This innocuous little chapter 28 (dealing with Special Courts) has been one of the least discussed and debated chapters of the Companies Bill, 2012. Neither the Parliament nor the media appears to have paid any attention to it.
I can only imagine, this is so, because as a country we have become accustomed to specialist courts / tribunals, being set up by the executive arm and/or whose setting up has been entrusted to the executive arm. As a nation our response to a pothole on the road seems not to propel us towards covering it up – which would be the most prudent and affordable option – but instead urges us to build a flyover above it.
What is a special court under the Bill?
A court established or designated by the Central Government by notification under the Act.
The purpose of establishing a special court, appears to be to provide a “speedy trial of offences”.
Clause 436 provides that all offences under the Bill shall be triable only by the Special court established in accordance with the Bill irrespective of anything contained in the Criminal Procedure Code.
Why is there a special urgency to try cases and dispose off the same only insofar as they pertain to offences under the Companies Bill? Are we to assume that other “crimes” and other “criminals” need not be booked or brought to justice in the same time frame as is sought to be accomplished by corporate offenders? One could assume the idea behind this proposed amendment is to ensure that persons who have defrauded the common man be brought to justice speedily. Or we could assume that the objective is to provide the ‘suited executive’ a better and more efficient system so as to avoid his being embroiled in the sweaty courts to which a common man is subject.
But let us think, whether or not both the above objectives (without going into their merit or legitimacy) can be achieved by simply overhauling the existing criminal justice system. It brings us back to identifying and covering potholes instead of building flyovers over them.
Constitution of a special court
A single judge appointed by the Central Government with the concurrence of the Chief Justice of the High Court within whose jurisdiction the judge to be appointed is working. Such judge of a Special Court shall be qualified only if he is immediately before such appointment, holding office of a Sessions Judge or an Additional Sessions Judge.
Special courts are subject to the jurisdiction of the relevant High Court in the same manner as the criminal courts come under it, under the Code of Criminal Procedure, 1973. Clause 438 provides that the provisions of the Code of Criminal Procedure, 1973 shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court shall be deemed to be a Public Prosecutor.
The legislature has left a lot of room for conjecture, as to the rationale for creating a tributary of the criminal justice system, which tributary is not created by the judiciary but at the discretion of the executive.
Also, I fail to see the rationale for blurring of the lines. If a person fit to be an additional sessions judge is to hear a matter, why can he not hear it as the “Additional Sessions Judge” instead of hearing the matter as “Special Courts Judge”. What does this change in title achieve? Possibly, the executive arm can deviate and make appointments without having to go through the rigours of judicial appointment.
Additionally, given the chronic nature of the problem of vacancies in the judicial system not being properly filled up, is the establishment of special courts, a move in the right direction? Will it not be an additional burden in the system, if existing sessions judges are displaced to specialist courts hearing only a certain kind of matter. Also how do we ensure that this overhauling happens in a proper manner throughout the country?
How do special courts work?
The Bill further provides that where a person is
(a) accused of, or
(b) suspected of the commission of, an offence under this Act
and such a case is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973, the Magistrate may authorize the detention of such person for a maximum period of 15 days or 7 days as the case may be. Such person may thereafter be forwarded to the Special Court having jurisdiction.
Powers of the Special Court
- The Special Court may exercise, with respect to the accused or suspected person forwarded to it by the relevant Magistrate, the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 in relation to an accused person. The Bill has subtly introduced the concept of detention / trial of a suspected person. There appears no real rationale for it.
- A Special Court may also take cognizance of an offence under this Act without the accused being committed to it for trial upon:
- perusal of the police report of the facts constituting an offence; or
- upon a complaint in that behalf.
Special Powers of the Special Court
- When trying an offence under the Act, a Special Court may also try an offence other than an offence under the Act with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial.
- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 the Special Court may, if it thinks fit, try in a summary way any offence under this Act, which is punishable with imprisonment for a term not exceeding three years. However the maximum sentence of imprisonment in a summary trial on conviction shall not exceed one year.
Constitution of a tribunal is by itself highly debatable in the entire scheme of the Indian Constitution. Constituting a special court to administer criminal justice is not only unnecessary but also harmful to the integrity of the judiciary. We have to pull up our act and believe that systems have loopholes, deficiencies and shortcomings. The answer to that is not in all cases creating an alternate system.
An additional cause for worry is that this whole concept does not appear to be debated in the Parliament. Given the manner in which the Bill was passed in the lower house, a very in-depth analysis of these provisions is warranted and would be of vital consequence.
Politicians and particularly the governments of the past have shown little respect for the letter of the law. It would be foolish to allow the executive or entrust it with creating a parallel criminal justice administering system with powers for provision of summary justice. Criminal justice administration should have sacrosanct position in the judicial system. It cannot be belittled and tampered with in this fashion.
It is not a new concept. Already there is a provision for special Economic offences court in existing set up, among other thingswhich looks into companies laws offences.
This is only an extension of that.
Even if that were so, in principle, it does not imply there is no attempt of tribunalisation of justice system here.