REFERENCE MADE Vs. STATE

JUDGEMENT

(1.) The question posed for consideration in this case is as to whether a Special Judge under the Prevention of Corruption Act is entitled to exercise the power conferred on a Sessions Judge by Section 438 of the Code of Criminal Procedure ?

(2.) Upon receipt of two conflicting orders passed by this Court, the Sessions Judge, Patna, was placed between horns of a dilemma and taking resort to Section 395(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr. P.C.'), referred the matter for the decision of this Court.

(3.) In one of the cases, the accused, who was alleged to have committed an offence punishable under the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the P.C. At of 1947'), filed an application under Section 438 of the Cr. P.C. before the Sessions Judge, who declined to entertain the same on the ground that it had no jurisdiction. The accused, thereafter, filed Cr. Misc. No. 966 of 198 7 before this Court, which was disposed of by a learned single Judge with a direction to the Special Judge appointed under Section 6 of the Criminal Law (Amendment) Act, 1952 (hereinafter referred to as 'the 1952 Amendment Act'), to consider the application. In another case, the accused, who was also alleged to have committed an offence punishable under the P.C. Act of 1947, made prayer before the Special Judge for grant of anticipatory bail, which was dismissed on the ground of lack of jurisdiction in it. Being aggrieved by the order, the accused moved this Court by filing Cr. Misc. No. 2077 of 1986, which was disposed of by a learned single Judge with a direction to make such prayer before the Sessions Judge. The directions given in the said cases necessitate the Reference by the learned Sessions Judge, Patna.