ORDER
S.C. Pandey, J.
1. This Revision is directed against the order dated 10-6-99 passed in respect of Crime No. 135/98 by 1st Additional Sessions Judge, Raisen.
2. It appears that Karodilal Soni was working as a Patwari in District and Tehsil Raisen. An F.I.R, was lodged against him alleging that he had amassed Rs. 15,79,262.00 during the course of his service by the Authorised Officer of Special Police Establishment Lokayukt. This amount was alleged to be more than the income he could have earned from known source of his income. It is not disputed before me by the learned counsel for the respondent that the charge-sheet has not yet been filed, although the F.I.R. was lodged as far as back on 6-11-98.
3. It is alleged in this revision that persuant to the F.I.R. the State of M.P. through Special Police Establishment (Lokayukt) Officer, Bhopal started investigation. Consequently, the premises belonging to the applicant Nos. 1 and 2 the sons of Karodilal Soni were raided. It is alleged that considerable property including jewellery was seized from the house of applicant No. 1 Hemant Soni and applicant No. 2 Narendra Soni. Therefore, the applicants applied for under Section 451, Code of Criminal Procedure read with Section 457 thereof for custody of the property seized by the police. The application was rejected by the order dated 10-6-99 almost a year after the F.I.R. was lodged. Two earlier applications were also rejected. It was observed by the learned Judge, while rejecting the application, that he was not in a position to understand why there is delay in launching the prosecution by filing a charge-sheet. According to him, no new ground was raised for delay in filing the charge-sheet. However, he rejected the application. This case has been pending in this Court since 21-6-99 after it was admitted.
4. The learned Government advocate was given time to find out whether the respondent had filed the charge-sheet. He categorically made a statement before this Court that the charge-sheet has not yet been filed.
5. The learned counsel for the respondent has raised an objection to exercise of power under Section 397/401 of Code of Criminal Procedure that the provision of Section 457 or 451 of that Code do hot apply to the case under the Prevention of Corruption Act, 1988 (henceforth 'the Act'). However, the applicants contend that those provisions are applicable.
6. The question is if the Special Judge trying an offence under the Provisions of the Act cannot exercise the powers conferred upon a Magistrate under Section 457 or 451 of Cr.P.C. The answer to this question shall depend upon the nature of powers exercised by the Special Judge. Section 3 of the Act confers powers on the Central or State Government to appoint a Special Judge, who is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Judge under the Code for Criminal Procedure. This appointment has to be done in respect of an area by the appropriate government by issuing a Notification in the Official Gazette. It is apparent that a Special Judge is the creature of statute; and consequently he can exercise only those powers which are conferred upon him by 'the Act'. The Special Judge appointed for an area can try an offence covered by sub-section (1) of Section 3, if the offence is committed in that area. The further question is : What further powers are conferred under 'the Act' upon the Special Judge when he tries a case for commission of an offence under the Act The key of this question is found in Section 5 of the Act. Under Section 5(1) of the Act, the Special Judge is entitled to take cognizance of an offence under the Act without the case being committed to him. He is enjoined to follow the warrant procedure followed by a Magistrate under the Code of Criminal Procedure. Thus the Special Judge exercises the powers of a Magistrate. The Special Judge is conferred with power to grant pardon specifically for the purpose of sub-sections (1) to (5) of Section 308 of Cr.P.C. under sub-section (2) of 'the Act'. Sub-section (3) of Section 5 of the Act reads as under :--
'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 the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor.'
Sub-section (4) of Section 5 makes provisions of Sections 326 and 475 of theCode of Criminal Procedure applicable to the Special Judge. This is so inparticular and without prejudice to the generality of the provisions continuedin sub-section (3). Sub-section (5) of Section 5 confers powers of awardingsuitable sentence upon conviction of the accused under the Act. The SpecialJudge is further conferred with the powers and functions of District Judgeunder Criminal Law Amendment Ordinance 44 (Order 38 of 1944) bysub-section (6) of Section 5.
7. It is, therefore, clear that the provisions of Code of Criminal Procedure, which are not inconsistent with the Act are made applicable to a Special Judge and he is required to follow the procedure for warrant trial followed by the Magistrate in warrant cases. It is true that the Special Judge has given by way of the reference the powers exercisable by District Judge under the Criminal Law Amendment Ordinance, 1944. The powers conferred upon the District Judge under the Amended Ordinance, inter alia include in the Schedule to that Ordinance the offences under the Act. However, a close reading of the Criminal Law Amendment Ordinance, 1944, would show that the extra-ordinary and the emergency powers of attachment of property of any person suspected of commission of the offence mentioned in the Schedule has been conferred upon the District Judge. This is the power that can be exercised by the Special Judge by virtue of sub-section (6) of Section 5 of the Act. This power of attachment is given so that there is no disposal or concealment of the property gained by the commission of the Crime. The State Government or the Central Government as the case may be, can file the application for attachment of the property gained by commission of crime under the Act. The Special Judge can then attach it and grant administration of that property in accordance with that Ordinance. The Court cannot infer from sub-section (6) of Section 5 of the Act, read with Ordinance No. 38 of 1944, that they are inconsistent and irreconciliable, with Section 457 or 451 of the Code of Criminal Procedure. The field of operation of the Ordinance begins only when an application for attachment of a property obtained in commission of Crime under the Act is filed. This application is made with a view to avoid concealment or disposal of property aforesaid in the hands of accused or some other person. The stage of exercising powers under the Ordinance is prior to seizure of the property. Consequently the Court is free to exercise powers under Section 457 or 451 of the Code of Criminal Procedure. There is no other provision, brought to the notice of the Court which conies directly in conflict with the exercise of powers under Section 457 or Section 451 of the Code of Criminal Procedure. The argument advanced by the learned counsel for the respondent is hereby rejected.
8. It may be noticed that after seizure of the property in this case the charge-sheet has not been filed. The respondent cannot detain the property of the applicants indefinitely at their own sweet-will. If they do so they shall be deemed to have detained the property in violation of Article 300A of the Constitution. It is, therefore, directed that the respondent shall file the charge-sheet within a period of one month from the date of this order. It is further directed that the property seized in this case be produced before the Court alongwith the charge-sheet.
9. At this juncture, it is not possible to determine what property has been seized by the Investigating Officer. It is, therefore, the impugned order dated 10-6-99 is hereby set aside and the case is remitted back to learned Special Judge, Raisen trying the cases under the Act for deciding the application under Section 457 read with Section 451 of Code of Criminal Procedure afresh. It is directed that in case, the learned Judge finds property, in question, is valuable and its value has not been properly assessed by the prosecution, he may himself get it assessed by recording evidence or by any other mode in accordance with law. After verifying the value of each of the items he may return the same to the applicants, if they are entitled to its custody. The learned Special Judge may impose following conditions while releasing the property in temporary custody of the person entitled to it:
(i) person to whom the property is returned, shall produce the property in the Court, as and when so required during pendency of the trial;
(ii) Court shall also obtain a Bank Guarantee to the extent of thevalue of the property which is returned to persons, who areentitled after determination of its value;
(iii) Cash may also be returned subject to the Bank Guarantee.The impugned order dismissing the application under Section 457 read withSection 451 of Code of Criminal Procedure is hereby set aside. The case isremitted back to Special Judge, Raisen for passing an order in accordance ofParas 8 and 9 of this order. The respondent No. 1 is directed to file thecharge-sheet within one month of the receipt of this order and produce theseized property before the Special Judge, Raisen. Accordingly the revision isallowed. The office is directed to send a copy to the Investigating Officerthrough the Special Police Establishment (Lokayukt) Bhopal within a periodof three weeks.
10. Criminal Revision allowed.