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 heretnbelow:
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., whereunder 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 trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by the Magistrates.
(2) A special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of Sub-sections (1) to (5) of Section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered under Section 307 of that Code.
(3) Save as provided in Sub-section (1) or Sub-section (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for purposes of the said provisions, the Court of the special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor.
(4) In particular and without prejudice to the generality of the provisions contained in Sub-section (3), the provisions of Sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to the proceedings before a special Judge and for the purposes of the said provisions, a special Judge shall be deemed to be a Magistrate.
(5) A special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.
(6) A special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ord. 38 of 1944).
7. A microscopic reading of Sub-section (3) of Section 5 of P. C. Act makes it abundantly clear that the provisions of Code of Criminal Procedure shall apply to the proceedings before a Special Judge if the provisions, which are sought to be applied, are not inconsistent with the P. C. Act and that for the purpose of applying the provisions contained in the Code of Criminal Procedure, the Court of Special Judge shall be deemed to be a Court of Session. Thus, if, in the light of Section 395, Cr. P.C., Sub-section (3) of Section 5 of the P. C. Act is examined, it becomes transparent that neither the P.C. Act makes any special provision as regards making of a reference to High Court nor is there any provision in the P.C. Act, which can be said to be inconsistent with the provisions of Section 395, Cr. P.C. Viewed thus, there can be no escape from the conclusion that a Special Judge can make a reference to the High Court, in terms of Sub-section (2) of Section 395, Cr. P.C., on any question of law, which may arise In his Court, for, the Special Judge, in such a case, would be deemed to be a Court of Session. Logically, therefore, in the case at hand, the learned Special Judge was competent to make, for the decision of the High Court, a reference on a question of law, which had arisen. Thus, in the present case, the reference made by the learned Special Judge, being a reference on the question of law, can be safely treated to be a reference within the ambit of Sub-section (2) of Section 395. I am also guided to adopt this view from the observations made by the Privy Council, in Commissioner of Income-tax v. Bombay Trust Corporation Ltd. AIR 1930 PC 54, which run thus, '....Now when a person is 'deemed to be' something the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were.'
8. Now, coming to the reference, what needs to be noted is that the P. C. Act, is a Special Act meant for trial of certain specified offences. What offences are triable by a Court, constituted under P. C. Act, can be found embodied in Section 3 of the Act. This Section (i.e., Section 3) reads as follows:
3. Power to appoint special Judges.- (1) The Central Government or the State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely:
(a) any offence punishable under this Act; and
(b) any conspiracy to commit or any attempt to common or any abetment of any of the offences specified in Clause (a).
(2) A person shall not be qualified for appointment as a special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973 (2 of 1974).
9. A close reading of Section 3(1) of the PC Act clearly indicates that the Central or State Government may appoint a Special Judge to try not only such offences, which are punishable under the PC Act, but also conspiracy to commit or attempt to commit or abetment of any of the offences punishable under the PC Act.
10. It is, thus, clear that a person, appointed as Special Judge, under the PC Act, can try only those offences, which are mentioned in Section 3(a) and Section 3(b) of the P. C. Act and not any other offence. It, therefore, logically follows that no offence other than the offences, which are mentioned under Clauses (a) and (b) of Sub-section (1) of Section 3, can be tried by a Special Judge. To put it differently, all offences are not triable by a Special Judge, appointed under the PC Act, but only such offences, which have been made punishable under the P. C. Act including conspiracy to commit such offences, attempt to commit such offences or abetment of such offences.
11. Bearing in mind what have been indicated above, let me, now, turn to the case at hand. While considering the present case, it may be noted that the accused, in the present case, faced trial in as many as four cases, these cases being RC. 11(A)/92-SLC, RC.03(A)/90-SLC, RC.04(A)/90/SLC and RC. 14(A)/90-SHG. The accused made an application to this High Court praying for directions to be issued to the Special Judge, Assam, Guwahati, to try all these four cases, the reason for making such a prayer being that the accused resides in Manipur and it would be inconvenient for him to appear in different Courts in connection with these cases. By order, dated 4-4-2003, passed, in Criminal Revision No. 617/1997, this High Court allowed the prayer of the accused and directed that all the said four cases be tried by Special Judge, Assam, Guwahati. The High Court, however, clarified that this direction for trial of the cases by the Special Judge, Assam, Guwahati, shall not be taken to mean that the High Court had directed all these four cases to be clubbed together; rather, the trial should take place separately. It is, thus, clear that while directing that all the said four cases be tried by Special Judge, Assam, Guwahati, the High Court did not direct joint trial of all the cases. The cases aforementioned were, therefore, required to be tried separately.
12. In compliance with the directions given on 4-4-2003, as indicted hereinabove, the cases were made over to the Special Judge, Assam, Guwahati; but during the progress of the trial, the learned Special Judge, Assam, Guwahati, noticed that RC.04(A)/90-SLC and RC.11(A)/92-SLC were not triable by a Special Judge, appointed under the PC Act. Confronted with the situation, where the High Court had directed the learned Special Judge, Assam, Guwahati, to try all the four cases aforementioned, and, on the other hand, the statute does not confer jurisdiction on the learned Special Judge, Assam, Guwahati, to try all the cases directed to be tried by him, the learned Special Judge, Assam, Guwahati, has made the present reference.
13. Having heard the learned Counsel for the parties and upon perusal of the materials on record and the law relevant thereto, this Court has come to a clear finding that the learned Special Judge, Assam, Guwahati, is not competent to try offences except those, which are punishable under the PC Act. Viewed thus, it is clear that the two cases, namely, RC.04(A)/90-SLC and RC. 11(A)/92-SLC, which do not allege commission of any offence under the P. C. Act, cannot be tried by the learned Special Judge, Assam, Guwahati, and that these cases can be tried by the Courts, which are, otherwise, competent to try the same. The present two cases, which, though investigated by the CBI, are not triable under the PC Act by the Special Judge; appointed under the P. C. Act; rather these two cases are triable by the Special Judicial Magistrate, Guwahati, which has been constituted under Section 13 of the Cr. P.C.
14. It is important to point out, at this stage, that if a Court, such as the Court of Special Judge, Assam, does not have jurisdiction to try an offence, the High Court cannot confer jurisdiction on such a Court to try such an offence. When the Special Judge, Assam, Guwahati, is not competent to try offences other than those, which are punishable under the PC Act, the High Court cannot confer jurisdiction on the Special Judge, CBI, Assam, Guwahati, to try such offences. Reference may be made, in this regard, to the decision of seven-Judges Bench of the Apex Court in AR Antulay v. RS Nayak and Anr. : 1988CriLJ1661 , wherein the majority held that the Supreme Court, by its direction, cannot confer jurisdiction on the High Court to try a case, which the High Court does not, otherwise, possess.
15. In the above view of the matter, it is clear that RC.04(A)/90-SLC and RC. 11(A)/ 92-SLC are triable and shall be tried by the learned Special Judicial Magistrate, Guwahati.
16. The reference shall stand answered accordingly.
17. For what have been concluded above, the two cases, namely RC.04(A)/90-SLC and RC.11(A)/92-SLC, are hereby withdrawn from the file of learned Special Judge, Assam, Guwahati, and made over for disposal, in accordance with law, by the learned Special Judicial Magistrate, Guwahati. Let the relevant case records be accordingly transmitted by the learned Special Judge, Assam, to the learned Special Judicial Magistrate, Guwahati.
18. Before parting with this reference, it is, however, made clear that the accused shall remain at liberty to approach this Court for such other relief(s) as he may be entitled to.
19. Send forthwith a copy of this order to the learned Special Judge, Assam, Guwahati.
20. Send also a copy of this order to the Special Judicial Magistrate, Assam, Guwahati.