ORDER :

V. Bharathidasan, J.

1. This matter is placed before this Court to decide a reference sought by the learned District Judge, Karur, under Section 395 of the Code of Criminal Procedure, 1973, with regard to the jurisdiction of the District and Sessions Court in entertaining the anticipatory bail applications filed under Section 438 of the Code of Criminal Procedure, 1973 [In short, 'Cr.P.C.'], for the offences committed under the provisions of Protection of Children from Sexual Offences Act, 2012 [In short, 'POCSO Act'].

2. We have had the assistance of Mr. K.K. Ramakrishnan, learned Additional Public Prosecutor and Mr. N. Mohideen Basha, learned counsel appearing for the High Court, in deciding the issue.

3. A petition under Section 438 of Cr.P.C., seeking anticipatory bail for the offences punishable under Sections 5(i) and 6 of the POCSO Act and Sections 9 and 10 of the Child Marriage Act, 2006, has been filed before the Special Court, designated under the POCSO Act at Karur, and the same has been returned by the Special Court stating that, it has no jurisdiction to entertain the application for anticipatory bail. Thereafter, the application has been filed before the Sessions Court, that application has been resisted by the learned Public Prosecutor stating that, the anticipatory bail application is not maintainable before the Sessions Court, only the Special Court has exclusive jurisdiction to entertain the same. In the above circumstances, the learned Sessions Judge referred the anticipatory bail application, to this Court under Section 395 of Cr.P.C., to decide whether the District and Sessions Court has jurisdiction to entertain the anticipatory bail applications for the offences committed under the POCSO Act.

4. In G.O. Ms. No. 1087, Home (Courts-II) Department, dated 04.12.2013, the State Government, in consultation with the High Court, designated the Fast Track Mahila Courts as Special Courts under the POCSO Act and Additional Sessions Judges presiding over the Fast Track Mahila Courts are functioning as Special Courts under the POCSO Act.

5. Section 438 of Cr.P.C., deals with grant of bail to person apprehending arrest and the High Court and Sessions Courts are empowered to grant such pre-arrest bail. Now, a doubt has arisen that, after the constitution of Special Courts, whether the Special Court alone has jurisdiction to deal with the application filed under Section 438 of Cr.P.C., and the Sessions Courts are excluded from dealing with such petitions.

6. Before going into the controversy, it is useful to refer to various provisions under the Code of Criminal Procedure as well as the POCSO Act.

7. Section 6 of Cr.P.C., deals with the classes of Criminal Courts, which reads as follows:

"6. Classes of Criminal Courts.- Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:-

(i) Courts of Session;

(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrate;

(iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates."

8. Section 9 of Cr.P.C., defines the 'Sessions Court', which reads as follows:

"9. Court of Session.- (i) The State Government shall establish a Court of Session for every sessions division.

(2) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court.

(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.

(4) The Sessions Judge of one sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in the other division as the High Court may direct.

(5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be