JUDGMENT
Krishna Ballabh Sinha, J.
1. The question posed for consideration in this case is as to whether a Special Judge under the Prevention of Corruption Act is entitled to exercise the power conferred on a Sessions Judge by Section 438 of the Code of Criminal Procedure?
2. Upon receipt of two conflicting orders passed by this Court, the Sessions Judge, Patna, was placed between horns of a dilemma and taking resort to Section 395(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr. P.C.’), referred the matter for the decision of this Court.
3. In one of the cases, the accused, who was alleged to have committed an offence punishable under the Prevention of Corruption Act, 1947 (hereinafter referred to as ‘the P.C. Act of 1947’), filed an application under Section 438 of the Cr. P.C. before the Sessions Judge, who declined to entertain the same on the ground that it had no jurisdiction. The accused, thereafter, filed Cr. Misc. No. 966 of 1987 before this Court, which was disposed of by a learned single Judge with a direction to the Special Judge appointed under Section 6 of the Criminal Law (Amendment) Act, 1952 (hereinafter referred to as ‘the 1952 Amendment Act), to consider the application,
In another case, the accused, who was also alleged to have committed an offence punishable under the P.C. Act of 1947, made prayer before the Special Judge for grant of anticipatory bail, which was dismissed on the ground of lack of jurisdiction in it. Being aggrieved by the order, the accused moved this Court by filing Cr. Misc. No. 2077 of 1986, which was disposed of by a learned single Judge with a direction to make such prayer before the Sessions Judge. The directions given in the said cases necessitate the Reference by the learned Sessions Judge, Patna.
4. Upon receipt of the Reference, it was listed before a learned single Judge of this Court, who expressed doubt regarding the correctness of the proposition laid down in Baldeo Prasad v. State of Bihar, 1986 BBCJ (HC) 132, and ordered to place the record before Hon’ble the Chief Justice for referring it to a larger Bench. Thereafter the case was admitted by a Division Bench for hearing by a larger Bench consisting of three learned Judges of this Court. This is how the matter has been placed before us.
5. Mr. Bibhuti Prasad Pandey, learned Counsel, appearing on behalf of the State, has contended that according to Section 5(3) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the P.C. Act of 1988’), the Court of the Special Judge shall be deemed to be a Court of Session and, therefore, the Special Judge, alone, is entitled to exercise the power conferred on the Sessions Judge to entertain an application filed under Section 438 of the Cr. P.C. in relation to the offences punishable under the P.C. Act of 1988.
6. Mr. Pankaj Kumar Sinha, learned Counsel, appearing amicus curiae, has rendered valuable assistance to the court. It has been argued by him that Sub-section (1) of Section 5 of the P.C. Act, 1988, empowers the Special Judge to take cognizance of the offences without the accused being committed to him for trial, whereas, according to Section 198 of the Cr. P.C., no Court of Session can take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate. As the power to take cognizance of an offence is vested in a Magistrate under Section 190 of the Cr. P.C., so for the purpose of taking cognizance of the offence under the P.C. Act of 1988, the Special Judge functions as a Magistrate. It has been urged that as accord ing to Section 198 of the Cr. P.C., the Sessions Judge can take cognizance of an offence only after the case is committed to it, so a Special Judge cannot be treated as a Sessions Judge under the Cr. P.C., in which provision has been made for grant of anticipatory bail. The function of the Special Judge commences after he takes cognizance of the offence under the P.C. Act of 1988. The right to file an application for anticipatory bail under Section 438 of the Cr. P.C. can be exercised by an accused of any offence even during the pendency of the police investigation. The P.C. Act of 1988 does not confer any power on the Special Judge to deal with a case under the said Act prior to the stage of taking cognizance, so he cannot entertain an application for anticipatory bail and exercise the power of a Sessions Judge as provided under Section 438 of the Cr. P.C.
7. The argument advanced by Mr. Sinha is apparently founded on Sub-section (5) of Section 5 of the P.C. Act of 1988. If the said provision is considered in isolation, it may lead to an erroneous conclusion. In order to appreciate the contention raised, it is necessary to examine the relevant provisions of Cr. P.C. Chapter XII of the Cr. P.C. deals with the power of the police to make investigation of offences.
Section 154 under this Chapter imposes a duty on the Officer-in-charge of a Police Station to reduce in writing every information with regard to the commission of a cognizable offence given to him. If the information given to an Officer-in-charge of a Police Station discloses a non-cognizable offence, he has to enter the substance of information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and refer the information to the Magistrate as provided under Section 155(1) of the Cr. P.C. Sub-section (2) limits the power of the Police Officer to investigate a non-cognizable offence without an order of a Magistrate having power to try such case or commit the case for trial. According to Section 156(1), an Officer-in-charge of a Police Station may investigate any cognizable offence without the order of a Magistrate. Subsection (3) of Section 156 confers power on the Magistrate, empowered under Section 190 of the Cr. P.C. to take cognizance of an offence, to order an investigation as provided under Sub-sections (1) and (2) of this section. Section 157(1) lays down that if from information or otherwise, an Officer-in-charge of a Police Station has reasons to suspect the commission of an offence, which he is empowered under Section 156 of the Cr. P.C. to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report. As provided under Section 169 of the Cr. P.C., if upon an investigation, it appears to the Officer-in-charge of a Police Station that sufficient materials are not available for forwarding the accused to a Magistrate, he shall, if such person is in custody, release him subject to the condition of his executing a bond to appear before a Magistrate empowered to take cognizance on a police report and try the accused or commit him for trial. Section 171(1) of the Cr. P.C. states that if, upon an investigation under this Chapter, it appears to the Officer-in-charge of the Police Station that there is sufficient evidence, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and try the accused or commit him for trial. According to Section 173 of the Cr. P.C., every investigation under this Chapter has to be completed without unnecessary delay and as soon as it is completed the Officer-in-charge of a Police Station has to forward to a Magistrate empowered to take cognizance of the offence a report in the form prescribed by the State Government stating the things enumerated therein. It is provided in Sub-section (3) of Section 173 of the Cr. P.C. that despite submission of the report upon completion of the investigation, further investigation can be conducted in respect of the same offence and further evidence so collected has to be forwarded to the same Magistrate.
(Emphasis underlined)
8. It has been provided under Section 4 of the P.C. Act of 1988 that notwithstanding anything contained in the Cr. P.C. or in any other law for the time being in force, the offences specified in Sub-section (1) of Section 3 shall be tried by Special Judge only. Section 5 of the P.C. Act of 1988 empowers the Special Judge to take cognizance of the offences without the accused being committed to him for trial and while holding trial, he has to follow the procedure prescribed by the Cr. P.C. for trial of warrant cases by Magistrate.
9. So, the expressions, “the Magistrate empowered to take cognizance of the offence” and “the Magistrate having power to try such case” appearing in various sections of Chapter XII (underlined in the preceding paragraphs) of the Cr. P.C. would only mean the Special Judge appointed under the P.C. Act of 1988.
From the provisions of the P.C. Act of 1988 and the Cr. P.C. referred to above, it is not possible to hold that the Special Judge does not come in picture during the course of police investigation and prior to taking cognizance of the offence under the said Act. The Special Judge, in my opinion, is entitled to exercise all the powers conferred on a Magistrate under Chapter XII of the Cr. P.C. as he has got exclusive jurisdiction to take cognizance and try the offences under the P.C. Act of 1988.
10. Adverting to the main questions with regard to the power of the Special Judge to entertain an application under Section 438 of the Cr. P.C., it will be useful to refer once again to some of the provisions of the P.C. Act of 1947 and the P.C. Act of 1988, as also some of the provisions of the Cr. P.C.
11. According to Section 4 of the Cr. P.C., all the offences under the Indian Penal Code shall be investigated, enquired into, tried, and otherwise dealt with according to the provisions made therein. Sub-section (2) of Section 4 lays down that all offences under any other law shall be investigated, enquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. Section 5 of the Cr. P.C. says that nothing contained in the Cr. P.C. shall, in absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Chapter II of the Cr! P.C. bears the heading Constitution of Criminal Courts and Offices. Section 6 of the Cr. P.C. which falls under this Chapter, says that besides the High Courts and the Courts constituted in any other law, other than this Code, there shall be, in every State, four classes of courts, namely, (i) Courts of Sessions; (ii) Judicial Magistrates of the first class and, in any Metropolitan areas, Metropolitan Magistrates; (iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates. Section 26(a) of the Cr. P.C. says that subject to the provisions of the Cr. P.C., any offence under the Indian Penal Code may be tried by (i) the High Court, or (ii) the Court of Session; or (iii) any other Court by which such offence is shown in the First Schedule to be triable. Sub-clause (b) of the said subsection provides that any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned may be tried by the High Court or any other courts, by which offence is shown in the First Schedule to be triable. Section 28 of the Cr. P. C. talks about the power to pass sentence by different classes of courts constituted under the Cr. P.C. including the Sessions Judge, Additional Sessions Judge and an Assistant Sessions Judge.
12. The jurisdiction of criminal courts, other than those mentioned in the Cr. P.C.; to try a particular offence or otherwise to deal with it is derived from the Statute, which creates the court or from the Statute which defines the offence. From the provisions of the Cr. P.C., as mentioned above, it is manifest that besides the four classes of criminal courts, it also contemplates constitution of the court under any other law.
It is evident that wherever it deals with jurisdiction and power of the court, care has been taken to maintain separate identity of the special courts and permit them to function according to the procedure laid down in the Statute and in absence thereof to follow the procedure provided in the Cr. P.C.
The courts of the Special Judge, constituted under the P.C. Act of 1988, are obviously a class of criminal courts beyond the four classes specifically mentioned in Section 6 of the Cr. P.C. The Cr. P.C. is completely silent with regard to the power to be exercised by the Special Courts for awarding sentence. Such courts are, ordinarily, governed by the procedure prescribed for trial of the offences and otherwise to deal with it, as provided in the Statute, under which these courts are created.
13. The P.C. Act of 1947 (Act No. 2 of 1947) was enacted primarily for more effective prevention of bribery and corruption. It was provided therein that the Code of Criminal Procedure, 1898, would apply subject to certain modifications as mentioned in Section 7A. It did not lay down any procedure for trial of the offences mentioned therein. Amendments were made from time to time by introducing fresh provision or omitting some. With advent of time, it was felt that unless a special forum for trial of the offence as enumerated in the P.C. Act of 1947 was made, the object underlying the said Act would not be achieved. This led to the enactment of 1952 Amendment Act. The object of 1952 Amendment Act was to amend the Indian Penal Code and the Code of Criminal Procedure, 1898, and to provide for a more speedy trial of certain offences, but the resultant effect was that it prescribed a procedure for trial of the offences under the P.C. Act of 1947 and conferred exclusive power on the Special Judge to take cognizance and try such offence. It was essentially an Amending Act in nature but did not expressly make amendment in the P.C. Act of 1947.
Section 6 of this Act empowered the State Government to appoint Special Judge by a notification in the Official Gazette to try offences punishable under Sections 161, 162, 163, 165 or 165-A of the Indian Penal Code or Section 5 of the P.C. Act of 1947, as also conspiracy to commit or attempt to commit or abetment of commission of the said offences. It also laid down qualification of the Special Judge and conferred jurisdiction on him to take cognizance and try the offence mentioned in the P.C. Act of 1947. Thus a new forum was created and a procedure Was prescribed for expeditious trial of the said offences.
14. Some amendments were carried out even thereafter from time to time in the P.C. : Act of 1947. In order to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith,, the P.C. Act of 1988 (49 of 1988) has been enacted. Most of the provisions of the P.C. Act of 1988 are verbatim reproduction of the 1952 Amendment Act. Under Section 3 of the P.C. Act of 1988 which corresponds to Section 6 of the 1952 Amendment Act, provision has been made for appointment of Special Judge by the Central Government or the State Government by notification in the Official Gazette. Sub-section (2) of Section 3 of the P.C. Act of 1988 prescribed the qualification of a Special Judge, according to which a person shall not be appointed as a Special Judge unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Cr. P.C. Section 4 of the P.C. Act of 1988 corresponds to Section 7 of the 1952 Amendment Act, which states that notwithstanding anything contained in the Cr. P.C. or any other law for the time being in force, the offences specified in Sub-section (i) of Section 3 shall be tried by Special Judges only. Sub-section (3) provides that the Special Judge, while trying any case, may also try any offence other than an offence specified in Section 3 with which the accused may, under the Cr. P.C. be charged at the same trial. The procedure for trial and the power of the Special Judge have been provided under Section 5 of the P.C. Act of 1988, which corresponds to Section 8 of the 1952 Amendment Act. Section 6 of the P.C. Act of 1988 empowers the Special Judge to try offence in summary way under certain conditions. Section 27 of the P.C. Act of 1988 lays down that subject to the provisions of this Act, the High Court may exercise, so far as they may be applicable, all the powers of appeal and revision conferred by the Cr. P.C. (2 of 1974) on a High Court as if the Courts of the Special Judge were a Court of Sessions trying case within the local limits of the High Court By Section 30 of the P.C. Act of 1988, the P.C. Act of 1947 and the 1952 Amendment Act have been repealed. According to Section 31 of the P.C. Act of 1988, Sections 161 to 165-A of the Indian Penal Code have been omitted.
15. Though the history of the legislation may not lead to a definite conclusion to find out the correct meaning of an expression but at times it may be usefully employed for interpreting the meaning of the Statute. Similarly, the statements of objects and reasons cannot control the actual words used in the Statute, yet it may be referred to for the purpose of ascertaining the conditions prevailing at the time, which necessitated the making of the law. I have referred to the history of the legislation of the Prevention of Corruption Acts and the objects and reasons for the enactments for the limited purpose as they have got some significance in context of this case. The statements of objects and reasons of the Prevention of Corruption Act, as referred to above, clearly show the anxiety of the framers of law to curb the growing tendency among the public servants to indulge in offences mentioned therein. This is the reason why a separate forum was created and special procedure was prescribed to exclusively deal with it. In this backdrop, the contentions raised on behalf of the parties have to be considered.
16. The question which has been seriously debated at the Bar is as to whether the Special Judge can be deemed to be a Court of Session in view of Sub-section (3) of Section 5 of the P.C. Act of 1988, which is extracted here below: –
(3) Save as provided in Sub-section (1) or Sub-section (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge; and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Judge shall be deemed to be a Public Prosecutor.
17. It is well-known principle of interpretation that if the words of the enactment are clear and are capable of only one interpretation on a plain construction of the words thereof, a non obstante clause cannot restrict the scope of its operation. The non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution.
18. For the sake of convenience, Sub-section (3) of Section 5 of the P.C. Act of 1988 may be considered in two parts. The first part of this sub-section says that save as provided in Sub-section (1) or Sub-section (2), the provisions of the Cr. P.C. (2 of 1974) shall, so far as they are (not Ed) inconsistent with this Act, apply to the proceedings before a Special Judge. It is, therefore, clear that except the provisions made under Sub-section (1) and Sub-section (2) of Section 5 of the P.C. Act of 1988, the procedure laid down in the Cr. P.C. shall be applicable to the proceeding before a Special Judge so far they are not inconsistent with this Act. When an Act says that its provisions are to be observed except so far as they are “Inconsistent” with another Statute, the inconsistency must be one, which is at variance with the machinery and procedure indicated by the other Statute. Things are said to be inconsistent when they are contrary to each other so that one infers the negation, destruction or falsity of the other (The Law Lexicon, Reprint Edition 1987). There is nothing in the P.C. Act of 1988, which precludes applicability of the procedure laid down under the Code of Criminal Procedure in a proceeding pending before a Special Judge except only those for which specific provision has been made under this Act. For instance, there is no provision in the P.C. Act of 1988 which expressly confers power on the Special Judge either to remand an accused in custody or to grant him bail, yet it has been recognised by the judicial pronouncement.
19. The other part of Sub-section (3) of Section 5 of the P.C. Act of 1988 says that for the purpose of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Judge shall be deemed to be a Public Prosecutor. The word “provisions” occurring in this part of the subsection, obviously, refers to the provisions of the Code of Criminal Procedure.
20. By adding a deeming provision a legal finction has been created under Sub-section (3) of Section 5 of the P.C. Act of 1988, by which the Special Judge has to be treated as a Sessions Judge. The expression “shall be deemed” is, generally, used in the Statutes when the Legislature wants to confer a status or an attribute to a person or thing, which is not intrinsically possessed by that person or thing on whom, conferment is made. It is well-settled that whatever an Act requires to be deemed or taken as true of any person or thing must in law be considered as having been duly adjudged or established concerning such person or thing and have force and effect accordingly. In order to correctly interpret a provision creating legal fiction, the Court has to ascertain for what purpose the fiction is created and after ascertaining this, it has to assume all those facts and consequences, which are inevitable for giving effect to the fiction.
21. In Commr. of I.T. v. S. Teja Singh, AIR 1959 SC 352, it has been held that it is a rule of interpretation well settled that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate. Their Lordships in the Supreme Court quoted with approval the observation of Lord Asquith in East end Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) AC 109 at page 132, which is that (at p. 355 of AIR):
If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The Statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corrolaries of that state of affairs.
22. I would like to refer to Sub-section (2) of Section 3 of the P.C. Act of 1988 once again, which lays down qualification of a Special Judge and states that a person shall not be qualified for appointment as a Special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure. A Special Judge is neither a Sessions Judge nor an Additional Sessions Judge nor an Assistant Sessions Judge but a person without having the said qualification cannot be appointed as a Special Judge. Under Sub-section (4) of Section 5 of the P.C. Act of 1988, a Special Judge shall be deemed to be a Magistrate for certain purposes under the Code of Criminal Procedure as specified in it. He has got exclusive power to take cognizance of offence and try the offences mentioned in Sub-section (1) of Section 3 of the P.C. Act of 1988. So, there is unique combination of a Sessions Judge and a Magistrate in a Special Judge under the P.C. Act of 1988.
The latter part of Sub-section (3) says that for the purpose of the said “provision”, meaning thereby the Cr. P.C., the Special Judge shall be deemed to be a Court of Session. When a legal fiction has been created by a deeming clause in a section, the only possible meaning is that though in reality he may not be a Sessions Judge, still the Act requires him to be treated as such. When the legislature wants that the Court of the Special Judge shall be deemed to be a Court of Session, there is no option but to follow the mandate of the Statute and to regard the Court of the Special Judge as a Court of Session in relation to the proceeding before him under the P.C. Act of 1988.
23. The status of the Special Judge under the P.C. Act of 1947 and the power to be exercised by him as provided under the 1952 Amendment Act were subject matter of consideration by the Supreme Court in several cases.
24. In the State of Tamil Nadu v. Krishnaswami, AIR 1979 SC 1255 : (1979 Cri LJ 1069), a question was raised as to whether the power conferred under Section 167 of the Cr. P.C. could be exercised by a Special Judge under the P.C. Act of 1947. It is worthwhile to note that Section 167 of the Cr. P.C. confers power of remand on a Magistrate. An argument was advanced before the Supreme Court that the Special Judge was not a Magistrate as defined in the Code of Criminal Procedure and as such he was not empowered to exercise the power of Section 167 of the Cr. P.C. and place the accused in police custody. It has been held thus (para 7):
The Criminal Law (Amendment) Act being an Amending Act the provisions are intended to provide for a speedy trial of certain offences. The Criminal Law (Amendment) Act is not intended to be a complete Code relating to procedure. The provisions of the Cr. P.C. are not excluded unless they are inconsistent with the Criminal Law (Amendment) Act. Thus read there could be no difficulty in coming to the conclusion that the Cr. P.C. is applicable when there is no conflict with the provisions of Criminal Law (Amendment) Act. If a Special Judge who is empowered to take cognizance without committal is not empowered to exercise powers of remanding an accused person produced before him or release him on bail it will lead to an anomalous situation.
25. In the case of A. R. Antulay v. R. S. Nayak, AIR 1984 SC 718 : (1974 Cri LJ 647), one of the questions, which fall for consideration, was as to whether a Special Judge was empowered to take cognizance of an offence under the P.C. Act of 1947 on a complaint? Their Lordships considered it necessary to decide with precision and accuracy the position of a Special Judge and the Court over which he presides styled as the Court of a Special Judge because unending confusions arose by either assimilating him with a Magistrate or with a Sessions Court. Besides recording a finding on the question raised in the said case, it has also been held thus (para 27):
The legislature wherever it found the grey area clarified it by making specific provision such as the one in a Sub-section (2) of Section 8 and to leave no one in doubt further provided in Sub-section (3) that all the provisions of the Criminal P.C. shall so far as they are not inconsistent with the Act apply to the proceedings before a Special Judge. At the time when the 1952 Act was enacted what was in operation was the Criminal P.C., 1898. It did not envisage any Court of a Special Judge and the legislature never wanted to draw up an exhaustive Code of Procedure for this new Criminal Court, which was being set up. Therefore, it conferred power (taking cognizance of offences), prescribed procedure (trial of warrant cases by a Magistrate), indicated authority to tender pardon (Section 338) and then after declaring it status as comparable to a Court of Session proceeded to prescribe that all provisions of the Criminal P.C. will apply insofar as they are not inconsistent with the provisions of the 1952 Act. The net outcome of this position is that a new Court of original jurisdiction was set up and whenever a question arose as to what are its powers in respect of specific question brought before it as court of original criminal jurisdiction, it had to refer to the Criminal P.C. undaunted by any designation claptrap.
It has been further held: (Para 29)
Once the position and power of the court of a Special Judge in the hierarchy of Criminal Courts under the High Court is clearly and unambiguous estalished, it is necessary to roam into an enquiry examining a large number of decisions laying down in the context of each case that the Court of a Special Judge is a Court of Session and the contrary view taken in some other decisions.
26. In Sub-section (3) of Section 5 of the P.C. Act of 1988, the expression “deemed to be” has been used twice, once with regard to the Sessions Judge and then about a Public Prosecutor. In A.R. Antulay’s case (1984 Cri LJ 647) (SC) (supra), an argument was advanced that a Taywar engaged by a private complainant could not be elevated to the status of the public prosecutor, but the deeming fiction enacted in latter part of Section 8(3) of the 1952 Amendment Act would clothe him with such a status of a public prosecutaor which he was hardly qualified to enjoy. As has been mentioned, in the last part of Sub-section (3) of Section 5 of the Act, the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor. It has been held that the Legislature wanted to clothe the person incharge of the prosecution before a Special Judge with the status of a public prosecutor for the purpose of the Criminal Procedure Code and, thus, he could not be deprived of such power because a complainant chooses to engage him for conducting prosecution on his behalf.
27. Thus, it is manifest from the interpretation of the expression “shall be deemed to be” in the Antuley’s case (supra) that a person appearing on behalf of a private complainant, shall be treated as a Public Prosecutor irrespetive of the fact whether he possesses the qualifications as provided under Section 24 of the Cr.P.C. or not. The same expression “shall be deemed to be a court of session” has been used with regard to the Special Judge in the same Sub-section (3) of Section 5 of the P.C. Act of 1988.
28. If a person appearing on behalf of a private complainant in a proceeding before a Special Judge is given the status of a public prosecutor though he may not be qualified according to the Cr. P.C., I do not find any reason as to why a Special Judge cannot exercise the powers of a Sessions Judge as provided under the Cr.P.C. which includes the power to entertain a application for anticipatory bail. The same view has been expressed by a learned Judge of this court in Cr. Misc. No. 1108 of 1988(R).
29. It is one of the cardinal principles of interpretation that in order to find out the true meaning of words or expression, used by the Legislature the Court must have regard to the aim, object and scope of the Statute. The Court must ascertain the intention of the Legislature by paying due attention not only to the clause to be construed but to the entire Statute. It must compare the clause with other parts of the law, and the setting in which the clause to be interpreted occurs, AIR 1963 SC 1241.
30. This problem may be approached from another angle in the light of the provisions made under Sub-section (6) of Section 5 of the P.C. Act of 1988, which reads thus:
(6) A Special Judge, while trying an offence punishable under this act, shall exercise all the powers and functions exercisable by District Judge under the Criminal Law Amendment Ordinance, 1944 (Ordinnce 38 of 1944).
The said provision refers to the Criminal Law (Amendment) Ordinance, 1944, under which the District Judge has jurisdiction to issue an ad interim order of attachment of money or other property procured by commission of an offence mentioned in the Schedule of the Ordinance, which also includes an offence punishable under Section 5 of the P.C. Act of 1947. The Special Judge has been authorised to exercise the powers exercisable by a District Judge for attachment of property under the Criminal Law (Amendment) Ordinance, 1944.
31. So, under the same Section 5 of the P.C. Act of 1988, the Special Judge is entitled to exercise the powers of a Sessions as well as a District Judge. Sub-section (3) of Section 5 this Act has already been quoted above.
32. On plain reading of Sub-sections (3) and (6) of Section 5 of the P.C. Act of 1988, it is manifest that under the former the Special Judge has to be treated as a Sessions Judge and it further specifies that he shall exercise all the powers of a Sessions Judge provided under the Cr.P.C. with restrictions imposed under this Act. The latter authorises him to exercise the power of a District Judge only for attachment of property under certain conditions. Though Sub-section (6) entitles the Special Judge to exercise some powers of the District Judge but it does not say that the Special Judge shall be deemed to be a District Judge under the Code of Civil Procedure. Thus, the language used in Sub-section (3) leaves no manner of doubt that to all intents and purposes, the Special Judge is a Sesisons Judge and the provisions of the Cr.P.C. shall be applicable to the proceeding before him so far they are not inconsistent with this Act.
33. It has also been contended that the Special Judge is subordinate to the Sessions Judge. In support of this contention, reliance has been placed on the order passed by a learned single Judge of this Court in Cr. Misc. No. 4712 of 1983.
It has already been noticed that the Cr.P.C. postulates establishment of a Special Court. But the power to try an offence and the procedure for trial and the power to award sentences are governed by the provision made under the Statute according to which such courts are created or in absence of any specific provision, by the Cr.P.C. Sub-section (1) of Section 10 of the Cr.P.C. states that all the Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction. Section 15(1) says that every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate. Section 19 of the Cr.P.C. also talks about subordinate of some courts. But none of those sections of the Cr.P.C. says that a Special Judge shall be subordinate to the Sessions Judge.
A specific provision has been made under Section 195 of the Cr.P.C. for determination of the issue of subordinate of one court to the other. It also prescribes the procedure for provisions for contempt of lawful authority of public servant, for offences against public justice and for offences relating to documents given in evidence. Sub-section (2) of Section 195 of the Cr.P.C. lays down that where a complaint has been made by a public servant under Clause (a) of Sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint. Sub-section (4) of Section 195 of the Cr.P.C. provides that for the purposes of Clause (b) of Sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals, ordinarily, lie from the appealable decrees or sentence passed by the former courts.
It has already been noticed that Section 27 of the P.C. Act of 1988 provides that subject to the provisions of this Act, the High Court may exercise, so far as they may be applicable, all the powers of appeal and revision conferred by the Cr.P.C. (2 of 1974) on a High Court as if the court of the Special Judge were a court of session trying cases within the local limits of the High Court.
34. In view of the provisions of the Cr.P.C., as referred to above and Section 27 of the P.C. Act of 1988, it is not. possible to hold that the Special Judge under the P.C. Act of 1988 is subordinate to the Sessions Judge.
35. As mentioned above, a learned single Judge of this court expressed doubt regarding the correctness of the law laid down in Baldeo Prasad’s case (1986 BBCJ (HC) 132) (supra). The question raised in the said case before a Bench of this court was as to whether an application for anticipatory bail under Section 438 of the Cr.P.C. by an accused of the offence under Section 7 of the Essential Commodities Act (hereinafter referred to as the E.C. Act) should be filed before the Special Court constituted under Section 12.A of the E.C. Act or before a ‘regular court of session’. After taking into consideration different provisions of the E.C. Act and some decisions of the High Courts and the Supreme Court, it has been held that an application for anticipatory bail or for regular bail by an accused of an offence under Section 7 of the E.C. Act can be entertained only by the Special Judge and not by a regular court of Sessions constituted under the Cr.P.C.
36. I do not consider it necessary to enter into an elaborate discussion with regard to the power of the Special Court constituted under the E.C Act to grant anticipatory bail to an accused of an offence under Section 7 of the E.C. Act. However, I would like to refer to only Sub-section (1)(d) of Section 12AA of the E.C. Act, which provides that save as aforesaid no person accused of or suspected of the commission of an offence under this Act shall be released on bail by any court other than a Special Court or the High Court. The language of the said provision is so clear that there is no scope for entertaining any doubt in regard to the exclusive power of the Special Court to grant anticipatory bail. This is the consistent view of different High Courts of this country. In this context, reference may be made to the decisions reported in 1985 BBCJ (HC) 601, 1985 Cri LJ 1561 (Madh Pra), 1984 Cri LJ 1819 (Kant) and 1986 Criminal Law Journal 561 (Andh Pra). There are a number of other decisions but it is not necessary to catalogue the same.
37. Upon review of the provisions of the relevant law, in my opinion, the inevitable inference would be that the Special Judge is entitled to exercise all the powers of a Sessions Judge as provided under the Cr.P.C. in relation to the proceeding under the P.C. Act of 1988 so far they are not inconsistent with the provisions of this Act. Consequently, it has to be held that the Special Judge under the P.C. Act of 1988 has got exclusive power to entertain an application for anticipatory bail or regular bail made by an accused on the allegation of having committed any offence under the P.C. Act of 1988. The reference is answered accordingly.
Uday Pratap Singh, J.
37A. I agree.
Dharampal Sinha, J.
38. I have had the privilege of persuing the judgment of my learned brother, K.B. Sinha, J., in this reference case but with utmost respect, I regret my inability to agree with the view expressed by him.
39. A short question, but of much practical importance, of law that has arisen for decision on this reference made by the learned Sessions Judge, Patna, under Sub-section (2) of Section 39 of the Code of Criminal Procedure (in short, ‘the Code) is whether the Special Judge appointed under the provision of the Prevention of Corruption Act, 1988 (P.C. Act in short) or the Sessions Judge appointed under the Code has the legal competence to dispose of an application under Section 438 of the Code commonly called “anticipatory” bail in cases relating to the offence punishable under the provisions of the P. C. Act.
40. It may be clarified here that the reference was made by the Sessions Judge in the context of the provisions of the Criminal Law (Amendment) Act, 1952 which was then in force and which contained similar provisions in Sections 8 and 9 of the Act as are contained in Sections 5 and 27 of the P. C. Act, by which the Criminal Law (Amendment) Act, 1952 has been repealed, but the arguments have been advanced by the learned counsel appearing in this reference on the basis of the provisions of the P.C. Act. This, however, does not make any difference in principle on the point raised in the reference.
41. Mr. Bibhuti Prasad Pandey, learned counsel appearing on behalf of the State, contended that it is only the Special Judge appointed under Section 3 of the P.C. Act has the competence to entertain and dispose of an anticipatory bail application, if filed in connection with the offence punishable under the P. C. Act and he asserted that some provisions of the P.C. Act, particularly of Sub-section (3) of Section 5 of the P.C. Act, give a clear indication that for the purpose of offences punishable under any of the provisions of the P.C. Act, the Special Judge has all the powers of the Court of Session.
42. On the other hand, Mr. Pankaj Kumar Sinha, learned counsel appearing amicus curiae propounded the proposition that the Special Judge has exclusive jurisdiction only to try cases relating to offences punishable under the provisions of the P.C. Act, but the Special Judge has no jurisdiction to entertain and dispose of any petition for anticipatory bail as contemplated under Section 438 of the Code. Since during the course of argument, reference was repeatedly made to the provisions of Section 5 of the P.C. Act by the learned counsels of both the sides, it will be appropriate to quote the provisions of Section 5 of the P.C. Act in extenso. It is as follows:
5. Procedure and powers of Special Judge.
(1) A Special Judge may take cognizance of offences without the accused being, committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by Magistrate.
(2) A special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of Sub-sections (1) to (5) of Section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered under Section 307 of that Code.
(3) Save as provided in Sub-section (1) or Sub-section (2), the provisions of the Code of Criminal Procedure 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for the purposes of the said provisions, the Court of the special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor.
(4) In particular and without prejudice to the generality of the provisions contained in Sub-section (3), the provisions of Sections 326 and 457 of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to the proceedings before a special Judge and for the purposes of the said provisions, a special Judge shall be deemed to be a Magistrate.
(5) A special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.
(6) A special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ordinance 38 of 1944).
43. On the basis of the provisions of Sub-section (3) of Section 5 of the P.C. Act, quoted above, Mr. Pandey contended that all the provisions of the Code so far as they are not inconsistent with the provisions of the P.C. Act, will be applicable to the proceedings before the special Judge and since this subsection clearly provides that the Court of “the special Judge shall be deemed to be a Court of Session”, it will follow that the special Judge has the same power and competence as the Court of Session including the power contemplated by Section 438 of the Code. He further contended that there is no subordinate of the special Judge to the Sessions Judge in any way, in so far as the special Judge is exercising any of the powers conferred upon him by the P.C. Act, and even the appeals and revisions against the judgment and orders of the special Judge shall lie only to the High Court as provided in Section 27 of the P.C. Act.
44. Mr. Pankaj Kumar Sinha in reply contended that so far as “the proceedings” before the special Judge is concerned, the special Judge shall be deemed to be a Court of Sesssion but if a petition for anticipatory bail is filed, as contemplated in Section 438 of the Code which can be filed only before the High Court or the Court of Session as provided in that section even in relation to the cases relating to the offences punishable under the provisions of the P.C. Act, the process of considering that application cannot be treated as “a proceeding” before the special Judge within the meaning of Sub-section (3) of Section 5 of the P.C. Act.
45. With a view to appreciating the rival contentions and deciding the point of reference it appears necessary to consider some relevant provisions of the P.C. Act and some other aspects which, in my opinion, have bearing on the point in issue. The object of P.C. Act was undoubtedly to make the existing anti-corruption law more effective by widening their coverage and by strengthening the provisions. It also seems to be an object of the Act to ensure speedy trial of the offences as mentioned in Sections 7 to 15 of the P.C. Act by creating separate court of special Judge who could give particular attention to dispose of case relating to such offences. Section 3 of the P.C. Act contemplates appointment of the special Judge by the Central Government or the State Government by notification in the official gazette and such special Judge may be appointed for such area or areas or for such case or group of cases as specified in the notification. The qualification laid down in Sub-section (2) of Section 3 for appointment as special Judge is that the person appointed must have been either a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code. At present, as the reference indicates and as was mentioned at the bar at the time of hearing on the reference two special Judges have been appointed in State of Bihar, one of whom is an Assistant Sessions Judge and the other is an Additional Sessions Judge, and they have been trying all cases under the P.C. Act. The offences indicated in Sections 7 to 15 of P.C. Act can be tried only by special Judge according to Sub-section (1) of Section 4 of the P.C. Act. According to Sub-section (3) of Section 4 of the P.C. Act, the special Judge while trying any case may also try any offence, with which the accused may, under the Code be charged at the same trial: and Sub-section (4) lays down that there should be trial on day to day basis as far as practicable. Section 5 of the P.C. Act as already quoted above will be further referred to later. Section 6 gives power to special Judge to try some offences summarily also. Section 27 of the P.C. Act contemplates that in relation to order or judgment passed by a special Judge, the High Court may exercise all the powers of appeal and revision conferred by the Code on a High Court as if the Court of special Judge were a court of Session trying cases with the local limits of the High Court.
46. Now as regards the provisions of Section 5 already quoted above, it appears that according to Sub-section (1) of Section 5, the special Judge has been empowered to take cognizance of the offence under the P.C. Act without the accused being committed to him for trial and it further lays down that the special Judge while trying the accused persons under the P.C. Act shall follow the procedure prescribed by the Code for the trial of warrant cases by Magistrates. Sub-section (2) gives power to the special Judge to tender a pardon in the same way as a Magistrate has been empowered under Section 306 of the Code and other courts (after commitment of the case) have been empowered by Section 307 of the Code and the provisions of Section 308 of the Code applies to such tender. Sub-section (3) appears to lay down “save as provided in Sub-section (1) or Sub-section (2), the provisions of the Code shall, so far as they are not inconsistent with this Act apply to the proceedings before a special Judge. “It further says that the Court of the special Judge shall be deemed to be a Court of Session, “Sub-section (4) appears to lay down that some provisions of the Code, namely, the provisions of Section 326 of the Code (relating to continuance of trial further on evidence recorded by predecessor court) and Section 475 (relating to sending cases to court-marshal when armed personnel are involved) shall apply to the proceedings before a special Judge and “‘for the purposes of the said provisions,” a special Judge shall be deemed to be a Magistrate” Sub-section (5) of Section 5 empowers the special Judge to pass any sentence authorised by law for the punishment of the offence of which such person is convicted. It is to be noticed that the maximum sentence prescribed for the offences under the P.C. Act is seven years for habitual offenders and five years, if any offence is committed by a person who is not habitual offender, so it will appear that in view of the provisions of Sub-section (5) of Section 6 of the P.C. Act, the special Judge may, in effect award maximum sentence of seven years, and, of course, fine. Sub-section (6) appears to lay down that the special Judge while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law (Amendment) Ordinance, 1944. That power relates to interim attachment of property acquired by commission of offence contemplated by the provisions of the P.C. Act.
47. Now from a perusal of the aforementioned provisions of the P.C. Act which, in my opinion, are relevant for consideration of the point involved, it will appear that a court of special Judge has been given some such powers and has to discharge some such functions as are exercised or discharged by a Judicial Magistrate under the Code while he has been given power to pass sentence up to 7 years which no other Magistrate except the Chief Judicial Magistrate can pass. The special Judge can take cognizance without any accused being committed to his court so far as the offences under the P.C. Act are concerned. Under the Code no court of Session can normally take cognizance without commitment of a case by a Magistrate. The special Judge is required to proceed in trial of cases under the P.C. Act by following the procedure of warrant trial as laid down in the Code for a Judicial Magistrate. According to Sub-section (4) of Section 5, “a special Judge shall be deemed to be a Magistrate” for the purpose of certain provisions but for other provisions according to Sub-section (3) “the Court of special Judge shall be deemed to be a Court of Session”. Under Sub-section (6), the special Judge can exercise even powers of a District Judge as conferred upon the latter by the Criminal Law Amendment Ordinance, 1944.
48. Thus, it would appear that the Court of special Judge is such a Court which is for certain purposes exercising powers and discharging the function of a Judicial Magistrate, but in some other respect, it is exercising even power of the District Judge. Obviously a court of special Judge created by a separate enactment cannot squarely fall in any of the categories of Courts contemplated by Section 6 of the Code. This Code contemplates (vide. Section 6) four classes of criminal courts, namely, (1) Courts of Sessions, (ii) Judicial Magistrate of First Class (Metropolitan Magistrate), (iii) Judicial Magistrate of Second Class, and (iv) Executive Magistrate.
49. In the context of the similar provisions as contained in the Criminal Law (Amendment) Act, 1952 as are contained in the P.C. Act, the Supreme Court in the case of the State of Tamil Nadu v. Krishnaswami Naidu reported in AIR 1979 SC 1255 : (1979 Cri LJ 1069) observed as follows (para 6):
The special Judge in the Criminal Law (Amendment) Act is thus for some purposes deemed to be a Sessions Judge and for some other purposes shall be deemed to be a Magistrate and some powers exercised by the Magistrate are conferred on him. It is necessary to note that special Judge is empowered to take cognizance without the accused being committed and in trying the accused persons he is required to follow the procedure for trial of warrant cases by a Magistrate. Under Section 8(3) except as regards the provisions in Sub-sections (1) and (2) the provisions of Code of Criminal Procedure is made applicable in so far as they are not inconsistent with the Criminal Law (Amendment) Act.
Again in the case of A.R. Antulay v. R.S. Nayak reported in AIR 1984 SC 718 : (1984 Cri LJ 647), the Supreme Court after referring to the various provisions of the Criminal Law (Amendment) Act, 1952 and relevant provisions of the Code concluded that the Court of Special Judge cannot be put in any class of Criminal Courts as mentioned in Section 6 of the Code. The Supreme Court made the following observations in this connection (para 27 of AIR 1984 SC 718):
The entire argument inviting us to specifically decide whether a Court of special Judge for a certain purpose is a Court of Magistrate or a Court of Session resolves round a mistaken believe that a special Judge has to be one or the other, and must fit in the slot of a Magistrate or a Court of Session. Such an approach would strangulate the functioning of the Court and must be eschewed. Shorn of all embellishment the Court of Special Judge is a Court of original criminal jurisdiction. As a Court of original criminal jurisdiction in order to make it functionally oriented some powers conferred by the statute setting up the Court. Except those specifically conferred and specifically denied, it has to function as a Court of Original criminal jurisdiction not being hidebound by the terminological status description of Magistrate or a Court of Session. Under the Code it will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the ones specifically denied.
Since provision of Section 8 of the Criminal Law Amendment Act, 1952 and corresponding provisions of Section 5 of the P.C. Act appear to be similar, it cannot be gainsaid that the aforesaid observation of the Supreme Court apply to the provisions of the P.C. Act, which were referred, at the bar during the hearing of the reference. In view of the observation of the apex Court of the land it will not be proper to put the Court of special Judge in the category of the Court of Sessions for all purposes. It is also obvious that the special Judge has no appellate or revisional jurisdiction at all, while the Court of Sessions certainly has in several cases. So because of the “deeming” provisions in Section 5(2) of the P.C. Act or Section 8(3) of the Criminal Law Amendment Act (both of which lay down that “the special Judge shall be deemed to be a Court of Session,”) it cannot be held that the special Judge can be equated with the Court of Session for the purpose of exercising all the powers including the power which Section 438 of the Code confers on the Court of Session. “To be sure by Section 27 of the P.C. Act which corresponds to Section 9 of the Criminal Law Amendment Act it is the High Court which can exercise power of revision and/or appeal against an order or judgment of a special Judge and by necessary implication the Court of Session cannot exercise any such power of revision or appeal as has been conferred by the Code.
50. The crucial question, however, which arises for consideration is whether only because appeals and revisions against the Judgment and orders can lie only before the High Court and not before the Sessions Judge, will it be proper to hold that the special Judge has by necessary implication been given the power or competence of entertaining and disposing of petition for bail as contemplated by Section 438 of the Code before the arrest of the concerned offender, commonly known as “anticipatory “bail”?
51. In my opinion to answer this question some other aspects need consideration. In the first place, it may be noticed that while enacting the P.C. Act for strengthening the provisions of anticorruption law and for quickly and effectively dealing with those guilty of offences of taking gratification or criminal misconduct etc., as mentioned in Chapter III of the Act, the Parliament created a special type of Court with designation of special Judge for exclusively dealing with such cases, and it defined the power of the Court and laid down procedure to be followed by it and made some other specific provisions which related to the Court of special Judge. The focus of attention of the Parliament it may be safely presumed, was the court of special Judge and its power and procedure etc. But in the absence of any specific provision in the P.C. Act providing either expressly or by necessary implication indicating so the Parliament cannot be presumed to have or even contemplated curtailment of any power of the Court of Session which was created by the Code, and which after the High Court is highest in matter of administration of criminal justice in the concerned session division district. It is to be noted that the power of granting anticipatory bail under Section 438 of the Code is conferred only upon the High Court and the Court of Session. The Court of Session as mentioned in Section 438 of the Code is a Court of Session presided over by the Sessions Judge. Even, a Court presided over by an Assistant Sessions Judge is a Court of Session, but obviously the power conferred on the court of Session by Section 438 of the Code relating to grant of bail to the person who apprehends arrest is not contemplated to be exercised by a Court of Session presided over by an Assistant Session Judge. Under Section 6 of the Code, a Court of Session is one of the categories of Court. Under Sub-section (3) the High Court may appoint Addl. Sessions Judge and Assistant Sessions Judge to exercise jurisdiction in a Court of Session. So it appears that in actual operation of the provisions of the Code the Court of Session may be the Court of Session presided over by the Sessions Judge, or a Court of Session presided over by the Addl. Sessions Judge or a Court of Session presided over by the Assistant Sessions Judge. All the three shall be Courts of Session, but so far as the provisions of Section 438 of the Code is concerned, only the Court of Session presided over by the Sessions Judge, in my opinion, can be moved for granting bail before arrest of an accused who feels reasonable apprehension about being arrested on accusation of non-bailable offence.
52. Secondly it may be noticed in this connection that the Supreme Court has in several cases observed that the power conferred by the provisions of Section 438 is an extraordinary power, vide, AIR 1977 SC 366: (1977 Cri LJ 225) (Balchand Jain v. State of Madhya Pradesh) and AIR 1980 SC 1672 : (1980 Cri LJ 1125) (Gurubaksh Singh Sibbia v. State of Punjab). In my opinion, none of the provisions of P.C. Act appears to indicate that any extraordinary power of granting bail as contemplated by Section 438 of the Code was intended to be conferred on the special Judge. In my humble opinion conferring of extraordinary power cannot be presumed only because it was provided that the Court of special Judge shall be deemed to be a Court of Session. To be sure, in view of this deeming provisions and by legal fiction created by this provision, the special Judge has to be deemed to be a Court of Session, but by this, it does not necessarily mean that the Court of special Judge shall be deemed to be a Court of Session presided over by the Sessions Judge which alone has been conferred by the Code the power to grant anticipatory bail.
53. The provisions of Sub-section (3) of Section 5 laying down that all the provisions of the Code is in so far as they are not inconsistent with the Act shall apply to the proceedings before the special Judge, in my opinion, can mean only such provisions as are necessary for disposal of matters which under P.C. Act are to be placed before the Court of the special Judge relating to offences under P.C. Act such as remanding the accused if produced before it, taking cognizance of offence on a police report or a complaint, examining the accused after close of the evidence under Section 317 of the Code, granting of regular bail (not anticipatory bail) etc.
54. Thirdly any proceeding before the court of a special Judge can be deemed to be pending before the special Judge only after first information report about commission of offence punishable under P.C. Act is sent by the police before the Court or when a complaint is lodged before that Court and not before that. But so far as the prayer for anticipatory bail as contemplated by Section 438 of the Code is concerned, such prayer can be made even before a first information report is lodged or before the first information report which has been lodged is sent to the Court of special Judge; unless the first information report is received by the special Judge, no proceeding can be said to be pending before the Court of special Judge and it cannot have any jurisdiction to pass any order. So a special Judge cannot have competence to consider a petition filed under Section 438 of the Code which petition can be filed even before lodging of the F.I.R. though such petition may relate to offences under any provision of the P.C. Act.
55. I may further notice here that some observations made by the Supreme Court in the case of Gurubaksh Singh Sibbia (1980 Cri LJ 1125) (supra), indicate that the power that has been conferred by Section 438 of the Code on the High Court and the Court of Sessions gives very wide discretion to grant bail as “it considered fit and this wide discretion is not inhibited even by that provision of Section 437 of the Code which prohibits grant of bail to any offender if there is reasonable ground of believing that he is guilty of offences punishable with death or imprisonment for life. It appears that conferring of such power or wide discretion on the High Court or the Court of Session was considered safe by the Supreme Court only because it had been conferred on the superior courts. The relevant observations of the Supreme Court read as follows (at pp. 1133-34 of Cri LJ):
The Legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the condition under which anticipatory bail should or should not be granted and secondly because the intention was to allow the higher Courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session “may if it thinks fit” direct that the applicant be released on bail. Sub-section (2) of Section 438 is the further and clear manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail “may include such conditions in such directions in the light of the facts of the particular case, as it may think fit” including the condition which are set out in the Clauses (1) to (4) of sub-section.
It further observed (at p. 1134 of Cri LJ):
There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are highest courts manned by experienced persons, secondly, their orders are not final, but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy.
The Supreme Court further said (at p. 1136 of Cri LJ):
In this process one shall have overlooked that whereas, the power under Section 438(1) can be exercised if the High Court or the Court of Session “thinks fit” to do so, Section 437(1) does not confer the power to grant bail in the same wide terms. The expression “if it thinks fit” which occurs in Section 438(1) in relation to the power of the High Court or the Court of Session is conspicuously absent in Section 437(1). We see no valid reason for re-writing Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session, but for the purpose of delimiting it. Accordingly, we are unable to endorse the view of the High Court that the anticipatory bail cannot be granted in respect of offence like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life.
56. In the absence of any specific provision having been made in the P.C. Act that the special Judge shall exercise the power conferred by Section 438 of the Code on the High Court or the Court of Session and in the absence of any provision therein prohibiting the Sessions Judge from exercising the power conferred upon him under Section 438 of the Code, it cannot, in my opinion, be held that the legislature had the intention to confer upon the special Judge same and similar power as contemplated in Section 438 and exclude the Sessions Judge from exercising the power under Section 438 of the Code. In my opinion, to hold that the special Judge has the power of granting anticipatory bail in relation to offences indicated in the P.C. Act will be inconsistent with the above quoted observations of the apex Court of our country.
57. The provision of Section 27 of the P.C. Act laying down that the High Court can exercise power of appeal and revision conferred by the Act in relation to the judgment and order passed by the special Judge cannot, in my opinion, be decisive for the purpose of deciding as to whether or not the special Judge has the power to entertain and dispose of a petition under Section 438 of the Code. The Court of Session while exercising jurisdiction under Section 438 of the Code can grant bail in any case relating to any offence including the offence of murder punishable under Section 302 I.P.C. which offence can be tried only by a Court of Addl. Sessions Judge, against the judgment and order of which appeal and revision can lie only before the High Court. So the provisions of Section 27 of the P.C. Act, in my opinion, cannot be pressed into service for deciding the point which has arisen in this case for decision. By excluding Sessions Judge from exercising power of appeal or revision and by providing for hearing of appeal or revision directly by the High Court against an order/judgment of special Judge, the legislature might have intended that an intermediate forum be eliminated and finality may quickly be reached in cases relating to offences for the trial of which the court of special Judge is created.
58. It may be mentioned here that during the course of hearing on the reference, a mention was made to a Division Bench decision of this Court reported in 1986 BBCJ (HC) 132 (Baldeo Prasad v. State). In that case it was held that the special court constituted under the provision of Essential Commodities Act, 1955 (E.C. Act) had the same power in relation to offence punishable under the E.C. Act as that of the Sessions Judge in matter of grant of anticipatory bail and that the special Court alone has that power (and not the court of Session). In my opinion, certain provisions of E.C. Act clearly indicates that the Sessions Judge was prohibited from exercising the power of granting bail-regular or anticipatory. Under Section 12AA of the E.C. Act some elaborate provision was made relating to grant of bail. Clause (d) of Sub-section (1) of Section 11AA of the E.C. Act reads as follows:
(d) save as aforesaid no person accused of or suspected of the commission of an offence under this Act shall be released on bail by any court other than a special Court or the High Court:
Provided that a Special Court shall not release any such person on bail —
(i) without giving, the prosecution an opportunity to oppose the application for such release unless the Special Court for reasons to be recorded in writing, is of opinion that it is not practicable to give such opportunity; and
(ii) where the prosecution opposes the application, if the Special Court is satisfied that there appear reasonable grounds for believing that he has been guilty of the offence concerned:
Provided further that the Special Court may direct that any such person may be released on bail if he is under the age of sixteen years or is a woman or is a sick or infirm person, or if the Special Court is satisfied that it is just and proper so to do for any other Special reasons to be recorded in writing.
59. It is obvious that there is absolute prohibition to any court other than the special Court or the High Court in matters of granting bail to a person accused or a suspected of commission of any offence under the E.C. Act. In the P.C. Act there is no such prohibition to any court or exclusion of any court in matters of granting bail. So the aforesaid decision of the Division Bench based on the provision of the E.C. Act cannot be pressed into service for the purpose of holding that the Special Judge under the P.C. Act has same power in matter of granting of anticipatory bail as the Special Court has under the E.C. Act to the exclusion of the Sessions Judge.
60. It may be noticed that the P.C. Act was enacted in the year 1988 and it received the assent of the President of India on the 9th September, 1988. The provision of Section 12AA of the E.C. Act had been inserted as early as in the year 1981. Even then no provision similar to that mentioned in Clause (d) of Section 12AA of Sub-section (1) of the E.C. Act was inserted by the legislature any where in the P.C. Act. In Section 6 of the P.C. Act there is also a reference to Section 12A of the E.C. Act and so it appears that the provisions of the E.C. Act were also atleast noticed while enacting the P.C. Act, 1988, yet, no provision like Clause (d) of Sub-section (1) of Section 12AA of the E.C. Act prohibiting the court of Session or any other Court from exercising the power of granting bail in respect of offences under the provision of the P.C. Act was made. This would suggest that the legislature did not intend while enacting P.C. Act, to exclude the Sessions Judge from exercising power conferred upon him under Section 438 of the Code.
61. A point was raised by Mr. Pandey that if it is held that the Sessions Judge can exercise power under Section 438 in relation to an offence punishable under any of the provision of P.C. Act, there can be overlapping or conflict of jurisdiction of different courts of Session. The Court of Session within the territorial limits of which offence is committed, the Court of Sessions within the territorial limits of which the person apprehending arrest is living, and the Court of Sessions within the territorial limits which the special Judge is exercising his power can all, according to his submission, exercise power of granting anticipatory bail. In my opinion, this line of contention cannot be accepted. It is settled by a Full Bench decision of this Court reported in 1986 Cri LJ 605 : (AIR 1986 Patna 194) (Syed Zafrul Hassan v. State) that only the Court of Session within the territorial limits of which the offence has been committed can grant anticipatory bail and no other court of Session. So there cannot be any question of overlapping or conflict of jurisdiction.
62. One more aspect, which may be mentioned here is that normally an occasion for considering whether anticipatory bail should or should not be granted to a person accused of an offence arises for consideration by the High Court or that Court of Session when the related case either in pre-cognizance stage or post cognizance is pending before a court different from the High Court or the Court of Sessions. It is also settled that prayer for anticipatory bail may be made even before the first information report is lodged and question for granting anticipatory bail may be considered by the High Court or the Court of Session even without, F.I.R. So a Court which is trying a case or before whom any first information report is sent or is to be sent because of the reasoning that it is competent to take cognizance and/or to try the case cannot be considered to be a proper court for considering the question as to whether or not anticipatory bail should or should not be granted. In actual practice when the matter is pending before different criminal courts, then the High Court or the Court of Session exercises its power under Section 438 of the Code. If it is held that the special Judge to whom FIR is forwarded or who has taken cognizance in relation to the case relating to offences under any of the provisions of P.C. Act and before whom the trial of the case is pending is also competent to exercise the power of granting anticipatory bail, it will be little incongruous and odd in the context of the normal occasion which arises for consideration of the question of granting anticipatory bail in a criminal case.
63. In the light of discussion made and the reasons indicated above 1 am of the considered opinion that the special Judge appointed under the provision of the P.C. Act has no jurisdiction to entertain and dispose of the anticipatory bail petition in relation to the offence punishable under the P.C. Act and the Court of Session (the Sessions Judge) has legal competence to consider any application for grant of anticipatory bail in relation to any offence including any offence punishable under any of the provisions of the Act. I would, therefore, decide the point of reference accordingly.