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1991 Supreme(Pat) 384
PATNA HIGH COURT
Krishna Ballabh Sinha, U.P.Singh and Dharampal Sinha JJ.
Ravi Nandan Sahay, Sessions Judge, Patna
Versus
State Of Bihar
Criminal Reference No. 1 of 1981 ;
Decided On : SEPTEMBER 16, 1991
Headnote:Code of Cri. Procedure, Chapter XII, sections 154, 155, 156, 157, 169,171, 173 and Prevention of Corruption Act, 1988, Sec 4(Per K. B. Sinha, J.-U P. Singh, J. concurring)--from the Provisions of the P. C. Act and Cri. P. C. it is not possible to hold that the Special Judge does not come in picture during course of police investigation and prior to taking of the cognizance under the Act-the Special Judge is entitled to exercise all the powers conferred on a Magistrate under Chapter XII as he has got the exclusive jurisdiction to take cognizance and try the offence under P.C. Act.
(Paras 98 & 122)
(Per Dharampal Sinha, J. dissenting) - 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 respect, it is exercising power of the District Judge-it will not be proper to put the court of Special Judge in the category of the court of sessions-AIR 1979 SC 1255 & AIR 1984 SC 718 ref.
(Paras 48 & 49)
Prevention of Corruption Act, 1988, Sec 5 (3) & Code of Cri. Procedure-(Per K. B. Sinha, J.-U. P. Singh, J. concurring )-except as provided under sub-sec. (l) and sub-sec. (2) the procedure laid down in Cri. P. C. shall be applicable to the proceeding before the Special Judge so far they are not inconsistent with the Act-by adding a deeming provision a legal fiction has been created by which the Special Judge has to be trated as a Sessions Judge-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-where the legislature wants that the court of Special Judge shall be deemed to be a court of Sessions, there is no option but to follow the mandate of the statute --the language used in sub-sec. (3) leaves no manlier of doubt that to all intent and purposes the Special Judge is a Sessions Judge and the provisions of Cri P. C. shall be applicable to the proceedings before him-AIR 1959 SC 352, 1942 AC 109, AIR 1979 SC 1255 ref. AIR 1984 SC 718 ref. & rel. on.
(Paras 18, 20.22, 27 & 32)
(Per Dharampa1 Sinha, J.-dissenting)Conferring of extra ordinary power can not be presumed only because it was provided that the court of Special Judge shall be deemed to a Sessions-the provisions of sub-sec. (3) of sec.5 can mean only such provisions as are necessary for disposal of matters which under P. C. Act are to be placed before the Special Judge relating to offence under P. C. Act-AIR 1977 SC 366,-AlR 1980 SC I672 ref. (Paras 52 & 53)
Code of Criminal Procedure, 1973, sec. 438 and sec. 5 (3) of P. C. Act 1988-(Per K. B. Sinha, J., U. P. Singh; J. concurring)- A Special Judge is entitled to exercise all the powers of a Sessions Judge as provided under Cr. P. C. in relation to proceedings under the P. C. Act of 1988 and has got exclusive power to entertain an application for anticipatory bail or regular bail made by an accused having committed an offence under the P.C. Act-AIR 1984 SC 718 rel. on, 1986 BBCJ 132 & Cri. Misc. No.1108 of 1988 (R) approved, Cri. Misc. No. 47J2 of 85 ref.
(Paras 26,28, 31,35 & 37)
(Per Dharmpal Sinha, J.)-it is to be noted that the power of granting anticipatory bail u/s 438 is conferred only upon the Sessions Judge-none of the provisions of P.C. Act indicate that any extraordinary power of granting bail as contemplated by sec. 438 was intended to be conferred on the Special Judge-conferring of extraordinary power can not be presumed-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-Special Judge appointed under the provision of P. C. Act has no jurisdiction to entertain and dispose of an application for anticipatory bail-1986 Cri. L. J. 605, AIR 1977 SC 366, AIR 1980 SC 1672 ref. on, 1986 BBCJ 132 ref. (Paras 51,52,54, 56,57,61 & 63)
Interpretation of Statutes (Per K. B. Sinha, J., U. P. Singh, J. concurring) if the words of the enactment are clear and are capable of only one interpretation on a plain construction of words there of, a non-obstants clause can not restrict the scope of its operation. The non-obstance 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-when an Act says that its provisions are to be observed except so far as they are "Inconsistent" with other statute, the inconsistency must be one, which is at variance with the machinery and procedure indicated by the other statute . (Paras 17 & 18)
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 Sec. 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 Sec. 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. At of 1947), filed an application under Sec. 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 198 7 before this Court, which was disposed of by a learned single Judge with a direction to the Special Judge appointed under Sec. 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/s. 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 Sec. 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 Sec. 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-sec. (1) of Sec. 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 Sec. 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 Sec. 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 Sec. 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 a
