H D BARMAN Vs. STATE OF W B

JUDGEMENT

(1.) IT appears that the CBI recorded FIR against the present petitioner and others on 30th November, 1989 under sections 120b/420 IPC and Section 13 of the Prevention of corruption Act, 1988 and took up investigation. It also appears that after investigation a case was started against the present petitioner under the prevention of Corruption Act, 1988 in the 3rd Special Court, Calcutta, being special case no. 5/93. It further appears that in the said case the judge 3rd Special Court, Calcutta issued summons to the petitioner as accused on the 29th March, 1993.

(2.) IN this revisional application the petitioner has challenged the proceeding in the court below on the ground that the Judge, Special Court had no jurisdiction to entertain a case under the Prevention of Corruption act, 1988 for trial. Earlier there was a Central legislation called the prevention of Corruption Act, 1947. The said legislation was enacted for making 'more effective provision for the prevention of bribery and corruption'. Section 5 of the said Prevention of Corruption Act 1947 defined criminal misconduct of public servant in discharge of official duty and provided for punishment of the same. There was however no provision in the said Act regarding the court empowered to try the said offence or for that matter, the offences punishable under sections 161, 162, 163, 164, 165 and 165a of the Indian Penal Code. Subsequently the State of West bengal enacted a State legislation called the West Bengal Criminal Law amendment Special Courts Act. 1949 (West Bengal Special Courts Act. 1949, for short) for the purpose of making provision for speedy trial and more effective punishment' of certain offences specified in the Schedule to the Act. The offences punishable under Sections 161, 162, 163, 164, 165 and 165a I. P. C. , Sections 409, 417 and 420 I. P. C. committed by a public servant or other persons mentioned Therein, an offence punishable under section 5 of the prevention of Corruption Act, 1947 as well as any offence of conspiracy attempt or abetment in respect of any such offence are included in the said Schedule. Section 4 of the West Bengal Special Courts act, 1949 provides that offences Specified in the Schedule to the Act shall be triable by Special Courts only and when trying any such case the special Court may also try any other offence with which the accused may, under the Code of Criminal Procedure, be charged at the same trial. Section 2 of the West Bengal Special Courts Act, 1949 empowers the State government to constitute by notification in the official gazette one or more special Courts and to appoint a Judge to preside over a Special Court. In 1952 the Parliament enacted the Criminal Law (Amendment) Act, 1952 with the object of amending. the Indian Penal Code and the Code of criminal Procedure and of providing for a more speedy trial of certain offences. Section 6 of the said Act empowered the State Government, to appoint by notification in the official gazette, Special Judges to try the offences said section of the Criminal Law (Amendment) Act, 1952 by the state Government in West Bengal for trying an offence under section 5 of the prevention of Corruption Act, 1947.

(3.) IN 1988 a Central Act, namely, the prevention of Corruption Act, 1988 came into force and by Section 13. repealed both the prevention of corruption Act, 1947 and the Criminal Law (Amendment) Act, 1952. Parliament enacted the Prevention of Corruption Act, 1988 'to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith'. By Section 31 of the said 1988 Act Sections 161, 162, 163, 164, 165, and 165a of the Indian Penal Code were omitted of course, the provisions relating to those offences were re-enacted in the 1988 Act, with some modifications, in Sections 7, 8, 9, 10 and 11. The maximum punishment prescribed for those offences in the Indian Penal code was enhanced in each case under the Prevention of Corruption Act, 1988 and this Act also made provision for minimum punishment for such offences which was not there in the Indian Penal Code. Section 13 of 1988 act defines criminal misconduct of a public servant and provides for punishment of the same. Section 4 of the 1988 Act provides that 'notwithstanding anything contained in the Code of Criminal Procedure, 1973, or in any other law for the time being in force', the offences specified in section 3 (1) shall be tried by Special Judges only and when trying any such case a special Judge may also try any other offence with which the accused may under the Code of Criminal Procedure; be charged at the same trial. Section 3 of the 1988 Act provides that the Central Government or the state Government may, by notification in the official gazette, appoint special Judges for trying the offences punishable under the said Act including the offence of conspiracy or attempt to commit such offence or any abetment thereof. Sections 3 and 4 of the Prevention of Corruption Act, 1983 read together clearly show that an offence punishable under the said act can be tried 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 in force". Now the question arises whether the Judges of the Special Court, appointed under Section 2 of the west Bengal Special Courts Act, 1949, by virtue of such appointment, can take cognizance of and try offences punishable under the prevention of corruption Act, 1988. In this connection, we may refer to Section 26 of the prevention of Corruption Act, 1988 which provides that every Special judge appointed under the Criminal Law (Amendment) Act, 1952 shall be deemed to be a Special Judge appointed under Section 3 of the 1988 Act and every such Judge shall continue to deal with all proceedings pending before him on commencement of the said act in accordance with the provisions of the Act. Section 26 of the 1988 act thus protects the appointment of those Judges only who were earlier appointed under Section 6 of the Criminal Law (Amendment) Act, 1952. As we have already seen in west Bengal section 6 of the Criminal Law (Amendment) Act 1952 was not applicable and no appointment of a Special Judge could be or was in fact made by the State Government under the said section 6 of the Criminal law (Amendment) Act, 1952. On the other hand, Judges of the Special courts were appointed by the Government of West Bengal under the West bengal Special Courts Act, 1949. Obviously, such Judges appointed not under Section 6 of the Criminal Law (Amendment) Act, 1952 but under section 2 of the West Bengal special Courts Act, 1949 cannot be treated either under Section 26 of the 1988 Act or otherwise, as Special Judges appointed under Section 3 of the 1988 Act for taking cognizance and for trying offences punishable under the said 1988 Act.