LexSTATE OF WEST BENGAL versus SADAN K. BORMAL AND ANR.
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. .,.. A ST A TE OF WEST BENGAL v. SADAN K. BORMAL AND ANR. APRIL 29, 2004 B [N. SANTOSH HEGDE AND B.P. SINGH, JI.] Prevention of Corruption Act, 1988: Section 26-A [as inserted by Prevention of Corruption (West Bengal C Amendment) Act, 1994}-Special Judge appointed under the W.B. Criminal Law Amendment Act, (Special Courts) Act, 1949 deemed to be a Special Judge under the 1988 Act-Effect of-Accused committed offences while P.C. Act, 1947 was in force-But no Special Judge appointed in the State under the Criminal Law Amendment Act, 1952 to try offences under the I947 Act- D However, Special Judge appointed under the l 949 Act to try offences under the 1947 Act-High Court quashed the criminal proceedings against the accused on the ground that no jurisdiction was conferred upon the Special Court afresh after coming into force of the 1988 Act which repealed the 1947 Act-Correctness of-Held: The Special Judge appointed under S. 26-A had jurisdiction to try cases under the 1947 Act-Even assuming that the Special E Judge had no jurisdiction to try cases under the 1947 Act, the High Court ought to have kept the trial in abeyance till jurisdiction was conferred upon duly constituted Special Court. Interpretation of Statutes: F Legal fiction-Giving effect ta:-Held: The court must ascertain the purpose of the legal fiction and must assume all facts and consequences which are incidental or inevitable corollaries for giving effect to the legal fiction-But the fiction must not be extended beyond the purpose for which it was created-It cannot be extended by importing another fiction-Moreover, G the Legislature could create a chain of legal fictions by the same Act. H A criminal case was registered against the respondents under the provisions of the Prevention of Corruption Act, 1947 as also under Sections 120-B, 420, 419, 467, 468 and 471 of the Penal Code, 1860. the offences were alleged to have been committed by the respondents in or about the month 870 ST ATE OF WEST BENGAL v. S.K. BORMAL 871 of August, 1988. A month later, on 9-9-1988, the Prevention of Corruption A Act, 1988 came into force repealing the Act of 1947. A charge sheet was filed against the respondents on 31-10-1988 before the Metropolitan Magistrate. Thereafter, the case was transferred to the Special Judge under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, to try offences under the Act of 1947. The respondents challenged the jurisdiction of the Special Judge to try the case as he had not been so empowered after coming into force of the Prevention of Corruption Act, 1988. This objection was rejected by the Special Court whereafter the respondents moved the High Court in its revisional jurisdiction. The High Court quashed the criminal proceedings against the respondents and held that though the Special 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 B c Act of 1947, it had no jurisdiction to try such offences after coming into force of the Act of 1988. In the meanwhile, the Prevention of Corruption (West D Bengal Amendment) Act, 1994 retrospectively inserted Section 26-A in the Act of 1988 which vested jurisdiction in the Special Courts appointed under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949. Hence the appeal. The following question arose before the Court:- Whether an offence committed while the Prevention of Corruption Act, 1947, was in force, could be tried by the Courts empowered to try offences under the Act of 1947 after coming into force of the Prevention of Corruption Act, 1988, w.e.f., 9-9-1988, repealing the Act of 1947? Allowing the appeal, the Court E F HELD: 1. The Prevention of Corruption (West Bengal Amendment) Act, • 1994, by retrospectively inserting Section 26-A in the Prevention of Corruption Act, 1988 has created a legal fiction whereby a Special Judge appointed under the West Bengal Criminal Law Amendment (Special Courts) G 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 Act of 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
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