Central
Bureau of Investigation Vs. Subodh Kumar Dutta & ANR [1997] INSC 49 (17
January 1997)
A.S.
ANAND, S.B. MAJUMDAR
ACT:
HEAD NOTE:
O R D E
R
Special
leave granted.
This
appeal by the Central Bureau of Investigation (hereinafter referred to as 'the
CBI') arises from the judgment of the High Court of Calcutta dated 23.12.1995,
allowing criminal revision filed by respondent No.1 and quashing the
proceedings of Special Case No. 1 of 1988, pending before the learned 2nd
Special Judge at Alipore.
On the
basis of an FIR, registered on 28.11.1987 by the CBI on the complaint of subodh
Chandra De, a trap was laid by the officers of the CBI on 30.11.1987 and
respondent No.1 Shri Subodh Kumar Dutta was allegedly caught accepting a bribe
of Rs.700/. The CBI filed a charge sheet against respondent No.1 for an offence
under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption
Act, 1947 on 11.2.1988, after completion of the investigation.
Cognizance
of the offence was taken by the learned special judge under the West Bengal
Special Courts Act, 1949 on 9.7.1988.
It is
an admitted case of the parties that the special court which took cognizance of
the offence had been constituted under the West Bengal Special courts Act, 1949
and not under the criminal law Amendment Act, 1952. After cognizance had been
taken by the learned special judge, the prevention of corruption Act, 1947 came
to be repealed by the prevention of corruption act, 1988, with effect from
9.9.1988. Respondent No.1 thereupon filed a criminal revision petition in the
High Court under Section 401/482 Cr.P.C., seeking quashing of the proceedings
in the case pending against him before the Special Court in which the principal ground raised was the violation of
the fundamental right of the accused to a speedy trial under Article 21 of the
Constitution of India. During the arguments, it appears that High Court also
permitted respondent No.1 to raise a plea that the Special Court trying the
bribe case had no jurisdiction to take cognizance of the offence under the
prevention of Corruption Act, 1947 as that court had not been constituted
pursuant of Section 3 of the Prevention of Corruption Act, 1988 which had
repealed the 1947 Act. The learned single judge appears to have been impressed
with this submission made on behalf of respondent No.1. It appears that none
appeared for the State before the learned Single judge at the time of hearing
of the petition.
The
learned single judge noticed the provisions of Section 26 of the Prevention of
Corruption Act, 1988 which reads as follows:
"Special
Judges appointed under Act 46 of 1952 to be special Judges appointed under this
Act.
Every
special Judge appointed under the Criminal Law Amendment Act, 1952, for any
area of 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." and opined
that the cognizance taken by the Special Court on 9.7.1988 under the 1947 Act,
was not saved. The learned Single Judge, therefore held that the cognizance had
not been taken in accordance with law and without referring to the merits of
the other contentions raised in the revision petition, allowed the same and
quashed the proceedings pending in the Special Court in Special Court case No.1
of 1988. Hence, this appeal by special leave.
Mr.
Bhatt, the learned Additional Solicitor General, appearing for the appellant,
CBI concedes that the Special Court which had taken cognizance, had been
constituted under the West Bengal Act of 1949 and not under the Criminal Law
Amendment Act of 1952 but submits that both on the date of the commission of
offence i.e. 30.11.1987 and on the date when the cognizance was taken by the
Special Court i.e.
9.7.1988,
the 1947 Act was very much in force and the Special Court had the jurisdiction to take cognizance of the offence. The
1947 Act came to be repealed by the prevention of Corruption Act, 1988 with
effect from 9.9.1988, after the cognizance had been validly taken by the
Special court under the 1947 Act. Learned Additional Solicitor General submits
that under Section 30 of the Prevention of Corruption Act, 1988 anything done
and nay action taken under the Prevention of Corruption Act, 1947 before the
repeal, has been specifically saved. Section 30 of the 1988 Act reads thus:
"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 1987), anything done or any
action taken 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 provisions of this Act." A bare look at the
provisions of Sub Section -2 of Section 30 shows that anything done or any
action taken or purport 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, the 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)
for 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 referred 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 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.
It
shall be open to the respondent to raise all such pleas as are available to him
in law, including the effect of superannuation of t he respondent. The High
Court, we request, may dispose of the matter expeditiously. No costs.
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