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Reliance has also been placed by Mr. Jethmalani on State of Tamil Nadu v. V. Krishnnaswami Naidu & Anr. [(1979) 3 SCR 928]. The passage relied upon by the learned counsel reads thus:

"It may be noted that the Special Judge is not a Sessions Judge, Additional Sessions Judge or an Assistant 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 Additional Sessions Judge or an Assistant Sessions Judge. The Special Judge is empowered to take cognizances 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 trial of warrant cases by Magistrates. The Special Judge is deemed to be a Court of Sessions 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 sub- sections (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 provisions 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 Section 339 and 339(a) of the Code of Criminal Procedure, 1898. This sub-section 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 proceedings before a Special Judge and for the purposes 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 for which he is liable to be tried by a Court to which this Court 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 section 262 to 265 of the Criminal Procedure Code is made applicable so far as they may apply."

Let us first examine the Fernandes's case. At this stage we may note some of the significant departure in the relevant provisions of old Code and the Code. Under the old Code (Section 338), after commitment, the court to which commitment is made could either tender pardon itself or order the committing Magistrate or the District Magistrate to so do. Now under Section 307, there is no power to so order the committing Magistrate. In the old Code, the Court of Session and that of the Magistrate had concurrent jurisdiction to grant pardon seems evident. In State of U.P. v. Kailash Nath Agarwal & Ors. [(1973) 1 SCC 751] the question for consideration was whether a District Magistrate is competent under Section 337 of the old Code to exercise power of pardon even after commitment and the conferment of the power to grant pardon on the Special Judge under Section 338. It was held that Section 338 does not deprive the District Magistrate of his power to grant pardon under Section 337 of the old Code. This Court said that even after commitment, a District Magistrate will have power to grant pardon, though it was necessary to bear in mind that the authorities under Sections 337 and 338 have to exercise jurisdiction in harmony in order to further the interest of justice and avoid conflicting orders being passed. This decision also takes note of other provision of the old Code which provide for exercise of conferment of concurrent powers and when the Legislature intended that the two authorities should not exercise concurrent jurisdiction on an identical matter, it used appropriate language to that effect. Now, the facts in brief of Fernandes's case are that grant of pardon to one Jagasia was opposed by his co-accused, the objection besides others being that powers of the Special Judge in tendering conditional pardon under Section 8(2) of 1952 Act, are limited to application by the prosecution in that behalf and the Special Judge cannot act suo motu without being invited by the prosecution to consider the tender of pardon to one of the accused before him. This Court upholding the order of the High Court dismissing the revision petition of the co-accused challenging the order granting pardon to Jagasia, noticed that before the High Court the prosecution had supported grant of pardon to him. That decision brings out the width of power under Section 8(2) of the 1952 Act and the width of the power to direct tender of pardon under Section 338 of the 1898 Code. It was held that the fiction in latter part of Section 8(2) providing that pardon sought under law for the purposes of Sections 339 and 339A of the 1898 Code be deemed to have been tendered under Section 338 of that Code is only that the tender of pardon is deemed to be one under Section 338 for purposes of applying Sections 339 and 339A. The whole of Section 338 is not applicable. The power to order the committing Magistrate or the District Magistrate to tender pardon is not available to the Special Judge because the fiction does not cover that part of Section 338. After noticing the distinction between the powers granted under the Code and the powers under the 1952 Act to tender pardon, it was held that the conditions for exercise of the power by the Courts under the 1898 Code are not applicable when the Special Judge exercises that power whose powers are not circumscribed by any condition except one, namely, that action must be with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence. The powers under the 1952 Act were held to be enabling and wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in or privy to an offence even when such a person is not arraigned before the Special Court. There was distinction in exercise of the power under the two provisions which were under consideration before the Special Court which is evident from the following :

Similarly, the observations made in the earlier reproduced passage in Krishnnaswami Naidu's case have also to be appreciated in the context of what we have said above regarding the conferment of wider power than the Code under the 1952 Act. It is in this context that the observations were made in that case to the effect that "This sub-section was enacted because the 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 sub-section is introduced to enable the Special Judge to tender a pardon". These observations do not mean that if same powers as are in Code are intended to be conferred, that cannot be achieved by sub-section (2) of Section 9 of the Act. Legislature inserted Section 8(2) since wider powers were to be conferred on the Special Judge under 1952 Act.

"It is, however, necessary to decide with precision and accuracy the position of a Special Judge and the Court over which he presides styled as the Court of a Special Judge because unending confusions have arisen by either assimilating him with a Magistrate or with a Sessions Court. The Prevention of Corruption Act, 1947 was enacted for more effective prevention of bribery and corruption. Years rolled by and experience gathered showed that unless a special forum for the trial of such offences as enumerated in the 1947 Act is created, the object underlying the 1947 Act would remain a distant dream. This led to the enactment of the Criminal Law accompanying the Bill refers to the recommendations of the Committee chaired by Dr. Bakshi Tek Chand appointed to review the working of the Special Police Establishment and to make recommendations for improvement of laws relating to bribery and corruption. To take the cases of corruption out of the maze of cases handled by Magistrates, it was decided to set up special courts. Section 6 conferred power on the State Government to appoint as many Special Judges as may be necessary with power to try the offences set out in clauses (a) and (b). Now if at this state a reference is made to Section 6 of the Code of Criminal Procedure which provides for constitution of criminal courts, it would become clear that a new court with a new designation was being set up and that it has to be under the administrative and judicial superintendence of the High Court. As already pointed out, there were four types of criminal courts functioning under the High Court. To this list was added the court of a Special Judge. Now when a new court which is indisputably a criminal court because it was not even whispered that the Court of Special Judge is not a criminal court, is set up, to make it effective and functionally oriented, it becomes necessary to prescribe its powers, procedure, status and all ancillary provisions. While setting up a court of a Special Judge keeping in view the fact that the high dignitaries in public life are likely to be tried by such a court, the qualification prescribed was that the person to be appointed as a Special Judge has to be either a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge. These three dignitaries are above the level of a Magistrate. After prescribing the qualification, the Legislature proceeded to confer power upon a Special Judge to take cognizance of offences for the trial of which a Special court with exclusive jurisdiction was being set up. If a Special Judge has to take cognizance of offences, ipso facto the procedure for trial of such offences has to be prescribed. Now the Code prescribes different procedures for trial of cases by different courts. Procedure for trial of a case before a Court of Sessions is set out in Chapter XVIII; trial of warrant cases by Magistrates is set out in Chapter XIX and the provisions therein included catered to both the types of cases coming before the Magistrate, namely, upon police report or otherwise than on a police report. Chapter XX prescribes the procedure for trial of summons cases by Magistrates and Chapter XXI prescribes the procedure for summary trial. Now that a new criminal court was being set up, the Legislature took the first step of providing its comparative position in the hierarchy of courts under Section 6 Cr.P.C. by bringing it on level more or less comparable to the Court of Sessions, but in order to avoid any confusion arising out of comparison by level, it was made explicit in Section 8(1) itself that it is not a Court of Sessions because it can take cognizance of offences without commitment as contemplated by Section 193 Cr.P.C. Undoubtedly in Section 8(3) it was clearly laid down that subject to the provisions of sub-sections (1) and (2) of Section 8, the Court of Special Judge shall be deemed to be a Court of Session trying cases without jury or without the aid of assessors. In contra-distinction to the Sessions Court this new court was to be a court of original jurisdiction. The Legislature then proceeded to specify which out of the various procedures set out in the Code, this new court shall follow for trial of offences before it. Section 8(1) specifically says that a Special Judge in trial of offences before him shall follow the procedure prescribed in the Code of Criminal Procedure for trial of warrant cases by Magistrates. The provisions for trial of warrant cases by the Magistrate are to be found in Chapter XXI of 1898 Code. A glance through the provisions will show that the provisions therein included catered to both the situations, namely, trial of a case initiated upon police report (Sec.251A) and trial of cases instituted otherwise than on police report (Sec. 252 to 257). If a Special Judge is enjoined with a duty to try cases according to the procedure prescribed in foregoing provisions he will have to first decide whether the case was instituted upon a police report or otherwise than on police report and follow the procedure in the relevant group of sections. Each of the Secs. 251A to 257 of 1898 Code which are in pari materia with Secs. 238 to 250 of 1973 Code refers to what the Magistrate should do. Does the Special Judge, therefore, become a Magistrate? This is the fallacy of the whole approach. In fact, in order to give full effect to Section 8(1), the only thing to do is to read Special Judge in Sections 238 to 250 wherever the expression `Magistrate' occurs. This is what is called legislation by incorporation. Similarly, where the question of taking cognizance arises, it is futile to go in search of the fact whether for purposes of Section 190 which conferred power on the Magistrate to take cognizance of the offence, Special Judge is a Magistrate? What is to be done is that one has to read the expression `Special Judge' in place of Magistrate, and the whole thing becomes crystal clear. The Legislature wherever it found the grey area clarified it by making specific provision such as the one in sub-section (2) of Section 8 and to leave no one in doubt further provided in sub-section (3) that all the provisions of the Code of Criminal Procedure shall so far as they are not inconsistent with the Act apply to the proceedings before a Special Judge. At the time when the 1952 Act was enacted what was in operation was the Code of Criminal Procedure, 1898. It did not envisage any Court of a Special Judge and the Legislature never wanted to draw up an exhaustive Code of Procedure for this new criminal court which was being set up. Therefore, it conferred power (taking cognizance of offences), prescribed procedure (trial of warrant cases by a Magistrate), indicated authority to tender pardon (Section 338) and then after declaring its status as comparable to a Court of Session proceeded to prescribe that all provisions of the Code of Criminal Procedure will apply in so far as they are not inconsistent with the provisions of the 1952 Act. The net outcome of this position is that a new court of original jurisdiction was set up and whenever a question arose as to what are its powers in respect of specific questions brought before it as court of original criminal jurisdiction, it had to refer to the Code of Criminal Procedure undaunted by any designation claptrap. When taking cognizance, a Court of Special Judge enjoyed the powers under Section 190. When trying cases, it is obligatory to follow the procedure for trial of warrant cases by a Magistrate though as and by way of status it was equated with a Court of Session. The entire argument inviting us to specifically decide whether a court of a Special Judge for a certain purpose is a Court of Magistrate or a Court of Session revolves round a mistaken belief that a Special Judge has to be one or the other, and must fit in the slot of a Magistrate or a Court of Session. Such an approach would strangulate the functioning of the court and must be eschewed. Shorn of all embellishment, the court of a Special Judge is a court of original criminal jurisdiction. As a court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the court. Except those specifically conferred and specifically denied, it has to function as a court of original criminal jurisdiction not being hide bound by the terminological status description of Magistrate or a Court of Session. Under the Code, it will enjoy all powers which a court of original criminal jurisdiction enjoys save and except the ones specifically denied."