Full Judgment Text
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CASE NO.:
Appeal (crl.) 1138 of 2002
PETITIONER:
Vasant Arjunrao Bhandak
RESPONDENT:
State of Karnataka
DATE OF JUDGMENT: 12/11/2002
BENCH:
Umesh C. Banerjee & B.N. Agrawal.
JUDGMENT:
JUDGMENT
Banerjee, J.
Leave granted.
A short but an interesting question of law falls for
consideration in this appeal against the order of the High Court of
Karnataka, wherein the High Court dismissed the Petition filed
under Section 482 Cr.P.C. for quashing of the proceedings pending
before the Principal Sessions Judge, Belgaum in Special Case
No.22/94 : the question of law noticed above pertains to whether
issuance of a notification under Section 26 of the Criminal Law
Amendment Act, 1952, appointing the Special Judge for any
specified area to try offences under the Prevention of Corruption
Act, 1947 would also hold good for the purpose of Section 3 of the
Act of 1988 (Prevention of Corruption Act, 1988) as well?
Adverting to the factual score briefly at this juncture it
appears that the Appellant being charge-sheeted by the Respondent
Authorities was prosecuted in the Court of Principal Sessions
Judge, Belgaum in Special Case No.22/94 for the offences
punishable under Sections 7 and 13(1)(d) read with Section 13(2)
of the Prevention of Corruption Act, 1988. The factual score
further depicts that during the pendency of the proceedings the
appellant filed an application under Sections 3, 4 and 17 of the Act
of 1988 read with Sections 173, 190 and 216 of the Cr.P.C.
praying therein to discharge him, on the ground that the learned
trial Judge had no jurisdiction to entertain and try the case against
him since the appointment of the learned Judge cannot be termed
or said to be an appointment as a Special Judge within the meaning
of Section 3 of the Act of 1988. It was further contended that in
any event the investigating officer who filed the charge-sheet, was
not duly authorised under Section 17 to investigate into the matter.
The learned trial Judge however rejected the petition.
The appellant thereafter moved the High Court under Section
482 Cr.P.C. for quashing the proceedings upon setting aside the
order as passed by the learned trial Judge. The High Court,
however, with a detailed and reasoned judgment negated such a
plea and consequently the petition was dismissed. It is by reason
of the dismissal of the matter by the High Court, this Court was
moved under Article 136 of the Constitution and upon hearing the
submissions, this Court thought it fit to dispose of the petition at
the admission stage itself.
Coming to the matter under consideration, certain statutory
provisions ought to be noticed at the initial stage and reference to
Section 26 of The Prevention of Corruption Act, 1988, would be
apposite and which reads as below :
"26. Special Judges appointed under Act 46 of 1952
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to be special Judges appointed under this Act
Every special Judge appointed under the Criminal Law
Amendment Act, 1952 for any area or areas and is
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."
It is the appellant’s definite contention that the applicability
of Section 26 is restrictive in its nature and thus applicable only to
prior proceedings pending before the Special Judge on the
commencement of the Act. Mr. S.S. Javali, learned Senior
Advocate appearing for the appellant contended that any other
construction would render the legislative intent a complete otiose
and thus a fresh notification under Section 3 of the Act is required
to enable the appointment of Special Judges for proceeding with
the new cases under the Act. We are, however, unable to record
our concurrence therewith. In order to have proper efficacy to the
statutory intent the Act shall have to be read as a whole and
introduction of Section 26 in the Statute Book has brought into
existence a deeming fiction which have to be given effect to and
any contra view would lead to a violent departure from the normal
canons of construction and interpretation of statutes. The deeming
fiction cannot but be read into the statute to include the situation as
envisaged presently. The situation however would stand clarified
in any event by having a look at the repeal and saving provision in
particular sub-section (2) of Section 30 which reads as below :
"30(2) Notwithstanding such repeal, but without
prejudice to the application of section 6 of the General
Clauses Act, 1897 (10 of 1897), anything done or any
action taken or purported to have been done or taken
under or in pursuance of the Acts so repealed shall, in
so far as it is not inconsistent with the provisions of this
Act, be deemed to have been done or taken under or in
pursuance of the corresponding provision of this Act."
Mr. Sanjay R. Hegde, learned Advocate appearing for the
State Government being Respondent herein contended that on an
analogy of reasoning, the appointment of the Special Judge for an
area by a notification issued under Section 6 of the Criminal Law
Amendment Act, 1952 be deemed to be the appointment of a
Special Judge appointed under Section 3 of the Act for that area or
areas. Strong reliance is also placed on the decision of this Court
in Nar Bahadur Bhandari & Anr. v. State of Sikkim & Ors. (1998
(5) SCC 39), in support by Mr. Hegde, wherein Srinivasan, J,
speaking for the Bench in paragraph 10 of the Report stated :
"10. The contentions urged on behalf of the
petitioners are based on a wrong understanding of the
provisions of the Act of 1988. No doubt, Section 3 of
the said Act refers only to offences punishable under
the Act and the Special Courts constituted under
Section 3 will have jurisdiction to try the offences
punishable under the Act but Section 3 cannot be read
in isolation. It should be read along with other
provisions of the Act to understand the scope thereof.
Section 30(1) of the Act of 1988 repeals the Acts of
1947 and 1952. That does not mean that any offence
which was committed under the Act of 1947 would
cease to be triable after the repeal of the said Act.
Normally Section 6 of the General Clauses Act would
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come into play and enable the continuation of the
proceedings including investigation as if the repealing
Act had not been passed. As per the provisions of
Section 6 of the General Clauses Act the position will
be as if the Act of 1947 continues to be in force for the
purpose of trying the offence within the meaning of the
said Act. Section 6 of the General Clauses Act
however makes it clear that the said position will not
obtain if a different intention appears in the repealing
Act. In the present case, the Act of 1988 is the
repealing Act. Sub-section (2) of Section 30 reads as
follows :
"30(2) "
(omitted to avoid repetition by reason of
earlier inclusion)
The said sub-section while on the one hand ensures that
the application of Section 6 of the General Clauses Act
is not prejudiced, on the other it expresses a different
intention as contemplated by the said Section 6. The
last part of the above sub-section introduces a legal
fiction whereby anything done or action taken under or
in pursuance of the Act of 1947 shall be deemed to
have been done or taken under or in pursuance of the
corresponding provisions of the Act of 1988. That is,
the fiction is to the effect that the Act of 1988 had come
into force when such thing was done or action was
taken."
Significantly, in Nar Bahadur (supra) this Court did refer to a
decision of the Constitution Bench in B.N. Kohli (Bishambar Nath
Kohli & Ors. v. State of Uttar Pradesh & Ors. (1966 (2) SCR 158),
wherein the repealing of Ordinance 12/49 was effected by
Ordinance 27/49. Section 58(3) of the repealing Ordinance
provided as below :
"58(3) The repeal by this Act of the Administration of
Evacuee Property Ordinance, 1949 or the Hyderabad
Administration of Evacuee Property Regulation or of
any corresponding law shall not affect the previous
operation of that Ordinance, Regulation or
corresponding law, and subject thereto, anything done
or any action taken in the exercise of any power
conferred by or under that Ordinance, Regulation or
corresponding law, shall be deemed to have been done
or taken in the exercise of the powers conferred by or
under this Act as if this Act were in force on the day on
which such thing was done or action was taken."
It is while interpreting the aforesaid provision, Shah, J.
speaking for the Constitution Bench observed as below :
"By the first part of Section 58(3) repeal of the
statutes mentioned therein did not operate to vacate
things done or actions taken under those statutes. This
provision appears to have been enacted with a view to
avoid the possible application of the rule of
interpretation that where a statute expires or is repealed,
in the absence of a provision to the contrary, it is
regarded as having never existed except as to matters
and transactions past and closed : [See Surtees v.
Ellison (1829 (9) B&C 750)]. This rule was altered by
an omnibus provision in General Clauses Act, 1897,
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relating to the effect of repeal of statutes by any Central
Act or Regulation. By Section 6 of the General
Clauses Act, it is provided, insofar as it is material, that
any Central Act or Regulation made after the
commencement of the General Clauses Act repeals any
enactment, the repeal shall not affect the previous
operation of any enactment so repealed or anything
duly done or suffered thereunder, or affect any right,
privilege, obligation or liability acquired, accrued or
incurred under any enactment so repealed, or 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, any such penalty,
forfeiture or punishment may be imposed, as if the
Repealing Act or Regulation had not been passed. But
the rule contained in Section 6 applies only if a
different intention does not appear, and by enacting
Section 58(3) Parliament has expressed a different
intention, for whereas the General Clauses Act keeps
alive the previous operation of the enactment repealed,
and things done and duly suffered, the rights,
privileges, obligations or liabilities acquired or
incurred, and authorises the investigation, legal
proceedings and remedies in respect of rights,
privileges, obligations, liabilities, penalties, forfeiture
and punishment, as if the repealing Act or Regulation
had not been passed, Section 58(3) of Act 31 of 1950
directs that things done or actions taken in exercise of
the power conferred by the repealed statutes shall be
deemed to be done or taken under the repealing Act as
if that latter Act were in force on the day on which such
thing was done, or action was taken. The rule so
enunciated makes a clear departure from the rule
enunciated in Section 6 of the General Clauses Act,
1897. By the first part of Section 58(3) which is in
terms negative, the previous operation of the repealed
statutes survives the repeal. Thereby matters and
transactions past and closed remain operative; so does
the previous operation of the repealed statute. But as
pointed out by this Court in Indira Sohanlal case (Indira
Sohanlal v. Custodian of Evacuee Property 1955 (2)
SCR 1117) at p. 1133, the saving of the previous
operation of the repealed law is not to be read, as
saving of future operation of the previous law. The
previous law stands repealed, and it has not for the
future the partial operation as it is prescribed by Section
6 of the General Clauses Act. All things done and
actions taken under the repealed statute are deemed to
be done or taken in exercise of the powers conferred by
or under the repealing Act, as if that Act were in force
on the day on which that thing was done or action was
taken. It was clearly the intention of Parliament that
matters and transactions past and closed were not to be
deemed vacated by the repeal of the statute under which
they were done. The previous operation of the statute
repealed was also affirmed expressly but things done or
actions taken under the repealed statute are to be
deemed by fiction to have been done or taken under the
repealing Act."
It is on the above perspective that the reasoning put forth by
the High Court ought also to be noticed :
"The provision in Section 26 clearly postulates
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that any notification issued by the State Govt. u/s 26 of
the Criminal Law Amendment Act, appointing the Spl.
Judge for any specified area, to try the offences under
the Prevention of Corruption Act, 1947, would hold
good for the purpose of Section 3 of the Act of 1988 as
well. The ambit of Section 26 does not admit narrow
interpretation so as to restrict its area of operation only
to those cases under the old Act of 1897 which were
actually pending before the Spl. Judge as on the date of
commencement of the New Act of 1988. Therefore,
the State Government Notification dated 19.11.88 is to
be held as a valid notification for the purpose of Section
3 of the Act of 1988, and that the Prl. Dist. and Sessions
Judge, Belgaum, who is appointed thereunder as the
Spl. Judge has jurisdiction and is competent to try the
offences under the Act. The conclusion so arrived at
by the learned Trial Judge by his impugned order, is,
therefore, entitled to be upheld."
On consideration of the above and having regard to the
provisions of law as enunciated hereinbefore, in particular Section
26 thereof, the question of there being a contra view, apart from
what has been observed above does not and cannot arise and
consequently issuance of fresh notification appointing the Judges,
does not and cannot arise and thus the Principal Sessions Judge,
Belgaum has the authority and jurisdiction to entertain the
complaint. The other issue though argued before the High Court
as regards the status of the Investigation Officer by reason of
provision of Section 17(c) has not been seriously raised and we
also accordingly need not detain ourselves on that score. Suffice it
however to say that negation of such a contention does have our
concurrence.
On the wake of the aforesaid, this appeal thus fails and is
dismissed.