STATE OF RAJASTHAN Vs. HARI SINGH

JUDGEMENT

(1.) THE learned Sessions Judge, Bikaner, has referred this matter to this Court u/s 395 (2) Cr. P. C. as according to him, a serious question of law arises in the disposal of the bail application filed before him. THE question which vexed him was whether in view of s. 8 (3) of the Prevention of Corruption Act (he appears to refer to the Criminal Law Amendment Act, 1952) a court of Special Judge is to be deemed to be a Sessions Judge for the purpose of the application u/s 438 Cr. P. C. In other words, whether in the presence of s 8 (3) of the Criminal Law Amendment Act, 1952 (hereinafter called *the Act of 1952'), a Sessions Judge of any sessions division can grant bail u/s 438 Cr. P. C. to a person who apprehends to be arrested in any of the offences triable by the Special Judge, or only the Special Judge has the power to do so in such a case.

(2.) THE matter arose before him on an application filed by the petitioner Hari Singh u/s 438 Cr. P. C. alleging that the police of the Anti-Corruption Department had registered a case against him u/s 5 (1) (d) (a) and (c) of the Prevention of Corruption Act and s. 420 and 120b of the Indian Penal Code and may arrest him. It appears that the petitioner had earlier approached the Special Judge but by order dated 28-5-83, the learned Special Judge declined to entertain the application as according to him, he had no powers u/s 438 Cr. P. C. On the other hand, when the co-accused Inder Singh approached this Court u/s 438 Cr. P. C. , this Court directed him first to approach the Court of Sessions. THE learned counsel for the petitioner as also the learned Public Prosecutor admitted before the learned Sessions Judge that the Sessions Judge had the power to entertain application u/s 438. However, despite this agreement, the learned Sessions Judge proceeded to examine the provisions of the Act of 1952. He referred to s. 8 and its various sub-sections and in view of s. 8 (3) of the said Act. he was of the opinion that there was a serious question of law in volved and it appeared to him proper that the matter should be referred to this Court. He has observed that the question is which' is the Court of Sessions referred to in s. 438 Cr P. C. whether the Court of Sessions of every Sessions division or the Special Judge who has to be deemed to be a Sessions Judge u/s 8 (3) of the 1952 Act'. Accordingly, he has referred this question to this Court.

(3.) IF the State Govt. or the High Court as the case may be, want to infer special powers on any court that can be done u/s 32 of the Criminal Procedure Code but powers u/s 438 Cr. P. C. have not been conferred upon a Special Judge appointed under the 1952 Act and, therefore, also it is only the Sessions Judge of the sessions division, who can act u/s 438 Cr. P. C. in respect of persons who are apprehending their arrest even in connection with offences triable by a Special Judge.