N.K. Bhattacharyya, J.@mdashBy these 4 revisions the accused has challenged the order of taking cognizance passed by the learned Judge,
Calcutta, 3rd Special Court, by order No. 1 dated 27-6-94 in 4 cases, namely Case No. 9 to Case No. 12 of 1994.
2. Accordingly, 4 revision cases have been moved challenging order No.1 dated 27-6-94 passed by the learned Judge, Calcutta, 3rd Special
Court, in those 4 cases and as the 4 revision cases, being Criminal Revision Case No. 455 to 458 of 1995, invoke the similar question of law,
these 4 cases have been taken up together and disposed of by this judgment.
3. The short fact leading to the cases are that on the ground of criminal breach of trust by the petitioner in disbursing the salary of the staff of Home
Department for the period from March, 1987 to September, 1990 involving an amount of Rs. 1,21,372.19 and for the month of August, 1990
regarding discrepency of an amount of Rs. 5,625.10, four FIR were lodged and the matters were assigned or referred to by the Government to the
court of Judge, 3rd Special Court, Calcutta and 4 cases have been registered in the said court being Case Nos. 9 to 12 of 1994 and in the said 4
cases by Order No. 1 dated 27-6-94 the learned Special Judge took cognizance in the said four cases upon the charge-sheet submitted for an
offence u/s 409 of the Indian Penal Code and issued summons. The said order of taking cognizance is the subject matter of challenge in the four
revision cases.
4. On a common ground the order of taking cognizance in the said four cases by the learned Judge, has been challenged.
5. According to Mr. Sanyal, the Special Judge being appointed by notification u/s 2 of West Bengal Special Courts Act, 1949 for trying the
offences mentioned in that Act is not competent to try the offence or to take cognizance under the Prevention of Corruption Act, 1988, which Act
came into force in the year, 1988.
6. It was contended that the Criminal Law (Amendment) Act, 1952, a Central Act, came into force and section 6 of that Act provided for
appointment of Special Judge for trying the offences under the Prevention of Corruption Act.
7. By introduction of section 13 in the West Bengal Special Courts Act, 1949 there was virtual exclusion of application of Criminal Law
(Amendment) Act, 1952 and that had prevented the application of the said Act in West Bengal. So no Judge was appointed u/s 6 of 1952 Act
and the old appointment of the Judges of the Special Court by notification u/s 2 of the West Bengal Special Courts Act, 1949 continued.
8. The Prevention of Corruption Act, 1988 a Central Act, came into force in 1988. By that Act and particularly under section13 of that Act the
Prevention of Corruption Act, 1947 and the Criminal Law (Amendment) Act, 1952, stood repealed.
9. A conjoint reading of section 3 and 4 of the Prevention of Corruption Act, 1988 clearly indicates that an offence punishable under the Act,
1988 can be tried only by a Special Judge appointed u/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 u/s 6 of the 1952 Act.
11. That protection has not been extended to the appointment of Special Judges appointed by a notification u/s 2 of the West Bengal Special
Courts Act, 1949.
12. Section 4 of the Prevention of Corruption Act, 1988 clearly expressed 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 and the term special
Judges is in reference of section 4 of 1988 Act, meaning the Special Judges who have been appointed u/s 3 of that Act or whose appointment
under the repealed Criminal Law (Amendment) Act, 1952 has been protected u/s 26 of the 1988 Act.
13. It has further been contended that section 8 of the General Clauses Act cannot override a Constitutional provision namely Article 254 of the
Constitution of India.
14. 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 and have an overridding effect over any existing provision of the West Bengal Special Courts Act, 1949 in
case of conflict or militancy between them irrespective of the fact whether the West Bengal Special Courts Act, 1949 had received the assent of
the President earlier.
15. This point has already been decided earlier by two decisions of this court in the case of H.D. Barman v. CBI/SPE/Cal. through the State of
West Bengal, reported in 1993 (II) CHN 141 and also in the case of J.N. Dum v. CBI through the State of West Bengal, reported in 1995(II)
CHN 113 wherein it has been held that taking cognizance of an offence under 1988 Act by a Special Judge appointed by notification u/s 2 of
West Bengal Special Courts Act, 1949 is not permissible under the law and such the order of taking cognizance is bad, illegal and without
jurisdiction.
16. As this is the settled law now I am the opinion and view that the order of taking cognizance by the impugned orders by the Special Judge are
bad, illegal and without jurisdiction and cannot be sustained in law.
17.Mr. Chaitanya Chandra Mukherjee, the learned Advocate for CBI has taken a further point that by notification No. 6614-J the Government of
West Bengal has appointed the Special Judges under sub-section (2) of section 2 read with sub-section (1) of section 9 of the West Bengal
Criminal Law Amendment (Special Courts) Act, 1949 (West Bengal Act XXI of 1949, as amended, and functioning as such Judges as Special
Judges under the Prevention of Corruption Act, 1988) for the purpose of trial of offences as enumerated in Clauses (a) and (b) of sub-section (1)
of section 3 of the Prevention of Corruption Act, 1988 that has been done in exercise of a power conferred by sub-section (1) of section 3 of the
prevention of Corruption Act, 1988 as such taking cognizance of an offence by such Judge is protected.
18. According to Mr. Mukherjee as by the notification the appointment of Special Judges, who were appointed by the notification u/s 2 of the
West Bengal Special Courts Act, 1949 and under sub-section (1) of section 9 of the West Bengal Criminal Law Amendment (Special Courts)
Act, 1949 and functioning as such are protected and empowered to try the offences under the prevention of Corruption Act, 1988.
19. I find no justification in the submission of Mr. Mukherjee inasmuch as by the notification in effect retrospective operation of section 3 of the
Prevention of Corruption Act, 1988 the appointment of the Special Judges u/s 2 of 1949 Act is sought to be regularised by introduction of section
3 of the 1988 Act with retrospective effect is illegal and not permissible under the law.
20.The same could have been done by a Central legislation and not by notification. Notification cannot override the provisions of the law.
Notification is nothing but a fiat and the fiat cannot override the law. That is the settled principle of law and as such I overrule the contention of Mr.
Chaitanya Chandra Mukherjee.
21. I, accordingly, allow the revisions and quash the orders impugned and the proceedings.