Hari Lal Agrawal, J.

Both the cases having been referred to a Division Bench by Brother N.P. Singh, have been listed before us and have been heard together as the question of law in them is common, namely as to whether an application for anticipatory bail under section 438 of the Code of Criminal Procedure (for short 'the Code') by an accused of the offence under section 7 of the Essential Commodities Act, should be filed before the 'Special Court' constituted under section 12A of the Essential Commodities Act, 1955 (for brevity 'the F.C. Act') or before the regular 'Court of Session' as provided under section 438 of the Code.

2. The petitioners of both the cases had applied for grant of anticipatory bail before the learned Sessions Judge of Gaya, who took the view that he, had no jurisdiction to hear the applications when Special Court had been established for this purpose.

3. When the cases were listed before Brother Singh be referred them to a Division Bench and accordingly the same have been beard by us.

4. Before I proceed to discuss the question, I may point out this question has been answered differently by two learned Judges of this Court. Whereas Uday Sinha, J. in the case of Raj Kumar Gupta Vs. The State of Bihar, on reference to various provisions of the E.C. Act, has held that a 'Special Court' shall be deemed to be a 'Court of Session' and therefore, be a 'Sessions Court' within the meaning of section 438 of the Code and the Special Judge "will have the same power of entertaining an application for grant of anticipatory bail as this Court", P.S. Mishra, J. in the case of Banshidhar Gupta Vs. The State of Bihar took the view that “the court designated as Special Judge is always subordinate to the provision under section 438 of the Code of Criminal Procedure. For the purposes of exercise of power under section 438...the Judge exercising power under the Essential Commodities Act, is not a Sessions Court."

5. To resolve the conflict between the two decisions referred to above and to answer question falling for our consideration, some of the provisions of the E.C. Act, have got to be referred to.

By Act, No. 18 of 1981 certain special provisions by way of amendments to the main Act, for dealing more effectively with persons indulging in boarding and black-marketing etc. in essential commodities, were provided and various new sections for section 12A of the principal Act, were substituted. Under the new section 12A the State Government was empowered to constitute as many Special Courts as may be necessary for such area or areas by a Gazette Notification. The Special Court is to consist of single Judge to be appointed by the High Court upon the request of the State Government and only such person who is :-

(a) Qualified for appointment as a Judge of a High Court

or

(b) has for a period of not less than one year been a Sessions Judge or an Additional Sessions Judge, can be appointed as a Judge of a 'Special Court',

From this provision it is clear that the qualification of the person who can preside over a Special Court is not in any way inferior to that of a person who is appointed as a Sessions Judge; any it may be said to be even higher if a person of the first category qualified for appointment as a Judge of a High Court is to be chosen.

The other relevant provision in this regard is clauses (d) of section 12AA (1) of the E.C. Act, which 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:

Section 12AB may also be usefully quoted:

"12AB, Appeal and Revision - The High Court may exercise, so far as may be applicable, all the powers conferred by chapters XXIX and XXX of the Code on a High Court as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Sessions trying cases within the local limits of the jurisdiction or the High Cour