Nripendra Kumar Bhattacharyya, J.:—By these 4 revisional applications the petitioners have challenged the Order No. 13 dated 8.3.94 passed by the learned Judge, Calcutta 3rd Special Court in Case No. 4 of 1993 and Order No. 14 dated 8.3.93 passed by the same Judge in Case No. 2 of 1993 whereby the learned Judge rejected the applications of the accused persons for discharge on the ground that the said Special Court had no jurisdiction to entertain the case and to take cognizance. As all the four cases viz. 636/94, 634/94, 928/94 and 929/94 involve a common point of law all the cases are taken up together and disposed of by this Judgment.
2. In short the fact of the cases are that the accused persons in conspiracy and conivance with each other as public servant committed forgery and other offences under the Indian Penal Code namely, Ss. 120B/420/467/468/471 of the Indian Penal Code and also under s. 13(1)(d) read with s. 13(2) of the Prevention of Corruption Act, 1988. The CBI recorded suo moto information and investigated the cases and thereafter, submitted chargesheet against the accused persons in the months of February, March and June of 1993 for offences under Ss. 120B/420/469/471/477 of the Indian Penal Code and under Ss. 5(2), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, and the learned Special Judge took cognizance of the same.
3. According to the petitioners in the revisions, the learned Judge has neither the authority nor the competence under the law to try the cases and the order of taking cognizance is bad and accordingly the proceedings are liable to be quashed.
4. In order to appreciate the arguments of the parties a brief narration of different legislations both Central and the State, is necessary.
5. The Government of West Bengal by notification under s. 2 of the West Bengal Special Courts Act, 1949 constituted Special Courts in West Bengal and appointed Judges to preside over such Special Courts for trying offences mentioned in the schedule to the said Act.
6. The Criminal Law (Amendment) Act, 1952, a Central Act, came into force under s. 6 of that Act (which Act will be referred to hereinafter as 1952 Act) provisions were made for appointment of Special Judges for trying the offences under Prevention of Corruption Act.
7. By introduction of s. 13 of the West Bengal Special Courts Act, 1949 (which will be referred to as 1949 Act hereinafter) there was virtual exclusion of application of Criminal Law (Amendment) Act, 1952 in West Bengal. Because of such exclusion of the operation of 1952 Act by s. 13 of 1949 Act no appointment of Special Judges under s. 6 of 1952 Act were made by the Government of West Bengal for trying an offence under s. 5 of the Prevention of Corruption Act, 1947.
8. The Prevention of Corruption Act, 1988, a Central Act, came into force in 1988, Under s. 13 of that Act both the Prevention of Corruption Act, 1947 and Criminal Law (Amendment) Act, 1952 stood repealed.
9. A conjoint reading of Ss. 3 and 4 of the Prevention of Corruption Act, 1988 (which term will be referred to hereinafter as 1988 Act) clearly shows than an offence punishable under the said Act can be tried only by a Special Judge appointed under s. 3 of the said Act and not by any other Court, notwithstanding anything contained in any other law for the time being in force.
10. Section 26 of 1988 Act protects the appointment of Special Judges who were earlier appointed as Special Judges under s. 6 of the 1952 Act.
11. As has already been pointed out, no Special Judge was appointed under s. 6 of the 1952 Act in West Bengal, in view of the introduction of s. 13 in 1949 Act.
12. As such, the appoinment of Special Judges under 1949 Act had not been protected by s. 26 of the 1988 Act and the Special Judges appointed by notification under s. 2 of the 1949 Act are not competent to try the cases under Prevention of Corruption Act, 1988 and in the matter of taking cognizance for trying offences punishable under 1988 Act.
13. Section 4 of the Prevention of Corruption Act, 1988 clearly expresses that notwithstanding anything contained in the Code of Criminal Procedure or in any other law for the time being in force the offences under the said Act shall be tried by Special Judges only.
The term Special Judges as referred to in s. 4 of 1988 Act, means the Special Judges who have been appointed under s. 3 of that Act or whose appointment under the repealed Criminal Law (Amendment) Act, 1952 has been protected under s. 26 of the 1988 Act.
14. Section 8 of the General Clauses Act cannot override a constitutional provision namely Article 254 of the Constitution of India 1988 Act being a Central Legislation and subject matter relates to concurrent list of the 7th Schedule of the Constitution of India which was enacted by the Parliament will prevail over any existing provision of the West Bengal Special Courts Act, 1949 in the event of any militancy between them. No matter that such provision in the West Bengal Special Courts Act, 1949 had earlier received the assent of the President.
15. The said contention was raised by the petitioners in the petitions before the Special Judge and the Special Judge by his impugned order opined that as the offence relates to the period of 1985-1986 the said Special Judge had the authority and competence under the law to try the cases.
16. The learned Advocate Mr. Biswanath Sanyal appearing with learned Advocate Mrs. Keya Banerjee in Criminal Revision Nos. 928 & 929 of 1994 and the learned Advocate Mr. Arun Kumar Mukherjee appearing along with learned Advocate Mr. Debabrata Nandy for the petitioner in Criminal Revision Nos. 634 & 636 of 1994 raised the same contention.
17. The learned Advocate for the State and the CBI Mr. Chaitanya Chandra Mukherjee in Criminal Revision Nos. 928 and 929 of 1994, Mr. Amalendu Pal, learned Advocate for the State in Crl. Rev. No. 634 of 1994 and Mr. Himangshu De appearing with Mr. Abhijit Addya for the State in Crl. Rev. No. 636 of 1994, on the other hand, contended that as the offence relates to a period earlier to 1988 Act the provisions of the Sections in 1988 Act will not be operative and the Special Judge has the jurisdiction and the competence under the law to try the offences.
18. Mr. Chaitanya Chandra Mukherjee also contended that a judgment on this point of a Single Judge of this Court in the case of H.D Barman v. CBI/SPE/Cal. through State of W.B, reported in 1993 (II) CHN 141 has been challenged before the Supreme Court and a petition has been filed for Special Leave.
19. On such submission of Mr. Mukherjee earlier this Court granted adjournments on so many occasions for informing this Court, the result of that petition and Mr. Mukherjee ultimately submitted that the said application has failed. In such circumstances the matter was heard and judgment reserved for verdict.
20. Having heard the learned Advocates for the parties and considering the materials on record 1 find no merit in the submission made by the learned Advocates for the opposite parties for the reasons hereunder.
21. By introduction of s. 13 in 1949 Act the operation of 1952 Act was excluded for all intent, and purposes from the State of West Bengal and the Special Judges who are appointed in the State of West Bengal for trying the offences under s. 5 of the Prevention of Corruption Act, 1947 were appointed under 1949 Act. Provisions were made in 1952 Act for appointment of Special Judges under s. 6 of that Act but the operation of that Section was excluded in the State of West Bengal. By virtue of s. 13 of 1949 Act no appointment under s. 6 of the Special Judges were made under 1952 Act by the Govt. of West Bengal for trying offences under s. 5 of the Prevention of Corruption Act, 1949.
22. By introduction of 1988 Act and under the provisions of Ss. 3 and 4 therein clearly show that an offence punishable under that Act can be tried only by a Special Judge appointed under s. 3 of that Act and not by any other Court, notwithstanding anything contained in any other law for the time being in force.
23. Section 26 of that Act protects the appointment of Special Judges under s. 6 of 1952 Act. But the appointment of the Special Judges by notification under s. 2 of 1949 Act had not been protected and they are not empowered to try the offences under 1988 Act and for taking cognizance of the offences under the said Act.
24. 1988 Act being a Central Act enacted by the Parliament over the self same subject as contained in 1952 Act and the State Act being 1949 Act, s. 8 of the General Clauses Act cannot override the provisions of the Constitution. Article 254 of the Constitution speaks that in case of conflict between the Central Act and the State Act the Central Act shall prevail.
25. The Prevention of Corruption Act, 1988 is a Central Act relating to concurrent list of the 7th Schedule of the Constitution of India that will prevail over any existing provision of the West Bengal Special Courts Act, 1949. In case of any repugnancy between the two, even if such provision in the West Bengal Special Courts Act, 1949 had been received the assent of the President earlier the Central Act shall prevail. Section 4 of 1988 Act expressly provides that notwithstanding anything contained in the Code of Criminal Procedure or in any other law for the time being in fotce the offences under the said Act shall be tried by Special Judges only meaning the Special Judge appointed under s. 3 of the 1988 Act or protected under s. 26 of 1988 Act who are appointed under s. 6 of 1952 Act.
26. In the instant case the Special Judge being appointed by notification under s. 2 of 1949 Act and not under s. 6 of 1952 Act or under s. 3 of 1988 Act, in my opinion, the Special Judge had neither the authority nor the jurisdiction and competence under the law to try the offences under the Prevention of Corruption Act, 1988 nor has the power to take cognizance of the offence under the said Act.
27. The learned Judge pointed out that as the offence as alleged is prior to 1988 Act he has competence to take cognizance in the matter and to try the offences. In this connection, it can also be noted that the chargesheet has been submitted under 1988 Act. Even if the offence relates to the period 1985-1986 even then under s. 4 of the 1988 Act there is a bar to try the offences as it expressly provides that notwithtanding anything contained in the Criminal Procedure Code or in any other law for the time being in force the offences under the said Act shall be tried by Special Judges only. As the same offence under the State Act and Central Act relates to the concurrent list in view of the 7th Schedule of the Constitution of India read with Article 254 of the Constitution of India the Central Act will prevail. As such, the Special Judge in the instant case has not power, authority and jurisdiction to take cognizance in this matter and to try the case. Accordingly the proceedings in Special Court Case Nos. 2/93, 4/93 are hereby quashed.
28. The revisional petition are accordingly allowed.
Revision petitions allowed. Proceedings quashed.
T.D.N