Special Courts Act, 1949 to the difference omitted provisions of the Indian Penal Code and to the provisions of prevention of Corruption Act, 11947 including section 5 thereof shall be construed as references to the corresponding re-enacted provisions in the prevention of Corruption Act, 1988. This argument however does not hold water for two reasons. Firstly, a "difficult intention" has been clearly expressed in section 4 of the prevention of Law (Amendment) Act, 1952 obviously relate to criminal law, criminal procedure and to some extent law of evidence which come under entry nos. 1, 2 and 12 of the Concurrent List of the Seventh Schedule of the Constitution of India. Therefore both Parliament and the State Legislature: have concurrent jurisdiction to legislate over these subjects. 1, 2 and 12 of the Concurrent List of the Seventh Schedule of the Constitution of India. Therefore both Parliament and the State Legislature: have concurrent jurisdiction to legislate over these subjects. Article 254 (1) of the constitution provides that if any provision of a law made by a State Legislature is repugnant to any provision of a law made by Parliament with respect to any of the matters enumerated in the Concurrent List the law made by Parliament, whether passed before or after the law made by the State Legislature, shall prevail and the law made by the State Legislature shall, to the extent of the repugnancy, be void. There is however one exception in the matter which has been provided in clause (2) of Article 254. The said exception is that where the law made by the State Legislature with respect to a matter in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law made by the State Legislature shall, if it has received the assent of the President, prevail in that State. But even in such case parliament will be entitled thereafter at any time to enact any law with respect to the same matter including a law adding to, amending, varying or repealing the law made earlier by the State Legislature and assented to by the President. The position therefore is this that in respect of a matter in the Concurrent List the law made by Parliament will prevail over the law made by the State Legislature an the same subject but where a law made the State Legislature has received the assent of the President such State law shall prevail in that state notwithstanding any earlier Central Law made by Parliament on the same subject even in case of any repugnancy between the two laws. But even in such case a subsequent law made by parliament which may be repugnant to the earlier law made by the State legislature on the same subject will prevail inspite of the fact that the earlier law made by the State Legislature might have received the assent of the President. But even in such case a subsequent law made by parliament which may be repugnant to the earlier law made by the State legislature on the same subject will prevail inspite of the fact that the earlier law made by the State Legislature might have received the assent of the President. Thus the position in law is very clear that the latest Central legislation namely, the prevention of Corruption Act, 1988 enacted by parliament will prevail over any existing provision of the West Bengal special Courts Act, 1949 in the event of any repugnancy between the two, even if such provision in the West Bengal Special Courts Act, 1949 had earlier received the assent of the President. My this view also receives support from the decision of the Supreme Court in Zaber Bhai vs. State of Bombay A.I.R. 1954 S.C. 752. In Zaber Bhai (Supra) the Supreme Court observed thus : "it is true, as already pointed out, that on a question under Article 254 (1) whether an Act of Parliament prevails against a law of the state, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if the subject matter of the later legislation is identical with that of the earlier so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question under Article 254 (2) where further legislation by Parliament is in respect of the same matter as that of the State Law". 4. IT appears the State Government realised the position at a later stage and that is why they issued notification No. 6614-z dated 23rd April, 1993 stating that in exercise of the power conferred by section 3 (1) of the prevention of Corruption Act "1988 the Governor had been pleased to appoint all the Judges of special Courts appointed under section 2 (2) read with Section 9 (1) of the West Bengal Criminal Law Amendment (Special courts) Act, 1949 and functioning as much Judges as Special Judges under the Prevention of Corruption Act 1988 for the purpose of trial of offences as enumerated in Clauses (a) and (b) of section 3 (1) of the prevention of Corruption Act, 1988 in respect of the areas of their respective Courts. Since this notification was made on the 23rd April, 1993 this will be of no avail in the present case where the Judge. Special Court appointed under the West Bengal Special Courts act, 1949 had assumed jurisdiction and taken cognizance for trial in respect of offences punishable under the Prevention of Corruption Act, 1988 in a proceeding against the present petitioner under the said 1988 Act much earlier to the said notification when he had no jurisdiction in the matter. The cognizance taken by him and the proceeding based on such cognizance is therefore bad in law and is liable to be quashed on that ground even without deciding or adverting attention to any other aspect of the matter or the charge. The proceeding in the court below being the special case No. 5/93 is accordingly quashed. The revisional application stands disposed of accordingly. Application disposed of.