State
of Punjab Vs. Harnek Singh [2002] Insc 81 (15 February 2002)
R.P.
Sethi & Bisheshwar Prasad Singh
(With
Crl.A.Nos.802-808/1999, Crl.A.No.809-810/1999 Crl.A.No.374/2001)
SETHI,J.
In all
these appeals, the FIRs and subsequent proceedings pending against the
respondents under the provisions of Prevention of Corruption Act, 1988
(hereinafter referred to as "the 1988 Act") were quashed by the High
Court in exercise of the powers vesting in it under Section 482 of the Code of
Criminal Procedure. The accused- respondents had been apprehended while
accepting the bribe by laying the trap under the 1988 Act. The High Court found
that as the investigations had not been conducted by the authorised officers
under the 1988 Act, the same were vitiated and deserved to be quashed.
The
questions of law to be adjudicated upon in these appeals are:
(1)
Whether the notifications issued by the State Government in exercise of the
powers conferred upon it under Section 5A(1) of the Prevention of Corruption
Act, 1947 (since repealed) empowering and authorising Inspector of Police to
investigate the cases registered under the said Act are not saved under the
saving provisions of the re- enacted Prevention of Corruption Act, 1988.
(2)
Whether the aforesaid notifications not being inconsistent with the provisions
of the re-enacted Act continue to be in force and be deemed to have been issued
under the Prevention of Corruption Act, 1988 till aforesaid notifications are
superseded or specifically withdrawn." Most of the facts in these appeals
are not disputed.
It is
agreed that during the subsistence of the Prevention of Corruption Act, 1947
(hereinafter referred to as "the 1947 Act"), the Government of Punjab
issued a notification on 9.7.1968 authorising Inspectors of Police, for the
time being serving in the State Vigilance Department or who may be posted in
future to serve with the said agency to investigate the offences under the 1947
Act within the State of Punjab so long as they remain posted in the said
agency.
In supersession
of the notifications dated 9th July, 1968, the Government of Punjab issued
another notification on 12.8.1968 under Section 5A(1) of the 1947 Act authorising
such inspectors of police to investigate the offences under the Act even beyond
the State of Punjab and the restrictions of investigation within the State of
Punjab were removed.
The
1947 Act was repealed on 9.9.1988 by re-enacting the 1988 Act being Act No.49
of 1988. FIRs against the respondents were, concededly, registered after the
coming into force the 1988 Act and the investigation conducted by the
Inspectors of Police who had been authorised to investigate the offences by
notifications issued under the repealed Act of 1947. The accused-respondents
filed petitions under Section 482 of the Cr.P.C. (hereinafter referred to as
"the Code") for quashing the FIRs registered and the proceedings
pending against them on the ground that the inspectors who had investigated the
cases were not the authorised officers in terms of Section 17 of 1988 Act.
In
reply to the notices issued by the High Court, the State filed counter
affidavit submitting therein that the investigating officers were authorised to
investigate the case as provided by first proviso to Sub-section (1) of Section
5A of the 1947 Act. It was contended that in view of the provisions of Section
30(2) of the 1988 Act read with Sections 6 and 24 of the General Clauses Act,
the notifications issued by the State of Punjab under the 1947 Act were still
in force which empowered the Inspectors of the Police of the Vigilance
Department to investigate the cases under the 1947 Act.
The
learned Judge, who disposed of the petitions for quashing the FIRs and the
subsequent proceedings vide the judgment impugned in these appeals, first dealt
with the problem of prevalent corruption in society and described it as cancer
eating the bone marrow of the society. He, however, found that the repeal of an
Act amounted to its revocation, annulment and abrogation, the effect of which
was that the repealed Act or Ordinance did not exist on the statute book. The
only exception being the saving provisions in the repeal statute. Referring to
Section 30 of the 1988 Act the learned Judge held:
"It
is manifestly clear that the legislature had the intention to bodily lift the
provisions of Section 6 of the General Clauses Act, 1897, and incorporate the
same in the Amending Act of 1988 and (no other provision) of the General
Clauses Act. If the legislature had intended to apply any other provision or
whole of the General Clauses Act, 1897, it would have so said clearly instead
of saying that section 6 only would apply or would have said nothing in that
regard and in that eventuality, whole of the Act of 1897 would have its
application. It is trite law that even when a saving clause reserving the
rights and liabilities under the repealed law is absent in a new enactment, the
same will neither be material nor decisive on the question of different
intention because in such cases section 6 of the General Clauses Act will be
attracted and rights and liabilities acquired, accrued under the repealed law
will remain saved unless there is something to infer that legislature intended
to destroy the rights and liabilities already accrued. It, therefore, appears
clear that the legislature intended to apply section 6 only and not the whole
of the Act." Regarding the continuity of the notifications after the 1988
Act, the learned Judge observed:
"These
notifications were issued under sub section (1) of Section 5-A of the
Prevention of Corruption Act, 1947, and Inspector of Police serving in the
Special Inquiry Agency in the Vigilance Department of the Punjab Government or
who were to be posted in future to serve in the said agency were authorised to
arrest and investigate the case for the commission of the offence under the Act
of 1947. The notifications enure in respect of any investigation legal
proceedings or remedy that may be instituted, continued or any such penalty,
forfeiture or punishment that may be imposed under the Act of 1947, as if the
repealing Act or Regulation had not been passed. These notifications referred
to above, were not expressly saved by saving provision contained in Section
30(2) of the Act of 1988. These notifications, therefore, would not enure or
survive to govern any investigation done or legal proceedings instituted in
respect of cases registered under the repealing Act, 1988, after it came into
force w.e.f. 9th
September, 1988."
After holding that the investigation had not been conducted by the officers as authorised
under Section 17(1) of the 1988 Act, the proceedings against the respondents
were quashed vide the judgment impugned.
Mr.Inderbir
Singh Alag, Advocate appearing for the appellant, contended that the impugned
judgment is not sustainable in view of the mandate of Section 30 of the 1988
Act and Section 6 read with Section 24 of the General Clauses Act. It is argued
that as notifications issued under Section 5A of the 1947 Act had survived the
repeal of the State Act, there was no necessity of issuing any new notification.
There being no inconsistency between Section 5A of the 1947 Act and Section 17
of the 1988 Act, the earlier notifications are deemed to be in existence and
Inspector of Police authorised to investigate the offences under the 1988 Act.
Appearing
for some of the respondents Mr.Ranjit Kumar, Senior Advocate contended that in
view of the change in the nature and scope of Prevention of Corruption Act as
to its ambit and applicability, the penal statute requires to be strictly
construed. As the repealing and saving Section 30 of the 1988 Act refers only
to Section 6 of the General Clauses Act, the other provisions of the General
Clauses Act cannot be relied upon for the purposes of ascertaining the life of
the notifications issued under the 1947 Act. It is submitted that what is saved
by the repealed Act, are only the proceedings already having arisen under the
repealed Act and nothing more than that. According to him Section 24 of the
General Clauses Act cannot be pressed into service for the purpose of deciding
the effect of the repeal in the context of notifications issued under 1947 Act.
Mr.Manoj
Swarup, learned counsel appearing for some of the respondents contended that
the provisions made in two enactments being inconsistent, as is evident from
the scheme of the Acts, sub-section (2) of Section 30 would not save the
notifications issued under the 1947 Act. He contended that the Legislature
intended not to apply any other provision of the General Clauses Act, as is
evident from the mentioning of the application of Section 6 of the said Act
only in sub-section (2) of Section 30 of the 1988 Act.
Learned
counsel appearing for the other respondents made similar submissions to support
the impugned judgment in these appeals.
Realising
that provisions made in the Indian Penal Code were not adequate to meet the
exigencies of the time, an imperative need was felt to make a law to eradicate
the evil of bribery and corruption for which the 1947 Act was enacted. The said
Act was amended twice by Criminal Law Amendment Act of 1952 and later in 1964.
Ultimately the said Act was repealed by the 1988 Act being Act No.49 of 1988.
The new Act has made the anti corruption law more effective by widening its
coverage and by strengthening its provisions.
Chapter
IV deals with the investigation into cases under the Act and Section 17
provides:
"17.
Persons authorised to investigate. -- Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,
--
(a) in
the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in
the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any
other metropolitan area notified as such under sub-section (1) of section 8 of
the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner
of Police;
(c) elsewhere,
of a Deputy Superintendent of Police or a police officer of equivalent rank,
shall investigate any offence punishable under this Act without the order of a
Metropolitan Magistrate or a Magistrate of the first class, as the case may be,
or make any arrest therefor without a warrant:
Provided
that if a police officer not below the rank of an Inspector of Police is authorised
by the State Government in this behalf by general or special order, he may also
investigate any such offence without the order of a Metropolitan Magistrate or
a Magistrate of the first class, as the case may be, or make arrest therefor
without a warrant:
Provided
further than an offence referred to in clause (e) of sub-section (1) of section
13 shall not be investigated without the order of a police officer not below
the rank of a Superintendent of Police." Section 30 of the Act provides:
"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, 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 provision of this Act." It is relevant, at
this stage, to take note of the provisions of Section 5A of the 1947 Act which
provided:
"5A.
Investigation into cases under this Act - (1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1898 (5 of 1898), no police officer
below the rank, -- (a) in the case of the Delhi Special Police Establishment,
of an Inspector of Police;
(b) in
the presidency-towns of Calcutta and Madras, of an Assistant Commissioner of
Police;
(c) in
the presidency-town of Bombay, of a Superintendent of Police; and (d)
elsewhere, of a Deputy Superintendent of Police, shall investigate any officer
punishable under Section 161, Section 165 or Section 165A of the Indian Penal
Code (45 of 1860) or under Section 5 of this Act without the order of a Presidency
Magistrate or a Magistrate of the first class, as the case may be, or make any
arrest therefor without a warrant:
Provided
that if a police officer not below the rank of an Inspector of Police is authorised
by the State Government in this behalf by general or special order, he may also
investigate any such offence without the order of a Presidency Magistrate or a
Magistrate of the first class, as the case may be, or make arrest therefor
without a warrant:
Provided
further that an offence referred to in clause (e) of sub-section (1) of section
5 shall not be investigated without the order of a police officer not below the
rank of a Superintendent of Police.
(2)
If, from information received or otherwise, a police officer has reason to
suspect the commission of an offence which he is empowered to investigate under
sub-section (1) and considers that for the purpose of investigation or inquiry
into such offence, it is necessary to inspect any bankers' books, then,
notwithstanding anything contained in any law for the time being in force, he
may inspect any bankers' books in so far as they relate to the accounts of the
person suspected to have committed that offence or of any other person
suspected to be holding money on behalf of such person, and take or cause to be
taken certified copies of the relevant entries therefrom, and the bank
concerned shall be bound to assist the police officer in the exercise of his
powers under this sub-section:
Provided
that no power under this sub-section in relation to the accounts of any person
shall be exercised by a police officer below the rank of a Superintendent of
Police, unless he is specially authorised in this behalf by a police officer of
or above the rank of a Superintendent of Police.
Explanation.-- In this sub-section, the
expressions "bank" and "bankers' books" shall have the
meaning assigned to them in the Bankers' Books Evidence Act, 1891 (18 of
1891)." For deciding the controversy it is also necessary to take note of
the provisions of Sections 6 and 24 of the General Clauses Act which provide as
under:
"6.
Effect of repeal. -- Where this Act, or any Central Act or Regulation made
after the commencement of this Act, repeals any enactment hitherto made or
hereafter to be made, then, unless a different intention appears, the repeal
shall not—
(a) revive
anything not in force or existing at the time at which the repeal takes effect;
or
(b) affect
the previous operation of any enactment so repealed or anything duly done or
suffered thereunder; or
(c)
affect any right, privilege, obligation or liability acquired, accrued or
incurred under any enactment so repealed; or
(d) affect
any penalty, forfeiture or punishment incurred in respect of any offence
committed against any enactment so repealed; or
(e) affect
any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, penalty, forfeiture or punishment as aforesaid, and any
such investigation, legal proceeding or remedy may be instituted, continued or
enforced, and any such penalty, forfeiture or punishment may be imposed as if
the repealing Act or Regulation had not been passed."
24.
Continuation of orders, etc., issued under enactments repeated and re-enacted -
Where any Central Act or Regulation is, after the commencement of this Act,
repealed and re-enacted with or without modification, then unless it is
otherwise expressly provided, any appointment, notification, order, scheme,
rule, form or bye-law made or issued under the repealed Act or Regulation,
shall so far as it is not inconsistent with the provisions re-enacted, continue
in force, and be deemed to have been made or issued under the provisions so
re-enacted, unless and until it is superseded by any appointment, notification,
order, scheme, rule form or bye-law made or issued under the provisions so
re-enacted and when any Central Act or Regulation, which, by a notification
under Section 5 or 5A of the Scheduled District Act, 1874 (XIV of 1974), or any
like law, has been extended to any local area, has, by a subsequent
notification, been withdrawn from the re-extended to such area or any part
thereof, the provisions of such Act or Regulation shall be deemed to have been
repealed and re- enacted in such area or part within the meaning of this
section." The General Clauses Act has been enacted to avoid superfluity
and repetition of language in various enactments. The object of this Act is to
shorten the language of Central Acts, to provide as far as possible, for
uniformity of expression in Central Acts, by giving definition of series of
terms in common use, to state explicitly certain convenient rules for the
construction and interpretation of Central Acts, and to guard against slips and
oversights by importing into every Act certain common form clauses, which
otherwise ought to be inserted expressly in every Central Act. In other words
the General Clauses Act is a part of every Central Act and has to be read in
such Act unless specifically excluded. Even in cases where the provisions of
the Act do not apply, courts in the country have applied its principles keeping
in mind the inconvenience that is likely to arise otherwise, particularly when
the provision made in the Act are based upon the principles of equity, justice
and good conscience.
The
words "anything duly done or suffered thereunder" used in sub-clause
(b) of Section 6 are often used by the Legislature in saving clause which is
intended to provide that unless a different intention appears, the repeal of an
Act would not affect anything duly done or suffered thereunder. This Court in Hasan
Nurani Malak v. Assistant Charity Commissioner, Nagpur & Ors. [AIR 1967 SC
1742] has held that the object of such a saving clause is to save what has been
previously done under the statute repealed. The result of such a saving clause
is that the pre-existing law continues to govern the things done before a
particular date from which the repeal of such a pre-existing law takes effect.
In Universal Imports Agency v. Chief Controller of Imports and Exports [1961
(1) SCR 305 = AIR 1961 SC 41) this Court while construing the words
"things done" held that a proper interpretation of the expression
"things done" was comprehensive enough to take in not only the things
done but also the effect of the legal consequence flowing therefrom.
Section
24 of the General Clauses Act deals with the effect of repeal and re-enactment
of an Act and the object of the section is to preserve the continuity of the
notifications, orders, schemes, rules or bye-laws made or issued under the
repealed Act unless they are shown to be inconsistent with the provisions of
the re-enacted statute.
In Neel
@ Niranjan Majumdar v. The State of West Bengal [AIR 1972 SC 2066], the
petitioner therein had challenged the order of his detention under sub-section
(1) read with sub-section (3) of Section 3 of the West Bengal (Prevention of
Violent Activities) Act, 1970. Sub-section (1) read with sub-section (3) of
Section 3 authorised District Magistrate to direct detention of any person in
respect of whom he was satisfied that such detention should be ordered with a
view to prevent him from acting prejudicially to the security of the State or
the maintenance of public order. Sub-section (2) of Section 3 contained a
special definition of the expression "acting in any manner prejudicial to
the security of the State or the maintenance of public order" to mean the
acts enumerated in clauses (a) to (e) thereof. Clause (d) provided:
"(d)
committing, or instigating any person to commit, any offence punishable with
death or imprisonment for life or imprisonment for a term extending to seven
years or more or any offence under the Arms Act, 1959 or the Explosive
Substances Act, 1908, where the commission of such offence disturbs, or is
likely to disturb, public order." In the grounds of detention it was
mentioned that the detenue indulged in activities including causing injuries
with a sword. Under Section 2(1)(c) of the Arms Act, the word "arms"
was defined to mean articles of any description designed or adapted as weapons
for offence or defence which included firearms, sharp-edged and other deadly
weapons.
Section
4 of the Arms Act empowered the Central Government, if it was of opinion that
having regard to the circumstances prevailing in any area it was necessary or
expedient in the public interest that acquisition, possession or carrying of
arms, other than firearms, should also be regulated, it may by notification
direct that the Section shall apply to the area specified in such a
notification and thereupon no person shall acquire, have in his possession or
carry in that area arms of such class or description as may be specified in
that notification, except under a licence issued under the provisions of the
Act or the rules made thereunder. It was found that no notification, as
contemplated by Section 4 of 1959 Act had been issued. But in 1923 such a
notification was issued under Section 15 of the earlier Indian Arms Act of 1878
which in terms was similar to Section 4 of the 1959 Act. The question posed
before the court was whether Act No.XI of 1878 having been repealed, the said
notification issued under Section 15 thereof can still be said to be operative.
Dealing with such a situation this Court held:
"Section
6(b) of the General Clauses Act, however, provides that where any Central Act
or regulation made after the commencement of the Act repeals any earlier
enactment, then, unless a different intention appears, such repeal shall not
"affect the previous operation of any enactment so repealed or any thing
duly done or suffered thereunder". Section 24 next provides that where any
Central Act is repealed and re-enacted with or without modification, then,
unless it is otherwise expressly provided, any notification issued under such
repealed Act shall, so far as it is inconsistent with the provisions
re-enacted, continue in force and be deemed to have been made under the
provisions so re-enacted unless it is superseded by any notification or order
issued under the provisions so re-enacted. The new Act nowhere contains an
intention to the contrary signifying that the operation of the repealed Act or
of a notification issued thereunder was not to continue. Further, the new Act
re-enacts the provisions of the earlier Act, and Section 4 in particular, as
already stated, has provisions practically identical to those of Section 15 of
the earlier Act. The combined effect of Sections 6 and 24 of the General
Clauses Act is that the said notification of 1923 issued under Section 15 of
the Act of 1878 not only continued to operate but has to be deemed to have been
enacted under the new Act."
In
Central Bureau of Investigation v. Subodh Kumar Dutta & Anr. [1997 (10) SCC
567] the cognizance of the offence had been taken by Special Court constituted
under the West Bengal Special Courts Act. After cognizance had been taken, the
Prevention of Corruption Act, 1947 came to be repealed by the Prevention of
Corruption Act, 1988 w.e.f. 9.9.1988. The accused filed a Criminal Revision
Petition in the High Court 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 fundamental right of the accused to speedy trial.
During the arguments the accused was permitted to raise a plea that the Special
Court, trying the bribery 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 to Section 3 of the Prevention of Corruption Act, 1988
which had repealed the 1947 Act. Taking note of Section 26 of the 1988 Act, the
Single Judge of the High Court opined that the cognizance taken by the Special
Court on 9.7.1988 under the 1947 Act was not saved and thus quashed the
proceedings.
Interpreting
sub-section (2) of Section 30 of the 1988 Act, this Court held that a bare look
at the provisions of sub- section (2) of Section 30 shows that anything done or
any action taken or purported 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.
In Nar
Bahadur Bhandari & Anr. v. State of Sikkim & Others [1998 (5) SCC 39]
it was held that sub-section (2) of Section 30 of the 1988 Act, on the one hand
ensures that the application of Section 6 of the General Clauses Act is not
prejudiced, on the other it expressed a different intention as contemplated by
the said section. The last part of sub- section introduced a legal fiction
whereby anything done or action taken under or in pursuance of 1947 Act shall
be deemed to have been done or taken under or in pursuance of the corresponding
provision of the 1988 Act. The fiction is to the effect that the 1988 Act had
come into force when such thing was done or action was taken.
In Kolhapur
Canesugar Works Ltd. & Anr v. Union of India & Ors. [2000 (2) SCC 356]
this Court held that at common law the normal act of repealing the statute or
deleting the provision is to obliterate it from the statute book as completely
as if it had never been passed, and the statute must be considered as a law
that never existed. To this rule an exception is engrafted by the provisions of
Section 6(1). If a provision of a statute is unconditionally omitted without a
saving clause in favour of pending proceedings, all actions must stop where the
omission finds them, and if final relief has not been granted before the
omission goes into, it cannot be granted afterwards. Savings of the nature
contained in Section 6 in Special Act may modify the position.
There
is no dispute that when an Act is repealed but re-enacted, it is almost
inevitable that there will be some time lag between the re-enacted statute
coming into force and regulations being framed under the re-enacted statute.
In
Chief Inspector of Mines & Anr., etc. vs. Karam Chand Thapar, etc. [AIR
1961 SC 838] this Court observed that:
"However,
efficient the rule-making authority may be it is impossible to avoid some
hiatus between the coming into force of the re-enacted statute and the
simultaneous repeal of the old Act and the making of regulations. Often, the
time lag would be considerable. It is conceivable that any legislature, in
providing that regulations made under its statute will have effect as if
enacted in the Act, could have intended by those words to say that if ever the
Act is repealed and re- enacted, (as is more than likely to happen sooner or
later), the regulations will have no existence for the purpose of the
re-enacted statute, and thus the re-enacted statute, for some time at least,
will be in many respects, a dead letter.
The
answer must be in the negative. Whatever the purpose be which induced the
draftsmen to adopt this legislative form as regards the rules and regulations
that they will have effect "as if enacted in the Act", it will be
strange indeed if the result of the language used, be that by becoming part of
the Act, they would stand repealed, when the Act is repealed. One can be
certain that that could not have been the intention of the legislature. It is
satisfactory that the words used do not produce that result." We do not
find any force in the submission of the learned counsel appearing for the
respondents that as reference made in Sub-section (2) of Section 30 of 1988 Act
is only to Section 6 of General Clauses Act, the other provisions of the said
Act are not applicable for the purposes of deciding the controversy with
respect to the notifications issued under the 1947 Act. We are further of the
opinion that the High Court committed a mistake of law by holding that as
notifications have not expressly been saved by Section 30 of the Act, those
would not enure or survive to govern any investigation done or legal proceeding
instituted in respect of the cases registered under the 1988 Act. There is no
dispute that 1988 Act is both repealing and re-enacting the law relating to
prevention of corruption to which the provisions of Section 24 of the General
Clauses Act are specifically applicable. It appears that as Section 6 of the
General Clauses Act applies to repealed enactments, the Legislature in its
wisdom thought it proper to make the same specifically applicable in 1988 Act
also which is a repealed and re-enacted statute. Reference to Section 6 of
General Clauses Act in sub-section (1) of Section 30 has been made to avoid any
confusion or misunderstanding regarding the effect of repeal with regard to
actions taken under the repealed Act. If the Legislature had intended not to
apply the provisions of Section 24 of the General Clauses Act to the 1988 Act,
it would have specifically so provided under the enacted law. In the light of
the fact that Section 24 of the General Clauses Act is specifically applicable
to repealing and re-enacting statute, its exclusion has to be specific and
cannot be inferred by twisting the language of the enactments. Accepting the
contention of the learned counsel for the respondents would render the
provisions of 1988 Act redundant inasmuch as appointments, notifications,
orders, schemes, rules, by- laws, made or issued under the repealed Act would
be deemed to be non-existent making impossible the working of the re- enacted
law impossible. The provisions of the 1988 Act are required to be understood
and interpreted in the light of the provisions of the General Clauses Act
including Sections 6 and 24 thereof.
There
is no substance in the arguments of the learned counsel appearing for the
respondents that the provision made in two enactments were inconsistent and
sub-section (2) of Section 30 would not save the notifications issued under the
1947 Act. The consistency, referred to in sub-section (2) of Section 30 is with
respect to acts done in pursuance of the Repealed Act and thus restricted it to
such provision of the Acts which come for interpretation of the court and not
the whole of the scheme of the enactment. It has been conceded before us that
there is no inconsistency between Section 5A of the 1947 Act and Section 17 of
the 1988 Act and provisions of General Clauses Act would be applicable and with
the aid of sub-section (2) of Section 30 anything done or any action taken or
purported to have been done or taken in pursuance of 1947 Act be deemed to have
been done or taken under or in pursuance of the corresponding provision of 1988
Act. For that purpose, the 1988 Act, by fiction, shall be deemed to have been
in force at the time when the aforesaid notifications were issued under the
then prevalent corresponding law. Otherwise also there does not appear any
inconsistency between the two enactments except that the scope and field
covered by 1988 Act has been widened and enlarged. Both the enactments deal
with the same subject matter, i.e. corruption amongst the public servants and
make provision to deal with such a menace.
To
justify the impugned judgment and to impress upon us the inconsistency in the
two provisions, the learned counsel appearing for the respondents referred to
some communications included in the paperbook from pages 109 to 120. It is
submitted that the aforesaid correspondence in the form of Annexure P-2 to P-5
showed that the Government had applied its mind under the re-enacted law and
took a conscious decision that the Inspectors of Police were not competent to
investigate the offences punishable under the new Act and that only officers
above the rank of Dy.
Superintendent
of Police should investigate the cases under the Act. Reference to the
aforesaid letters is based upon misconception. In none of the letters the
Government is shown to have taken any decision as argued. The aforesaid
documents are the letters exchanged between different officials of the Police
Department of the State of Punjab which
are not referable to any specific decision of the State Government. In the Memo
of Appeal and the Rejoinder Affidavit filed on behalf of the State it is
specifically submitted that the proceedings of the high level meeting presided
over by the Chief Secretary, referred to by the respondents as decision of the
Government, "is internal communication between different wings of the
Government and cannot be made basis to conclude that State Government had
neither any intention to keep alive the notifications under the Old Act of 1947
nor have any intention to empower the Inspector of Police in the Vigilance
Department to investigate the afresh cases. It is also relevant that as per the
Old Act, since there were notifications which were valid under the New Act by
virtue of Section 6 and 24 of General Clauses Act unless these were formally
rescinded, the same hold good and the notings on the file to any effect cannot
be made basis for striking down those notifications".
It is,
therefore, evident that the notifications issued by the Government of Punjab,
in exercise of the powers conferred under Section 5A of the 1947 Act,
empowering and authorising the Inspectors of Police posted in Special Inquiry
Agency of the Vigilance Department, Govt. of Punjab to investigate the cases
registered under the said Act were saved under the saving provision of the
re-enacted 1988 Act.
Such
notifications are not inconsistent with the provisions of re-enacted Act and
are deemed to continue in force as having been issued under the re-enacted 1988
Act till the aforesaid notifications are specifically superseded or withdrawn
or modified under the 1988 Act. The investigation conducted by the Inspectors
of Police authorised in that behalf under the 1947 Act are held to be proper,
legal and valid investigation under the re-enacted Act and do not suffer from
any vice of illegality or jurisdiction. The High Court committed a mistake of
law in holding the aforesaid notifications as not saved under the re-enacted
1988 Act. The quashing of the proceedings on the basis of the First Information
Report registered against the respondent-accused was illegal and contrary to
the settled position of law. The judgment of the High Court, impugned in these
appeals, is, therefore, liable to be set aside.
Under
the circumstances, the appeals are allowed and the impugned judgments are set
aside. The Trial Courts are directed to proceed with the matter in accordance
with law and after framing the charges decide cases on their merits.
In
view of the fact that the proceedings have been unnecessarily delayed and
protracted by the respondents for a sufficiently long period, the trial courts
are impressed upon to give priority to the aforesaid cases and conclude the
trials at the earliest.
............................J.
(R.P. Sethi)
...........................J.
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