Reference Under Section 395 CRPC v. State of Bihar

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1992 BLJ 1 231 . 1992 BLJR 1 231 .
Reference Under Section 395 (A) Cr.P.C. v. State Of Bihar
Patna High Court (Sep 16, 1991)
CASE NO.
1 of 1987
ADVOCATES
Pankaj Kumar Sinha
Bibhuti Prasad Pandey
JUDGES
Mr. Justice Krishna Ballabh Sinha
Mr. Justice Udai Pratap Singh
Mr. Justice DharampalSinha
Summary
1. (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 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.
2. 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 193 of the cr.
3. P. C. The courts of the special judges, 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.
Printed by licensee : Dushyant Mudgil Page 1 of 32

4. A new forum was created and a procedure was prescribed for expeditious trial of the said offences.
5. Sub - section (2) ot 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.
6. Section 6 of the p. C. Act of 1988 empowers the special judge to try offence in summary way under
certain conditions.
7. P. C. (2 of 1974) on a high court as if the courts of the special judge were a court of sessions trying
cases within the local limits of the high court.
8. (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 below : -
9. It is clear that except the provisions made under sub - section (1) and subsection (2) of section 5 of the
p. C. Act of 1988, the procedure laid down in the cr.
10. 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 .
11. 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.
12. When the legislature wants that the court of the special judge shall be deemed to be 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.
13. 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.
14. It conferred power (taking cognizance of offences) , prescribed procedure (trial pf warrant cases by a
magistrate) , indicated authority to tender pardon (section 338) and then after declaring it status as

comparable to a court of sessions proceeded to prescribe that all provisions of the criminal p. C. Will apply
in so far as they are not inconsistent with the provisions of the 1952 act.
15. 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 he
could not be deprived of such power because a compainant chooses to engage him for conducting
prosecution on his behalf.
16. (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 farther specifies that
he shall exercise all the powers of a sessions judge provided under the cr.
17. 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.
18. The language used in sub - section (3) leaves no manner of doubt that to all intents and purposes, the
special judge is a sessions judge and the provisions of the cr.
19. 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.
20. The reference is answered .
21. Will be applicable, to the proceedings before the special judge and since this sub - section 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.
22. 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.

23. 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".
24. Obviously a court of special judge created by a separate enactment cannot, squerely fall in any of the
categories of courts contemplated by section 6 of the code.
25. The 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".
26. Again in the case of a. R. Antulay v. R. S. Nayak, reported in air 1984 sc 718, the supreme court after
referring to the various provisions of the criminal law (amendment) act, 1952 and some 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.
27. 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 gainsuid 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.
28. 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 session for all purposes.
29. 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".
30. As mentioned in chapter iii of the act, the parliament created a special type of court with disignation 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.

31. The court of session as mentioned in section 438 of the code is a court of session presided over by
the sessions judge.
32. 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 prescribed over by an
assistant session judge.
33. 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.
34. 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 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.
35. 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.
36. 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 .
37. In my opinion, to hold that special judge has the power of granting anticipatory bail in relation to
offences indicated in the p. A. Act will be in consistent with the above quoted observations of the apex
court of our country.
38. (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.
39. 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.

40. I would decide the point of reference .
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 1988, 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 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 faccused 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 necessitated 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
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 now 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 193 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 according 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. G. 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 subsection (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 the 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 incharge 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. Sub - section (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 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 (i) 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 difference 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 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 (8) of section 173 of the cr. P. C. That despite
submission of the report upon completion of the investigation, further investigation conducted in respect of
the same offence and further evidence so collected has to be forwarded to the same magistrate.
(emphasis italiqs)
(8) In 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 section 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 question 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 investigating, 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 it 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 sub - section
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 judges, 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 7 - a. 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 offences 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 further
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 offences. 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, 164, 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 offences 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) ot 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 (1) 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 sections 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 cases 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 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
abandoned caution.
(18) For the sake of convenience, sub - section (3) of section 5 the p. C. Act of 1988 may be considered
in two parts. The first part of this subsection 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 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 subsection (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
v. 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 sub - section 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 i. T. Commissioner v. S. Teja singh, air 1959 supreme court 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 dwelling co. Ltd v. Finsbury borough
council, 1942 ac 109 at page 132, which is thus :

"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 or 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. Uuder subsection (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 procedur as specified in it. He has got exclusive power to take cognizance of the 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 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, 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 :
"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 commital is not empowered to exercise
powers of remanding an accused person produced before him or release him on bail it will lead to an
anomalus situation."
(25) In the case of a. R. Antulay vrs. R. S. Nayak, air 1984 sc 718, one of the questions, which fell 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 her 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 :
"the legislature wherever it found the grey area clarified it by making specific provision such as the one in
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 tet up.
Therefore, it conferred power (taking cognizance of offences) , prescribed procedure (trial pf warrant
cases by a magistrate) , indicated authority to tender pardon (section 338) and then after declaring it
status as comparable to a court of sessions proceeded to prescribe that all provisions of the criminal p. C.
Will apply in so far 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 :
"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 established, it is unnecessary 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 (supra) , an argument was advanced that a lawyer 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 prosecutor, 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 compainant 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 antulay's
case (supra) that a person appearing on behalf of a private complainant shall be treated as a public
prosecutor irrespective of the fact whether the 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 an 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 getting in which the clause to be interpreted occurs (air 1963 sc 1214).
(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
funtions exercisable by a district judge under the criminal law amendment ordinance, 1944 (ordinance 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 1941. 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 was 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 farther 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 sessions 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 1985. 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 nono 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
prosecution 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 sentences, passed by the former court. 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 sessions 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 (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 taxing 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 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 corstituted 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 12 - aa 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 b. B. C. J. 601, 1985 criminal law journal 1561 (madhya pradesh) , 1984 criminal law
journal 1819 (karnataka) and 1986 criminal law journal 561 (andhra pradesh). 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 invitable inference would be that
the special judge is entitled to exercise all the powers of session 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.
(38) I have had the privilege of perusing 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 395 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 offences 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 counsels 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 offences 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 clearly 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 eases 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 agrument, reference was repeatedly made to the provisions of Section 5 of the p. C. Act by
the learned counsel for both the sides, it will be appropriate to quote the provision of Section 5 of the p. C.
Act is 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 theaccused persons, shall follow the procedure
prescribed by the code of criminal procedure, 1973 (2 of 1974) , for the trial of warrant cases by
magistrates. (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 contained in subsection (3) , the provisions of
section 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
sub - section 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
subordination 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 session 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 of 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 ludge 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 the 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 subsection (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 within 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 offences 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
ate 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 at 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 offenders. 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 a discharge some such functions as are exercised or discharged by a judicial
magistrate under the code while he has been given power to past sentence upto 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, squerely 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 the air 1979 sc 1255, observed as follows :
"the special judge in the criminal law (amendment) act is thus for some purposes deemed to be 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, the supreme court after
referring to the various provisions of the criminal law (amendment) act, 1952 and some 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 :
"the entire argument inviting us to specifically decide whether a court of a 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 were 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 hide - bound 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 gainsuid 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 session 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 517 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 of tender, 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
disignation 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 prescribed
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 extra - ordinary power vide air 1977 sc 366

balchand jain v. State of madhya pradesh and air 1980 sc 1672 gtsntbux sibbia v. State of punjab. In my
opinion, none of the provisions of p. C. Act appear to indicate that any extrs - ordinary 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 court 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 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 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 am further notice here that some observations made by the supreme court in the case gurubaksh
singh sibbia (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 is 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 :
"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 not be granted and secondly because the intention was to allow the higher courts
in the echelon a some - what free hand in the grant of relief in the nature of anticipatory bail. That is why,
departing from the terms of sections 437 end 439, sec. 438 (1) uses the language that the high court or
the court of section "may if it thinks its" disert that the applicant be released on bail. Sab - 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
clause (1) to (4) of sub - section. "
It further observed :
"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 court manned by experienced persons,
secondly, their orders are pot final, but are open to appellate or revisional scrutiny and above all because,
discretion has always to be exercised by courts judiciary and not accordingly to whim, caprice or fancy."
The supreme court further said :
"in this process one shall have overlooked that whereas, the power under section 438 (1) can be
exercised if the high 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 therefore. 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 be 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
exclud the sessions judge from exercising the power under section 438 of the code. In my opinion, to hold
that special judge has the power of granting anticipatory bail in relation to offences indicated in the p. A.
Act will be in consistent 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 ior 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 additional sessions judge, against the judgment and order of which appeal and revision can lie
only before the high court. So the provisions or 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 baldeo prasady. State, 1986 bbcj 132. In that case it was
held that the special court constituted under the provision of essential commodities act, 1955 (e. G. 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 12 - a a of the
e. C. Act some of the elaborate provision was made relating to grant of bail. Clause (d) of sub - section (1)
of section 12 - aa 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 - g) 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 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 can
not 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 session judge.
(60) It may be noticed that the e. 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 12 - aa of the e. C. Act had been
inserted as early as in the year 198l even then no provision similar to that mentioned in clause (d) of
section 12 - a a 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 e. C. Act there is also a reference to section 12 - a of the e. C. Act and so it
appears that the provisions of the e. C. Act were also atleast noticed while enacting the e. C. Act, 1988,
yet, no provision like clause (d) of subsection (1) of section 12 - aa 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 e. C. Act was made. This would suggest that the legislature did not intend while enacting
e. 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 cr lj 605 (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 the court of sessions when the related case either is 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 discussions made and the reasons indicated above i 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. Reference decided accordingly.

Reference Under Section 395 CRPC v. State of Bihar

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Reference Under Section 395 CRPC v. State of Bihar

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1992 BLJ 1 231 . 1992 BLJR 1 231 .

Reference Under Section 395 (A) Cr.P.C. v. State Of Bihar

Patna High Court (Sep 16, 1991)

Pankaj Kumar Sinha

Bibhuti Prasad Pandey

Mr. Justice Krishna Ballabh Sinha

Mr. Justice Udai Pratap Singh

Mr. Justice DharampalSinha

under section 438 of the cr.

whereas, according to section 193 of the cr.

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cases within the local limits of the high court.

p. C. Act of 1988, the procedure laid down in the cr.

and have force and effect .

section 167 of the cr.

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prosecution on his behalf.

special judge is a sessions judge and the provisions of the cr.

committed any offence under the p. C. Act of 1988.

20. The reference is answered .

contemplated by section 438 of the code.

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special judge shall be deemed to be a court of session".

categories of courts contemplated by section 6 of the code.

(iv) executive magistrate".

courts as mentioned in section 6 of the code.

judge in the category of the court of session for all purposes.

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the sessions judge.

assistant session judge.

cannot have any jurisdiction to pass any order.

court of our country.

overlapping or conflict of jurisdiction of different courts of session.

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Krishna Ballabh Sinha, J.:-

the code of criminal procedure ?

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sessions judge, additional sessions judge and an assistant sessions judge.

as provided in the statute, under which these courts are created.

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penal code have been omitted.

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backdrop, the contentions raised on behalf of the parties have to be considered.

extracted here below : -

judge shall be deemed to be a public prosecutor."

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council, 1942 ac 109 at page 132, which is thus :

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comes to the inevitable corrolaries of that state of affairs."

before him under the p. C. Act of 1988.

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jurisdiction, it had to refer to the criminal p. C. Undaunted by any designation claptrap."

It has been further held :

for conducting prosecution on his behalf.

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section (6) of Section 5 of the p. C. Act of 1988, which reads thus :

been quoted above.

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