P.S. Mishra, C.J.
1. Can an application for bail in anticipation of arrest as contemplated under S. 438 of the Code of Criminal Procedure, 1973 be moved before the Court of learned Sessions Judge, Hyderabad instead of Court of the Special Judge for Economic Offences
2. This Court in Superintendent Customs and Central Excise, Range II, Nellore Division, Nellore v. Elukala Krishnamachari, 1987 (32) ELT 324 (AP) has taken the view that only the Court of the Special Judge for Economic Offences is competent to entertain any application under S. 438 of the Code of Criminal Procedure, 1973 in a matter which is exclusively triable by the Special Judge for Economic Offences. Our learned brother Krishna Saran Shrivastav, J. however, has after taking notice of the Government notification in ROC. No. 1354/SO/82 dated 21-9-1982, whereby in exercise of the powers conferred under sub-section (1) of S. 12 of the Code (Act II of 1974) the High Court has appointed the Additional District and Sessions Judge in the District Headquarters who is the Judicial Magistrate of the First Class in each district where one Additional District and Sessions Judge is functioning in the District headquarters and the First Additional District and Sessions Judge in the District headquarters who is the judicial Magistrate of the First Class in each district where more than one Additional District and Sessions Judges are functioning in the District headquarters as Chief Judicial Magistrates for the respective Districts and has conferred on them all the powers of the Chief Judicial Magistrate under the said Act or under any other law for the time being in force, where the said Court for economic offences which is created for the limited purpose of trial of cases only and bail under S. 437 and not for grant of bail by the High Court and the Court of Session under Ss. 438 and 439 of the Code, felt that the view taken in E. Krishnamachari's case (1 supra) is doubtful and accordingly referred the matter for resolving the controversy to a Division Bench.
3. Radhakrishna Rao, J. (as he then was) in E. Krishnamachari's case (supra) has held :
'A combined reading of S. 11 of S. 2(j) read with S. 14 with the latest provisions contained in the Amendment Act, 1978. We have to construe by means of the notification in G.O. Rt. No. 734, dated 13th March, 1981, that the Government has constituted a Special Court for the whole of the State of Andhra Pradesh and the person that was appointed to deal with cases is that of the cadre of a Sessions Judge. It is not a case where we are dealing with a case of a Magistrates Court. It is a case where Special Tribunal has been constituted for the whole of the State of Andhra Pradesh to deal with cases, arising under the 12 Central Acts mentioned above. It is well accepted that an ouster of the jurisdiction of the ordinary Courts should not be readily inferred and that such ouster must either be clearly expressed or necessarily implied. By virtue of the notification that has been issued by the State Government which was referred to above, the jurisdiction of the ordinary sessions Courts has been impliedly ousted. The Magistrates Court in Nellore Sessions Division was entrusted specially to entertain cases under the Act. The IInd Addl. Judicial 1st Class Magistrate, who has got power to entertain matters, sent the accused for remand with a direction to produce him before the Special Judge for Economic Offences. By virtue of the order that has been passed by him, the Special Judge alone is competent and the Sessions Judge at Nellore who is having general jurisdiction, has no right to entertain the ball application either under S. 438 or 439, Cr. P.C. If we construe the powers that have been conferred on the Magistrate with a right to remand the accused for any of the offences under the 12 Acts specified above for which the Special Judge Court has been constituted under G.O. Rt. No. 734 it is only the Special Judge for Economic Offences alone that is competent to consider the application for bail. It is by implication, the jurisdiction of the Sessions Court has been taken away and the same has been conferred on the Special Judge who is entrusted to try cases arising under the Acts for the whole of the State of Andhra Pradesh. The right of appeal against the orders of the Special Judge is entirely a different aspect as it depends upon the quantum of sentence. In the State of Andhra Pradesh, the Addl. District and Sessions Judges are designated as Chief Judicial Magistrates. Against the orders of a Chief Judicial Magistrate, an appeal lies to the Court of Sessions Judge, depending upon the, quantum of sentence. In the Cr. P.C., it has been contemplated that the Chief Judicial Magistrate, though holding the cadre of a District and Sessions Judge, is inferior to Sessions Judge. But the Special Court now constituted under the provisions, is distinct and different one. The District and Sessions Judge, Nellore, should not have entertained the application for bail, when it was brought to his notice that the IInd Additional Judicial 1st Class Magistrate, Nellore dismissed the applications with an observation that the Special Judge for Economic Offences alone has got jurisdiction to the cases. If we read the G.O. Rt. No. 734 dated 13-3-1981 along with the Proviso to sub-section (1) of S. 11 and Clause (j) of S. 2 and S. 14 of the Cr. P.C. it is clear that the jurisdiction of the Sessions Divisions in the State of Andhra Pradesh has been excluded and that the Special judge for Economic Offences alone is competent to consider the application for grant of bail.
4. Before we enter into the controversy, we may point out that the Government of India, Ministry of Home Affairs, in letter No. 2/1/79-Judicial, dated 27th April, 1979 requested the State Government to ear-mark one Court or set up an additional Court in the State of Andhra Pradesh at Hyderabad for dealing exclusively with economic offences covered by certain specified Central Acts and agreed to reimburse to the State Government the recurring expenditure incurred by them for setting up and functioning of such Court. The State Government consulted the High Court and vide letter of the Registrar High Court of Andhra Pradesh in ROC. 2220/E1/79-1, dated 25-7-1979, the High Court recommended for the establishment of a Special Judge's Court at Hyderabad presided over by an Officer in the cadre of District and Sessions Judge for the trial of economic offences under certain specified Central Acts arising anywhere in the State of Andhra Pradesh. The Government of the State accorded sanction of the setting up of a Special Judge's Court at Hyderabad vide G.O. Ms. No. 202, Home (Courts. A) Department, dated 27th March, 1980 for the period of one year which sanction is continued year to year. In the proceeding dated 7-6-1980, the High Court specified that the Court of Special Judge sanctioned in the above G.O., shall be treated as a part of the Unit under the control of the Metropolitan Sessions Judge and the Court accordingly has came into existence. Ever since its inception, the Court is being presided over by an officer belonging to the cadre of the District and Sessions Judge. The Court, however, exercised power under S. 11(a) as amended by the addition of proviso which reads as follows :-
'Provided that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class to try any particular cases or particular class of cases, and where any such Special Court is established, no other Court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.'
Sub-section (2) of S. 11 provides that the Presiding Officers of such Courts shall be appointed by the High Court and sub-section (3) thereof states that the High Court may whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as' a Judge in a Civil Court . Section 2(j) of the Code defines 'local jurisdiction' to mean in relation to a Court or Magistrate, the local area within which the Court or Magistrate may exercise all or any of its or his powers under the Code which has been further amended to read :
'such local area may comprise the whole of the State, or any part of the State, as the State Government may, by notification, specify.'
The notification of the Government of the State, however, reads as follows :
'In exercise of the power conferred by the proviso to sub-section (1) of S. 11 read with clause (j) of S. 2 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and after consultation with the High Court of Andhra Pradesh, the Governor of Andhra Pradesh hereby -
(i) specifies the whole of the State of Andhra Pradesh as the local area for the purpose of establishing a Special Court for the offences arising under the enactments mentioned in the Annexure hereto; and
(ii) establishes a Special Court of Judicial Magistrate of the First Class to try cases arising under the enactments mentioned in the Annexure hereto, to be known as the Court of the Special Judge for Economic Offences.
ANNEXURE
1) The Central Excises and Salt Act, 1944.
2) The Imports and Exports (Central) Act, 1947.
3) The Wealth-tax Act, 1957.
4) The Income-tax Act, 1961.
5) The Customs Act, 1962.
6) The Gold (Control) Act, 1963.
7) The Foreign Exchange Regulation Act, 1973.
8) Companies Profits (Surtax) Act, 1964.
9) The Gift-tax Act, 1958.
10) The Export (Quality Control and Inspection) Act.
11) The Companies Act.
12) Monopolies and Restrictive Trade Practices Act.'
5. Besides having power to try offences arising under the enactments shown in the annexure as above, the Special Court for economic offences is also empowered to try offences arising out of the following enactments :
1) The Essential Commodities Act, 1955 (S. 12AA The Prevention of Corruption Act, 1988 (Ss. 7 and 13)
3) The Narcotic Drugs and Psychotropic Substances Act, 1985 (S. 36-C).
The Acts enumerated in the annexure to the notification, however, do not have similar provisions. Reference to all the Acts is not necessary except for illustrative purposes. We may refer to S. 61 of the Foreign Exchange Regulation Act, 1973 which says,
'Notwithstanding anything contained in S. 29 of the Code of Criminal Procedure, 1973, it shall be lawful for any metropolitan magistrate and for any magistrate of the first class to pass a sentence of imprisonment for a term exceeding three years or of fine exceeding five thousand rupees on any person convicted of an offence punishable under S. 56.'
The Central Excises and Salt Act, 1944 in S. 29 says,
'Any offence punishable, under S. 24 or S. 27 may be deemed to have been committed within the limits of the jurisdiction of the Magistrate of any place where the offender is found, or to which, if arrested under S. 26 or S. 27, he may be brought.'
The Monopolies and Restrictive Trade Practices Act, 1969, however, contains in S. 56 as follows :-
'56. Jurisdiction of Courts to try offences :- No Court inferior to that of a Court of Session shall try any offence under this Act.' (the expression 'Court of Session' is inserted by Act 30 of 1984)'
Wealth-tax Act says, no Court in inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under this Act (S. 35L).
6. A Division Bench of Allahabad High Court in Bharat Traders v. Spl. Chief Judicial Magistrate, Allahabad, 1988 Cri LJ 1117 has pointed out that after the amendment of S. 2(j) by Act 45 of 1978, the State Government is empowered to declare the whole of the State or any part as local jurisdiction. The State Government now has power to issue a notification including the whole of the State within the local jurisdiction of a Magistrate. So also under proviso to S. 11(a) the State Government could establish one Special Court in respect of the case for the whole of State which it was advised to do in consultation with the High Court. It is improper to say that as sub-section (1) of S. 11 excludes metropolitan area, therefore, no notification under S. 11, excluding the jurisdiction of the Metropolitan Magistrate could be issued by the State Government. It is true that sub-section (1) of S. 11 of the Code of Criminal Procedure excludes metropolitan, area, but the proviso to sub-section (1) makes an exception to the provisions of sub-section (1) of S. 11 and the words for any local area used in the proviso of sub-section (1) of S. 11 overrides the words in every district not being metropolitan area used in sub-section (1), and thus establishment of a Special Court by a Magistrate by the State Government for the entire State is not violative of Arts. 14 or 21 of the Constitution of India.
7. A Constitution Bench of the Supreme Court in A. R. Antulay v. R. S. Nayak : 1984CriLJ647 , considered the provisions of the Criminal Law Amendment) Act 46 of 1952 and various provisions of the Code of Criminal Procedure, 1898 and the Prevention of Corruption Act, 1947 and held as follows :-
'13. Before we proceed further, it is now necessary to take notice of salient provisions of the Criminal Law Amendment Act, 1952. The Act was enacted as its long title shows to amend the Penal Code and the Criminal P.C. 1898 and to provide for a more speedy trial of certain offences. Section 1-A is the dictionary clause. Sections 2, 3, 4 and 5 have been repealed by various amendments. Then comes S. 6. It reads as under :
'6(1) The State Government may, by notification in the official Gazette, appoint as many special Judges as may be necessary for such area or areas as may be specified in the notification to try the following offences, namely :-
(a) an offence punishable under S. 161, S. 162, S. 163, S. 164, S. 165 or S. 165A of the Indian Penal Code of S. 5 of the Prevention of Corruption Act, 1947.
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).
(2) A person shall not be qualified for appointment as 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, 1898.'
Section 7 confers exclusive jurisdiction on the special Judge appointed under S. 6 to try the cases set out in S. 6(1)(a) and 6(1)(b). Sub-section (2) of S. 7 provides that 'Every offences specified in sub-section (1) of S. 6 shall be tried by the Special Judge for the area within which it was committed, or where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government.' Sub-settion (3) enlarges the jurisdiction of the special Judge not only to try offences set out in S. 6(1)(a) and (b) but also to try offences other than those mentioned therein with which the accused may, under the Criminal P.C. he charged at the same trial. Three things emerge from S. 7. The Special Judge has exclusive jurisdiction to try offences enumerated in S. 6(1)(a) and (b). Where there are more than one special Judge for the same area, the State Government is under an obligation to specify the local jurisdiction of each special Judge, it may be case-wise, it may be area-wise. Sub-section (3) enlarges the jurisdiction to try other offences which have been committed in the course of the same transaction and for which the accused could be charged at the same trial. Then comes S. 8. It reads as under :
8'(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, 1898, for the trial of warrant cases by Magistrates.
(2) A Special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or in directly 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 Ss. 339 and 339A of the Code of Criminal Procedure, 1898, be deemed to have been tendered under S. 338 of that Code.
(3) Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1898, shall so far as they are not consistent with this Act, apply to the proceedings before a special Judge; and for the purposes of the said provisions, the Court of the special Judges shall be deemed to be a court to session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor.
(3-A) In particular, and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of the Code of Criminal Procedure, 1898 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.
(4) 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. 'It may be mentioned that S. 8 does not apply to the State Bengal. This has some relevance to the understanding of some of the decisions bearing on the subject arising from the State of West Bengal. Section 9 provides for the subordination of the special Judge to the High Court of the State in the Matter of appeal, revision and other incidental powers which the High Court exercises over subordinate Courts. Section 10 provided for transfer of certain cases, which were pending at the commencement of the 1952 Act.'
'21) The sheet anchor of the submission was the decision of this Court in H. N. Rishbud and Inder Singh v. State of Delhi, : 1955CriLJ526 . In that case the question posed Was whether the provision of S. 5-A of the 1947 Act requiring that the investigation into the offences specified therein shall not be conducted by any police officer of a rank lower than a Deputy Superintendent of Police without the specific order of a Magistrate, is directory or mandatory
The Court rendered the opinion that S. 5-A is mandatory and not directory and that an investigation conducted in violation thereof bears the stamp of illegality. Thus so far as investigation of a case is concerned, this Court has recorded a definite opinion that investigation by a police officer in contravention of the provision contained in S. 5-A bears the stamp of illegality. What is the effect of this illegality on the outcome of a concluded trial does not arise for our consideration but there are certain observations which were relied upon to urge that a prior investigation under S. 5-A being held to be mandatory and as a special Judge can take cognizance of an offence upon a police report submitted at the end of a valid and legal investigation in consonance with S. 5-A, by necessary implication, taking cognizance of an offence by a special Judge under S. 8(1) of 1952 Act upon a private complaint is excluded. We must frankly say that we find nothing in this judgment even remotely to bear out the submission. Section 5-A is a safeguard against investigation by Police officers lower in rank than designated officers. In this connection at p. 1159 (of SCR) : (at p. 202 of AIR), the Court has observed as under :
'The underlying policy in making these offences by public servants non-cognizable appears to be that public servants who have to discharge their functions often enough in difficult circumstances should not be exposed to the harassment of investigation against them on information levelled, possibly, by persons affected by their official acts, unless a Magistrate is satisfied that an investigation in called for, and on such satisfaction authorises the same. This is meant to ensure the diligent discharge of their official functions by public servants, without fear or favour. When, therefore, the Legislature thought fit to remove the protection from the public servants, in so far as it relates to the investigation of the offences of corruption comprised in the Act, by making them cognizable it may be presumed that it was considered necessary to provide a substituted safeguard from undue harassment by requiring that the investigation is to be conducted normally by a police officer of a designated higher rank.' This observation will leave no room for doubt that the safeguard incorporated in S. 5-A is one against investigation by police officer of a rank lower than the designated rank and that the Magistrate can permit investigation by police officer of lower rank. It was however, urged that the three vital stages relevant to initiation of proceedings in respect of offences enumerated in S. 6(1)(a) and (b) have been clearly delineated in this judgment when at page 1162 (of SCR) (at pp. 203-4 of AIR) it is observed, 'trial follows cognizance and cognizance is preceded by investigation.' This is the basic scheme of the Code in respect of cognizable offences, but that top Where in respect of a cognizable offence, the informant approaches an officer in charge of a police station. When in the case of a cognizable offence, a Police Officer on receipt of information of an offence, proceeded under Chapter XII, he starts with investigation and then submits his report, called the police report, upon which cognizance is taken, and then follows the trial. And these three stages in that chronology are set out with regard to an investigation by an officer in charge of a police station or a police officer entitled to investigate any particular offence. This sentence cannot be read in isolation or torn out of the contest to lend support to the submission that in no case cognizance can be taken without prior investigation under S. 5-A. In fact the Court proceeded to make it abundantly clear that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial'. The Court examined the scheme of Ss. 190, 193 and 195 - 199 of the Criminal P.C. and observed : that 'the language of S. 190 is in marked contrast with that of the other sections of the group under the same heading i.e., Ss. 193 and 195 - 199. These latter sections regulate the competence of the court and bar its jurisdiction in certain cases excepting in compliance therewith, S. 190 does not'. The Court concluded by observing that 'where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby'. Having minutely read this judgment on which firm reliance was placed on behalf of the appellant, we find nothing in it to come to the conclusion that an investigation under S. 5-A is a condition precedent before cognizance can be taken of offences triable by Special Judge. Reliance next was placed upon the decision of this Court in the State of Madhya Pradesh v. Mubarak Ali, : 1959CriLJ920 . This Court held that S. 5-A was inserted in the 1952, Act to protect the public servants against harassment and victimization. If it was in the interest of the public that corruption should be eradicated, it was equally in the interest of the public that honest public servants should be able to discharge their duties free from false, frivolous and malicious accusations. To achieve this object, Ss. 5-A and 6 introduced the following two safeguards : (1) no Police Officer below the rank of a designated police officer, shall investigate any offence punishable under S. 161, S. 165 or S. 165A of the Penal Code or under sub-section (2) of S. 5-A of the 1947 Act without the order of a Presidency Magistrate and (2) no court shall take cognizance of offences hereinabove enumerated except with the previous sanction, of the appropriate Government. The Court held that these statutory safeguards must be complied with, for they were conceived in public interest and were provided as a guarantee against frivolous and vexatious prosecutions. The Court further observed that the Legislature was prepared to believe an officer of an assured status implicitly and it prescribed an additional guarantee that in the case of police officers below the rank, the previous order of a Presidency Magistrate or a Magistrate of the First Class as the case may be. Comes thereafter a pertinent observation that 'the Magistrate's status gives assurance to the bona fides of the investigation'. This would rather show that Legislature while on the one hand conferred power on the police officers of the designated rank to take upon themselves the investigation of offences committed by public servants, it considered intervention of the Magistrate as the real safeguard when investigation was permitted by officers lower in the rank than the designated officers. In other words, the Court was a safeguard and it ought to be so because the judicially trained mind is any day a better safeguard than any police officer of any rank. In State of Uttar Pradesh v. Bhagwant Kishore Joshi, : 1964CriLJ140 , the observation of the Court in Mubarak Ali's case, : 1959CriLJ920 was affirmed. In S. N. Bose v. State of Bihar, (1968) 3 SCR 565 : AIR 1968 SC 1292 : (1968 Cri LJ 1412), this court held that the order of the Magistrate giving permission to the Inspector of Police to investigate the case did not give any reasons and there was thus a violation of S. 5-A. Yet this illegality committed in the course of an investigation does not affect the competence and jurisdiction of the Court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby, and in reaching this conclusion reliance was placed on the case of H. N. Rishbund, : 1955CriLJ526 . In P. Sirajuddin v. State of Madras, : 1971CriLJ523 , it was held that the Criminal P.C. is an enactment designed inter alia to ensure a fair investigation of the allegations against a person charged with criminal misconduct. This is undeniable but has hardly any relevance. Some guidance is given to the Enquiry Officer and the means to be adopted in investigation of offences. This has no bearing on the issue under discussion. Reference was also made to : AIR1957MP43 , which does not advance the case at all. Having carefully examined these judgments in the light of the submissions made, the only conclusion that unquestionably emerges is that S. 5-A is a safeguard investigation of offences committed by public servants, by petty or lower rank police officer. It has nothing, to do directly or indirectly with the mode and method of taking cognizance of offences by the Court of Special Judge. It also follows as a necessary corollary that provision of S. 5-A is not a condition precedent to initiation of proceedings before the Special Judge who acquired power under S. 8(1) to take cognizance of offence enumerated in S. 6(1) (a) and (b), with this limitation alone that it shall not be upon commitment to him by the Magistrate.'
'25. It was urged that there is inherent evidence in other provisions of the 1952 Act and the Criminal P.C. which would buttress the submission that the Special Judge cannot take cognizance upon a private complaint. Even if S. 8(1) confers specific power of taking cognizance of offences without the necessity of the accused being committed for trial and prescribes the procedure for trial of warrant cases by Magistrates to be adopted by a Special Judge, it is necessary to determine with accuracy whether a Special Judge is a Magistrate or a Sessions Judge. After referring to S. 8(3) which provides that save as provided in sub-section (1) or sub-section (2), the provisions of the Criminal P.C. 1898 shall be far as they are not inconsistent with the 1952 Act apply to the proceedings before a special Judge; and for the purposes of the said provisions, the Court of a Special Judge shall he deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a Special Judge shall be deemed to be a Public Prosecutor; it was urged that for the purpose of procedure to be followed by a Special Judge in the trial of the case before him, he is a Magistrate as provided in S. 8(1) but not Sessions Judge because no Sessions Court can take cognizance of offences without commitment while a Special Judge has to take cognizance of offences without accused being committed to him for trial yet the provisions of sub-secs. (2) and (3) leave no one in doubt that for all other purposes he is to be treated as a Sessions Judge or a Court of Sessions. Proceeding along it was urged that if a Special Judge has all the trappings of the Court of Sessions, he cannot take cognizance as provided by S. 190, Cr. P.C. because it confers power on Magistrate to take cognizance of any offence in any one of the three modes therein prescribed. Therefore, it was submitted that a private complaint cannot be entertained.'
'27. It is, however, necessary to decide with precision and accuracy the position of a Special Judge and the Court over which he presides styled as the Court of a special judge because unending confusions have arisen by either assimilating him with a Magistrate or with a Sessions Court. The Prevention of Corruption Act, 1947 was enacted for more effective prevention of bribery and corruption. Years rolled by and experience gathered showed that unless a special forum for the trial of such offences as enumerated in the 1947 Act is created, the object underlying the 1947 Act would remain a distant dream. This led to the enactment of the Criminal Law Amendment Act, 1952. The Statement of Objects and Reasons accompanying the Bill refers to the recommendations of the Committee chaired by Dr. Bakshi Tek Chand appointed to review the working of the Special Police Establishment and to make recommendations for improvement of laws relating to bribery and corruption. To take the cases of corruption out of the maze of cases handled by Magistrates, it was decided to set up special Courts. Section 6 conferred power on the State Government to appoint as many special judges as may be necessary with power to try the offences set out in Clauses (a) and (b). Now if at this stage a reference is made to S. 6 of the Criminal P.C. which provides for constitution of Criminal Courts, it would become clear that a new Court with a new designation was being set up and that it has to be under the administrative and judicial superintendence of the High Court. As already pointed out, there were four types of Criminal Courts functioning under the High Court. To this list was added the Court of a Special Judge. Now when a new Court which is indisputably a Criminal Court, because it was not even whispered that the Court of special judge is not a Criminal Court, is set up, to make it effective and functionally oriented, it becomes necessary to prescribe its powers, procedure, status and all ancillary provisions. While setting up a Court of a special Judge keeping in view the fact that the high dignitaries in public life are likely to be tried by such a Court, the qualification prescribed was that the person to be appointed as special Judge has to be either a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge. These three dignitaries are above the level of a Magistrate. After prescribing the qualification, the Legislature proceeded to confer power upon a special judge to take cognizance of offences for the trial of which a special Court with exclusive jurisdiction was being set up. If a special Judge has to take cognizance of offences, ipso facto the procedure for trial of such offences, has to be prescribed. Now the Code prescribes different procedures for trial of cases by different Courts. Procedure for trial of a case before a Court of session is set out in Chapter XVIII; trial of warrant cases by Magistrate is set out in Chapter XIX and the provisions therein included catered to both the types of cases coming before the Magistrate, namely, upon police report or otherwise than on a police report. Chapter XX prescribes the procedure for trial of summons cases by Magistrates and Chapter XXI prescribes the procedure for summary trial. Now that a new criminal Court was being set up, the Legislature took the first step of providing its comparative position in the hierarchy of Courts under S. 6 Cr. P.C., by bringing it on level more or less comparable to the Court of Session, but in order to avoid any confusion arising out of comparison by level, it was made explicit in S. 8(1) itself that it is not a Court of Sessions because it can take cognizance of offences without commitment as contemplated by S. 193, Cr. P.C. Undoubtedly in S. 8(3) it was clearly laid down that subject to the provisions of sub-secs. (1) and (2) of S. 8, the Court of special Judge shall be deemed to be a Court of Sessions trying cases without a jury or without the aid of assessors. Incontra-distinction to the Sessions Court this new Court was to be a Court of original jurisdiction. The Legislature then proceeded to specify which out of the various procedures set out in the Code, this new Court shall follow for trial of offences before it. Section 8(1) specifically says that a special judge in trial of offences before him shall follow the procedure prescribed in the Criminal P.C. for trial of warrant cases by Magistrates. The provisions for trial of warrant cases by the Magistrate are to be found in Chapter XXI of 1898 Code. A glance through the provisions will show that the provisions therein included catered to both the situations namely, trial of a case initiated upon Police report (Section 251-A) and trial of cases instituted otherwise than on police report (Sections 252 to 257). If a special Judge is enjoined with a duty to try cases according to the procedure prescribed in foregoing provisions he will have to first decide whether the case was instituted upon a police report or otherwise than on police report and follow the procedure in the relevant group of sections. Each of the Ss. 251A - 257 of 1898 Code which are in pari materia with sections 238 - 250 of 1973 Code refers to what the Magistrate should do. Does the special Judge therefore, become a Magistrate This is the fallacy of the whole approach. In fact, in order to give full effect to Session 8(1), the only thing to do is to read Special Judge in Ss. 238 - 250 wherever the expression 'Magistrate' occurs. This is what is called legislation by incorporation. Similarly, where the question of taking cognizance arises, it is futile to go in search of the fact whether for purposes of S. 190 which conferred power on the Magistrate to take cognizance of the offence, special Judge is a Magistrate What is to be done is that one has to read the expression 'special Judge' in place of Magistrate, and the whole thing becomes crystal clear. The Legislature wherever it, found the grey area clarified it by making specific provision such as the one in sub-section (2) of S. 8 and to leave no one in doubt further provided in sub-section (3) that all the provisions of the Criminal P.C. shall so far as they are not inconsistent with the Act apply to the proceedings before a special Judge. At the time when the 1952 Act was enacted what was in operation was the Criminal P.C., 1898. It did not envisage any Court of a Special Judge and the Legislature never wanted to draw up an exhaustive Code of Procedure for this new Criminal Court which was being set up. Therefore, it conferred power (taking cognizance of offences), prescribed procedure (trial of warrant cases by a Magistrate), indicated authority to tender pardon (S. 338) and then after declaring its status as comparable to a Court of Session proceeded to prescribe that all provisions of the Criminal P.C. will apply in so far as they are not inconsistent with the provisions of the 1952 Act. The net outcome of this position is that a new Court of original jurisdiction was set up and whenever a question arose as to what are its powers in respect of specific question brought before it as Court of original criminal jurisdiction, it had to refer to the Criminal P.C. undaunted by any designation claptrap. When taking cognizance, a Court of Special Judge enjoyed the powers under S. 190. When trying cases, it is obligatory to follow the procedure for trial of warrant cases by a Magistrate though as and by way of status it was equated with a Court of Session. The entire argument inviting us to specifically decide whether a Court of a special judge for a certain purpose is a Court of Magistrate or a Court of Session revolves round a mistaken belief that a special Judge has to be one or the other, and must fit in in the slot of a magistrate or a Court of Session. Such an approach would strangulate the functioning of the Court and must be eschewed. Shorn of all embellishment, the Court of a special Judge is a Court of original criminal jurisdiction. As a Court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the Court. Except those specifically conferred and specifically denied, it has to function as a Court of original criminal jurisdiction not being hide-bound by the terminological status description of Magistrate or a Court of Sessions. Under the Code it will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the ones specifically denied.'
'29. Once the position and power of the Court of a special Judge in the hierarchy of Criminal Courts under the High Court is clearly and unambiguously established, it is unnecessary to roam into an enquiry examining a large number of decisions laying down in the context of each case that the Court of a special Judge is a Court of Session and the contrary view taken in some other decisions. Reference to those judgments would be merely adding to the length of this judgment without achieving any useful purpose.'
8. In R. S. Nayak v. A. R. Antulay, : 1984CriLJ613 , a Constitution Bench of the Supreme Court took the view that cognizance taken of the offences failing under the Prevention of Corruption Act against A. R. Antulay, who was besides being a member of the Maharashtra Legislative Assembly was also the Chief Minister of the Maharashtra State, was valid but directed for the withdrawal of the case from the Court of the Special Judge, Greater Bombay and directed for the transfer of the same to the High Court of Bombay with a request to the Chief Justice to assign the case to a sitting judge of the High Court.
9. In A. R. Antulay v. R. S. Nayak : 1988CriLJ1661 the Supreme Court, however, took the view that S. 7(1) of the Criminal Law (Amendment) Act, 1952 created a condition which is sine qua non for the trial of offences under S. 6(1) of the Act. The condition being that notwithstanding anything contained in the Code of Criminal Procedure or any other law, the offence shall be triable by Special Judges only and concluded by majority that the Supreme Court could not confer jurisdiction on the High Court to try any case when it did not possess such jurisdiction under the Scheme of the 1952 Act.
10. A Full Bench of the Patna High Court had a similar issue as before us, of course, in respect of a case under Ss. 4 and 5 of the Prevention of Corruption Act, 1988 (In the matter of : Shri Ravi Nandan Sahay, Sessions Judge, Patna 1993 Cri LJ 2436 any by majority the Bench held that the offences specified in sub-section (1) of S. 3 of the Prevention of Corruption Act (Act 49 of 1988) shall be tried by Special Judge only and that S. 5 of the Act empowers Special Judge to take cognizance of the offence without the accused being committed to him for trial and while holding trial he has to follow the procedure prescribed by the Code of Criminal Procedure for trial of warrant cases by magistrate. So, the expression 'the Magistrate empowered to take cognizance of the offence' and 'the Magistrate having power to try such case' appearing in various sections of Chapter XII of the Cr. P.C., would only mean the special Judge appointed under the Prevention of Corruption Act, 1988. It is, therefore, not possible to hold that the Special Judge does not come in picture during the course of police investigation and prior to taking cognizance of the offence under the said Act. The Special Judge, on the contrary is entitled to exercise all the powers conferred on a Magistrate under Chapter XII of the Code of Criminal Procedure as he has got exclusive jurisdiction to take cognizance and try the offences under the Prevention of Corruption Act, 1988. Speaking in particular about the power to grant anticipatory bail the Court referred to sub-section (3) of S. 5 of the Prevention of Corruption Act and concluded that the Special Judge shall be deemed to be a Court of Session and stated that when a legal fiction has been created by a deeming clause in a section, the only possible meaning is that though in reality he may not he a Sessions Judge, still the Act requires him to be treated as such. When the legislature wants that the Court of the Special Judge shall be deemed to be a Court of Session, there is no option but to follow the mandate of the statute and to regard the Court of the Special Judge as a Court of Session in relation to the proceeding before him under the Prevention of Corruption Act, 1988.
11. We have adverted to some of the enactments which are adumberated in the annexure to the Government notification and taken notice of the special provisions with respect to taking of cognizance or trial in some of the enactments and noted the fact that Special Court for the whole of the State is designed to deal with cases arising under the various enactments as mentioned in the annexure as well as the fact that while the various Acts vested powers to take cognizance in the Special Court but some treat the Court as the Court of the Magistrate and some mention the Court as the Court of Session. This indicates that unless it is a Court of Session it cannot try a case which a special Act has made exclusively triable by a Court of Session. It can undoubtedly take cognizance even in respect of such cases which are triable by the Court of Session but then this would create a conflict and by implication the conflict can be resolved only by treating, although called 'a Magistrate', the Special Court as the Session Court. Section 26 of the Code of Criminal Procedure which falls in Chapter III states,
'26. Subject to the other provisions of this Code, -
(a) any offence under the Indian Penal Code (45 of 1860) may be tried by -
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First Schedule to be triable;
(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by -
(i) the High Court, or
(ii) any other Court by which such offence is shown in the First Schedule to be triable.'
Section 28 of the Code says that a High Court may pass any sentence authorised by law and a Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court, and an Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for term exceeding ten years. Section 29 of the Code says that the Court of a Chief Judicial Magistrate may pass, any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years and the Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both and a Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both and the Court of a Chief Metropolitan Magistrate shall have the powers of the court of a chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class.
12. The above rules out any possibility of a contention that if a superior Court is specially provided for to that of a first class Magistrate or the Chief Judicial Magistrate cannot try a case which is exclusively triable by a Court of Magistrate. Although a Magistrate of First Class is empowered to impose punishment up to three years special acts provide that offences for which punishment of 7 years or 8 years is prescribed are triable by a First Class Magistrate.
13. Coming to the facts of the case, we have no manner of doubt, in view of the above principles of law, that the Special Court, although called the Special Court of a Judicial Magistrate of the First class, is also a Court of Session, and as Court of Session has the power to act under various provisions of Chapter XXXIII of the Code of Criminal Procedure including S. 438 thereof. Once the Special Court has the jurisdiction in the matters as above it would be creating conflict of jurisdiction if in addition to a Court of Session which is specially designated for such matters the regular Court of Session also is recognised as one empowered to grant bail under S. 438 of the Code of Criminal Procedure, 1973. It will be, in our be view, not legitimate only to retain the jurisdiction of the Special Court of Economic Offences for all purposes other than the grant of anticipatory bail and recognise such power of granting anticipatory bail in the Sessions Court of the district in which the offence is allegedly committed or which Court has jurisdiction in the matter. The reference is accordingly answered as follows :-
(1) Special Court of Economic Offences being a Court having jurisdiction throughout the State is alone empowered to take cognizance of the offences which are referable to the special enactments in the Annexure to the notification under which the Special Court has been created and to act for all purposes in Chapter XXXIII of the Code of Criminal Procedure including for granting anticipatory bail;
(2) Jurisdiction of the regular Court of Session to the extent of the offences under the Acts which are mentioned in the annexure to the notification creating the Special Court of Economic Offences is excluded. Persons apprehending arrest for the offences under any of such Acts can move the Special Court of Economic Offences for anticipatory bail and not the regular Court of Session.
14. Order accordingly.