http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

CASE NO.: Appeal (crl.)  877 of 1998

PETITIONER: State of West Bengal                                       

RESPONDENT: Sadan K. Bormal & Anr.                           

DATE OF JUDGMENT: 29/04/2004

BENCH: N. SANTOSH HEGDE & B.P. SINGH

JUDGMENT: J U D G M E N T  

B.P. SINGH, J.

       The State of West Bengal has preferred this appeal by  Special Leave impugning the judgment and order of the High  Court of Judicature at Calcutta dated 21st February, 1997 in  Criminal Revision No.2578 of 1994 whereby the High Court  quashed the criminal proceedings against the respondents herein  holding that the 3rd Special Court, Calcutta appointed under the  West Bengal Criminal Law Amendment (Special Courts) Act,  1949 for trying offences under the Prevention of Corruption Act,  1947 (for short Act of 1947) had no jurisdiction to try the  respondents for the alleged offences after coming into force of the  Prevention of Corruption Act, 1988 (for short Act of 1988) w.e.f.   9th September, 1998.  In substance, it held that though the said  court was earlier empowered to try offences under the Act of 1947,  since no such jurisdiction was conferred upon it afresh after  coming into force of the Act of 1988, which repealed the Act of  1947, it had no jurisdiction to try such offences after coming into  force of the Act of 1988.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  chargesheet 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  Court empowered under the West Bengal Criminal Law  Amendment (Special Courts) Act, 1949 to try offences under the  Act of 1947.  The 3rd Special Judge took cognizance on 22nd  March, 1993 when the chargesheet was filed before that Court.   

       The respondents herein challenged the jurisdiction of the 3rd  Special Judge to try the case, as he had not been so empowered  after coming into force of the Prevention of Corruption Act, 1988.   The objection was rejected by the Special Court whereafter the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

respondents moved the High Court of Calcutta in its revisional  jurisdiction.   

The sole question which arises for consideration before us is  whether an offence committed while the Act of 1947 was in force  can be tried by the Courts empowered to try offences under the Act  of 1947 after coming into force of the Act of 1988 w.e.f. 9.9.1988  repealing the Act of 1947.  The case of the respondents before the  High Court was that the Special Courts had been vested with  jurisdiction to try cases under the Act of 1947 by the West Bengal  Special Courts Act, 1949.  After coming into force of the Act of  1988 no such jurisdiction had been conferred on those courts and,  therefore, they could not take cognizance or try an offence under  the corresponding provisions of the Act of 1988.

It is, therefore, necessary to notice the relevant  provisions of the Prevention of Corruption Act, 1947 and the  Prevention of Corruption Act, 1988 as also other legal provisions  which have a bearing on this subject.  Section 5 of the Act of 1947  defines misconduct while Section 5A enumerates the Police  Officers who shall investigate any offence punishable under  Section 5 of the Act.  Section 6 of the Criminal Law Amendment  Act, 1952, a Central Act, provided for appointment of Special  Judges for trying offences under the Act of 1947, but so far the  State of West Bengal is concerned, by reason of the West Bengal  Criminal Law Amendment (Special courts) Amending Act, 1953,  Sections 5 to 10 of the Criminal Law (Amendment), Act, 1952  were made inapplicable to the State of West Bengal.  Therefore,  Special Judges under the Criminal Law (Amendment) Act, 1952  were not appointed in the State of West Bengal.  However, by the  West Bengal Criminal Law Amendment (Special Courts) Act,  1949, the Provincial Government was empowered by Notification  in the Official Gazette to constitute Special Courts of Criminal  Jurisdiction and from time 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 jurisdiction on the Special  Judge to take cognizance of offences without the accused being  committed to him for trial and, in trying the accused persons to  follow the procedure prescribed by the Code of Criminal  Procedure, 1973 for the trial of warrant cases by the Magistrates.   Section 26 and 30 of the said Act are relevant which read as  follows:-

"Sec. 26 -  Special Judges appointed under Act  46 of 1952 to be special Judges appointed under  this Act \026 Every special Judge appointed under the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

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."

"Sec. 30 Repeal  and saving : - (1) The  Prevention of Corruption Act, 1947 (2 of 1947)  and the Criminal Law Amendment Act, 1952 (46  of 1952) are hereby repealed.         (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, insofar 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 provisions of this Act."

                As earlier noticed in the State of West Bengal no Special  Judge was appointed under the Criminal Law Amendment Act,  1952 to try offences under the Act of 1947.  However, Special  Judges were appointed under the West Bengal Criminal Law  Amendment (Special Courts) Act, 1949 to try offences under the  Prevention of Corruption Act of 1947.

       The High Court took the view that Section 3 and 4 of the  Act of 1988 clearly provided that an offence punishable under the  Act of 1988 was triable 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 inforce.  Section 26 of the Act of 1988 only protected the  appointment of Special Judges under Section 5 of the Criminal  Law Amendment Act, 1952 and not the appointment of Special  Judges made under any other Act such as the West Bengal  Criminal Law Amendment (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 the areas of their respective Courts.  The  contention of the appellant was rejected by the learned Judge  holding that the Notification which in effect gave retrospective

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

operation to Section 3 of the Act of 1988 was not legal and  permissible in law, and that if such effect had to be given it could  be done by a Central Legislation, and not by a Government  Notification, since the Notification could not override the  provisions of law.  In this view of the matter the High Court  allowed the Revision Petition and quashed the criminal proceeding  against the respondents.    

When the appeal was first argued before us on 6th April,  2004, it was argued on the basis of the provisions of the various  statues noticed by the High Court, and counsel for the respondents  submitted before us that the proceeding had been rightly quashed  by the High Court for lack of jurisdiction in the Court trying them.   On the other hand, counsel for the appellant - State submitted that  the High Court was in error in quashing the proceeding. Relying  upon the Notification of 23.4.1993, it was contended that in any  event the Courts had been vested with jurisdiction to try offences  under the Act of 1988 by the said Notification.  In the alternative,  it was submitted that even if the Court came to the conclusion that  no court had been vested with jurisdiction to try offences under the  Act of 1988, rather than quashing the prosecution the same could  have been kept in abeyance till such time as special courts were  empowered to try such offences.  It is the submission of the  counsel for the State that an offence committed under the Act of  1947 does not stand obliterated by the repeal of the Act of 1947,  and indeed it could be tried under the corresponding provisions of  the Act of 1988.  The only question was about the jurisdiction of  the Court to try an offence under the Act of 1947 after coming into  force of the Act of 1988.

Later, it was brought to our notice by the counsel for the   appellant that the West Bengal Legislature has enacted an Act  known as the Prevention of Corruption (West Bengal Amendment)  Act, 1994.  It was published in the Calcutta Gazette on 23rd  December, 1999.  The said enactment was not brought to the  notice of the High Court, nor to our notice when the matter was  first argued. We, therefore, reheard the matter and afforded an  opportunity to counsel for the parties to make their  submissions 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

Special Court under the West Bengal Criminal  Law Amendment (Special Courts) Act, 1949, for  any area or areas, holding office on any date after  the commencement of this Act but before the  commencement of the Prevention of Corruption  (West Bengal Amendment) Act, 1994 (hereinafter  referred to as the said date) and purporting to act  under the provisions 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 the said date, every such Judge shall  continue to deal with all the proceedings pending  before him on the said date in accordance with the  provisions of the Act".

       Section 4 of the West Bengal Amendment Act, 1994  provides as follows:-         "4. Saving and validation \026  Notwithstanding anything contained in the  principal Act or in any other law for the time being  in force, any order passed, any evidence recorded,  or any action taken under the principal Act by a  Judge of Special Court appointed under the West  Bengal Criminal Law Amendment (Special  Courts) Act, 1949, and purporting to act under the  provisions of the principal Act, before the  commencement of this Act shall be deemed to  have been validly passed, recorded or taken under  the principal Act as amended by this Act as if this   Act were in force when such order was passed or  such evidence was recorded or such action was  taken".                                                                                                                       

       Sub-section (1) of Section 26A relates to Judges appointed  to preside over  Special Courts under the West Bengal Special  Courts Act, 1949 holding office on the commencement of the Act  of 1988.  They are deemed to be Special Judges appointed under  Section 3 of the Act of 1988 and, accordingly, on and from such  commencement they shall continue to deal with all the proceedings  pending before them on commencement of the Act of 1988 in  accordance with the provisions of the Act of 1988.   

       Sub-section (2) of Section 26A relates to Judges appointed  under the West Bengal Special Courts Act, 1949 and holding  office on any date after the commencement of the Act of 1988 but  before the commencement of the Amendment Act of 1994.  Such  Special Judges purporting to act under the provisions of the Act of  1988 are deemed to be Special Judges appointed under Section 3  of the Act of 1988. Accordingly, on and from the said date, every  such Judge shall continue to deal with all the proceedings pending  before him on the said date in accordance with the provisions of  the Act of 1988.    

       It thus appears 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

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 taken under the  Act of 1988 as amended by the West Bengal Amendment Act,  1994 as if the latter Act was in force when such action was taken.

       We have, therefore, no doubt that the West Bengal  Amendment Act, 1994 by inserting Section 26A in the Act of 1988  has created a legal fiction whereby a Special Judge appointed  under the West Bengal Special Courts Act, 1949 even before the  commencement of the Act of 1988, or thereafter, but before the  commencement of the West Bengal Amendment Act, 1994, is  deemed to be a Special Judge appointed under Section 3 of the  Prevention of Corruption Act, 1988 and consequently empowered  to continue to deal with all the proceedings pending before him on  the relevant date in accordance with the provisions of the Act.   Section 4 of the West Bengal Amendment Act, 1994 saves and  validates all actions taken by such Special Judges purporting to act  under the provisions of the Prevention of Corruption Act, 1988 as  if the West Bengal Amendment Act, 1994 was in force when such  order was passed or such evidence was recorded or such action  was taken.  So viewed, the provisions of the West Bengal  Amendment Act, 1994 provide a complete answer to the  contentions raised before us by learned counsel for the  respondents.            In view of the provisions of the West Bengal Amendment  Act of 1994, we have no doubt that the Special Judge trying the  accused/respondents and who was appointed under the West  Bengal Special Courts Act, 1949 and purported to act under the  Act of 1988, is now vested with jurisdiction to try cases under the  Prevention of Corruption Act, and by operation of law all actions  taken by him purporting to act under the Act of 1988 are saved and  validated as if the Amendment Act of 1994 were in force when  such an order was passed or such evidence was recorded or such  action was taken by him.  Giving effect to the legal fiction we must  imagine that Section 26A stood incorporated in the Act of 1988  when it came into effect.

       Counsel for the respondents submitted that the fiction  created by the West Bengal Amendment Act, 1994 should not be  given an extended operation.  In considering such a statute, the  Court must consider what is the fiction created, what is its purpose,  and what is its effect.  He further submitted that on a fair reading  of the provisions of the Act of 1988 as amended by the West  Bengal Amendment Act of 1994, only those proceedings 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

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 Receiver (1996) 6 SCC  185; State of Maharashtra Vs. Laljit Rajshi Shah & Ors. (2000) 2  SCC 699 and Commissioner of Income-tax (Central) Calcutta Vs.  Moon Mills Ltd. AIR 1966 SC 870. We, however, find nothing in  the aforesaid decisions to support the submission urged on behalf  of the respondents.   

       The submission that only those cases could be tried by the  Special Judges which were actually pending before them on the  date the Act of 1988 came into effect, proceeds on an extraneous  assumption and ignores the clear provisions of sub-section (2) of  Section 26A of the Act of 1988 inserted by the West Bengal  Amendment Act of 1994, which conferred validity on the actions  of Special Courts appointed even after the Act of 1988 coming into  effect.   

       Even if, it is assumed for the sake of argument (though the  factual position in this case is different) that the Act of 1947  having been repealed by the Act of 1988, and no Special Judge  having been appointed under Section 3 of the Act of 1988 to try  offences under the Prevention of Corruption Act, 1947, the result  would not be that the offences committed stood abated and  consequently the offenders could not be tried at all.  In such a  situation, the trial of the offenders had to be postponed till such  time as Special Courts were created to try those offences in  accordance with law.  In such a situation the High Court ought to  have kept in abeyance the trial till jurisdiction was conferred upon  a competent Court to try the accused in accordance with law.  This  Court had occasion to consider such a situation in  State by Central  Bureau of Investigation Vs. Sh. S. Bangarappa (2000) Supp. 4  SCR. This Court observed:

"That apart, if the High Court found that XXI City  Civil and Sessions Judge, Bangalore is not  empowered to try such cases, how could that be a  ground to quash the criminal proceedings?  At the  worst that would be a ground to transfer the case  from that Court to the Court having jurisdiction to  try the offence, and if no Court has been  empowered till then, the criminal proceedings can  be kept in abeyance till the Government issues a  notification conferring such power on any other  Court".

       So far as interpretation of a provision creating a legal fiction  is concerned, it is trite that the Court must ascertain the purpose for  which the fiction is created and having done so must assume all   those facts and consequences which are 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 :-                 

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

"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  Bengal Amendment Act of 1994 which inserts with retrospective  effect Section 26A in the Act of 1988, we find that the Legislature  was aware of the lacuna created by failure to appoint Special  Judges to try offences under the Prevention of Corruption Act,  1988.  Though, offences had been registered, objections were  being taken before the Courts concerned as to their jurisdiction to  try the accused and such objections had been upheld in some cases.   It, therefore, became imperative for the Legislature to step in and  confer jurisdiction upon Special Courts to try offences under the  Act of 1988.  Though Special Judges had been appointed in the  State of West Bengal under the West Bengal Special Courts Act,  1949, they could not take cognizance and try offences after the Act  of 1988 came into effect, since the Act of 1947 stood repealed and  Section 26 of the Act of 1988 did not save the Special Courts  created under the West Bengal Special Courts Act, 1949.  It was  with this in view that the West Bengal Legislature enacted the  West Bengal Amendment Act of 1994 inserting Section 26A in the  Act of 1988.  Since, the Special Courts continued to exercise  jurisdiction over the matters brought before them, the Legislature  by law conferred validity on such actions by a deeming provision.

       The submission that a law can create only a single fiction  must also be repelled.  This Court in Yellappagouda Shankargouda  Patil Vs. Basangouda Shiddangouda Patil, AIR 1960 SC 808; held  that the Legislature may sometimes create a chain of fictions by  the same Act or by succeeding Acts.  If the Legislature is  competent to enact a provision creating a legal fiction, we see no  reason why it cannot create a chain of fictions if necessity arises.   It is true that in interpreting a provision creating a legal fiction it is  not open to the Court to import another fiction.

       In the instant case, the amendment of the Act of 1988 by the  West Bengal Amendment Act, 1994 is intended to meet the  situation arising from  non-appointment of Special Judges under  the Act of 1988 which repealed the Act of 1947.  With a view to  meet this situation the law deemed, subject to the conditions  enumerates therein, the Special Judges appointed under the West  Bengal Special Courts Act, 1949 to have been appointed under  Section 3 of the Act of 1988.  With the above purpose in mind it  was further deemed that any order passed, evidence 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

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 and direct the said Court to proceed with  the trial in accordance with law.              

1