Special Judges: Sections 3 to 6

Offences under the Act are triable by special judges and by no one else. The machinery predates the Act, having been introduced by the Criminal Law (Amendment) Act, 1952, and it was brought into the statute itself in 1988. Its purpose is speed and expertise: a dedicated court that takes cognizance without committal, follows the warrant case procedure, may tender a pardon to secure an approver, and since 2018 must complete the trial within a stated period. The special judge is deemed a Court of Session for most purposes, and the High Court's appellate and revisional powers follow from that.

1. Appointment and Qualification: Section 3

1. Who appoints. The Central Government or the State Government, by notification in the Official Gazette, appoints 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.
2. Qualification. A person is not qualified for appointment unless he is, or has been, a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the criminal procedure law. The office is therefore filled from the district judiciary, which is what gives the court its standing and what makes the deeming provision in Section 5(3) workable.
3. What they try. Offences punishable under the Act, and any conspiracy to commit, attempt to commit or abetment of such an offence.

2. Exclusive Jurisdiction: Section 4

• Exclusivity. Notwithstanding anything contained in the criminal procedure law, offences specified in Section 3(1) shall be tried by special judges only. An ordinary magistrate or sessions court has no jurisdiction, and a trial by such a court is without jurisdiction.
• Territorial allocation. Every offence is to be tried by the special judge for the area within which it was committed, or, where there are several special judges for an area, by such one of them as may be specified.
• Connected offences. A special judge may also try any offence other than one under the Act with which the accused may, under the criminal procedure law, be charged at the same trial. This is what permits a single trial where the charge includes offences under the general penal law, such as criminal breach of trust, cheating, forgery or criminal conspiracy, alongside the offences under this Act; a separate trial of the connected offences before another court would defeat the purpose of the provision.
• Timeline. Section 4(4), as it stands after 2018, requires the trial to be held on a day to day basis as far as practicable, and the special judge to endeavour to conclude it within two years; reasons must be recorded for any extension, each extension is limited, and the total period is not to exceed four years.

3. Procedure and Powers: Section 5

1. Cognizance without committal. A special judge may take cognizance of offences without the accused being committed to him for trial. This is the most important procedural feature: the case does not begin before a magistrate and travel upward, which removes a stage and accelerates the trial.
2. The procedure followed. In trying the accused he shall follow the procedure prescribed by the criminal procedure law for the trial of warrant cases by magistrates. The warrant case procedure is used although the court is deemed a Court of Session, which is a deliberate combination: the higher court with the simpler procedure.
3. Tender of pardon. The 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 that person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge. The provisions of the criminal procedure law relating to approvers apply, so far as may be, and the machinery matters in a subject where the participants are the only witnesses.
4. Deemed Court of Session. Save as provided in the section, the provisions of the criminal procedure law apply to proceedings before a special judge, and for that purpose the court is deemed to be a Court of Session and the person conducting the prosecution is deemed to be a Public Prosecutor.
5. Sentencing. A special judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence.

4. Summary Trial: Section 6

The section permits a special judge to try summarily a case relating to a contravention of certain orders under the Essential Commodities Act, 1955 where it is alleged to have been committed by a public servant in relation to such an order, notwithstanding the warrant case procedure otherwise prescribed. Where the case is tried summarily, the sentence of imprisonment that may be passed is limited to one year, and no appeal lies against a summary conviction except where a sentence of imprisonment exceeding one month or a fine exceeding the prescribed amount is passed. The provision is of limited practical importance today, but it is part of the section-by-section scheme and is occasionally asked about.

5. The Special Judge Compared

6. Related Topics and Provisions