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PETITIONER: NAR BAHADUR BHANDARI ETC.

       Vs.

RESPONDENT: STATE OF SIKKIM AND OTHERS

DATE OF JUDGMENT:       13/05/1998

BENCH: M. SRINIVASAN, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SRINIVASAN, J.      Leave granted.      The common  question in  these petitions relates to the competence of  Special Judge  (P.C. Act)  Sikkim to  try the cases  registered   against  the  petitioners  herein  under Section 5(2)  read with Section 5(1)(e) of the Prevention of Corruption Act.  1947 corresponding  to Section  13(2)  read with Section  13(1)(e) of  the prevention of Corruption Act, 1988. The  petitioner in S.L.Ps 146-148 of 1998 is the third respondent in  S.L.Ps 149-150  of 1998 and the petitioner in the later  petitions is  the third respondent in S.L.Ps 146- 148. The  petitioner in  the earlier petitions was the Chief Minister of Sikkim and the petitioner in the later petitions was a  Member of Indian Administrative Service(Sikkim cadre) working at  the relevant  time as  a Secretary  to the Rural Development Department, Government of Sikkim. 2.   Cases were registered against the petitioners by C.B.I. on 26.5.84 and 7.8.84 under Section 5(2) read with Section 5 (1)(e)   and  Section 5 (2) read with Section 5 (1)(d)  of the prevention  of Corruption  Act 1947. On 7.1.87 the State of Sikkim  issued a  Notification  withdrawing  the  consent given  under   Section  6   of  the   Delhi  Special  Police Establishment Act,  1946 to the C.B.I. for exercising powers and jurisdiction  the State  of Sikkim for investigations of offences punishable under the provisions of the Indian Penal Code  specified  therein  as  well  as  offences  under  the Prevention of  Corruption Act,  1947. The  said Notification was challenged  in a writ petition filed under Article 32 of the Constitution  of India. This Court by its judgment dated March 29,  1994 allowed  the writ petition and declared that the Notification  dated 7.1.87 withdrawing the consent given by  the   Government  of   Sikkim  earlier   operated   only prospectively and  the said  withdrawal would  not apply  to cases which  were  pending  investigation  on  the  date  of issuance of   the said Notification. The Court observed that the Notification  dated 7.1.87  did not  preclude the  C.B.I from submitting  the report  in the  competent  court  under Section 173  Cr.P.C.  on  the  basis  of  the  investigation conducted in  RC 5/84-  CIU (A)  and RC  8/84- CIU  (A). The

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judgment of  this Court  is reported  in Kazi  Lhendup Dorji Versus Central  Bureau of Investigation and others 1994 Supp (2) S.C.C. 116. 3.   It should  be mentioned  here that even before the said writ petition  was filed,  the prevention of Corruption Act, 1947 (hereinafter  referred to  as ’The  Act of 1947)’ ) was repealed  and   the  prevention   of  Corruption  Act,  1988 (hereinafter referred  to as  ’The Act  of 1988’)  came into force. The  Act of  1947 was extended to the State of Sikkim with  effect   from  1.9.76.   The  Delhi   Special   Police Establishment Act  1946 had  been extended  to the  State of Sikkim with  effect from  15.5.76. The  Act of  1988  became applicable to the State of Sikkim from the date it came into force namely  9.9.88. On  13.9.1994 the  following Acts were made applicable to the State of Sikkim.      1. Cr. P.C. 1973      2. Indian Penal Code 1860      3. Indian Evidence Act 1972      On  the   same  day,   the  State   of  Sikkim   issued Notification under  Section 3  of The Act of 1988 appointing Shri A.  P. Subba as Special Judge for trying cases referred to in  clauses (a)  and (b)  of Section 3(1) of the said Act for the Whole of the State of Sikkim. 4.   On 14.9.94  the C.B.I. filed its report before the said Special Judge  as permitted  by this  Court in  its judgment dated March  29,1994. The  Special Judge  passed a  detailed order on  11.8.95 holding  that on the basis of materials on record he  was of the view that prima facie there was ground for presuming  that the  accused had  committed  an  offence punishable under Section 5(2) read with Section 5 (1)(e)  of the Act  of 1947  corresponding to  Section 13(2)  read with Section 13  (1)(e)   of the  Act  of  1988  and  accordingly charges had  to be framed. Thereafter the petitioners raised a preliminary  objection to  the competence  of the  Special Judge to try the aforesaid offences. After hearing arguments on both  sides the  special Judge  passed on order on 1.7.97 upholding the  preliminary objection and expressing the view that the  Court not  having been  constituted under Criminal Law (Amendment)  Act, 1952  hereinafter referred  to as  the ’Act of  1952’ lacked jurisdiction to take cognizance of and to try  the offences  in the  present case. Consequently, it held that  further  proceedings  in  both  the  cases  stood dropped and  the accused be discharged from their respective bail bonds. 5.   That other  of the  Special Judge was challenged before the high  Court in  Criminal Revision Nos. 1,3 and 4 of 1997 by the State and the C.B.I. The learned Chief Justice of the High Court  on 24.9.1997  allowed the revision petitions and held that the Special Judge appointed under Section 3 of the act of 1988 had jurisdiction entertain the chargesheet filed under the  provisions of  the Act of 1988 with regard to the offences committed  under the  Act of  1947 and directed the special Judge  to   dispose of  the criminal case pending on his file  in accordance  with law.  It is  that order of the High Court which is challenged in these S.L.Ps. 6. Learned  counsel for  the petitioner in S.L.Ps 146-148 of 1998 has  contended as  follows:- Before  the passing of the Act 1988  there were  two enactments  which dealt  with  the offences in question, namely, the Act of 1947 and the Act of 1952. The  Act of  1952 provided for constitution of Special Courts to  try the  offences  under  the  Act  of  1947  and excluded the  jurisdiction of other Courts.  The Act of 1952 was not  extended to  the State of Sikkim.  No special Court was constituted  in the  State of Sikkim to try the offences under the  Act of  1947.  Consequently, when the Act of 1988

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was passed  repealing both  the Act  of 1947  and the Act of 1952 and  bringing into force a consolidated and amalgamated Legislation providing  not only  for the  ingredients of the offences but  also for the constitution of Special Courts to try the  same, the Special Court constituted under Section 3 of the Act of 1988 has jurisdiction only to try the offences punishable under  the said act.  Such a Court cannot try the offences  punishable  under  the  Act  of  1947  unless  the proceeding in relation to such offences had commenced before a Special  Judge appointed  under the  Act of  1952.  In the absence of  such Special  Judge under the Act of 1952 in the State of  Sikkim, Section  26 of  the Act  of  1988  is  not applicable and  the present  proceeding will not be governed thereby.  Section 30 of the Act of 1988 is not applicable to the facts  of the  case in  as much as the repeal under Sub- sec. (1)  of Section  30 is a joint repeal of both the Acts, namely, the  Act of 1947 and the Act of 1952.  sub--sec. (2) of Section  30 will  come into play only if sub-sec.  91) is applicable.   In the State of Sikkim the Act of 1952 was not in force  so as  to be repealed by sub-sec (1) of Section 30 and consequently  sub-section 2  will not  apply. It is also contended the  Section 6 of the General Clauses Act will not help the  prosecution in  the present case in as much as the provisions of the Act of 1988 indicate a different intention as contemplated  by the  first part  of the  said Section 6. According to  the learned  counsel if  the provisions of the Act  of   1988  are  perused,  it  will  be  seen  that  the legislative intention  is not  to  make  Section  6  of  the General Clauses Act applicable to the repeal of Act of 1947. In this  connection reliance  is placed  on the  judgment of this Court  in State  of Punjab  Versus Mohar Singh (1955) 1 S.C.R. 893. 7.   Learned counsel  for the  petitioners in S.L.Ps 149-150 of 1998  has contended that Section 30(2) of the Act of 1988 can apply only if a proceeding had been initiated before the said Act  came into  force so that it could be continued and in the present case the proceeding was instituted only after the said  Act came  into force  and consequently the Special Court had  no jurisdiction. It is also contended by him that the prosecution  had conceded before the High Court that the alleged offence  is punishable  under Section 5(1) (d) and 5 (2) of  the Act  of 1947  and not  under the Act of 1988 and therefore the special court has no jurisdiction. 8.   Per contra,  learned Additional  Solicitor General  has contended that  Section 3  of the Act of 1988 has to be read along with Section 30(2) of the said Act and that it will be clear therefrom  that the  Special Court is competent to try the offences  under the  Act of  1947 as  well as the Act of 1988. According to him a legal fiction is created by Section 30(2) by  which the  Act of  1988 is  deemed to have been in force at  the time  when the offences were committed and the investigation  done.  Reliance  is  placed  by  him  on  the judgment of this Court in B.N. Kohli and others Versus State of Uttar  Pradesh  and  others  1966  (2)  S.C.R.  158.  Our attention is  also drawn  to the  judgment of  this Court in C.B.I versus Subodh Kumar Dutta and another (1997) 10 S.C.C. 567 and  it is contended that the matter is concluded by the judgment in that case. 9.   The contentions  urged on behalf of the petitioners are based on  a wrong  understanding of 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

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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 At  of 1947  would cease  to be triable after the  repeal of the said Act. Normally Section 6 of the General Causes  Act would  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 Causes 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-sec. (2) of Section 30 reads as follows:           (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 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." 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  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. 10.  This aspect of the matter was clearly elucidated by the Constitution Bench  in B.  N. Kohli’s  case(supra). In  that case Ordinance  27/49 repealed Ordinance 12/49. The relevant provision in  the repealing  Ordinance  was  sub-sec.(3)  of Section 58. That read as follows:           " 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

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    such thing  was done  or action was      taken." 11.  While  construing   the  said  sub-section,  the  Court observed as follows:      "... By  the first  part of S.58(3)      repeal of  the  statutes  mentioned      therein did  not operate  to vacate      things done  or action  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  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  versus Ellison (1829)      9 B & C 752). This rule was altered      by an  omnibus provision in General      Clauses Act,  1897, relating to the      effect of repeal of statutes by any      Central Act  or Regulation.  By s.6      of the  General Clauses  Act, it is      provided,  in   so  far  as  it  is      material, that  any; central Act of      Regulation    made     after    the      commencement of the General Clauses      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,   occurred  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) the  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 authorities  the investigation,      legal proceeding  and  remedies  in

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    respect  of   rights,   privileges,      obligations,           liabilities,      penalties,     forfeitures      and      punishment and 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   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   rules   enunciated   in      Section 6  or 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’s  case  (1955)  2      S.C.R. 1117  at P.1133,  the saving      of the  previous operation  of  the      repealed statute.  But  as  pointed      out  by   this  Court   in   Indira      Sohanlal’s  case  (1955)  2  S.C.R.      1117 at  P. 1113, the saving of the      previous operation  of the repealed      law is not to be read as saving the      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      General  Clauses  Act.  All  things      done and  actions taken  under  the      repealed statute  are deemed  to be      done or taken in exercise of 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   the      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      donor  taken  under  the  repealing      Act." 12.  On the basis of the above reasoning the Court held that the Custodian-  General  had  jurisdiction  to  entertain  a revision against  an order passed by the Deputy Custodian of the Evacuee  property under  Section 6  of  Ordinance  12/49

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which was repealed by Ordinance 27/49. 13.  Applying the  said ratio  of the Constitution Bench, we arrive at  the conclusion that the Special Court constituted under Section 3 of the Act of 1988 has competence to try the offences under the Act of 1947. 14.  The judgment  in State  of Punjab  versus  Mohar  singh (supra) relied  on by the learned counsel for the petitioner does not  help him in any manner. The Court has only held in that case that in order to ascertain the different intention within the  meaning of  section 6 of the General Clauses Act the Court has to read the provisions of repealing enactment. 15.  In our  view, the  matter has  been set  at rest by the judgment of  this Court  in C.B.I. Versus Subodh Kumar Dutta and another  (supra). That  was an appeal by the C.B.I. from the judgment  of the  High  Court  of  Calcutta  allowing  a criminal revision  filed by  the respondent therein quashing the proceedings  of the  Special Court constituted under the West Bengal Special Courts Act, 1950 for trying the offences under the  Act of  1947. A  case was  registered in November 1987 by  the C.B.I.  before the special Court and cognizance of the  offence was  taken by  the Special  Judge on 9.7.88. When the  Act of 1988 came into force on 9.9.88 an objection was taken  to the  competence of a Special Court to continue with the case. A Criminal Revision Petition was filed by the accused  before   the  High   Court  seeking  to  quash  the proceeding before the Special Judge. The High Court accepted the contention  of the accused and opined that Section 26 of the Act  of 1988  saved only  proceedings before the Special Courts constituted  under the  Act of  1952  and  not  other Special Courts. Consequently the proceeding was quashed. 16.   Reversing  that judgment of the High Court this Court, held that  by virtus  of the  provisions of  sub-sec. (2) of Section 30  the proceeding  initiated under  the Act of 1947 shall be  deemed to  have been taken under the corresponding provisions of the Act of 1988 and consequently the Court had jurisdiction to  continue the  Same. The relevant passage in the judgment reads  as follows:      " A  bare look at the provisions of      sub-sec. (2)  of Section  30  shows      that anything  done or  any  action      taken or  purported  to  have  been      taken under  or in pursuance of the      prevention of  Corruption Act, 1947      shall be  deemed to have been taken      under  or   in  pursuance   of  the      corresponding  provision   of   the      Prevention of  Corruption Act 1988.      In view of this specific provision,      cognizance of  the offence taken by      the Special  Court stood  saved. It      appears that  the attention  of the      learned Single  Judge of  the  High      Court was not invited to Section 30      (supra) or  had it been so invited,      we   have   no   doubt   that   the      proceedings which were saved by the      1988  Act   would  not   have  been      quashed. The  learned Single  Judge      has only  deferred to Section 26 of      the 1988  Act  and  we  agree  that      under that  Section, the cognizance      taken by  the Special Court was not      saved. Section  26 of  the 1988 Act      has no  application to  this  case.      The order of the High Court in view

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    of the  clear provisions of Section      30 (supra)  cannot be sustained and      we, therefore,  accept this  appeal      and set aside the order of the High      Court impugned before us. Since the      High  Court  did  not  express  any      opinion on  the other points raised      in the  revision petition,  we deem      it appropriate to remand the matter      to the  High Court for deciding the      Criminal revision  petition,  filed      by  Respondent   No.1,  afresh   on      merits after hearing the parties in      the light of  the observations made      by us above..... " 17.  The present  one is  an afortiori  case. when a Special Court constituted  under an  enactment other than the Act of 1952 can continue the proceedings by virtue of Section 30(2) of the  Act of 1988, it goes without saying that the special Court constituted  under the Act of 1988 can take cognizance of  the   report  filed  before  it  and  try  the  offences particularly when this Court had in its judgment dated March 29, 1994  held that  the  filing  of  such  report  was  not precluded (vide 1994 Supp. (2) S.C.C. 116). 18.  We have  no hesitation  to hold  that the special Judge (P.C. Act) Sikkim is competent to try the offences for which the  appellants  stand  charged.  Hence  these  appeals  are dismissed.