I.A. Ansari, J.

(1) The present three applications have been made, under Section 439 Cr. PC. , seeking bail by the accused-petitioners, namely, 1. Redaul Hussain Khan, 2. Ahshringdaw Warisa @ Partha Warisa and 3. Md. Sameer Ahmed, in connection with National Investigation Agency Case No. 01 of 2009 (Corresponding to Basistha Police Station Case No. 170 of 2009) under Sections 120 (B)/121/121 (A) IPC read with Section 25 (1b) (A) of Arms Act and Sections 17/18/19 of the Unlawful Activities (Prevention) Act.

(2) By this common order, I propose to dispose of all the three Bail Applications inasmuch as all the three Bail Applications, involving identical questions of law, have been, on the request made by the learned counsel for the parties, heard together.

(3) The facts, giving rise to these Bail Applications, may, in brief, be set out as under:

(i) Basistha P. S. Case No. 170/2009, under Section 120b/121/121 (A) IPC read with Section 25 (1b) (A) Arms Act, was registered against two accused persons, namely, Phojendra Hojai and Babulal Kemprai, on the ground that, on 01. 04. 2009, at about 4-00 p. m. , when vehicle Nos. AS-01-AH-1422 and AS-01-1-0609 were intercepted at 14th Mile G. S. Road, Guwahati, and searched, both the accused, suspected to be cadres and linkmen of a banned organization, namely, DHD (J), were found in the vehicles, wherefrom a sum of rupees one crore, in cash, and two pistols were recovered, the money being meant for purchase of arms and ammunitions for the said banned organization. The accused were accordingly taken into custody and investigation was started by the Assam Police. On being produced before the Chief Judicial Magistrate, Kamrup, Guwahati, the two accused aforementioned were remanded to police custody.

(ii) On 18. 05. 2009, both the accused were granted bail by the High Court, in exercise of its powers under Section 439 Cr. PC. , in Bail Application No. 1637/2009.

(iii) On 31. 05. 2009, Mohit Hojai, the then Chief Executive Member, N. C. Hills Autonomous Council, and R. H. Khan, Deputy Director, Social Welfare Department, N. C. Hills, along with the Liaison Officer, N. C. Hills Autonomous Council, were arrested by Assam Police and they were produced before the Chief Judicial Magistrate, Kamrup, and the Court remanded them to police custody.

(iv) On 01. 06. 2009, the Central Government, in exercise of its power under Section 6 (5), read with Section 8 of the National Investigation Agency Act, 2008 (in short, 'the NIA Act'), directed investigation of the case by the National Investigation Agency (in short, 'the Agency'). In terms of the directions, so issued by the Central Government, the Agency registered a case under the NIA Act, the Case being NIA Case No. 1/2009. Before, however, registration of the case aforementioned by the Agency, three more persons, namely, 1. Mihir Barman @ Jewel Garlossa @ Debojit Sinha, 2. Ahsringdaw Warrisha @ Partha Warisha, and 3. Sameer Ahmed, were arrested by the Assam Police at Bangalore, in connection with Basistha Police Station case aforementioned. On 05. 06. 2009, the Agency moved the Chief Judicial Magistrate, Kamrup, and filed FIR in the NIA Case No. 1/2009 aforementioned. On 06. 06. 2009, the persons were, on being produced before the Chief Judicial Magistrate, Kamrup, remanded to police custody. In terms of the order, passed by the Chief Judicial Magistrate, on 06. 06. 2009, Basistha P. S. Case No. 170/2009 aforementioned was tagged with the NIA Case No. 1/2009 and, on the basis of the application made by the Agency, the Court allowed accused Mohit Hojai and R. H. Khan to be taken into custody by the Agency for a period of 10 days and the three accused, namely, 1. Mihir Barman @ Jewel Garlossa @ Debojit Sinha, 2. Ahsringdaw Warrisha @ Partha Warisha, and 3. Sameer Ahmed, were remanded, for a period of 14 days, to the custody of the Agency.

(v) On 11. 06. 2009, on the prayer of the Agency, the Court of the Chief Judicial Magistrate, Kamrup, added Section 17/18/19 of the Unlawful Activities (Prevention) Act, 1967, to the NIA Case No. 1/2009 aforementioned and, on the prayer of the Agency, the Court of the Chief Judicial Magistrate, Kamrup, remanded the accused to judicial custody, in exercise of its power under Section 167 of the Crpc, on the ground that no court has so far been constituted under the NIA Act.

(vi) These three Bail Applications have been filed, seeking bail of the accused, by invoking the High Court's jurisdiction under Section 439 Crpc. None of the accused-petitioners applied for bail to the Chief Judicial Magistrate, Kamrup; rather, they have applied for bail, directly, to this Court under Section 439 Cr. PC. Are these bail applications maintainable?

(4) At the root of the controversy, in these Bail Applications, therefore, lies the question as to whether a High Court can invoke provisions of section 439 cr. pc. for the purpose of granting bail to a person, who is in custody on the allegation of having committed an offence under the NIA Act, or for cancelling bail already granted to such an accused by a Special Court, constituted under the NIA Act, or by some other Court of competent jurisdiction, which is subordinate to the High Court. This question, in turn, brings one to a more important question and the question is as to whether a person, arrested on the ground of having committed an offence under the NIA Act, can be produced before, and remanded by, a Judicial Magistrate to police or judicial custody in exercise of powers under Section 167 (2) Cr. PC. and/or whether such an accused person is required to be produced, for the purpose of obtaining his remand to police or judicial custody, in the Court of Session until the time a Special Court, in terms of the provisions of the NIA Act, is constituted by the Government.

(5) Another equally important question is: Whether a Court of Session or a Special Court, constituted under the NIA Act, can invoke provisions of section 439 cr. pc. ? Yet another question, which arises for determination, in the present set of bail applications, is: Whether, against an order cancelling or refusing bail by the Court of Session or the Special Court, constituted under the NIA Act, as the case may be, an appeal, in terms of the provisions of Section 21 (4) of the NIA Act, will lie to the High Court or, notwithstanding the fact that the NIA Act has come into force, the High Court still enjoys the power, under Section 439 Cr. PC. , to allow an application for bail, when any Court of competent jurisdiction, subordinate to the High Court, has refused bail to a person, who is in custody on allegation of having committed an offence under the NIA Act, or cancel bail, where Court of competent jurisdiction, subordinate to the High Court, has granted bail to such an accused ? These are, broadly speaking, the questions, which have arisen for determination in the present set of bail applications.

(6) I have heard Mr. JM Choudhury, learned Senior counsel, for the petitioner in Bail Application No. 2605/2009, Mr. BK Mahajan, learned counsel, for the petitioner in Bail Application No. 2787/2009 and Mr. A Saikia, learned counsel, for the petitioner in Bail Application No. 2639/2009. I have also heard Mr. DK Das, learned Senior counsel, appearing on behalf of the National Investigation Agency, and Mr. Z. Kamar, learned Public Prosecutor, Assam.

(7) At the time of hearing, this Court, in the present set of bail applications, raised a query as to whether an application, under Section 439 Cr. P. C. , lies in respect of commission of an offence, which is punishable by the NIA Act, and is being investigated by the National Investigation Agency. Having obtained instructions and the views of the National Investigating Agency, Mr. DK Das, learned Senior counsel, appearing on behalf of the National Investigation Agency, has placed, on the record, the views of the National Investigating Agency on the basis of the opinion rendered by the learned Additional Solicitor General of India. For the sake of clarity as to what the stand of the National Investigating Agency is, the submissions of the National Investigating Agency, as placed on record, are reproduced hereinbelow:

"the accused petitioner in Bail Application No. 2605 of 2009 before the Hon'ble High Court of Gauhati has preferred an application under Section 439 Criminal Procedure Code, 1973, seeking bail in connection with National Investigation Agency Police Station Case No. 1/2009 under Sections 129 (B)/121/121 (A) of Indian Penal Code read with Section 25 (1-B) (A) of the Arms Act and Sections 17, 18, 19 of the Unlawful Activities (Prevention) Act.

The Hon'ble High Court while hearing the bail application on 14. 07. 2009, has raised a question as to whether it would be possible for the High Court to invoke provisions of Section 439 Criminal Procedure Code, 1973, to release person on bail or cancel bail granted by a Special Court in the light of the provisions of Section 21 of the National Investigation Agency Act, 2008. In the light of the facts and circumstances of the present case, Section 21 of the National Investigation Agency Act, 2008 will not come in to operation as the Special Court has not been constituted and as such there is no appellable judgment, sentence or order to invoke Section 21 of the National Investigation Agency Act, 2008. In the light of the fact that Special Courts have not been established under National Investigation Agency Act, 2008, the general jurisdiction of the ordinary criminal courts cannot be said to have been excluded. Therefore, Special powers of the Hon'ble High Court regarding bail provided under Section 439 Criminal Procedure Code, 1973, can be invoked to consider the bail application filed by the accused/petitioner.

This view is fortified by the law laid down by the Hon'ble Supreme Court. The Hon'ble Supreme Court in Bhim Sen Vs. State of UP AIR 1955 SC 435, has laid down the principle that, "exclusion of jurisdiction of a Court of general jurisdiction can be brought about by the setting up of a Court of limited jurisdiction in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative. Where there is no adequate machinery for the exercise of this jurisdiction in a specific case, it cannot be held that the exercise of jurisdiction in respect of such a case by the Court of general jurisdiction is illegal. "This principle has been reiterated by the Hon'ble Supreme Court in Attiq-ur-Rehman Vs. Municipal Corporation of Delhi (1996) 3 SCC 37. The Hon'ble Supreme Court has held, "the jurisdiction of the criminal courts under Section 4 Cr. PC. is comprehensive and exhaustive. To the extent that no valid machinery is set up under any other law for trial of any particular case, the jurisdiction of the ordinary criminal courts cannot be said to have been excluded. Exclusion of jurisdiction of a court of general jurisdiction can be brought about only by setting up of a court of limited jurisdiction in respect of the limited field provided that the vesting and the exercise of that limited jurisdiction is clear and operative. "

It is well settled that penal statutes have to be strictly construed. Personal liberty of an individual continues to be regulated by ordinary laws which will be the procedure established by law under Article 21 of the Constitution of India. The only recourse available to the accused/petitioner would be under Section 439 Criminal Procedure Code, 1973 or otherwise he will be without remedy and that such an interpretation should be avoided. "

(8) A bare reading of what has been reproduced above shows that according to the Central Government, since the Special Court, as envisaged by the NIA Act, has not yet been constituted, section 21 of the nia act will not come into operation and, in consequence thereof, no appealable judgment, sentence or order, as contemplated by Section 21, can be said to have arisen as yet and that it is the ordinary jurisdiction of the High Court, under Section 439 Cr. P. C. , which will continue to govern bail applications and that the powers, contained under Section 439 Cr. P. C. , can be invoked, for the purpose of seeking bail, by a person, who is in custody on accusation of having committed an offence under the NIA Act, and/or for cancelling bail granted to such an accused by a court of competent jurisdiction, subordinate to the High Court. Support for the stand, so taken, is sought to be derived from the decisions in Bhim Sen Vs. State of UP reported in AIR 1955 SC 435 and Attiqur Rehman Vs. Municipal Corporation of Delhi, reported in (1996) 3 SCC 37.

(9) Referring to, and relying upon, what has been quoted above, Mr. Das submits, rather reiterates, that since a Special Court, as envisaged by the NIA Act, has not yet been constituted and until the time the Special Court is constituted, the Magistrates, under the ordinary law, as envisaged by the Code of Criminal Procedure, particularly, Section 167 (2) thereof, can remand an accused to police or judicial custody and that trial in respect of offences, committed under the NIA Act, would be held by the Court of Session until Special Court is constituted. Mr. Das further submits that the Magistrate can consider application for bail in exercise of his powers under Section 437 Cr. P. C. , if a person, accused of an offence under the NIA Act, applies for bail. Mr. Das contends that the power to consider a bail application, in such a case, will also remain vested, until the time the Special Court is constituted, in the Court of Session as provided in Section 439 Cr. P. C. It will also remain open, according to Mr. Das, for such an accused to invoke provisions of Section 439 Cr. P. C. for seeking bail from the High Court without making any application for bail to the Court of a Magistrate or to the Court of Session or when his application for bail is rejected by the Magistrate or the Court of Session. Even the Government, submits Mr. Das, can seek, in exercise of the High Court's power under Section 439 Cr. P. C. , cancellation of bail, which may have been granted to such an accused by a Magistrate or a Court of Session.

(10) Mr. Das also maintains that since no Special Court has yet been constituted, the National Investigation Agency, constituted under section 3 of the nia act, can seek remand of a person, accused of commission of an offence under the NIA Act, from the Chief Judicial Magistrate or any other Judicial Magistrate, as contemplated, in the Code of Criminal Procedure, in respect of an ordinary crime and, against an order passed by such a Magistrate, an application, under Section 439 Cr. P. C. , can be maintained either for obtaining bail, where bail has been refused, or for cancellation of bail, where bail has been granted by the Magistrate. To a pointed query made by this Court as to what would happen to the powers of the High Court under Section 439 Cr. P. C. if a Special Court is constituted, Mr. Das could not make any clear statement except saying that the jurisdiction of the High Court, under Section 439, would continue to govern the field, in question, even after the Special Court comes to be constituted. To the query raised by this Court, as to who will grant remand, in respect of judicial or police custody, when the Special Court is constituted, Mr. Das hesitatingly submits that the Court of competent jurisdiction is the Court of Chief Judicial Magistrate or any other Magistrate to whom a person, accused of an offence under the Act, is, on being taken into custody, forwarded in terms of Section 167 (2) Cr. P. C.

(11) Mr. JM Choudhury, learned Senior counsel, appearing on behalf of the petitioner, in Bail Application No. 2605/2009, maintains that irrespective of the fact as to whether a Special Court is or is not constituted under the NIA Act, the power of the High Court, under Section 439 Cr. P. C. , will continue to remain available to a person, who is taken into custody for commission of an offence under the NIA Act. When enquired by the Court as to what is the meaning, scope and effect of the provisions made in Sub-Section (4) of Section 21 of the NIA Act, which provide that notwithstanding anything contained in Sub-Section (3) of Section 378 of the Code, an appeal would lie to the High Court against an order of the Special Court granting or refusing bail, Mr. Choudhury submits that the reference made, in Sub-Section (4) of Section 21, to Section 378 (3) of the Cr. PC. , which relates to seeking of leave for appeal by a complainant, is an error, which appears to have crept in, while enacting Sub-Section (4) of Section 21 and that Sub-Section (4) of Section 21 will come into force only after a person, accused of an offence under the NIA Act, stands convicted and sentenced and, on his application for suspension of sentence being made, when he is either allowed to go on bail or bail is refused to him.

(12) Expressing his disagreement with the line of argument, advanced by Mr. Das and, substantially, adopted by Mr. Choudhury, Mr. BK Mahajan, learned counsel, appearing for the petitioner, in Bail Application No. 2787/2009, submits that when the NIA Act has been brought into force, as a whole, and the provisions, contained therein, have come into force, the submissions, made on behalf of the Central Government, that the Court of Session would continue to exercise its ordinary jurisdiction of considering bail applications under Section 439 Cr. P. C. , in respect of offences, under the NIA Act, so long as a Special Court is not constituted, is misconceived. Mr. Mahajan submits that when the NIA Act has come into force with all the provisions contained therein, the question of Section 21, (which relates to appeal), having not come into force, does not arise at all. Mr. Mahajan points out that Section 21 provides for appeal against any judgment, sentence or order provided that the order, to be appealed against, is not an interlocutory order. Since an order, contends Mr. Mahajan, granting or refusing bail is an interlocutory order, no appeal, under Section 21 (1), could have been maintained, but, in the light of the provisions contained in Section 21 (4), an appeal against an order, refusing bail or seeking cancellation of bail, can be entertained by the High Court. In other words, what Mr. Mahajan submits is that an order, granting or refusing bail under the NIA Act, is an interlocutory order and appeal would not have been, ordinarily, available, under Section 21 (1), against such an order, but by virtue of Section 21 (4), such an order has become appealable, for, Sub-Section (4) of Section 21 has engrafted an exception to Sub-Section (1) of Section 21 by providing that an appeal would lie to the High Court against an order passed by a Special Court, under the NIA Act, either granting, or refusing to grant, bail. Consequently, it has, now, become possible, for the High Court, reiterates Mr. Mahajan, to entertain an application for bail against an order refusing or granting bail. Mr. Mahajan hastens to clarify that though the present application (wherein Mr. Mahajan appears) has been made under Section 439 Cr. P. C. , the application has actually been made, as a matter of abundant caution, and the petitioner, in Bail Application No. 2787/2009, awaits decision of this Court on the question, raised in this Bail Application, for the purpose of determining as to whether the petitioner shall or shall not prefer an appeal under Section 21 (4) and, depending upon what views this Court expresses and what decision this Court pronounces, the petitioner would take further necessary steps. Mr. Mahajan, in no uncertain words, seeks to clarify by adding that if this Court decides that against an order, passed under the NIA Act, granting or refusing bail, an appeal, under Sub-Section (4) of Section 21, lies, the petitioner may have to, first, file an application, in the Court of Chief Judicial Magistrate, seeking bail and if such an application is rejected, the petitioner may have to prefer an appeal as indicated hereinbefore. Mr. Mahajan further hastens to submit that notwithstanding the fact that the accused, in the present cases, were produced before the Chief Judicial Magistrate and the Special Court has not yet been constituted, the power to remand the accused, in terms of Section 167 (2) Cr. P. C. , really lies not with the Chief Judicial Magistrate, but with the Court of Session, which, under the scheme of the NIA Act, is, according to Mr. Mahajan, would function as the Court of original criminal jurisdiction and would have the power not only of trial, but also of making orders of remand in respect of offence under the National Investigating Agency Act, 2008.

(13) As far as Mr. Z. Kamar, learned Public Prosecutor, Assam, is concerned, he has taken this Court extensively through various provisions of the National Investigation Agency Act, 2008, Prevention of Terrorism Act, 2002, and the Terrorist And Disruptive Activities (Prevention) Act, 1987, and submitted, relying upon, particularly, the decision in Usmanbhai Dawoodbhai Memon Vs. State of Gujarat, reported in (1988) 2 SCC 271, that the NIA Act has not taken away the powers of the High Court under Section 439 Cr. P. C. and one can, notwithstanding the provisions contained in the NIA Act, invoke the High Court's jurisdiction, under Section 439, seeking bail, where bail is not granted, or for cancelling bail, where bail has been granted by the Special Court or any other Court subordinate to the High Court.

(14) As the submissions, made on behalf of the parties to these proceedings, are completely irreconcilable with each other, this Court is required to undertake the exercise of analyzing the provisions of various laws, which govern the controversies raised in these bail applications. This exercise will, naturally, call for a cautious, patient and extensive examination of the relevant provisions of the Code of Criminal Procedure as well as the NIA Act.

(15) It may be pointed out, at the very outset, that while dealing with any penal provisions of any 'special law', one has to bear in mind the provisions of Sections 4 and 5 of the Code of Criminal Procedure (hereinafter as 'the Code'). Sections 4 and 5 are, therefore, reproduced hereinbelow:

"4. Trial of offences under the Indian Penal Code and other laws:

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and, otherwise, dealt with according to the provisions hereinafter contained. (2) All offences, under any other law, shall be investigated, inquired into, tried, and, otherwise, dealt with according to the same provisions, but subject to any enactment, for the time being in force, regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

5. Saving. Nothing contained in this Code shall in the absence of a specific provision to the contrary, affect any special or local law any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. "

(16) A careful reading of Section 4 shows that this Section stands divided into two parts. While Sub-Section (1) of Section 4 lays down that all offences, under the Indian Penal Code, shall be investigated, inquired into, tried, and, otherwise, dealt with according to the provisions contained in the Code, Sub-Section (2) of Section 4 makes it clear that all offences, under any 'other' law, shall be investigated, inquired into, tried, and, otherwise, dealt with according to the same provisions, that is, the provisions contained in the Code, subject to any enactment (for the time being in force) 'regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences'

(17) Coupled with the above, what becomes clear is that to the extent a 'special law' modifies the procedure for investigation, enquiry, trial or dealing, otherwise, with offences created under the 'special law', it is the modified procedure, which would be applicable. In effect, therefore, to the extent that the 'special law' intrude into the field delineated by the Code for investigation, enquiry or trial, the provisions, contained in the Code, with regard to investigation, enquiry, trial or, otherwise, dealing with offences, would recede. Consequently, an offence, punishable by a 'special law', would be investigated, enquired into, tried or, otherwise, dealt with according to the 'special law' even when the 'special law' does not create a Special Court and allows the ordinary criminal court to exercise jurisdiction in respect of such offences.

(18) A combined reading of Sub-Sections (1) and (2) of Section 4 further makes it clear that as far as offences, under the Indian Penal Code, are concerned, these offences will be investigated, inquired into, tried, and, otherwise, dealt with, according to the provisions contained in the Code and that even the offences under any 'other' law, (which obviously mean 'special' or 'local' laws) shall be investigated, inquired into, tried, and, otherwise, dealt with, in accordance with the provisions of the Code as may be applicable to offences subject to, however, any deviation, which the 'special law' may, otherwise, make as regards the manner or place of investigation, enquiry, trial or the manner in which a case shall, otherwise, be dealt with. The expression, 'otherwise dealt with', appearing in Sub-Sections (1) and (2) of Section 4, has very wide effect and envisages all the steps, which may be required to be taken for the purpose of effective investigation, enquiry or trial. The expression 'otherwise dealt with' would, therefore, include obtaining of remand - judicial or police - in terms of Section 167 (2) of the Code. To put it a little differently, the provisions of the Code will be applicable, as regard investigation, enquiry or trial, not only as far as the offences, under the Indian Penal Code, are concerned, but also in respect of offences under any 'other' law, (i. e. , special or local) except to the extent as the 'other law' may modify.

(19) As a corollary, what becomes clear is that unless the 'other' law, whereunder any investigating agency and/or any court is created or special mechanism or procedure for investigation, enquiry or trial is provided, an ordinary criminal court, which falls under the class of criminal courts, as envisaged by Section 6 of the Code, will continue to exercise such powers, which may be available to it under the Code. This becomes clearer if one bears in mind the fact that there are two schedules appended to the Code. So far as the first schedule is concerned, it stands divided, depending upon the classification of offences, into two parts. While the first part of the first schedule deals with the offences of the Indian Penal Code and lays down, in respect of each offence, (which the Indian Penal Code creates), as to which Court would be competent to try such an offence, the second part of the first schedule deals with offences against 'other' laws. Part II of the first schedule reads as under:

(20) A careful reading of the first schedule shows, as already indicated above, that in respect of each offence, punishable under the Indian Penal Code, the Court, by whom the offence is triable, has been prescribed. This apart, as to whether the offence is bailable or non-bailable, cognizable or non-cognizable has also been prescribed; whereas, in respect of offences, against the 'other' laws (i. e. special or local laws), the question as to whether an offence is cognizable or non-cognizable, bailable or non-bailable, triable by one court or the other, is dependant on the period of imprisonment as may have been prescribed in respect of an offence. As a result thereof, while an offence, punishable by imprisonment of less than 3 years, or with fine only, is cognizable, bailable and triable by any Magistrate, an offence, which is punishable by imprisonment for more than three years, but less than 7 years, is non-cognizable, non-bailable and triable by not every Magistrate, but by a Magistrate of the First Class, which, obviously, would take, within its sweep, a Chief Judicial Magistrate, an Additional Chief Judicial Magistrate or a Sub-Divisional Judicial Magistrate. As regard the offences, which are punishable with death, imprisonment for life or imprisonment for more than 7 years, such offences are cognizable, non-bailable and triable only by a Court of Session.

(21) Thus, when a 'special law' does not prescribe or provide for constitution of any Special Court for the purpose of trial of an offence under the 'special law', an offence, which is punishable with death, imprisonment for life or imprisonment for more than 7 years, would be tried by a Court of Session. Consequently, in respect of offences punishable under the 'special law's, all the requirements, as regards bringing of a case for trial to the Court of Session, as prescribed under the Code, would have to be followed, which would obviously include even commitment of a case, under the 'special law', to the Court of Sessions unless the 'special law' dispenses with the provisions of commitment as contained in Section 209 of the Code. What this will mean is that the Court of Session would not be able to try such a case, under the 'special law', as a court of original criminal jurisdiction, unless the same is committed to it in terms of the provisions contained in Section 209 of the Code; but when the 'special law' provides that a Court of Session can take cognizance of a case without the case being committed to it, the Court of Session would become, in effect, a Court of original criminal jurisdiction and would not remain a Court of Session except to the extent as the 'special law' may provide in this regard. Thus, if the 'special law' imposes any limitation on the powers of the court, which will try an offence, then, the ordinary criminal court, which may try such an offence, have to follow, and abide by, the limitations, which might have been imposed on its powers under the 'special law', though the Code may not have imposed such a limitation. Similarly, if the 'special law' confers any power on such a Court, then, the Court, which exercises the powers of the Special Court, in the absence of constitution of the special Court, would also enjoy such powers, as may be available to the Special Court, even if such powers are, otherwise, not, ordinarily, available, in the Code, to such a Court.

(22) Thus, jurisdiction of the ordinary criminal courts, under Section 4 of the Code, in respect of even offences under the 'special law', is comprehensive. Consequently, so long as no other machinery is set up for trial of any particular case or class of cases under the 'special law', jurisdiction of the ordinary criminal courts would be available, depending, of course, on the period of punishment prescribed in respect of the offence (s) concerned except to the extent as the 'special law' may, as regards the manner of dealing with such a case, otherwise, prescribe. Exclusion of jurisdiction of a court of a ordinary criminal jurisdiction can be brought about only by making provisions for setting up of a court of limited jurisdiction. Hence, where no Special Court is contemplated under the 'special law', it is the ordinary criminal court, which will exercise jurisdiction in respect of the offence against 'other' laws (i. e. , 'special law's), the exercise of such jurisdiction would, of course, stand modified to the extent as the 'special law' may indicate. If, however, a Special Court is contemplated, but not constituted and the special enactment envisages that during the transitory period, the ordinary criminal court, which may have, otherwise, jurisdiction in respect of an offence (depending upon the punishment prescribed) shall exercise the jurisdiction, it is the ordinary criminal court, which would exercise the jurisdiction; but the exercise of jurisdiction by the ordinary criminal court would, in such a case, be controlled by such limitations as the special enactment may envisage in respect of the Special Court. In short, the law and procedure, for trial of cases under the Indian Penal Code and those, under special statutes, cannot differ except to the extent as the 'other' law, (i. e. , special or local law) prescribes.

(23) Consequently, if a 'special law' provides for trial of a class of offences by the Court of Session and make such Court of Session a Court of original jurisdiction empowering it to take cognizance of an offence on the basis of a 'complaint' as defined in Section 2 (d) of the Code and/or on the basis of 'police report' as contemplated under the provisions of Section 173 (2) of the Code, the Court of Session will be empowered as well as bound to take cognizance of such offence without the case being committed to it as is, ordinarily, done by a Judicial Magistrate. In short, and if I may reiterate, even the Court of Session will try an offence, under any 'other' law or 'special' law, subject to such limitations as may be imposed on the power of the Court of Session or subject to such modification, in the procedure, as the 'other' law, i. e. 'special law', may provide in respect of such an offence.

(24) Bearing in mind the scheme of investigation, enquiry and trial of offences under the Indian Penal Code vis-a-vis 'other' laws (i. e. , special or local) as envisaged by Sections 4 and 5, let me, now, turn to Attiqur Rehman Vs. Municipal Corporation of Delhi, reported in (1996) 3 SCC 37, which Mr. Das relies upon.

(25) A careful reading of the decision in Attiqur Rehman (supra), which Mr. Das relies upon, does not support the submissions made on behalf of the National Investigation Agency inasmuch as the Apex Court, at para 22 in Attiqur Rehman (supra), points out that the provisions of the Code are applicable, where an offence, under the Indian Penal Code or any 'other' law, is being investigated, enquired into, tried or otherwise dealt with, and so long as no valid machinery is set up under any 'other' law for trial of any particular class of case, jurisdiction of the ordinary court cannot be said to have been excluded. While observing that exclusion of jurisdiction of a court of general jurisdiction can be brought about only by setting up of a court of limited jurisdiction, the Apex Court clarifies, in Attiqur Rehman (supra), that the law and procedure for trial of cases, under the Indian Penal Code or those under the 'other' laws, in the light of Section 4 of the Code, is not different except that in the case of offences, against the 'other' laws, the procedure laid down by the Code is subject to the provisions of the relevant enactments (for the time being in force) regulating the manner of trial of offences under that enactment.

(26) What appears to have been missed by the National Investigation Agency is the fact that in Attiqur Rehman (supra), the Supreme Court, while laying down that when a 'special law' creates a special class of court, but the Special Court is not constituted, the jurisdiction of the ordinary criminal court would not stand excluded, for, an offender cannot go unpunished and shall be triable by an ordinary criminal court subject, however, to the condition that the ordinary criminal court, while exercising the power of the Special Court, would follow the provisions contained in the Code subject to such limitations and procedural modifications as may have been introduced by the special enactment. In other words, subject to the modification and/or the changes in the provision of the Code, ordinary criminal court, until the time the Special Court is constituted, shall discharge the functions of the Special Court, for, an offender cannot, when the special law has been brought into force, be allowed to go untried. In Attiqur Rehman (supra), the special enactment was the Delhi Municipal Corporation Act, 1957 (in short, 'the DMC Act'). While Section 469 of the DMC Act empowered the Government to appoint one or more Magistrate of First Class to try offences under the dmc act, section 467 of the dmc act laid down that no court shall try any offence except on a complaint of, or information received from, an officer not below the rank of Deputy Commissioner appointed by the Administrator of the Corporation.

(27) What is, now, important to note is that a Magistrate of the First Class, in the light of the provisions of Section 190 of the Code, is empowered to take cognizance of an offence on the basis of (a) receipt of a complaint of facts, which constitute such offence, (b) upon a police report of such facts and (c) upon information received from any person, other than a police officer, or upon his own knowledge that such offence has been committed. However, section 467 of the dmc act, in Attiqur Rehman (supra), disempowered the Municipal Magistrate from trying an offence on the basis of his own information or knowledge or on the basis of a police report, as contemplated by Section 173 (2) of the Code, and confined the Magistrate's power to try an offence, under the DMC Act, only on the basis of a complaint of, or information received from, an officer not below the rank of Deputy Commissioner appointed by the Administrator of the Corporation.

(28) While dealing with the case of Attiqur Rehman (supra), the question, which arises is: whether a Judicial Magistrate of the First Class or a Metropolitan Magistrate, who had not been appointed as Municipal Magistrate under the DMC Act, was bound to follow the provisions of section 467 of the dmc act, and could not have, therefore, taken cognizance of offence except on the basis of complaint of, or information received from, an officer not below the rank of Deputy Commissioner appointed by the Administrator of the Corporation? The answer to this question has to be in the affirmative, namely, that apart from the fact that a Municipal Magistrate, if appointed, or a Judicial Magistrate or a Metropolitan Magistrate, so long as the Municipal Magistrate was not appointed could have tried an offence under the DMC Act, but could not have taken cognizance of offence in any manner except as the DMC Act, as a special statute, had provided, for, while applying a special statute, the provisions of the special statute would prevail upon the general provisions of the Code. Consequently, though the Magistrate of First Class could have tried an offence under the DMC Act, he could not have taken cognizance on the basis of a police report as contemplated by Section 173 (2) of the Code or on the basis of any information received from any person other than an officer as specified under the DMC Act or upon his knowledge, which he was, otherwise, entitled to do, under section 190 of the code, in his capacity as a Judicial Magistrate of the First Class or Metropolitan Magistrate. Putting to rest this controversy, the Supreme Court, at para 26, in Attiqur Rehman (supra), observed:

"26. A conjoint reading of the provisions of Crpc and the Act, therefore, unambiguously suggests that in the absence of courts of special jurisdiction i. e. Municipal Magistrates to be appointed under Section 469 of the Act, a Judicial Magistrate of the First Class or a Metropolitan Magistrate, as the case may be, shall have the jurisdiction and powers to try the offences under the Act in accordance with the procedure envisaged by Section 467 of the Act and in accordance with the limitation (sic and) the time prescribed for initiation of the criminal proceedings under Section 471 of the Act. This interpretation is in accord with the position that every offence committed under the Indian Penal Code or under any other law for the time being in force must be tried and an accused cannot be permitted to raise any objection with regard to the forum for trial of the offence, where the specific forum has not been constituted under the Act because the law does not contemplate an offence, to go untried. Where, no court of a Municipal Magistrate has been constituted under Section 469 of the Act and no notification has also been issued conferring the powers of a Municipal Magistrate on a particular Judicial Magistrate of the First Class or a Metropolitan Magistrate, as the case may be, the jurisdiction of an ordinary criminal court to take cognizance of the offences committed under the Act, rules, regulations or bye-laws made thereunder is exercisable by the courts of general jurisdiction established to try offences under the Indian Penal Code as well as the offences under any other law."

(Emphasis is added)

(29) From what has been observed and held above, in Attiqur Rehman (supra), it clearly follows that when a Special Court, as contemplated by special enactment, is not constituted, an offender cannot go unpunished if the special statute has been brought into force. Consequently, the ordinary criminal court, depending upon the punishment prescribed, would try such an offence subject, of course, to such limitations as may have been prescribed by the special statute itself including the deviation, if any, in the procedure, which may be envisaged in the statue, which creates the offence.

(30) What logically follows from the above is that when the NIA Act has come into force and no Special Court has yet been constituted as envisaged by the NIA Act, an offender cannot go unpunished and his case has to be dealt with in the same manner as may have been dealt with by Special Court, had the Special Court been constituted. It is worth pointing out (and I will revert to this aspect once again) that Section 22 (3) of the NIA Act states

"the jurisdiction conferred by this Act on a Special Court shall, until a Special Court is constituted by the State Government under sub-section (1) in the case of any offence punishable under this Act, notwithstanding anything contained in the Code, be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter."

Thus, Section 22 (3) of the NIA Act contains transitory provisions and have to be resorted to, until the time the Special Court is constituted. In the light of Attiqur Rehman (supra), therefore, the Court of Session, while functioning, in the absence of constitution of a Special Court, under the NIA Act, would be bound by the limitations, which may have been imposed on the powers of the Special Court by the NIA Act or by the modes and manner of taking of cognizance and trial of cases, which the NIA Act may have introduced in the provisions of the Code with regard to, otherwise, dealing with the case.

(31) Let me, now, pause and look into the scheme of the NIA Act with regard to taking of cognizance, remand of an accused, his bail and the procedure of trial to be adopted by a Special Court and, in the absence of a Special Court having constituted, by a Court of Session.

(32) The NIA Act has created the National Investigation Agency, as an agency, to investigate scheduled offences, which, in terms of Section 2 (g) of the NIA Act, mean the offences specified in the Schedule to the NIA Act. The Investigating Agency, which is as 'agency', is constituted by the Central Government in exercise of its powers under Section 3 of the NIA Act. Section 4 empowers the Central Government to direct the Agency to investigate a Scheduled offence and also vests in the Central Government the power of superintendence over the Agency.

(33) Sub-Section (3) of Section 3 of the NIA Act makes it clear that any officer of the Agency of, or above, the rank of Sub-Inspector may, subject to any orders, which the Central Government may make in this behalf, exercise throughout India, any of the powers of the officer-in-charge of a police station in the area in which he is present for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer-in-charge of a police station discharging the functions of such an officer within the limits of his station. Thus, sub-Section (3) clearly shows that an officer of the Agency shall have the powers of an officer-in-charge of a police station, while discharging the functions of such an officer within the limits of his station.

(34) Section 6 of the NIA Act, which relates to investigation of Scheduled offences, shows that on receipt of information and, having recorded the information, in terms of section 154 of the code, relating to any Scheduled offence, the officer-in-charge of the police station, shall, under Section 6 (1), forward a report to the State Government forthwith. The report, so received by the State Government, has to be forwarded, under Section 6 (2), by the State Government to the Central Government, as expeditiously as possible. In terms of sub-Section (3), read with sub-Section (4) of Section 6, if the Central Government, on receipt of the report, finds it a fit case to be investigated by the Agency, it shall direct the Agency to investigate the offence. Apart from the fact that the Central Government can direct the Agency, on the basis of a report received from the State Government, to investigate a case, such direction can be issued, in the light of Section 6 (5), by the Central Government suo motu also. section 8 of the nia act makes it clear that while investigating any Scheduled offence, the Agency may also investigate any other offence, which the accused is alleged to have committed, if the offence is connected with the Scheduled offence.

(35) What is, now, important to note is that section 2 (l) of the nia act makes it clear that the words and expressions, which are used, but not defined in the NIA Act and defined in the Code of Criminal Procedure, 1973 (2 of 1974) (in short, 'the Code'), shall bear, unless the context otherwise requires, their respective meaning assigned to them in the Code.

(36) In the light of what Section 2 (l) states, when one turns to the Code, it becomes clear that the expression, 'complaint' and 'police report', which appear in the NIA Act, shall have the same meaning as assigned to them under Section 2 (d) and 2 (r) of the Code respectively. While Section 2 (d) of the Code defines 'complaint' to mean any allegation, made orally, or, in writing, to a Magistrate, with a view to the Magistrate's taking action under the Code, that some person, whether known or unknown, has committed an offence. Section 2 (d) of the Code, however, makes it clear that a 'complaint' does not include a police report. It is Section 2 (r) of the Code, which defines a 'police report' to mean a report forwarded by a police officer to a Magistrate under sub-Section (2) of Section 173 of the Code.

(37) It may, now, be pointed out that on registering First Information Report (in short, 'fir') with regard to a cognizable offence, a police officer becomes entitled to investigate the case in terms of the provisions of Section 156 of the Code and, on completion of investigation, the police officer is required to forward, under Section 173 (2) of the Code, his report of investigation to the Magistrate, who, in turn, is empowered, under Section 190 (1) (b) of the Code, to take cognizance of offence on the basis of the police report, as contemplated by Section 173 (2) of the Code.

(38) It is, therefore, clear that a police report, in the Code, is nothing but the result of investigation, which a police officer conducts. Thus, when the officer of the Agency, in terms of section 156 of the code, read in the light of section 6 of the nia act, investigates a Scheduled offence and, on completion of investigation, submits a report to the competent court for the purpose of taking cognizance, such a report would be nothing but a 'police report' within the meaning of Section 2 (r) read with Section173 (2) of the Code. I may, however, hasten to add that according to the Explanation, appended to the definition of 'complaint', as given in Clause (d) of Section 2 of the Code, a report, submitted by a police officer, which discloses, on completion of investigation, commission of a non-cognizable offence, shall be deemed to be 'complaint'. In the present case, since the offence, under the NIA Act, are cognizable, the Explanation is not attracted.

(39) Coming to Section 11 of the NIA Act, I notice that Section 11 of the NIA Act empowers the Central Government to constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification. Even the State Government has been empowered, under section 22 of the nia act, to constitute Special Court (s) for the trial of offences under any or all the enactments specified in the Schedule to the NIA Act.

(40) What is, however, important to note is that section 13 of the nia act makes it clear that notwithstanding anything contained in the Code, every Scheduled offence, investigated by the Agency, shall be tried only by the Special Court within whose local jurisdiction the offence was committed. Under Section 13 (2) (c) of the NIA Act, the Supreme Court may transfer any case (s), pending before a Special Court, to any other Special Court within the State or in any other State, and the High Court may transfer any case pending before a Special Court, situated in that State, to any other Special Court within the State.

(41) It is important to bear in mind that section 16 of the nia act embodies the procedure to be followed, while taking cognizance of offence (s) by a Special Court. section 16 of the nia act is, therefore, of great relevance in the present case and is reproduced below:

"16. (1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts.

(2) Where an offence triable by a Special Court is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Special Court may, notwithstanding anything contained in sub-section (1) of section 260 or section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of sections 263 to 265 of the Code shall, so far as may be, apply to such trial: provided that when, in the course of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is not desirable to try it in a summary way, the Special Court shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to, and in relation to, a Special Court as they apply to and in relation to a Magistrate:

Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding one year and with fine which may extend to five lakh rupees.

(3) Subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session.

(4) Subject to the other provisions of this Act, every case transferred to a Special Court under sub-section (2) of section 13 shall be dealt with as if such case had been transferred under section 406 of the Code to such Special Court.

(5) Notwithstanding anything contained in the Code, but subject to the provisions of section 299 of the Code, a Special Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any Witness, subject to the right of the accused to recall the witness for cross-examination. "

(42) On a close reading of section 16 of the nia act, what becomes clear is that notwithstanding the fact that, according to Section 16 (3) of the NIA Act, a Special Court, for the purpose of trial of a scheduled offence, has all the powers of a Court of Session and shall try such offence 'as if it were a Court of Session', the Special Court does not become a Court of Session inasmuch as it is only the power of trial of a Court of Session that the Special Court, by virtue of Section 16 (3), entitled to exercise. In other words, the expression, 'as if it were a Court of Session', which occur in Section 16 (3), really reflects that it is only the procedure for trial of a Sessions case, which a Special Court can follow; but it is, otherwise, not a Court of Session.

(43) I may pause here to point out that Section 16 (3) of the NIA Act states,

"subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session."

Similar provisions existed in Section 14 (3) of TADA. Both the provisions were, thus, pari materia. The Supreme Court had the occasion to interpret Section 14 (3) in Usmanbhai Dawoodbhai Memon (supra). Referring to the expression 'as if it were', appearing in Section 3 of the TADA, the Supreme Court pointed out, in Usmanbhai Dawoodbhai Memon (supra), that though the Parliament has vested, by using the words 'as if it were', in the Designated Court, the status of a Court of Session, yet this legal fiction, contained in Section 14 (3), must be restricted to the procedure to be followed for trial of an offence under the TADA, i. e. , trial must be in accordance with the procedure prescribed, by the Code, in respect of a trial before a Court of Session in so far as it is applicable. The relevant observations, made in this regard, which appear at para 18, read as under:

"18. No doubt, the legislature by the use of the words "as if it were" in Section 14 (3) of the Act vested a Designated Court with the status of a Court of Session. But, as contended for by Learned Counsel for the State Government, the legal fiction contained therein must be restricted to the procedure to be followed for the trial of an offence under the Act i. e. such trial must be in accordance with the procedure prescribed under the Code of the trial before a Court of Session, insofar as applicable. "

(44) The above impression gets strength-ened from the fact that Section 16 (1) provides that a Special Court may take cognizance of offence, without the accused being committed to it for trial, which, in turn, implies that a Special Court takes cognizance of an offence as a Court of original jurisdiction and does not have the trappings of a Court of Session, which cannot, ordinarily, take, in the light of section 193 of the code, cognizance of an offence, unless the case, in terms of Section 209 of the Code, is committed to it, for, Section 193 states that a Court of Session cannot take cognizance of an offence as a Court of original jurisdiction except when the Code or the special law provides otherwise. Thus, a Court of Session could not have taken cognizance of an offence, under the NIA Act, without the case having been committed to it; but, as the NIA Act provides for taking cognizance of an offence by a Court of Session, without the case being committed to it, the Court of Session can take cognizance of offence, under the NIA Act, as the Court of original jurisdiction. Such a deviation is possible even in respect of a specified offence under the Indian Penal Code. For instance, sub-Section (2) of Section 199 of the Code provides that when an offence, falling under Chapter XXI of the IPC, is alleged to have committed against a person, who, at the time of such commission, is the President of India, Vice-President of India, Governor of a State, the Administrator of a Union territory or a minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his functions, a Court of Session may take cognizance of such an offence, without the case being committed to it, upon a complaint, in writing, made by the Public Prosecutor.

(45) Section 16 of the NIA Act also makes it clear that cognizance of an offence can be taken by a Special Court on the basis of a complaint of facts that constitute such offence or upon a police report of such facts. Thus, a Special Court can take cognizance of an offence not only on the basis of a complaint, as defined in Section 2 (d) of the Code, but also on the basis of a police report, as defined in Section 2 (r) of the Code, the police report being, as indicated above, the report, which the police submits, under Section 173 (2), on completion of investigation.

(46) The question, which, now, arises for consideration is: when a Special Court takes cognizance of an offence under the NIA Act, is it exercising its powers given to a Magistrate under section 190 of the code, though it (i. e. , the Special Court), in terms of Section 16 (3) of the NIA Act, has all the powers of a Court of Session? I have already indicated above that unlike a Court of Session, which cannot try a case, unless committed to it, under Section 209 of the Code, by a court of competent jurisdiction, a Special Court can take cognizance of an offence without any order of commitment being issued by any Magistrate, if the Special Court receives a complaint of facts that constitute an offence, or, upon police report of such facts. Since there is nothing in the NIA Act to show that a complaint has to be necessarily made by a public servant, it clearly follows that any individual can file a complaint before a Special Court. When such a complaint is filed, what is the course of action, which the Special Court can adopt ? Obviously, the Special Court may take, in terms of Section 16 (1), cognizance of the offence, which the complaint may disclose, and proceed to record, in terms of section 200 of the code, the statements of the complainant and his witness (es), if any, present. If the Special Court feels the necessity, it may even hold, in terms of section 202 of the code, an enquiry, and, on completion of such enquiry, it may either, in terms of Section 203 of the Code, dismiss the complaint, or, in terms of section 204 of the code, issue processes.

(47) I may pause here to point out that Section 190 (1) of the Code prescribes three distinct modes of taking of cognizance by a Magistrate, the modes being: (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(48) Coupled with the above, Section 193 read with Section 209 of the Code provides for a fourth mode of taking cognizance, namely, by way of commitment to the Court of Session.

(49) Thus, Section 190 read with Sections 193 and 209 of the Code provides, broadly speaking, four distinct modes of taking cognizance. Three of the modes of taking cognizance being confined to a Magisterial Court and the fourth mode of taking cognizance being confined to the Courts of Session, namely, (i) upon receipt of a complaint of facts, which constitute such offence, (ii) upon a police report of such facts (iii) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed, and (iv) by way of commitment. The legislature may, in a given case, restrict taking of cognizance to one or more modes, which have been prescribed by Section 190. No wonder, therefore, that there are several statutes, which prescribe very limited mode of taking of cognizance. For instance, under Section 20 of the Prevention of Food Adulteration Act, 1954, (in short, 'the PFA Act') cognizance of an offence, under the PFA Act, cannot be taken except by, or with the written consent of, the Central or the State Government or a person authorizes, in this behalf, by general or special order, by the Central or State Government. The only exception, in this regard, is when a prosecution is instituted, under the proviso to Section 20 (1), by a purchaser or recognized consumer association if the purchaser or the recognized consumer association, as in Section 12, produces, in the Court, a copy of the report of the Public Analyst along with the complaint.

(50) In order to clearly appreciate that a Court of Session, while functioning as a Special Court, under the NIA Act, cannot be treated to be a Court of Session, though it (Special Court) may have the powers of the Court of Session, as far as the procedure for trial is concerned, a reference may be made to the provisions of the Prevention of Corruption Act, 1988 (in short, 'the PC Act, 1988'). Section 5 of the PC Act, 1988, lays down the procedure and powers of a Special Judge. Sub-Sections (1) and (3) of Section 5 are of some relevance in the present case; hence, both these Sub-Sections are reproduced below:

"5 (1) A special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973, (2 of 1974), for the trial of warrant cases by the Magistrates.

5 (2) *** *** ***

5 (3) Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for purposes of the said provisions, the Court of the special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor".