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TMI Blog2004 (4) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed 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 who by his order dated 12.7.1990 took cognizance and transferred the case to the Metropolitan Magistrate 17th Court for trial. However, on objection raised by the Public Prosecutor that the said Court had no jurisdiction to try the case as the same was exclusively triable by the Special Court, the said case was transferred to the Court of the 3rd Special Judge, Calcutta, a Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 by Notification in the Official Gazette to appoint as many Special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the Notification to try the offences mentioned therein, which includes any offence punishable under the Act of 1988. Section 4 makes such cases exclusively triable by a Special Judge. Section 5 confers jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt (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 Special Courts appointed under Sub-section (2) of Section 2 read with sub-section (1) of Section 9 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and functioning as such Judges were appointed as Special Judges under the Act of 1988 for the purpose of trial of offences as enumerated in Clauses (a) and (b) of sub-section (1) of Section 3 of the Act of 1988 in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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. (2) Every Judge appointed to preside over a Special Court under the West Bengal Criminal Law Amendment (Special Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears 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 recorded or any action taken under the Act of 1988 by a Judge of Special Court appointed under the West Bengal Special Courts Act, 1949 while purporting to Act under the provisions of the Act of 1988 before the commencement of the West Bengal Amendment Act of 1994. It is further provided that all such orders passed, evidence recorded or actions taken shall be deemed to have been validly passed, recorded or tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Amendment Act 1994 were in force when such actions were taken. According to him, any offence committed before the Act of 1988 came into effect and in respect of which no proceeding was pending before a Special Judge, must lapse and the accused can not be tried for that offence at all. Counsel has placed reliance upon three judgments of this Court reported in Mancheri Puthusseri Ahmed and Ors. Vs. Kuthiravattam Estate Rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 existed, must inevitably have flowed from or accompanied it-. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs". The above principle has been approved by this Court in large number of decisions. Applying these principles to the provisions of the West Beng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the aforesaid enactment which governs the case in hand was not noticed by the High Court. Counsel for the parties were also remiss in not bringing the West Bengal Amendment Act of 1994 to the notice of the High Court, and therefore the judgment rendered by the High Court was per incuriam. We, therefore, allow this appeal, set aside the judgment and order of the High Court quashing the proceeding before the 3rd Special Judge, Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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