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2005 DIGILAW 428 (CAL)

SURESH AGARWAL v. STATE OF WEST BENGAL

2005-07-07

DEBIPRASAD SENGUPTA

body2005
DEBIPRASAD SENGUPTA, J. ( 1 ) IN the present revisional application, the petitioner has challenged an order dated 16. 12. 2004 passed by the learned judge, 1st Special Court, Calcutta in G. R. Case No. 419 of 2001 (arising out of shakespeare Sarani P. S. Case No. 42 of 2001) under section 379 IPC read with sections 39 and 44 of the Indian Electricity Act, 1910. ( 2 ) THIS proceeding was initiated on the basis of a complaint lodged by the present opposite party No. 2 in the Court of learned Metropolitan Magistrate, 9th Court, Calcutta. As the proceeding was pending in the said Court since 2001 without any progress, the complainant/present opposite party No. 2 preferred an application under section 483 of the Code of Criminal Procedure praying for expeditious disposal of the case. In course of hearing, it was submitted before this Court by the learned Advocate of the opposite party No. 2 (present petitioner)that in view of the provision of the new Electricity Act, 2003, all the offences under the Electricity Act are to be tried by the Special Court. Accordingly, it was the submission of the opposite party No. 2 (present petitioner) that the proceeding should be transferred to the Special Court, Calcutta. The learned advocate of petitioner (present O. P. No. 2), in his usual fairness, did not oppose such prayer as his only object was to expedite the proceeding and conclude the same as early as possible. ( 3 ) AT the time of hearing of the earlier application, it was also pointed out by the learned Advocate of the O. P. No. 2 (present petitioner) that there was no special Court in Calcutta at that point of time to try such offences. In such circumstances, this Court ascertained the position and came to know, there was 1st Special Court in Calcutta and it was empowered to try the offences exclusively under Indian Electricity (W. B. Amendment) Act, 2001 as well as under section 153 of the Electricity Act, 2003 and there was also a Government notification in that regard. ( 4 ) AFTER hearing the learned Advocates of the respective parties, this Court by its order dated 29. 7. 2004 disposed of the earlier application under section 483 Cr. ( 4 ) AFTER hearing the learned Advocates of the respective parties, this Court by its order dated 29. 7. 2004 disposed of the earlier application under section 483 Cr. PC and directed transfer of the proceeding from the Court of Metropolitan magistrate, 9th Court, Calcutta to the Court of learned Judge, 1s' Special Court, calcutta. Records of the case was directed to be sent to the Court of learned judge, 1st Special Court, Calcutta immediately. Learned Special Judge was also directed to see that the proceeding is expedited and the same is concluded with utmost expedition preferably within a period of four months from the date of communication of the order. ( 5 ) IT may be mentioned here that the earlier order was an agreed order which was passed by this Court with consent of both the parties. But it was really surprising that when the matter was sent back to the Court of Judge, special Court, Calcutta, the present petitioner appeared and again he filed an application before the learned Special Judge, 1st Court, challenging the maintainability of the proceeding before the said Court. ( 6 ) THE learned Judge, 1st Special Court, Calcutta by his order dated 16. 12. 2004 rejected such application of the petitioner and hence this revision. ( 7 ) THE main contention of the learned Advocate of the petitioner is that special Court has been constituted under section 39f of the Indian Electricity (W. B. Amendment) Act, 2001, which has already been repealed by the new electricity Act, 2003 and as such the said Special Court constituted under the earlier Act of 2001 has no jurisdiction to try the present case. It was the further contention of the learned Advocate that the earlier charge framed against the petitioner in January, 2003 under sections 39 and 44 of the Indian Electricity act, 1910 is bad in law and the Special Court cannot proceed without framing a fresh charge in view of the provision of the new Act of 2003 namely Electricity act of 2003. Finally, it is submitted by the learned Advocate of the petitioner that until and unless there is a complaint in writing under section 151 of the new Electricity Act, 2003, the present proceeding cannot be allowed to continue and no step under section 135 of the Act of 2003 can be taken. Finally, it is submitted by the learned Advocate of the petitioner that until and unless there is a complaint in writing under section 151 of the new Electricity Act, 2003, the present proceeding cannot be allowed to continue and no step under section 135 of the Act of 2003 can be taken. ( 8 ) THE learned Advocate appearing for the O. P. No. 21 de facto-complainant submits that the present application of the accused petitioner is nothing but an attempt to drag the proceeding. When by its earlier order dated 29. 7. 2004, this Court transferred the proceeding from the Court of learned Metropolitan magistrate, 9th Court, Calcutta to the Court of learned Special Judge, 1st Court, calcutta and when such order was passed by consent of the parties, the accused petitioner has no right to challenge the maintainability of the proceeding before the Special Judge. ( 9 ) IT is submitted by the learned Advocate of the O. P. No. 2 that Special court was constituted under section 39f of the Indian Electricity (W. B. Amendment) Act, 2001 and such Court is empowered to try any offence punishable under the said Act. Sub-section (7) of section 39g of the Act of 2001 also provides that all cases involving offences punishable under any provision of the said Act and pending before any Court, shall, on constitution of a Special court having jurisdiction over such cases, stand transferred to such Special courts. It is further submitted that although Indian Electricity Act, 1910 was repealed on 19. 6. 2003 by section 185 of the new Act of 2003, sub-section (5) of said section 185 of the Act of 2003 provides as follows: "section 185. (5) Save as otherwise provided in sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals. " learned Advocate also refers to the provision of section 6 of the General Clauses act, 1897 with regard to the effect of repeal. " learned Advocate also refers to the provision of section 6 of the General Clauses act, 1897 with regard to the effect of repeal. Said section 6 runs as follows: "effect of repeal.-Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made then, unless a different intention appears, the repeal shall not - (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or (e) 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, and any such penalty, forfeiture or punishment may be imposed as if the repealing act or Regulation had not been passed. " ( 10 ) REFERRING to the aforesaid provision of General Clauses Act, it is submitted by the learned Advocate of the de facto-complainant/o. P. No. 2 that when the repeal is followed by a fresh legislation on the same subject and a contrary intention does not appear therein, such repeal does not affect any legal proceeding initiated under the old Act. According to the learned Advocate of the petitioner pending litigation is not affected by any change of law except in procedural matters. Jurisdiction to try the offences under the Indian Electricity act was given to the Special Court by section 39g of the Indian Electricity (W. B. Amendment) Act, 2001 and such Court is empowered to try all offences under the Indian Electricity Act, 1910 as amended by Indian Electricity (W. B. Amendment) Act, 2001 as also offences under the new Act of 2003. ( 11 ) LEARNED Advocate appearing for the petitioner relies upon an judgement of the Hon'ble Apex Court reported in AIR 1997 SC 412 , Gajraj Singh vs. State transport Appellate Tribunal. ( 11 ) LEARNED Advocate appearing for the petitioner relies upon an judgement of the Hon'ble Apex Court reported in AIR 1997 SC 412 , Gajraj Singh vs. State transport Appellate Tribunal. The learned Advocate refers to paragraph 25 of the said judgement, which is as follows : "when there is a repeal and simultaneous re-enactment, section 6 of the GC act would apply to such a case unless contrary intention can be gathered from the repealing Act. Section 6 would be applicable in such cases unless the new legislation manifests intention inconsistent with or contrary to the application of the section. Such incompatibility would have to be ascertained from all relevant provisions of the new Act. Therefore, when the repeal is followed by a fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act only for the purpose of determining whether the new Act indicates different intention. The object of repeal and re-enactment is to obliterate the repealed Act and to get rid of certain obsolete matters. " ( 12 ) I have gone through the said judgement. This is the settled principle of law laid down by the Hon'ble Apex Court. The expression 'unless a different intention appears' is the key to attract the provisions of section 6 of the General clauses Act. It is only in the absence of a contrary intendment in the repealing act, that section 6 of the General Clauses Act can step in. 13. I have heard the learned Advocates of the respective parties. I have also perused the impugned order passed by the learned Judge, 1st Special Court, calcutta. The proceeding is pending since 2001. Special Court was constituted under section 39f of the Indian Electricity (W. B. Amendment) Act, 2001 and is empowered to try all offences under the Indian Electricity Act, 1910 as amended by W. B. Amendment Act of 2001 and also offences under the new Act of 2003. Section 6 of the General Clauses Act saves all pending proceedings before the special Court which were initiated under the old Act of 1910 as amended by the w. B. Amendment Act of 2001. Section 6 of the General Clauses Act saves all pending proceedings before the special Court which were initiated under the old Act of 1910 as amended by the w. B. Amendment Act of 2001. In case of such pending proceedings, the question of complying with the provision of section 151 of the new Act of 2001 does not arise at all, because in that event it will be against the spirit of General Clauses act as referred to above. ( 13 ) WHENEVER there is a repeal of enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. When the repeal is followed by a fresh legislation on the same subject and a contrary intention does not appear therein, the repeal shall not affect any legal proceedings or remedy in respect of any right, privilege, obligation etc. and such legal proceedings or remedy may be continued as if the repealing Act had not been passed. With the repeal of an act, the proceedings in a pending prosecution under the former Act do not lapse, but the same must be dealt with under the old Act. ( 14 ) FROM the Government Notification being No. 685/j/x dated 17. 11. 2003, it also becomes clear that the learned Judge, Special Court, Calcutta is very much empowered to try all offences under the Indian Electricity (W. B. Amendment) Act, 2001 as also in terms of section 153 of the Electricity Act, 2003. Said notification is as follows: "government OF WEST BENGAL JUDICIAL DEPARTMENT NOTIFICATION no. 685-J/x Dated, Kolkata the 17th Nov. , 2003 ( 15 ) THE Governor has been pleased to accord sanction to the retention of the existing 24 (twenty-four) Special Courts under Essential Commodities Act, 1981 permanently w. e. f. 01. 09. 2003. 2. The Governor has been further pleased to accord sanction to the conversion of those 24 (twenty-four) Special Courts as the Courts of Additional District and Sessions Judges. 3. 09. 2003. 2. The Governor has been further pleased to accord sanction to the conversion of those 24 (twenty-four) Special Courts as the Courts of Additional District and Sessions Judges. 3. The Governor has been again pleased to empower 19 (nineteen) members of those converted Additional District and Sessions Judges Courts which have now been functioning at every Sadar Sub-Division of each District in West bengal including the 1st Special Court, Calcutta to try offences exclusively under the Indian Electricity (West Bengal Amendment) Act, 2001 as well as in terms of section 153 of the Electricity Act, 2003 (36 of 2003) having territorial jurisdiction for the entire district. 4. This issues with the concurrence of Finance (Audit) Department vide their U. O. No. 1335- (Group-'l') dated 15. 09. 2003 and also with the concurrence of the High Court, Calcutta, 5. This issues in cancellation of this Department's Notification Nos. 616-J/x dated 13. 10. 2003 and 6592-J/xdt. 22. 10. 03. By order of the Governor, sd- (U. P. Ganguly)Spl. Secy, to the Govt. of West Bengal judicial Department. " ( 16 ) IN view of the discussion made above, I am of the view that the learned judge, 1st Special Court, Calcutta by the impugned order rightly rejected the application of the accused petitioner challenging the maintainability of the proceeding. Such order was passed on proper application of mind and with reasons. There is nothing wrong with the said order and I do not find any reason to interfere with the same. ( 17 ) THE revision application accordingly disposed of. ( 18 ) SINCE this is a very old proceeding of 2001, the learned Judge, 1st Special court is directed to see that the proceeding is expedited and the same is concluded without any unnecessary delay and without granting any unnecessary adjournment to either of the parties. ( 19 ) BOTH parties will be at liberty to take the gist of the order and to communicate the same to the concerned Court. ( 20 ) URGENT xerox certified copy of the order may be supplied to the learned advocates of the respective parties, if the same is applied for, at an early date. Revisional application disposed of.