Patna High Court
State Of Bihar vs Braj Nandan Raut on 13 March, 2001
Equivalent citations: 2001CRILJ3678
ORDER Narayan Roy, J.
1. Heard counsel for the parties.
2. By this application under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for quashing the order dated 30th October, 2000 passed by the Vacation/Sessions Judge, Gaya in A.B.P. No. 581/2000 arising out of Magadh University P. S. Case No. 64/2000.
3. Learned counsel appearing on behalf of the petitioner submitted that the learned Vacation/Sessions Judge, Gaya had absolutely no jurisdiction to entertain and dispose of Anticipatory Bail Application No. 581/2000 as the case was registered under various sections of the Indian Penal Code including Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act"). Learned counsel further submitted that the Vacation/Sessions Judge, Gaya was not the Special Judge within the meaning of Section 4 of the Act and, therefore, the anticipatory bail application was only maintainable before the Special Judge, South Bihar, Patna who was notified as Special Judge under Section 3 of the Act. Learned counsel further submitted that in course of hearing of the anticipatory bail application aforesaid before the Sessions Judge, it was pointed out that the case was registered under various sections of the Indian Penal Code including Section 13(2) of the Act, and the learned Vacation/Sessions Judge even noticing this fact in the order impugned entertained the same and granted bail to the opposite party who was one of the accused in Magadh University P.S. Case No. 64/2000.
4. It is further submitted by learned counsel for the petitioner that prior to passing of the order impugned, the very Vacation/Sessions Judge, Gaya had dealt with anticipatory bail application of another accused and vide order dated 27-10-2000 the same was entertained and rejected even though it was pointed out that this Court had no Jurisdiction to entertain such applications as the matter arises out of the provisions of the P. C. Act, 1988. It is, therefore, submitted by the learned counsel for the petitioner that the Vacation/Sessions Judge had absolutely no jurisdiction to pass the order impugned and the same is liable to be quashed.
5. Learned counsel appearing on behalf of the opposite party, however, submitted that anticipatorybail has been granted to the opposite party by competent Court of jurisdiction and, therefore, it is not liable to be cancelled. Learned counsel further submitted that no ground has been made out by the petitioner for cancellation of bail as the opposite party has not misused the privilege of bail and, therefore, this application is liable to be dismissed.
6. I have perused the order impugned and also order dated 27-10-2000 as contained in Annexure 2. It would be partinent to mention here that this Court while enter-taining a public interest litigation in C.W.J.C. No. 7146 of 1998 had issued directions by order dated 26-9-2000 to institute criminal cases against the persons involved in the subject matter of the writ application and pursuant to the direction of this Court, Deputy Superintendent of Police, C.I.D., lodged Magadh University P. S. Case No. 64/ 2000 on 17-10-2000 against Vice-Chancellors, Principals and other officials of the Magadh University including Smt. Shikha Gupta and Mr. Anurag Gupta alleging therein that the accused persons conspired together and by fraudulent means granted M. A. (History) Degree to Smt. Shikha Gupta and at the same time, Smt. Shikha Gupta was appointed as Part-time Lecturer, It would also be pertinent to mention here that this Court after due enquiry held by Mr. Animdh Prasad Chaudhary, retired District Judge, directed for lodging of the first information report.
7. The question now arises for consideration as to whether the Vacation/Sessions Judge, Gaya was the Court of competent jurisdiction to entertain applications for grant of bail in relation to the proceedings under the provisions of the Prevention of Corruption Act, 1988. Section 3 of the Act is the enabling provision for issuance of notification by the Central Government or the State Government for appointment of as many Special Judges as may be necessaxy to try offences under the Act.
8. Section 3 of the Act reads as follows:--
Power to appoint special Judges -- (1) The Central Government or the State Government may, by notification in the official Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely:
(a) any offence punishable under this Act and (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in Clause (a).
(2) A person shall not be qualified for appointment as a special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973 (2 of 1974).
9. Section 4 confers power upon the Special Judges so appointed under Subsection (1) of Section 3 of the Act to try the offences specified under Sub-section (1) of Section 3 of the Act.
10. Section 4 of the Act reads as follows:--
Cases triable by special Judges -- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) 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 Judges only.
(2) Every offence specified in Sub-section (1) of Section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or where there are more special Judges than one for such area, by such one of them as may be specified in . this behalf by the Central Government. (3) When trying any case, a special Judge may also try any offence, other than an offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1973), be charged at the same trial.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis.
11. Courts of Special Judges are creation of the statute as referred to above and they are vested with powers to try the offences arising out of the Act, 1988. From the materials on record and on perusal of the order impugned, it appears that admittedly the Vacation/Sessions Judge, Gaya was not the Special Judge as notified under Sub-section (1) of Section 3 of the Act.
12. A Full Bench of this Court in Criminal Reference No. 1 of 1987 as reported in 1992 BBCJ 69, as per majority view, held that a Special Judge is entitled to exercise all the powers of a Sessions Judge as provided under the Code of Criminal Procedure in relation to proceedings under the P.C. Act of 1988 and has got exclusive power to entertain an appliction for anticipatory bail or regular bail made by an accused having committed an offence under the Prevention of Corruption Act. At the same time, it has also been held that it would not be possible to hold that the Special Judge does not come in picture during course of police investigation and prior to taking of the cognizance under the Act and the Special Judge is entitled to exercise all the powers conferred on a Magistrate under Chapter XII as he has got the exclusive jurisdiction to take cognizance and try the offence under the P.C. Act.
13. From the order impugned, ex facie, it appears that the learned Vacation/Sessions Judge in opening paragraph has stated:--
Bail petition under Section. 438, Cr. P.C. filed on behalf of the petitioner Braj Nandan Rawat, presently posted as Vice-Chancellor, Magadh University, Bodhgaya, who is an accused Under Section 420, 467, 468, 471, 474, 109, 116, 119, 120 (B), 201, IPC, Under Section 13(2) of Prevention of Corruption Act and also Under Section 10 of the Bihar Conduct of Examination Act in connection with Magadh University P.S. Case No. 64/2000 is put up. Heard Sri S. D. N. Singh, learned advocate on behalf of the petitioner and the learned P.B. for the State.
14. From the order as contained in Annexure-2, it appears that the learned Vacation/Sessions Judge was aware of the fact that the case arose out of the provisions of the P.C. Act of 1988 and even though it was pointed out by the learned Public Prosecutor that the case was registered under the Prevention of Corruption Act and the same was exclusively triable by the Special Court, the learned Vacation/Sessions Judge entertained the anticipatory bail application and ultimately rejected the same on merit. Likewise, while disposing of type anticipatory bail application of the opposite party by the impugned order, the learned Vacation/ Sessions Judge knowing full well that the matter arises out of the provisions of the P.C. Act of 1988, granted anticipatory bail to the opposite party on merit.
15. Vide order as contained in Annexure-2, the prayer for anticipatory bail was rejected on 27-10-2000 by the learned Vacation/Sessions Judge, Gaya whereas on 30-10-2000 granted anticipatory bail to the opposite party similarly situated with the accused persons whose bail was earlier rejected.
16. From the facts discussed above, it is manifestly clear that the learned Vacation/ Sessions Judge, Gaya was not vested with the power of Special Judge, as required under Section 3 of the Act and, therefore, it was not the Court of the Special Judge under the meaning of Section 4 of the Act and therefore, it necessarily follows that the learned Vacation/Sessions Judge, Gaya had no jurisdiction to dispose of the anticipatory bail applications so filed by the accused persons. The question is answered accordingly. The order impugned, in that view of the matter, must be held to be wholly without jurisdiction as the power under Section 438 of the Code of Criminal Procedure in the given case was exercised by the Court concerned admittedly who had no power to do so as the case was relating to the offences under the P.C. Act of 1988.
17. The submission made on behalf of the opposite party is wholly misconceived as it is not a case for cancellation of bail granted to the opposite party by a competent Court of jurisdiction rather it is a case where the power has been illegally exercised by a Court having no jurisdiction under the Act to entertain anticipatory bail applications relating to the offences under the P.C. Act of 1988 and thus it is a case of complete want of jurisdiction.
18. In the result, this application is allowed and the order impugned dated 30-10-2000 is quashed.