ZAHOOR AHMAD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ON November 22, 1972, the Special Public Prosecutor presented a final report under Section 173, Criminal Procedure Code against Zahoor Ahmed, Assistant Registrar, Co-operative? Department, Jalore, for offences under Section 161, Indian Penal Code and Section 5 (2) of the Prevention of Corruption. Act (hereinafter referred to as the-P. C. Act ). When the case came ort February 28. 1973, Mr. D. D. Bajai. learned Special Judge, Jalore after examinin't the file observed. that there was a prima. facie case against Zahoor Ahmed under Section 409 of the Indian Penal Code and-he took cognizance of it and registered the case, In regard to the other offences* he approved the final report. The learned' Special Public prosecutor was directed, to furnish copies under. Section 173, Criminal P. C. and Zahoor Ahmed was called by bailable warrant in the sum of* Rs. 2,000/ -. Later, for the whole of Rajas-than, a Special Judge came to be appointed at Jaipur and the case therefore travelled up to him. Zahoor Ahmed is dissatisfied on account of the *order of February 28, 1973 passed by the Special: Judge, Jalore and he has come up in revision.

(2.) MR. Jaswant Mai, learned, counsel for the applicant, submits that under Section 6 of the Criminal Law (Amendment) Act, 1952 the State Government is authorised to appoint as many-Special Judges as may be necessary to-try the offences mentioned in Sub-section (1) (a) of Section 6 which includes offences under Section 5 of the P. C. Act. Section 7 of Criminal Law (Amendment) Act lays down that the offences specified in? Sub-section (1) of Section 6 shall be triable by Special Judges only, thus excluding the jurisdiction of the ordinary criminal courts. Sub-section (3) of Section 7, however, provides that when trying any case, Special Judge may also try any offence other than an offence specified in. Section 6 with which the accused may. under the Code of Criminal Procedure^ 1898, be charged at the same trial. Urges the learned Counsel, that having accepted the final report in regard to. the offences under Section 161 of the Indian-Penal Code and Section 5 (2) of the P. C Act, the learned Special Judge had no jurisdiction to take cognizance of the offence under Section 409, Indian Penal Code. He placed reliance on Ramautar Mahton v. The State AIR 1961 Pat 20* : (1961-1 Cri LJ 694) and Sahebkhare Umerkhan v. The State (1963 ). 2 Cri LJ 556 a case of the Gujarat High Court, He also invited my attention to the significant observations of their Lordships-of the Supreme Court in Om Prakash v. The State of U. P. to substantiate the contention that Section 5 (1) (c) of the P. C. Act is an offence distinct from the one under Section 409 of the Indian Penai Code.

(3.) MR. Jain appearing for the State argues that Section 409, Indian Penal Code, is the same as Section 5 (1) (c) of the P. C. Act and it is open to the Special Judge to take cognizance thereof. He relies upon Mahammad Ali v. The State AIR 1953 Cal 631 : 1953 Cri LJ 1523 and the State v. Sahebrao Govind-rao Jadhav.