Procedure: Section 22 and the Criminal Procedure Statute

The Act is not a complete procedural code. It creates the forum and modifies a few provisions, and for everything else the general criminal procedure applies. Section 22 makes the modifications, and each of them is directed at the same object, which is speed. Since 1 July 2024 the general procedure is contained in the Bharatiya Nagarik Suraksha Sanhita, 2023, which repealed the Code of Criminal Procedure, 1973 subject to savings, so a note on procedure must now deal with both statutes and with the position of proceedings already pending.

1. The Modifications in Section 22

1. A list of defence witnesses in advance. In the warrant case procedure followed by the special judge, the accused is required to give in writing, at once or within such time as the court allows, a list of the persons he proposes to examine as witnesses and of the documents on which he proposes to rely, before he is called on to enter his defence. The object is to prevent the defence evidence being assembled a witness at a time over many hearings.
2. No adjournment because a revision has been filed. The proceeding is not to be adjourned or postponed merely on the ground that an application in revision has been made by a party. This removes the commonest device by which corruption trials were delayed.
3. Restriction on calling for the record in revision. Where the revisional powers are invoked by a party, the court is not ordinarily to call for the record without giving the other party an opportunity of showing cause, and may refuse to call for it where sufficient grounds exist.
4. Provision for proceeding in the absence of the accused in the circumstances the section specifies, so that a trial is not stalled by non-appearance.

Read with Section 4(4), which requires the trial to be held on a day to day basis and concluded within two years, extendable but not beyond four, these modifications describe a procedure designed to run continuously once it begins.

2. Reading the Act after the Sanhita of 2023

• The references are to be read as references to the new statute. Section 22 and the other provisions of the Act speak of the Code of Criminal Procedure, 1973. Where an enactment is repealed and re-enacted, a reference in another statute to the repealed enactment is construed as a reference to the corresponding provision of the new one, under the general rule in the General Clauses Act, 1897.
• Pending proceedings. The Sanhita contains a savings provision under which appeals, applications, trials, inquiries and investigations pending immediately before its commencement are to be disposed of, continued or made as if it had not come into force. A trial begun under the Code therefore continues under the Code.
• New proceedings. An investigation or trial begun on or after 1 July 2024 follows the Sanhita, subject to the modifications in Section 22 of this Act.
• The practical rule. Identify the date on which the proceeding commenced, and apply the procedural statute in force then; the substantive provisions of this Act are unaffected by the change, and the version applicable to them depends on the date of the offence rather than on the date of the proceeding.

3. Bail

1. No special provision. Unlike some economic offence statutes, this Act contains no bail restriction and no twin conditions. Bail is governed by the ordinary law, and the offences, being punishable with imprisonment of up to seven or ten years, are cognizable and non-bailable.
2. The considerations. The gravity of the offence, the position held by the accused and his capacity to influence witnesses or tamper with records weigh against bail; the absence of any risk of absconding, the documentary character of the evidence and the period already spent in custody weigh in favour. In a trap case the evidence is usually collected at once, which reduces the force of the tampering objection.
3. Anticipatory bail is available, there being no statutory bar, and it is frequently sought in disproportionate assets cases where arrest is anticipated after a search.
4. Default bail. Where the investigation is not completed within the period prescribed by the criminal procedure statute, the accused is entitled to be released on bail on furnishing bail. The applicable period depends on the punishment: the longer period applies only where the offence is punishable with imprisonment for a term of not less than ten years, which the Supreme Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 held to mean a minimum of ten years and not a maximum, so for offences under this Act the shorter period ordinarily applies.

4. Discharge, Charge and Quashing

• Discharge. The special judge follows the warrant case procedure, so the accused may apply for discharge before the charge is framed, and the court considers whether the material discloses a case. Since there is no committal stage, this is the first opportunity to attack the material, and the validity of the sanction is ordinarily raised here.
• Framing of charge. The court must be satisfied that there is ground for presuming that the accused has committed the offence; it does not weigh the evidence as at a trial, and a prima facie case suffices.
• Quashing. The inherent power of the High Court, now in Section 528 of the Sanhita and formerly Section 482 of the Code, is available to quash proceedings that are an abuse of process. It is exercised sparingly in corruption matters, and the courts have repeatedly declined to quash on the ground of delay alone, treating the gravity of the offence as a relevant consideration.
• Compounding. Offences under this Act are not compoundable, so a settlement between the complainant and the accused does not end the proceedings.

5. Speedy Trial

Article 21 includes the right to a speedy trial, and Section 4(4) gives it statutory form in this Act. The two do not always produce the same result. Corruption trials are frequently prolonged by the volume of documentary evidence, by the number of witnesses, by the transfer of officers who must be recalled, and by interlocutory challenges to sanction and approval. The courts have held that inordinate delay may justify relief, but have been reluctant to terminate proceedings in corruption cases on that ground alone, on the reasoning that the offence is against the public and that the accused frequently contributed to the delay. The practical remedy has been directions for day to day trial and for the conclusion of the case within a stated period, rather than quashing.

6. Related Topics and Provisions