I.A. Ansari, J.

1. This is a reference made by the learned Special Judge, CBI, Assam, Guwahatt. The question, which has been referred to this Court for its answer is reproduced hereinbelow:

Whether the Court of Special Judge, CBI, Assam, Guwahati, should try RC No. 04(A)/90-SLC, where there is no accusation of accused persons having committed any offence under the Prevention of Corruption Act?

2. I have heard Mr. D. K. Das, learned Standing Counsel for the CBI, and Mr. Z. Kamar, learned Counsel for the accused.

3. Before proceeding to ascertain the answer to the question, which has been posed above, it is necessary to take note of Section 395, Cr. P.C., where under a reference' is made. Section 395, Cr. P.C. reads as under:

395. Reference to High Court - (1) Where any Court is satisfied that a case pending before it Involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is Invalid or Inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court.

Explanation.- In this section, "Regulation" means any Regulation as defined in the General Clauses Act, 1897 (10 of 1897) or in the General Clauses Act of a State.

(2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of Sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case.

(3) Any Court making a reference to the High Court under Sub-section (1) or Sub-section (2) may, pending the decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when called upon.

4. A careful reading of Sub-section (1) of Section 395 shows that when a question of validity of any Act, Ordinance or Regulation or of any provisions contained in an Act, Ordinance or Regulation arises In any Court, subordinate to the High Court, such a Court may, under Sub-section (1) of Section 395, refer, for the opinion of the High Court, such a question. A minute reading of Sub-section (2) of Section 395 further shows that even when a question as regards the validity of an Act, Ordinance or Regulation or any provisions contained therein does not arise in a case, but a question of law arises and a Court of Session or a Metropolitan Magistrate Is of the view that the question of law, which has so arisen, needs to be referred to the High Court for decision, the Court may refer to the High Court such a question of law for decision of the High Court.

5. A combined reading of what Sub-sections (1) and (2) of Section 395 contain clearly reveals that while any Court can refer, under Sub-section (1) of Section 395, a question, which may arise as regards the validity of any Act, Ordinance or Regulations or of any provisions contained therein, it is not every Court, but only a Court of Session or a Metropolitan Magistrate, who may, under Sub-section (2) of Section 395, refer, for the decision of the High Court, any question of law, which may arise in a case.

6. The question, therefore, which, now, needs to be answered is as to whether a Special Judge, appointed under P. C. Act, can make a reference to the High Court in terms of the provisions of Section 395(2) if a question of law arises in a case pending in the Court of Special Judge? A search for an answer to this question brings me to Section 5 of the Prevention of Corruption Act (in short, "the PC Act"), which reads as under:

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 try