Supreme Court of India

STATE OF WEST BENGALversusSADAN K. BORMAL AND ANR.

Citation: 2004 INSC 326
Decided: 29 April 2004
Disposal: Appeal(s) allowed
Bench: N SANTOSH HEGDE

Holding

The West Bengal Amendment Act, 1994, by inserting Section 26A, deems Special Judges under the 1949 Act as appointed under Section 3 of the 1988 Act, thereby conferring jurisdiction and validating all their actions; the High Court’s quashing was erroneous.

Summary

The State of West Bengal filed a criminal appeal against S.K. Bormal and others, who were charged under the Prevention of Corruption Act, 1947 for offences alleged to have been committed in August 1988. The 1947 Act was repealed on 9 September 1988 by the Prevention of Corruption Act, 1988, and the case was transferred to a Special Judge appointed under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949. The respondents challenged the Special Judge’s jurisdiction after the 1988 Act came into force; the Calcutta High Court quashed the proceedings, holding the Judge lacked jurisdiction. The Supreme Court examined the West Bengal Amendment Act, 1994, which inserted Section 26A into the 1988 Act, creating a legal fiction that deemed such Special Judges as appointed under Section 3 of the 1988 Act and validated all their actions. The Court held that this amendment conferred jurisdiction and saved the trial, and that even if jurisdiction were lacking, the trial should have been kept in abeyance, not dismissed. Consequently, the appeal was allowed and the High Court’s order set aside.

Issues considered

Whether a Special Judge appointed under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, has jurisdiction to try offences committed under the Prevention of Corruption Act, 1947 after the Prevention of Corruption Act, 1988 came into force.
Whether the West Bengal Amendment Act, 1994, by inserting Section 26A, validly creates a legal fiction that confers such jurisdiction and validates prior actions.
Whether the High Court was correct in quashing the criminal proceedings.

Legislation cited

Code of Criminal Procedure, 1973
Criminal Law Amendment Act, 1952s. 10, s. 5, s. 6, s. 7, s. 8, s. 9
General Clauses Act, 1897s. 6
Indian Penal Code, 1860s. 120-B, s. 419, s. 420, s. 467, s. 468, s. 471
Prevention of Corruption Act, 1947s. 5
Prevention of Corruption Act, 1988s. 26, s. 26A, s. 3, s. 30, s. 4, s. 5

Subjects

legal fictionjurisdictionspecial judgePrevention of Corruption Actstatutory amendmentretrospective effectinterpretation of statutescriminal procedure

Judgment

A STA 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.
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
H 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.
B
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.
c
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
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:- E
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?
F
Allowing the appeal, the Court
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
the Act. Section 4 of the West Bengal Amendment Act, 1994, saves and H
872 SUPREME COURT REPORTS [2004] SUPP. l S.C.R.

A validates all actions taken by such Special Judges purporting to act under
the provisions of the Act of 1988 as ifthe 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 ~
B by the respondents. (880-D-F)

2. In view of the provisions of the West Bengal Amendment Act, 1994,
there is no doubt that the Special Judge trying the accused/respondents and
who was appointed under the West Bengal Criminal Law Amendment (Special
Courts) Act, 1949, and purported to act under the Act of 1988, is now vested
C with jurisdiction to try cases under the Prevention of Corruption Act, and by
operation oflaw all actions taken by him purporting to act under the Act of
1988 are saved and validated as ifthe 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, it must be imagined that
Section 26-A stood incorporated in the Act of 1988 when it came into force.
D (880-G; 881-A)

3. 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 Section 26-A of the Act of 1988 inserted by the West Bengal
E Amendment Act of 1994, which conferred validity on the actions of Special
Courts appointed even after the Act of 1988 coming into effect. (881-G) '
Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver, (1996)
6 SCC 185, State of Maharashtra v. Laljit Rajshi Shah, (2000) 2 SCC {;99
F and C/Tv. Moon Mills ltd, AIR (1966) SC 870, relied on.

4. 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,
G 1947, the result would not be that the offences committed stood abated and
consequently the offenders could not be tried at all. .fn 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 the trial in abeyance till jurisdiction was
conferred upon a competent Court to try the accused in accordance with law.
H (882-A-BI
ST ATE OF WEST BENGAL v. S.K. BORMAL 873
State v. Sh. S. Bangarappa, (2000) Supp. 4 SCR, relied on. A
5. 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 .B
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. (882-E-F)

East End Dwelling Co. Ltd v. Finsbury Borough Council, (1951) 2 All
ER 587, referred to.
'C
6. 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, there is 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. (883-F-G) D

Yel/appagouda Shankargouda Patil v. Basangouda Shiddangouda
Patil, AIR (1960) SC 808, relied on.

7. It must, therefore, be held that the Prevention of Corruption (West
Bengal Amendment) Act, 1994, by amending the Act of 1988 inserting Section E
26-A therein, has vested jurisdiction in the Special Courts appointed under
the West Bengal Criminal Law Amendment (Special Courts) Act, 1949,
subject to the conditions laid down therein, to try offences under the Prevention
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. (884-B-C) F
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 877 of
1998.

From the Judgment and Order dated 2 l .2.97 of the Calcutta High Court
in Crl. R. No. 2578 of 1994. G
A. Subha Rao, Ms. V. Mohan and Ms. Suri for the Appellant.

Uma Datta for the Respondents.

The Judgment of the Court was delivered by H
874 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A 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,
B for trying offences under the Prevention of Corruption Act, 1947 (for short
Act of 194 7) 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
C of 194 7, since no such jurisdiction was conferred upon it afresh after coming
into force of the Act of 1988, which repealed the Act of 194 7, it had no
jurisdiction to try such offences after coming into force of the Aet 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
D 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
E of 1988 came into force repealing the Act of 1947. A criminal case was
registered against respondents on 31. l 0.1988 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
F 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.

G 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 respondents moved. the High Court of
Calcutta in its revisional jurisdiction.
H
STATE OF WEST BENGAL v. S.K. BORMAL [SINGH, J.] 875

The sole question which arises for consideration before us, is whether A
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 B
no such jurisdiction had been conferred ori 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 C
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 SA 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 D
Act of 1947, but so far as the State of West Bengal is concerned, by reason
of the West Bengal Criminal Law Amendment (Special courts) Amending Act,
1953, Sections 5 to IO 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 E
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 F
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 G
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 H
876 SUPREME COURT REPORTS (2004] SUPP. I S.C.R.

A 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
B 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.
Sections 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
c 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
D proceedings pending before him on such commencement in accordance
with the provisions of this Act."

"Sec. 30 Repeal and saving : - (I) The Prevention of Corruption Act,
1947 (2of1947) and.the Criminal Law Amendment Act, 1952 (46 of
1952) are hereby repealed.
E
(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
F 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 unde.r the Criminal Law Amendment Act, 1952, to try offences
G 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 Sections 3 and 4 of the Act of 1988
clearly provided that an offence punishable under the Act of 1988 was triable
H only by a Special Judge appointed under Section 3 of the said Act and not
STATE OF WEST BENGAL v. S.K. BORMAL [SINGH, J.] 877

by any other Court, notwithstanding anything contained in any other law for A
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) B
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. C
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 (I) 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 D
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 operation E
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. F

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 G
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 H
878 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A 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
B 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
C 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.
D
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:
E
"26A ".' Judges appointed to preside over Special Courts under West
Bengal Act 21 of 1949 to b~ deemed to be Special Judges appointed
under this Act.- (I) 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
F 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
G of this Act.

(2) Every Judge appointed to preside over a 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
H Prevention of Corruption (West Bengal Amendment) Act, 1994
STATE OF WEST RENGAL v. S.K. BORMAL [SINGH. J. J 879

(hereinafter referred to as the said date) and purporting to act under A
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".
B
Section 4 of the West Bengal Amendment Act, 1994 provides as follows:-

"4. Saving and validation-Notwithstanding anything contained
in the principal Act or in any other iaw for the time being in force, any
order passed, any. evidence recorded, or any action taken under the
principal Ac~ by a Judge of Special Court appointed under the West C
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 D
evidence was recorded or such action was taken".

Sub-section (l) 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, E
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 F
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 G
before him on the said date in accordance with the provisions of the Act of
1988.

It thus appears that sub-section (I) in its application is confined to a
Special Judge appointed under the West Bengal Special Courts Act, 1949,
before the date of commencement of tt:e Act of 1988, while sub-section (2) H
880 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A 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 und!!r Section 3 of the Act of 1988
and are empowered to continue to deal with all the proceedings pending
B 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,
C 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 actfons 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 ifthe latter
was in force when such action was taken.
D
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
E 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
F to act under the provisions of the Prevention of Corruption Act, 1988, as if
the West Bengal Amendment Act, 1994 were 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.
G
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
H cases under the Prevention of Corruption Act, and by operation of law all
STATE OF WEST BENGAL v. S.K. BORMAL [SINGH, J.] 881

actions taken by him purporting to act under the Act of 1988 are saved and A
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 B
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 C
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 D
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 of the Act of 1988 as ifthe West Bengal Amendment
Act 1994 were in force when such actions were taken.
E
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. v. Kuthiravattam Estate Receiver, p
[1996] 6 SCC 185; State ofMaharashtrav. Laljit Rajshi Shah and Ors., [2000]
2 SCC 699 and Commissioner of Income - tax (Central) Calcutta v. 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 G
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 "lppointed even after the Act of 1988 coming into H
882 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A 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
B 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.
C 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 ofInvestigation v. Sh. S. Bangarappa, [2000] Supp. 4 SCR. This Court
observed:

"That apart, if the High Court found that XXI City Civil and Sessions
D 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
E 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.
F 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
G Co. Ltd v. Finsbury Borough Council, ('1951) 2 ALL ER 587, when he
observed :-

·.;d D!'!·i·J•~af y9u are bidden to treat an imaginary state of affairs as real, you
;rH no vnm~!V'4f@!¥:trneLe~~ prohibited from doing so, also imagine as real the
_. oini ::rni;589S~9~rn;£r ;~9~eiHfif!Hnfs11~p_ich, if the putative state of affairs had
iH - in fact existed, must inevitably have flowed from or accompanied it
STATE OF WEST BENGAL v. S.K. BORMAL [SINGH, J.] 883

The statute says that you must imagine a certain state of affairs; it A
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. B

Applying these principles to the prov1s1ons 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 C
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 D
Special Courts Act, 1949, they could not take cognizance and try offences
after the Act of J 988 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 E
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 v. Basangouda p
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 as to 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. G
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
H
884 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A 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 l 98S. as amended by the West
B 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,
C to try offences under the Prevention of Corruption Act, 1988. All actions
taken by them are validated as ifthe 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
D 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 l~w.

E v.s.s. Appeal allowed.

Search Indian case law

Ask in plain English, not just keywords. 25,000 AI words free, no card.

Try "legal fiction"Sign in to search