The Special Judge appointed under the P.C. Act does not have the jurisdiction to entertain an application for grant of bail under section 438 of the Cr. P.C. in cases relating to the offences punishable under the P.C. Act.

(Per Dharampal Sinha, J.-Contra)

Code of Criminal Procedure, 1973-Section 438 read with sections 5 and 6 of the Prevention of Corruption Act, 1988-Special Judge appointed under the provisions of P.C. Act has no jurisdiction to entertain an application for grant of bail under section 438 of Cr. P.C. In cases relating to the offences punishable under the P.C. Act-in view of the deeming provisions of section 5 (3) of P.C. Act, 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 Sessions which alone has been conferred the power to grant anticipatory bail-only the Court of Sessions has legal competence to consider any application for grant of anticipatory bail in relation to any offence including offences punishable under the P.C. Act. (Paras 58 to 63)

1986 BBCJ 132 : 1985 PLJR 981 - Explaioed.

AIR 1977 SC 366; AIR 1980 SC 1672; 1986 Cr. LJ 605 : 1986 PLJR 274 (FB)-Relied upon.

AIR 1979 SC 1255; AIR 1984 SC 718 - Discussed.

JUDGMENT

Krishna Ballabh Sinha, J.

The question posed for consideration in this case is as to whether a Special Judge under the Prevention of Corruption Act is entitled to exercise the power conferred on a Sessions Judge by section 438 of the Code of Criminal Procedure.

2. Upon receipt of two conflicting orders passed by this court, the Sessions Judge, Patna was placed between horns of a dilemma and taking resort to section 395 (2) of the Code of Criminal Procedure, 1973, (hereinafter referred to as 'the Cr. P. C.) referred the matter for the decision of this Court.

3. In one of the cases, the accused, who was alleged to have committed an offence punishable under the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the P.C. Act of 1947'), filed an application under section 438 of the Cr. P.C. before the Sessions Judge, who declined to entertain the same on the ground that it had no jurisdiction. The accused, thereafter, filed Cr. Misc. No. 966 of 1987 before this court, which was disposed of by a learned Single Judge with a direction to this Special Judge appointed under section 6 of the Criminal Law (Amendment) Act, 1952 (hereinafter referred to as 'the 1952 Amendment Act') to consider the application.

In another case, the accused, who was also alleged to have committed an offence punishable under the P.C. Act of 1947, made prayer before the Special Judge for grant of anticipatory bail, which was dismissed on the ground of lack of jurisdiction in it. Being aggrieved by the order, the accused moved this Court by filing Cr. Misc. No. 2077 of 1986, which was disposed of by a learned Single Judge. 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 vs. State of Bihar (1986 B.B.C.J. 132 : 1985 PLJR 981) and ordered to place the record before Hon'ble the Chief Justice for referring it to a Larger Bench. Thereafter the case was admitted by a Division Bench for hearing by a Larger Bench consisting of three learned Judges of this Court. This is how the matter has been placed before us.

5. Mr. Bibhuti Prasad Pandey, learned counsel, appearing on behalf of the State, has contended that according to section 5(3) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the P.C. Act of 1988'), the Court of the Special Judge shall be deemed to be a Court of Session and, therefore, the Special Judge, alone, is entitled to exercise the power conferred on the Sessions Judge to entertain an application filed under section 438 of the Cr. P.C. in relation to the offences punishable under the P.C. Act of 1988.

6. Mr. Pankaj Kumar Sinha learned counsel appearing amicus curiae, bas rendered valuable assistance to the court. It has been argued by him that sub sectio