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2003 DIGILAW 391 (JK)

Diwan Singh v. State

2003-12-09

Y.P.NARGOTRA

body2003
1. For granting anticipatory bail under Section 497-A Cr. P. C. concurrent jurisdiction has been vested in the High Court and the Court of Session. Whether an applicant, whose application for such bail has been rejected by a Session Court, can legally maintain another application before the High Court for grant of anticipatory bail or for that matter, remedy of revision under Section 439 Cr. P. C. before the High Court alone is available? And whether a Special Judge, Anti- Corruption possesses any jurisdiction and power under Section 497-A Cr. P. C. for granting anticipatory bail to a person accused of an offence of Corruption under the provisions of RPC or prevention of Corruption Act 2006? And if yes whether such power is exclusive or can also be exercised by a Session Court? These are important questions of law, which have arisen for determination in Bail application No. 62/2003. 2. As Bail Application No. 58/2003, also relates to the same FIR in which Bail Application No. 62/2003 has been filed, therefore, both these applications are being taken together for disposal and are being disposed of by this common order. 3. Before answering the questions of law formulated as above, it would be appropriate to take notice of the necessary facts. 4. The Vigilance Organization, Jammu has registered FIR No. 21 of 2003 for commission of offences under Section 5(2) of the Prevention of Corruption Act 2006 and Sections 161,120-B RPC. From the recitals of FIR, the allegations are that (1) Shri Ashok Kumar Gupta, Tehsildar Territorial Kathua (Petitioner in Bail Application No. 62/ 2003) (2) Shiv Kumar Sharma, Tehsildar Agrarian Reforms, Kathua (3) Dewan Singh, Naib Tehsildar Kathua (4) Des Raj, Gird war Circle No.4 Kathua and (5) Raghuwinder Singh, Patwari Halqa Janglote Kathua has hatched a Criminal conspiracy with one Kashmiri Lal Bali with a view to make fraudulent allotment of 48 kanals of land falling under Khasra No. 803/1 min, situated at village Janglote Tehsil Kathua. In furtherance of the conspiracy, the officers of the Revenue Department mentioned above on the basis of fabricated record allotted the said land to above said Kashmir Lal Bali on 23rd January 2003, showing him a occupant of the said land from 1971 onwards; despite the fact that said Kashmiri Lal migrated from Chhamb during Indo-POK War of 1971 and settled at Manwal camp up to 1978, where after he came to village Chalk Luddan, Tehsil Kathua. Infact, the land under dispute was a State land, which was under illegal occupation of Shri Parveen Kumar, Lokesh Kumar, Tilak Raj. Rajesh Kumar and Nek Mohd. and entries to this effect stood recorded in the Revenue record. With a view to achieve the object of conspiracy, false affidavits from the above said persons were obtained to the effect that land in dispute was under the occupation of the above said Kashmiri Lal which is not a fact. Under Section 133(C) of Land Revenue Act, the Revenue Officer were duty bound to evict the occupants from the said land but instead of doing so, they allotted the land to said Kashmiri Lal with a view to confer undue pecuniary advantage to him, who in turn, executed a power of attorney in favour of one Uttam Chand, who sold 16 kannals of land out of this land to one Raj Daluja, who is constructing a School building thereon. On the above said allegations, FIR was registered as aforesaid against the accused and investigation started. 5. The petitioner, Ashok Kumar Gupta, in Bail Application No. 62/2003, filed an application for grant of anticipatory bail before the learned Special Judge, Anti-corruption, Jammu, who by his order dated 1Oth July 2003, rejected the same. After the rejection of the application for bail of the petitioner - Ashok Kumar, has filed an application No. 62/2003 for grant of anticipatory bail. The accused Dewan Singh, however, directly has filed the bail application No.5 8/2003, in which a notice was issued and interim direction was issued to the respondents vide this Court order dated 8th July 2003, for desisting from arresting the petitioner. A similar direction was also issued in the bail application of petitioner-Ashok Kumar vide this Court order dated 25th July 2003 and these interim directions have been extended from time to time. 6. A similar direction was also issued in the bail application of petitioner-Ashok Kumar vide this Court order dated 25th July 2003 and these interim directions have been extended from time to time. 6. In the application of Ashok Kumar Gupta, Bail Application No. 62/2003, an objection has been raised by Mr. Salathia, learned AAG that the application is not maintainable in view of the fact that the same stands already rejected by the Court of Special Judge, Anti-Corruption. The jurisdiction of the Court being concurrent with that of the High Court, as such, fresh application is not maintainable before the High Court. It has also been submitted by him that custodial interrogation of the accused is necessary in the circumstances of the case and, therefore, anticipatory bail should not be granted. 7. Learned counsel for the petitioner, Mr. J. P. Singh, however, in turn, has argued that fresh application for grant of anticipatory bail under Section 497-A Cr. P. C., is maintainable before the High Court inspire of the rejection by the Special Judge, Anti Corruption. He has contended that there is no bar for filing fresh application before the High Court and even otherwise if this Court comes to the conclusion that the second application does not lie then the present application still be maintainable for the reason that Special Judge, Anti Corruption possesses no jurisdiction to grant anticipatory bail under section 497-A Cr. P. C. as according to him, it is only the Session Court which has been conferred with the power under Section 497-A Cr. P. C. of granting anticipatory bail. According to him, the Court of Special Judge, Anti Corruption being not a Court of Session, could not grant or reject application for anticipatory bail and, therefore, order of rejection of bail passed by the learned Special Judge, Anti Corruption is nullity being without jurisdiction, therefore, does not operate as a bar against the filing of fresh application before the High Court. 8. Mr. 8. Mr. Singh also contended that if this Court goes to hold that Court of Special Judge, Anti Corruption is empowered to grant anticipatory bail then his application for bail may be considered as application of revision and by exercising revisional jurisdiction, order passed by the learned Special Judge, Anti Corruption, rejecting the bail be set aside and bail be granted, as according to him, no case for custodial interrogation of the accused has been made out. The accused are Government Officers and there is not likelihood of their absconding. There is no allegation that they accepted any bribe from any one. It is only their official acts have been put under cloud by registration of the FIR. If they are allowed to be arrested incalculable harm to their reputation and their service career would be done. The accused, according to his submissions, are entitled to the anticipatory bail in the circumstances of the case and the allegations leveled against them. 9. Before going to the question whether the accused are entitled to anticipatory bail or not I would first deal with legal questions formulated above. The first objection raised by the State is that second application does not lie before the High Court after the rejection of the first application by the learned Special Judge, Anti Corruption, in view of the fact that High Court and Session Court have concurrent jurisdiction to grant anticipatory bail under section 497-A Cr. P. C. 10. Let us assume, for answering this question that court of Special Judge, Anti corruption is a Court of Session. Section 497-A Cr. P. C. reads as follows:- "497-A. Direction for grant of bail to person apprehending arrest. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-boilable offence, he may apply to the High court or the Court of Session for a direction under this section, and that Court may; if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such direction in the light of the facts of particular case, as it may think fit, including - (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. (iii) a condition that the person shall not leave the State without the previous permission of the Court; (iv) Such other condition as may be imposed under sub-section (2-a) of section 497 as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if Magistrate taking, cognizance of such offence decides that a warrant should issue in the first instance against that person he shall issue boilable warrant in conformity with the direction of the Court under sub-section (l)." From the bare reading of the Section, it is manifest that concurrent jurisdiction has been vested in the High Court and the Court of Session to grant bail in the event of arrest to a person who has reason to believe that he may be arrested on accusation of having committed non-boilable offence. The expression used in the section "he may apply to the High Court or the Court of Session" connotes ex-facie that though both the Courts i.e. High Court and Session Court have been conferred with concurrent jurisdiction and power of granting bail, yet the section leaves it open to an applicant/person to choose any of the two courts for filing his application. If he chooses to file his application in the Court of Session for grant of bail and the Court of Session rejects his application, the order of rejection no doubt, can be challenged before the High Court in revision because the High Court possesses the revisional jurisdiction under section 439 Cr. If he chooses to file his application in the Court of Session for grant of bail and the Court of Session rejects his application, the order of rejection no doubt, can be challenged before the High Court in revision because the High Court possesses the revisional jurisdiction under section 439 Cr. P. C. for examining the correctness, legality and validity of an order passed by a Subordinate Criminal Court. There is no dispute to this preposition of law. But once the Sessions Court under Section 497-A Cr. P. C rejects the application for bail, second application cannot lie before the Session Court on the same circumstances and facts. The successive bail application before the Session Court on the same facts and circumstances would be barred not because there is any express bar under Section 497-A Cr. P. C. but because of the reason that no Criminal Court is empowered to review its own order in view of the provisions contained in Section 369Cr. P. C. 11. Is such application maintainable in the High Court after the Sessions Court has rejected it? InZubairAhmadBhat Vs. State of J&K (1989) K.L.J. 455), a similar question arose for consideration before a Single Bench of this Court. The Counsel for the respondents that after the rejection of the bail application by the Additional Sessions Judge, Srinagar, a fresh application before the High Court, on the same grounds, under section 497-A Cr. P. C. is not maintainable argued it. Reliance was placed on 1979 Criminal Law Journal 288, Amiya Kumar Vs. State of West Bengal, in which the Division Bench of Calcutta High Court has held that anticipatory bail can be granted by the High Court or the Session Court and the choice is given to the person who seeks bail in anticipation of arrest. Once a person applies to Session Court and the Session Court rejects the application, fresh application for grant of bail in anticipation cannot be moved before the High Court on the same grounds. 12. For arguing in support of the maintainability of the application, learned counsel for the petitioner in that case however, had relied upon a full Bench Judgment rendered in case Mohan Lal and Ors. Vs. Prem Chand and Ors. 12. For arguing in support of the maintainability of the application, learned counsel for the petitioner in that case however, had relied upon a full Bench Judgment rendered in case Mohan Lal and Ors. Vs. Prem Chand and Ors. reported in AIR 1980 HP 36, in which case full Bench was answering the reference and the question referred to the Full Bench was: "Is it incumbent upon an applicant to approach the Court of Sessions before moving the High Court for grant of anticipatory bail under-section 433 of the Central Criminal Procedure Code." 13. Mr. Justice M. L. Bhat, who presided the Single Bench of this Court, distinguished the HP case (supra), by observing that: "The Full Bench authority referred to above is not authority for the preposition that once the anticipatory bail is rejected by the Sessions Court, on the same grounds High Court can be moved for grant of anticipatory bail. In the observations made by the full bench, there may be a passing reference, but that is only obiter because the full Bench was not considering that question at all......." His Lordship, further observed as follows: "The opinion expressed by the Calcutta High Court (supra) referred by Mr. Ritz Rissole is correct and they appear to have laid down the law correctly. Therefore, the application under section 497-A for grant of anticipatory bail when the first application on the similar grounds was rejected by the Sessions Court will not be maintainable because the court of Sessions and the High Court have concurrent jurisdiction in the matter." 14. In the same judgment view has been expressed that remedy of revision alone would be available to such person. 15. From the Judgment it is manifest that the learned Single Judge had based his opinion on the view expressed by Calcutta High Court in case 1979 Criminal Law Journal 288 (supra). 16. With highest respect at my command for brother Bhat, J, have gone through this Judgment carefully but have not been able to persuade myself to agree with the view expressed on the subject for the reasons to follow. 17. Section 497-A Cr. P. C. came to be incorporated in Criminal Procedure Code by Act of XXVII of 1978 and before this Section came to be inserted in the Statute book, the revisional jurisdiction under Section 439 Cr. 17. Section 497-A Cr. P. C. came to be incorporated in Criminal Procedure Code by Act of XXVII of 1978 and before this Section came to be inserted in the Statute book, the revisional jurisdiction under Section 439 Cr. P. C. was already available to the High Court and the orders of subordinate Criminal Courts including the Session Court were amenable to the revisional jurisdiction of the High Court. Still the legislature in their wisdom incorporated the words High Court besides the words "Sessions Court" in Section 497-A and thereby conferred concurrent Jurisdiction for granting anticipatory bail on the High Court with the Session Court. There is nothing in the section to suggest that the jurisdiction of the High Court or the Session Court was intended to be in the alternative and not independent to each other. In my opinion, both the Courts i.e. High Court and Session Court have been conferred independent jurisdictions in the matter of granting anticipatory bail in view of the importance of the issue involved, as after all the protection of personal liberty of an individual is the ultimate and cherished goal of the Constitution. In Section 497-A Cr. P. C. It is now where stated that the jurisdiction of the High Court though concurrent would be excluded in case the Session Court has rejected the application. Had such been the intention of the Legislature, they would have specifically provided in the Section itself as has been done while framing section 397 of Central Cr. P. C. The view expressed by the learned Single Bench of this Court in Zubair Ahmed Bhats case (supra) appears to be per In curium because of the reason that view was based upon the view expressed by the Division Bench Judgment of the Calcutta High Court rendered in Amiya Kumar scase(1979Cr. Law Journal 288), and that Judgment by then stood over ruled by a full Bench Judgement of that Court and this fact was not brought to notice of the court. In case Diptendu Nayek and others Vs. State of West Bengal (1989 (1) Crimes 435), their Lordships of the Full Bench of Calcutta High Court observed: "15. We have examined the ratio of the earlier Division Bench decision in Amiya Kumar Sen (supra), with all the respect the same deserves, but have not been able to ourselves to agree with that view for more reasons than tone. State of West Bengal (1989 (1) Crimes 435), their Lordships of the Full Bench of Calcutta High Court observed: "15. We have examined the ratio of the earlier Division Bench decision in Amiya Kumar Sen (supra), with all the respect the same deserves, but have not been able to ourselves to agree with that view for more reasons than tone. The earlier Division Bench, if we may say so with respect, adopted a strict grammarians approach and, as would be evident from Paragraphs 4 and 5 of the Judgment, governed itself by the rules of grammer relying heavily on the treatises of Rowe and Webb and of Nesfield. One is only to refer to any modern edition of any of the standard treatises on Interpretation of Statutes to realize that a purely interal or grammatical approach is known as "purposive approach" and we no longer construe a Statute only with a book of Grammer on one hand and a lexicon on the other. So much so, that Frankfurter, J, or the American Supreme Court went to that length as to observe that there is no surer way to misread a provision than to read it literally and, as crazies has pointed out (statute law, 7th Edition, page 65), the words "literal" and "grammatical" are used almost interchangeably." It was further held by the Full Bench that: "16. The Division Bench also did not take into consideration the express provisions in section 397 (3) and their conspicuous omission in section 438 or section 439 which, in our view, goes a long way to demonstrate the legislative intent and, as already noted, this view of ours finds a good deal of support from the observations of the Supreme Court in Gurbaksh Singh (AIR 1980 SC1632). The Division Bench also did not at all consider the earlier Division Bench decisions of this Court in Hari Nath (supra), and in Gurachand (supra), construing analogus provision section 24 of the Code of Civil Procedure. The Division Bench also did not at all consider the earlier Division Bench decisions of this Court in Hari Nath (supra), and in Gurachand (supra), construing analogus provision section 24 of the Code of Civil Procedure. The Division Bench also did not consider that, as has now been ruled by the Supreme Court, statutory provisions relating to Personal Liberty should, whenever possible, be so construed as to advance and enlarge the right to protect the same and the construction that section 438 would entitle a person to move the High Court afresh even after the Court of Session has turned down a similar application, would enlarge and widen the right of a citizen to prevent the deprivation of his Personal Liberty. For these reasons, we hold obviously with respect that the earlier Division Bench decision in Amiya Kumar Sen (supra) is not to be treated as good law. We have had the advantage of reading the draft of the separate but concurring judgment of his Lordship Ghosh J. where his Lordship has given some more and detailed and cogent reasons as to why it is not possible for us to agree with the ratio adopted by the earlier Division Bench in Amiya Kumar Sen (supra), and we are glad to say that the reasons so advanced by his Lordship have our respectful concurrence." 18. In Devidas Raghu Naik Vs. State (1989 Cr.LJ252), the Judgment of Calcutta High Court rendered in Amiya Kumar s case was dissented, by a Single Bench of the Bombay High Court while considering the identical question arising in relation to Section 439 Cr. P. C. of the Central Code, which corresponds to section 498 of J&K Cr. P. C. and which also confers a concurrent jurisdiction for granting bail upon the High Court and Session Court, held as follows: "The power given by S. 439, Cr. P. C. to High Court or to the Sessions Court is an independent power and thus when High Court acts in the exercise of such power, it does not exercise any revisional jurisdiction, but its original special jurisdiction to grant bail. This being so, it becomes obvious that although under S.439 Cr. P. C. concurrent jurisdiction is given to High Court and Sessions Court, the fact that the Sessions Court has refused a bail under S. 439, on the same fact and for the same offence. This being so, it becomes obvious that although under S.439 Cr. P. C. concurrent jurisdiction is given to High Court and Sessions Court, the fact that the Sessions Court has refused a bail under S. 439, on the same fact and for the same offence. However, if a party first moves the High Court and High Court has dismissed the application, then the decorum and the hierarchy of the Courts require that if the Session Court is moved with a similar application on the facts, the said application be dismissed, 1978 Cr.L.J. 129 (SC) and 1986 Cr.L. J. 1742 (Ker), Rel. on 1979 Cr. L. J. 288 (cal.), Dissented from." A Division Bench of Karnataka High Court in case I.Y. Chanda Earappa Vs. State of Karnataka(1989 Cr. L. J. 2405), relying upon the Judgment of Himachal Pradesh High Court rendered in AIR 1980 HP 36 (Full Bench) (supra), (which was distinguished by Brother Bhat, J) and upon the Full Bench of Calcutta High Court rendered in Diptendu Nayeks case (supra) has held: "A petition under S.438 is maintainable before the High Court even if a similar application has been made and rejected by the Court of Session." Kerla High Court also did not accept the view of Calcutta High Court expressed in Ainiya Kumars case (1979 Cr. L. J 288 (Cat), and in Gopi Nath Vs. State of Kerla (1986 Cr.LJ. 1742) held: "Section 438 was not intended to give a restricted forum in the sense that when one forum is chosen the jurisdiction of the other is excluded. An accused who approached the Court of Session u/s 438 (1) and got defeated is not precluded from moving the High Court for the same relief. The freedom of applying to the High Court or the Court of Session need not necessarily mean that when the Court of Session need not necessarily mean that when the Court of Session is moved the option has become final and the approach to the High Court is thereafter barred. By the use of the word or in S. 438(1) the legislature has invested the Court of Session and the High Court with concurrent jurisdiction like S. 439. That jurisdiction of the High Court is original and not revisional. Whatever is not prohibited and not inconsistent with the statutory provisions must be taken to have been permitted. By the use of the word or in S. 438(1) the legislature has invested the Court of Session and the High Court with concurrent jurisdiction like S. 439. That jurisdiction of the High Court is original and not revisional. Whatever is not prohibited and not inconsistent with the statutory provisions must be taken to have been permitted. Otherwise it will only result in the injustice being left unheeded. If the conjunctions or in Ss.397(l), 398 and 439 Cr. P. C. are used in the non-alternative sense as equivalent to and, there is no reason why a different interpretation is necessary in the case of S.438 alone. Such an interpretation may not be conducive to the spirit and purpose of S.438,1979 Cr. L. J. 288 (Cal), Dissented from." 19. Thus the consensus of the judicial opinion on the subject appears that fresh application for anticipatory bail filed by a person whose first application on the same grounds has been rejected by the Session Court, is maintainable under Section 497-A Cr. P. C. before the High Court. My view is also the same. Therefore, with respect I say that the view expressed in Zubair Ahmad Bhats case by the learned Single Judge is per incurrium and cannot be a binding precedent. In my considered opinion, section 497-A of Cr. P. C. confers a concurrent jurisdiction in the matter of grant of anticipatory bail on the High Court and the Session Court. The section no doubt, gives a choice to a person to choose between the to High Court or to the Court of Session for filing an application for anticipatory bail but if he moves the Session Court first and his application is rejected, he is not debarred from filing and maintaining a fresh application on the same cause of action and on the same grounds before the High Court but it would not be vice versa because, the Court of Session being a Court subordinate to the High Court and bound by the orders passed by it cannot grant anticipatory bail to such person whose application has been rejected by the High Court. It is so because of the fact of subordination of the Session Court to the High Court and not because Section 497-A Cr. P. C. contains any such bar. 20. It is so because of the fact of subordination of the Session Court to the High Court and not because Section 497-A Cr. P. C. contains any such bar. 20. Now, I would deal with the question whether the Court of a Special Judge appointed under the provisions of Prevention of Corruption Act, is a court of Session for the purpose of Section 497-A of the Code of Criminal Procedure. Section 6 of the Code of Criminal Procedure enumerates the criminal courts for trial of the Criminal offences. Section 6 provides that besides the High Court and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in Jammu and Kashmir State namely:- I. Courts of Session. II. Courts of Magistrates. 21. Courts of Special Judge of Anti Corruption is a creation of Jammu and Kashmir law (Amendment) Act, 1958. Section 6 of the Criminal law (Amendment) Act, 1958 empowers the Government to appoint as many Special Judges as may be necessary for such area or areas as may by specified in the Notification to be published in the Government Gazette to try the following offences: (a) an offence punishable under section 161,165 or section 165-A of Ranbir Penal Code or Section 5(2) of the Prevention of Corruption Act, 2006. (b) In conspiracy to commit or in attempt to commit or in abetment of any of the offences specified in clause (a). Sub-Section 2 of section 6 provides as follows: "2. A person shall not be qualified for appointment as a Special Judge under -ij this Act unless he is, or has been, a Session Judge or an Additional Sessions Judge or an assistant Sessions Judge under the Code of Criminal Procedure 1989 (XXII of 1989)." And in Section 7(1), it is provided that: "No withstanding anything contained in code of Criminal Procedure 1989 (XXIII of 1989) or in any other law, the offences specified in sub section (1) of section 6 shall be triable by Special Judges only." 22. Thus, by sub-section (1) of Section 7, the jurisdiction of all Criminal Courts for trial of the offences enumerated under Section 6 stands excluded and exclusive jurisdiction has been conferred upon the Special Judges appointed under section 6 by the Government. Thus, by sub-section (1) of Section 7, the jurisdiction of all Criminal Courts for trial of the offences enumerated under Section 6 stands excluded and exclusive jurisdiction has been conferred upon the Special Judges appointed under section 6 by the Government. It has also been provided that while trying any such offences Special Judge may also try any other offence not enumerated under section 6 with which the accused may have to be charged under the Code of Criminal Procedure at the same trial. Section 8 & 9 of the Criminal Law Amendment Act 1958 are relevant for answering the question. Therefore, are being reproduced hereunder for reference: "8. Procedure and Powers of Special Judges :-(l) A Special Judge may take cognizance of offence without the accused being committed to him for trial and trying the accused person, shall follow the procedure prescribed by the Code of Criminal Procedure, 1989 (XXIII of 1989), 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 indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making and 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 abeter, in the commission thereof; and may pardon so tendered shall, for the purposes of sections 339 and 339-A of the Code of Criminal Procedure, 1989 be deemed to have been tendered under Section 338 of that Code. (3) Save as provided in sub-section (1) or sub-section (2), the provisions of Code of Criminal Procedure, 1989, shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge, and for the purposes of said provisions, the Court of the Special Judge shall be 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. (4) In particular, and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of section 350 of the Code of Criminal Procedure, 1989, 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. (5) A Special Judge may pass upon any person convicted by him any sentence authorized by law for the punishment of the offence of which such person is convicted. 9. Appeal and Revision - The High Court may exercise, so far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, 1989 (XXIII of 1989), on the High Court as if the Court of Special Judge were a Court of session trying cases without a jury within the local limits of the jurisdiction of the High Court." 23. From the bare perusal of Section 8 of the Criminal Law (Amendment) Act of 195 8, it is manifest that for the trial of the offences, Special Judge has to follow the procedure prescribed for trial of the offences under warrant case by the Magistrates but for the purposes of pardons, the Court of Special Judge is to be deemed to be a Court of Session. For the purposes of Section 350(3) of Criminal Procedure Code, Special Judge is to be deemed to be a Magistrate and again in view of the provisions contained in Sub-section 3 of the Section 8, quoted above, he is empowered to apply provisions of Criminal procedure Code so far as they are not inconsistent with this Act for trial of the cases and for the purposes of said provisions, the Court of Special Judge is to be deemed to be a Court of Session trying the cases without a jury or without the aid of assessors and the person conducting the prosecution is to be deemed to be a public prosecutor. Therefore, the Court of Special Judge constituted under Section 6 of the Act of 1958 has the trappings of both i.e. Court of a Magistrate and the Court of Session. 24. Therefore, the Court of Special Judge constituted under Section 6 of the Act of 1958 has the trappings of both i.e. Court of a Magistrate and the Court of Session. 24. In this view of the position of the Court of Special Judge, it has to be determined whether the Court of Special Judge can be deemed to be a Court of Session for the purposes of granting of anticipatory bail under section 497-A Cr. P. C. The phrase "shall be deemed" is frequently used in the statute when the legislature wants to confer a status or attribute to a person or a thing, which is not instantly possessed, by the person or thing of whom conferment is made. Therefore, it cannot be doubted that when the Legislature directed that the Court of Special Judge shall be deemed to be a Court of Session, the Court of Special Judge cannot be regarded other than a Court of Session. In AIR 1958 SC 30, it has been held: "The provisions of S.337, enable a District Magistrate to tender a pardon in the case of any offence triable exclusively by the High Court or a Court of Session. But although a Special Judge is a Court constituted under the Criminal law (amendment) Act, 1952, yet for the purposes of the Code of Criminal Procedure and that Act, it is a Court of Session. Accordingly although the offence under S.5 (2), Prevention of Corruption Act, is triable exclusively by the Court of the Special Judge the District Magistrate has authority to tender a pardon under S.337 of the Code of Criminal Procedure as the Court of the Special Judge is in law, a Court of Session, (Para 8)." 25. In view of the provisions contained under section (7)(i), only the Court of Special Judge has the exclusive jurisdiction to try the offences under the Prevention of Corruption Act as well as the other offences enumerated under Section 6. Under sub-section (1) of Section 8, the Court of Special Judge is empowered to take cognizance of the offence without the accused being committed and to follow the procedure prescribed for the trial of warrant cases. Under sub-section (1) of Section 8, the Court of Special Judge is empowered to take cognizance of the offence without the accused being committed and to follow the procedure prescribed for the trial of warrant cases. Under subsection (3) of Section 8 a Special Judge can apply the other provisions of Code of Criminal Procedure to the proceedings before him, which are not inconsistent with the Amendment Act of 1958, and while applying such provisions a Special Judge is to be deemed to be a Court of Session. In this view of the position, Court of Special Judge, Anti Corruption can be deemed to be a Sessions Court within the meaning of Section 497-A Cr. P. C. because the provision contained in this Section cannot in any manner be said to be inconsistent with the provisions of Amendment of Act 1958. It can be argued that the provision of sub-section 3 of Section 8 refers only to the proceedings which means which are pending before him and it does not, therefore, apply to the proceedings which have yet to be filed and are at the investigational stage with the investigating Agency and, as such, Special Judge, Anti Corruption cannot be deemed to be a Session Court for the purposes of granting regular bail or anticipatory bail to a person against whom the charge sheet has not yet been filed and the case is still at the investigational stage. The argument shall fail because the Court of Special Judge is a Court of original criminal jurisdiction and, therefore, possesses all the powers, which a court of original criminal jurisdiction ordinarily possesses. It cannot be disputed that Session Court or the Courts of the Magistrates which were previously possessed of the jurisdiction of trial of an accused for commission of the offences of Corruption etc. It cannot be disputed that Session Court or the Courts of the Magistrates which were previously possessed of the jurisdiction of trial of an accused for commission of the offences of Corruption etc. and which possessed the power of granting bail even in the cases which were at the investigational stage being the courts of original criminal jurisdiction, but after the appointment of Special judges, their jurisdiction is excluded and stands vested in Special Judges and they are now in respect there of the Courts of original criminal jurisdiction and, therefore, ordinarily a Court of Session or a Court of a Magistrate under the Criminal Procedure Code has no jurisdiction to try the accused for commission of offences under Section 5(2) of the Prevention of Corruption Act, Section 161, 165 and 120-B of the RPC including the attempt to commit or abetment of any of the offences and the exclusively jurisdiction is with the Courts of Special Judges after the enactment of Criminal Law amendment Act, 1958. 26. I am fortified in my view by a Full Bench Judgment of Patna High Court rendered in case reported in 1993 Criminal Law Journal 2436. Their Lordships of the Full Bench were considering the identical question. It has been held that: "Section 4 of the PC. Act of 1988 provides that notwithstanding anything contained in the Cr. P. C. or in any other law for the time being in force, the offences specified in sub-section (1) of Section 3 shall be tried by Special Judge only. Section 5 of the P.C. Act of 1988 empowers the 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 Cr. P. C. 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 cases" appearing in various sections of Chapter XII of the Cr. P. C. would only mean the Special Judge appointing under the P.C. Act of 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. P. C. would only mean the Special Judge appointing under the P.C. Act of 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 Cr. P. C. as he has got exclusive jurisdiction to take cognizance and try the offences under the P.C. Act of 1988." 27. Mr. J. P. Singh, for submitting that the Court of Special Judge Anti-Corruption is not a Sessions Court for the purpose of Sect. 497-A, Cr. P. C. relies upon a judgment of the Apex Court given in State of Tamil Nadu Vs. Krishna swami Naidu, AIR 1979 SC 1255. In this case their Lordships considered the question whether Special Judge under Criminal Law Amendment Act 1952 can exercise power conferred on a Magistrate u/ s 167 Cr. P. C. to authorize the detention of the accused in custody of the police. This question had arisen for determination before the Apex Court because High Court of Madras while relying upon a judgment of the Supreme Court rendered in AIR 1961 SC 1762 had held that Special Judge is not a Magistrate and as such was not competent to pass order u/s 167 Cr. P. C. The Apex Court in this case ultimately held that:- "The Special Judge would be a Magis-10 trate empowered to try a case u/s 167 Cr. P. C. and the Special Judge will proceed to exercise the powers that are conferred on a Magistrate having jurisdiction to try the case." 28. In Para 5 of the Judgment their lordships also observed as follows:- "It may be noted that the Special Judge is not a Sessions Judge, Addl. Sessions Judge or an Asstt. Sessions Judge under the Code of Criminal Procedure though no person can be appointed as a Special Judge unless he is or has been either a Sessions Judge or an Addl. Sessions Judge or an Asstt. Sessions Judge. The Special Judge is empowered to take cognizance of the offences without the accused being committed to him for trial. The jurisdiction to try the offence by a Sessions Judge is only after committal to him. Sessions Judge or an Asstt. Sessions Judge. The Special Judge is empowered to take cognizance of the offences without the accused being committed to him for trial. The jurisdiction to try the offence by a Sessions Judge is only after committal to him. Further the Sessions Judge does not follow the procedure for the trail of warrant cases by Magistrates. The Special Judge is deemed to be a court of Session only for certain purposes as mentioned in section 8(3) of the Act while the first part of sub-section (3) provides that except as provided in subsections (1) and (2) of section 8 the provisions of the Code of Criminal procedure, 1898 shall so far as they are not inconsistent with this Act, apply to the proceedings before the Special Judge. The sub-section further provides that "for the purpose of the said provisions, the Court of the Special Judge shall be 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." The deemed provision has to be confined for the purposes mentioned in the sub-section. Section 8(2) enables the Special Judge to tender a pardon to a person with a view to obtaining evidence supposed to have been concerned for the commission of an offence and the pardon so tendered was for the purposes of sections 339 and 339(a) of the Code of Criminal Procedure, 1889. This subsection was enacted because Special Judge not being a court to which a commitment has been made cannot tender pardon under the provisions of section 338 and so this section is introduced to enable the Special Judge to tender a pardon. Sub-section (3-A) has made the provisions of section 350 and 549 applicable to the proceedings before a Special Judge and for the purpose of the said provisions a Special Judge shall be deemed to be a Magistrate, Section 350 of the Code of Criminal Procedure enables a succeeding Special Judge to act on the evidence recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself. Section 549 empowers a Magistrate when any person is brought before him charged with an offence by a Court to which this Code applies or by a Court martial, the Magistrate shall deliver him to the Commanding officer of the Regiment for the purpose of being tried by the Court-martial. This provision also is made specifically applicable to the Special Judge. Section 8-A empowers the Special Judge to try certain offences in a summary way and the provisions of Sections 262 to 265 of the Criminal Procedure Code are made applicable so far as they may apply." 29. In this judgment their Lordships of the Supreme Court have not dealt with the question as to whether for purposes of Sec. 497-A, Cr. P. C. a Special Judge would or would not be a Sessions Judge. Their lordships were considering the scope of the provision contained in section 8 of the Criminal law Amendment Act regarding powers of the Special Judge exercisable as a Magistrate. In Para 6 of the Judgment their Lordships have also observed as follows: "6. It will be thus seen that section 8-A empowers the Special Judge to take cognizance of offence without committal and direct that in trying the accused persons he shall follow the procedure prescribed by the Code of Criminal Procedure. Subsection (3) deems a Special Judge to be a Court of Session for certain purposes while sub-section (2) empowers the Special Judge to grant a tender of pardon. Sub-section (3) (A) makes the provision of section 350 and 349 of Criminal Procedure applicable to the Special Judge and for purposes of those provisions the Judges is deemed to be a Magistrate. Under Section (8) (A) the Special Judge is empowered to try cases summarily which are triable by the Magistrate. The Special Judge in the Criminal ¢ law (amendment) Act is thus for some purposes deemed to be a Session Judge and for some other purposes deemed to be a Magistrate and some powers exercised by the Magistrate are conferred on him. It is necessary to note that a Special Judge is empowered to take cognizance without the accused being committed and in trying the accused persons is required to follow the procedure for trial of warrant cases by a Magistrate. It is necessary to note that a Special Judge is empowered to take cognizance without the accused being committed and in trying the accused persons is required to follow the procedure for trial of warrant cases by a Magistrate. Under Section (8) (3) except as regards the provisions in Sub-Section (1) and (2) the pro vision of Code of Criminal Procedure are made applicable in so far as they are not inconsistent with the Criminal Law Amendment Act. This taken along with the fact that Criminal Law Amendment Act is an amending Act so far as the Criminal Procedure Code and Indian Penal Code are concerned, the Provision of Cr. P. C. should be considered to be in force unless there are certain provisions in the Criminal Law Amendment Act which are inconsistent with the provisions of the Criminal procedure code." 30. Thus regarding the applicability of other provisions of Cr. P. C., which include the provisions, contained in Section 497-A, their Lordships have accepted the position that these provisions can be applied by the Special Judges. Special Judge, therefore, is empowered to apply provisions of Cr. P. C., which are not inconsistent with the Criminal Law (Amendment) Act 1958 under section 8(3). There is no reason why he cannot exercise the jurisdiction under section 497-A when it stands explicitly stated in Section 8(3) of the Amendment Act, 1958 that for the purposes of said provisions of Cr. P. C. he shall be deemed to be a Court of Session, there being no inconsistency between Section 497 and the provisions of Amendment Act, 1958.1 am fortified in my view by the Full Bench judgment of Patna High Court, 1993 Cr. L. J. 2436. In that case their lordships were considering the identical question as to whether a Special Judge under Prevention of Corruption Act is entitled to exercise power conferred on a Sessions Judge by Section 438 Cr. P. C. (Sec. 438 of the Central Cr. P. C. corresponds to Section 497-A of J&K Cr. P. C.). 31. Their Lordships after taking note of Section 5 P.C. Act of 1988 (corresponding to S.8 of Criminal law Amendment Act) and the case law, including the above quoted judgment of the Supreme Court, AIR 1979 SC 1255 (relied upon by Mr. P. C. corresponds to Section 497-A of J&K Cr. P. C.). 31. Their Lordships after taking note of Section 5 P.C. Act of 1988 (corresponding to S.8 of Criminal law Amendment Act) and the case law, including the above quoted judgment of the Supreme Court, AIR 1979 SC 1255 (relied upon by Mr. J. P. Singh learned counsel for the petitioners) have observed:- "If a person appearing on behalf of a private complainant in proceedings before a Special Judge is given the status of a public prosecutor though he may not be qualified according to the Cr. P. C. I do not find any reason as to why a Special Judge cannot exercise the powers of Session Judge as provided under the Cr. P. C. which includes the power to entertain a application for anticipatory bail. A learned Judge of this court in Cr. Mis has expressed the same view. No. 1108 of 1988 (R)." And the Full Bench finally concluded: "Upon review of the provisions of the relevant law, in my opinion, the inevitable inference would be that the Special Judge is entitled to exercise all the powers of a Sessions Judge as provided under the Cr. P. C. in relation to the proceeding under the P.C. Act of 1988 so far they are not inconsistent with the provisions of this Act. Consequently, it has to be held that the Special Judge under the P.C. Act of 1988 has got exclusive power to entertain an application for anticipatory bail or regular bail made by an accused on the allegation of having committed any offence under the P.C. Act of 1988." A Division Bench of Calcutta High Court in Pijush Kanti Dey Vs. State, 1985(2) Crimes 724 has also considered the question as to whether the Court of Session and Special Court constituted under Essential Commodities Act 1955 have concurrent jurisdiction to grant anticipatory bail u/s 438 Cr. P. C. to a person apprehending arrest on an accusation of having committed an offence under the Act, the Division Bench has held as follows:- "The Court has no power to grant anticipatory bail to a person accused of or suspected of the commission of offence under Commodities Act of 1955. P. C. to a person apprehending arrest on an accusation of having committed an offence under the Act, the Division Bench has held as follows:- "The Court has no power to grant anticipatory bail to a person accused of or suspected of the commission of offence under Commodities Act of 1955. Such power however may be exercised by a Special Court constituted under the Act in respect of such offence keeping in view the proviso to clause (d) of S. 12-AA of the Act." 32. For the reasons stated above, I therefore, conclude and hold: (i) That a person whose application for bail filed u/s 497-A, Cr. P. C. before a Session Judge has been rejected, can maintain a fresh application before the High Court u/s 497-A for claiming anticipatory bail. (ii) that the Court of Special Judge Anti-corruption is to be deemed to be a Court of Session for the purposes of Sect. 497-A Cr. P. C. and; (iii) The Court of Special Judge Anti-Corruption has the exclusive jurisdiction to grant anticipatory bail or regular bail to a person accused of the offence u/s 161, 165,165-A, RpC or sub-Sect. (2) of Sec.5 of P.C. Act and offences of conspiracy to commit or attempt to commit or any abetment of any of such offences. 33. Now having answered the questions of law, I proceed to examine the question as to whether the petitioners are entitled to anticipatory bail. 34. Without referring to the facts involved, so as to see whether the offences are made out against the accused prima facie or not, lest it may prejudice the parties during the trial, I would simply say that the petitioners-accused are entitled to grant of anticipatory bail for the reason that they are government officers, they have roots in the society, there is no likelihood of their absconding, the allegations of the prosecution case concern about their official acts, without there being any direct evidence of passing of the bribe, no case for custodial interrogation of the accused appears to have been made out, therefore, I direct that in the event of the arrest of accused-petitioners they shall be released on furnishing bail bonds to the tune of Rs. 25000/- each and personal bonds of the like amount, to the satisfaction of the detaining officer. 25000/- each and personal bonds of the like amount, to the satisfaction of the detaining officer. They shall, however, not directly or indirectly tamper with the prosecution evidence and they shall also participate in the investigation of the case and for that purpose make themselves available to the investigating authority, as and when required.