Sections 5 and 6 of the Prevention of Corruption Act, 1988: Procedure and Powers of Special Judge
Sections 5 and 6 regulate the procedure and powers of a Special Judge under the Prevention of Corruption Act, 1988. Section 5 deals with cognizance, trial procedure, tender of pardon, application of criminal procedure, sentencing and powers relating to attachment. Section 6 provides a special summary-trial mechanism for the limited class of cases specified in that section.
Section 5 - Procedure and Powers of Special Judge
Section 5 gives a Special Judge procedural powers designed to permit direct and effective trial of offences under the Act. Importantly, the Special Judge may take cognizance without a committal proceeding.
Section 5 - Statutory provision
(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 Magistrates.
(2) A 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 such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of sub-sections (1) to (5) of section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered under section 307 of that Code.
(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 the 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.
(4) In particular and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to the proceedings before a special Judge and for the purposes of the said provisions, a special Judge shall be deemed to be a Magistrate.
(5) A special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.
(6) A special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ord. 38 of 1944).
Taking cognizance without committal
Section 5(1) removes the need for the accused to be committed to the Special Judge for trial before cognizance can be taken. The provision directs the Special Judge to follow the procedure prescribed for warrant cases by Magistrates.
Power to tender pardon
Under Section 5(2), a Special Judge may tender pardon to a person believed to have been directly or indirectly concerned in or privy to the offence. The condition is full and true disclosure of the circumstances known to that person and of the involvement of every other person concerned as principal or abettor.
Status of the Special Judge's court
Subject to Sections 5(1) and 5(2), Section 5(3) applies the general criminal procedure so far as it is not inconsistent with the Prevention of Corruption Act. For that purpose, the Special Judge's court is deemed to be a Court of Session and the person conducting the prosecution is deemed to be a public prosecutor.
Sentencing and attachment-related powers
Section 5(5) authorises the Special Judge to impose any sentence permitted by law for the offence of conviction. Section 5(6) additionally confers, while trying an offence under the Act, the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944.
Section 6 - Power to Try Summarily
Section 6 is a specialised provision. It does not make every Prevention of Corruption Act prosecution a summary trial. Its operation is tied to the particular category described in Section 6(1), involving an offence specified in Section 3(1) alleged against a public servant in relation to specified orders under Section 12A of the Essential Commodities Act, 1955.
Section 6 - Statutory provision
(1) Where a special Judge tries any offence specified in sub-section (1) of section 3, alleged to have been committed by a public servant in relation to the contravention of any special order referred to in sub-section (1) of section 12A of the Essential Commodities Act, 1955 (10 of 1955) or of an order referred to in clause (a) of sub-section (2) of that section, then, notwithstanding anything contained in sub-section (1) of section 5 of this Act or section 260 of the Code of Criminal Procedure, 1973 (2 of 1974), the special Judge shall try the offence in a summary way, and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:
Provided that, in the case of any conviction in a summary trial under this section, it shall be lawful for the special Judge to pass a sentence of imprisonment for a term not exceeding one year:
Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the special Judge that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the special Judge shall, after hearing the parties, record an order to that effect and thereafter recall any witnesses who may have been examined and proceed to hear or re-hear the case in accordance with the procedure prescribed by the said Code for the trial of warrant cases by Magistrates.
(2) Notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973 (2 of 1974), there shall be no appeal by a convicted person in any case tried summarily under this section in which the special Judge passes a sentence of imprisonment not exceeding one month, and of fine not exceeding two thousand rupees whether or not any order under section 452 of the said Code is made in addition to such sentence, but an appeal shall lie where any sentence in excess of the aforesaid limits is passed by the special Judge.
When summary trial applies
The summary procedure in Section 6 applies only when its statutory conditions are satisfied. It concerns the specified Prevention of Corruption Act offence alleged against a public servant in connection with the particular Essential Commodities Act orders identified in Section 6(1).
Maximum imprisonment in a summary conviction
Where conviction follows a summary trial under Section 6, the first proviso permits imprisonment up to one year. If the Special Judge considers that imprisonment exceeding one year may be necessary, or that summary trial is otherwise undesirable, the Judge must hear the parties, record an order, recall witnesses already examined where necessary and proceed under the warrant-case procedure described in the provision.
Appeal restriction in specified minor sentences
Section 6(2) restricts an appeal in the narrow situation where a summary trial results in imprisonment not exceeding one month and a fine not exceeding two thousand rupees, subject to the terms of the section. An appeal lies where the sentence exceeds those statutory limits.
Meaning and Practical Effect of Sections 5 and 6
Section 5 gives the Special Judge a combined procedural framework: direct cognizance, warrant-case trial procedure, power to tender pardon, the status of a Court of Session for specified procedural purposes, full sentencing authority and the statutory powers referred to in Section 5(6). Section 6 creates a distinct summary procedure only for its specifically defined class of cases.
Effect of BNSS 2023 on the CrPC References
The text of Sections 5 and 6 continues to name the Code of Criminal Procedure, 1973 and particular CrPC provisions. The Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024 and repealed the CrPC. Section 531 of the BNSS contains repeal and savings provisions, including continuation under the CrPC of specified appeals, applications, trials, inquiries and investigations pending immediately before commencement. Accordingly, the statutory wording above should not be rewritten as though the Parliament had formally substituted each CrPC reference; the applicable procedure in a current case must be determined in accordance with the governing enactments and the BNSS savings provisions.
Legal update: Procedural note updated for the BNSS regime effective from 1 July 2024.