When a Corruption Trap Fails: Can the Special Judge Still Grant Police Custody in a Section 7 PC Act Case?

A complainant approaches the Anti-Corruption Bureau with a familiar grievance: a public servanthas demanded illegal gratification. The ACB verifies the demand. A trap is planned. The complainant is prepared. The officers wait. But when the crucial moment arrives, the accused refuses to accept the money. No tainted currency is recovered. No hand-wash turns positive. The trap fails.Even so, the accused is arrested and the ACB seeks police custody remand.At that stage, the Special Judge must not be guided by the disappointment of the failed trap, but by the discipline of law. The real question is not whether suspicion exists. The real question is whether, in an offence punishable up to seven years, the arrest was lawful under Section 35 of the BNSS and whether police custody is truly necessary for investigation.

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Bombay HC: Special court or civil court has no power to order restoration of electric supply at interim stage if prosecution is initiated under S 135 of Electricity Act

It is thus clear that this section nowhere provides a power in the Court to grant any interim relief. Only option for a person under Section 135 of the said Act to deposit the entire amount. If the entire amount is deposited, it is only then that the connection can be restored, and it is only thereafter the provisions of Section 154(5) can be invoked.{Para 8}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

914 CRIMINAL WRIT PETITION NO. 814 OF 2025

The Superintending Engineer, Maharashtra State Electricity Distribution Com. Ltd. Ahmednagar And Others Vs Rajendra Tukaram Avhad

CORAM : KISHORE C. SANT, J.

DATE : 14th AUGUST 2025.

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Checklist Toolkit for Special Judge(Pocso): Bail Applications in POCSO Act Cases

 Jurisdictional Considerations

 Critical Note: Special POCSO courts have exclusive jurisdiction for POCSO cases. Session courts cannot entertain anticipatory bail applications for POCSO offenses - only Special POCSO courts are empowered to do so. Regular session judges should refer such matters to designated Special POCSO courts.

Pre-Application Verification Checklist

Court Jurisdiction Verification

• Confirm if the court is a designated Special POCSO court

• Verify if case involves POCSO Act offenses exclusively or in combination with IPC sections

• Check if accused is a juvenile (below 18 years) requiring different procedural considerations

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What are Powers and Duties of Special Judge under SC& ST Act 1989?

Important provisions providing Powers and duties of Special Judge under SC& ST Act 1989 are as follows:

 S.14. Special Court and Exclusive Special Court.—(1) For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, establish an Exclusive Special Court for one or more Districts:

Provided that in Districts where less number of cases under this Act is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences under this Act:

Provided further that the Courts so established or specified shall have power to directly take cognizance of offences under this Act. In every trial in the Special Court or the Exclusive Special Court, the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Special Court or the Exclusive Special Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded in writing:

Provided that when the trial relates to an offence under this Act, the trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge sheet.]

{Subs. by Act 1 of 2016, S. 8 (w.e.f. 26-1-2016).}

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Whether Special court should examine the Magistrate who has recorded the confession of the accused for proof of confession?

 b the 164 Cr.P.C. confession statement of the accused:

63. The recording of confession by a Magistrate under Section 164 Cr.P.C. stands on a slightly different footing in view of Section 463 Cr.P.C. The confession of an accused cannot be treated on par with the statement of a witness under Section 164 of the Code. To highlight this aspect, it may be necessary to extract two associated provisions relating to confessions, viz., Section 463 Cr.P.C. and Section 80 of the Evidence Act.

“463 Non-compliance with provisions of Section 164 or Section 281:

1 If any Court before which a confession or other statement of an accused person recorded, or purporting to be recorded under section 164 or section 281, is tendered or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in Section 91 of the Indian Evidence Act, 1872, (1 of 1872), take evidence in regard to such non-compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement.

2 The provisions of this section apply to Courts of appeal, reference and revision.”

80 Presumption as to documents produced as record of evidence:

Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law,and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid,

the Court shall presume—

“that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.”

64. Our experience shows that the Trial Courts are in a State of oblivion as to the two provisions extracted above and as a matter of routine, the Magistrate recording the confession of an accused is summoned as a witness. This has been frowned upon by the Privy Council in Nazir Ahmad (supra) in the following words:

“As a matter of good sense, the position of accused persons and the position of the magistracy are both to be considered. An examination of the Code shows how carefully and precisely defined is the procedure regulating what may be asked of or done in the matter of examination of accused persons and as to how the results are to be recorded and what use is to be made of such records. Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath. So with regard to the magistracy; it is for obvious reasons most undesirable that Magistrates and Judges should be in the position of witnesses insofar as it can be avoided. Sometimes it cannot be avoided, as under S. 533, but where matter can be made of record and therefore admissible as such there are the strongest reasons of policy for supposing that the legislature designed that it should be made available in that form and no other. In their Lordships' view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers than as judicial persons; to be by reason of their position freed from the disability that attaches to police officers under S. 162 of the Code; and to be at the same time freed, notwithstanding their position as magistrates from any obligation to make records under S. 164. In the result, they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever. Their Lordships are, however, clearly of opinion that this unfortunate position cannot in future arise because, in their opinion, the effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by magistrates when made during an investigation, and to render inadmissible any attempt to deal with them in the method proposed in the present case.”

Therefore, a Magistrate who had recorded the confession statement of an accused can be summoned as a witness, only if it is found by the Trial Court that there has been an infraction of Section 164 or Section 281 of the Code and not otherwise. The Trial Courts should bear in mind this salutary aspect before unnecessarily summoning a judicial officer and putting him in the witness box at the cost of judicial time.

67. Since there may be a possibility of a Magistrate recording the confession of an accused under Section 164 Cr.P.C. being examined as a witness for infraction of Section 164 or 281 Cr.P.C. we are of the view that it will not be desirable for the jurisdictional Magistrate to record the confession of an accused under Section 164(4) Cr.P.C. This would apply to the Special Courts as well. In other words, though a Special Judge has the power to record the confession statement of an accused, yet, demands of propriety require that he should refrain from recording the confession of an accused in order to avoid the embarrassment of being examined as a witness in that case. We are also aware that the Magistrates come under the administrative control of the CMM/CJM and not under the Special Judges. Therefore, in order to save time, whenever the investigating agency wants the statement of an accused to be recorded under Section 164 Cr.P.C. it should file an application before the CMM/CJM for nominating a Magistrate other than the jurisdictional Magistrate for the purpose of recording such a statement. The investigating agency need not approach the Special Court and obtain a direction from the Special Court to the CMM/CJM for this purpose.

In the High Court of Madras

(Before Indira Banerjee, C.J. and P.N. Prakash, J.)

Murugasamy  Vs  State 

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Whether Session Judge or Special Judge must examine Magistrate who has recorded statement of witness U/S 164 of CRPC?

  A Division Bench of this Court, in R. Murugesan v. State, [(2014) 1 LW (Cri) 339], in which, one of us (P.N. Prakash, J.) was a part, has elaborately discussed the evidentiary value of the statement of a witness recorded under Section 164 Cr.P.C. Despite the directions of the said Division Bench that the Magistrate recording the statement under Section 164 Cr.P.C. need not be examined as a witness, the essence of those directions has not percolated into the subordinate judiciary. In the said judgment, the Division Bench has set out the procedure as to how Public Prosecutors in the Trial Courts should deal with a witness, vis-a-vis, his statement recorded under Section 164 Cr.P.C. The Division Bench has placed reliance upon the judgment of the Supreme Court in State of Delhi v. Shri Ram Lohia, [AIR 1960 SC 490] and the Division Bench judgment of the Andhra Pradesh High Court in Bashapaka Laxmiah v. State of Andhra Pradesh, [2001 Cri LJ 4066], to conclude that a Magistrate recording the statement of a witness under Section 164 Cr.P.C. need not be examined as a witness in the trial of the case. We are extracting below the relevant passages from Shri Ram Lohia (supra) and Bashapaka Laxmiah (supra): Shri Ram Lohia:

“Statements recorded under S. 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under S. 164 of the Code and that what he had stated there was true would not make the entire statement admissible; much less could any part of it be used as substantive evidence in the case.

A Judge commits an error of law in using the statement of a witness under S. 164 as a substantive evidence in coming to the conclusion that he had been won over.”{Para 55}

56. Bashapaka Laxmiah:

“18. Repeatedly, we have issued instructions that statement under S. 164 Cr.P.C. is not a substantive piece of evidence. It, is not necessary to call the Magistrate to give evidence to prove S. 164 statement. Statements under S. 164 Cr.P.C. are available to the defence for contradiction by obtaining the certified copies. The S. 164 statement recorded by the Magistrate is a public document. Such practice, hereinafter, be stopped.”

57. In Re:—To issue certain guidelines regarding inadequacies and deficiencies in criminal trials, [2017 SCC OnLine SC 298], the Supreme Court has called for remarks from various stakeholders on the suggestions made by Justice Basant, a retired Judge of the Kerala High Court, for streamlining and putting in place good practices in the conduct of criminal trials. One such suggestion is as under:

“11. The practice of omnibus marking of S. 164 statement of witness deserves to be deprecated. The relevant portion of such prior statements of living persons used for contradiction or corroboration u/s 145/157 of the Evidence Act deserves to be marked separately and specifically."

58. In the light of the above discussion, we seek to build upon the Division Bench judgment of this Court in Murugesan (supra) by holding that even in cases, where, the witness completely denies having given a statement under Section 164 Cr.P.C. the Magistrate need not be examined as a witness and the factum of the witness having given such a statement to the Magistrate and the contradiction between his evidence and his previous statement can be proved in the examination of the Investigating Officer, on whose sponsorship, the said witness was produced before the Magistrate for the purpose of recording his statement. This, in our considered opinion, will be in consonance with the observations of the Privy Council in Nazir Ahmad v. The King Emperor, [(1936) 44 LW 583 : AIR 1936 PC 253] and Kashmira Singh v. State of Madhya Pradesh, [AIR 1952 SC 159], about which, we shall discuss in detail in the subsequent paragraphs.

59. A statement recorded under Section 164 Cr.P.C. is a public document within the meaning of Section 74(iii) of the Evidence Act as held by a Full Bench of this Court in State of Madras v. Krishnan, [(1960) 73 LW 713 : AIR 1961 Mad 92]. The original of the statement, which would form part and parcel of the Court records, is a primary evidence under Section 62 of the Evidence Act for proving the fact that the said witness had appeared before the Magistrate on the date found thereon and had given a statement, but, it does not prove the veracity of its contents.

In the High Court of Madras

(Before Indira Banerjee, C.J. and P.N. Prakash, J.)

Murugasamy  Vs  State 

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Whether special Judge under PC Act can also try non PC Act case?

In the present case, the Special Court in question has been
constituted not only to deal with the cases of PC Act but also other
cases relating to the NRHM scam. Procedure of Code of Criminal
Procedure is applicable to trial before Special Judge and there is no
prejudice to trial that is taking place before Special Judge duly
appointed to deal with non PC cases when the object of doing so
was to try connected cases before same court. Undoubtedly, while
Special Judge alone could deal with cases under the PC Act, non-
PC Act could also be allowed to be tried by the Special Judge under
Section 26 of the Code of Criminal Procedure. There is no legal bar
to do so, as held by this Court in M/s. Essar Teleholdings
Limited (supra).
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 751 OF 2016
(ARISING OUT OF S.L.P. (CRL.) NO. 4338 OF 2015)
M/S. HCL INFOSYSTEM LTD.
V
CENTRAL BUREAU OF INVESTIGATION 
Citation: 2016 SCCONLINESC804,(2016) 9 SCC281

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Whether Special Judge(anti corruption) can order investigation U/S 156 of CRPC?

We would first deal with the argument of the learned ASGI that the Special Judge is not a `Magistrate' and, therefore, cannot pass order under Section 156(3) of the Code. This controversy is set at rest long back by a decision of five-judges Bench of the Hon'ble Apex Court in the case of A.R.Antule Vs. Ramdas Nayak and Anr. - AIR 1984 SC 718. In paragraph 27 of the said decision, the Hon'ble Apex court has ruled as under, -

"The Court of a Special Judge is a Court of original criminal jurisdiction. As a Court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the Court. Except those specifically conferred and specifically denied, it has to function as a Court of original criminal jurisdiction not being hide- bound by the terminological status description of Magistrate or a Court 7 Cr.WP 1166/2010 of Session. Under the Code it will enjoy all powers which a Court or original criminal jurisdiction enjoys save and except the ones specifically denied."

In view of the aforesaid Supreme court dicta, it becomes abundantly clear that the Special Judge has power to pass order under Section 156(3) of the Code as a Court of original criminal jurisdiction. His this power is not restrained or specifically denied by any statute.

Bombay High Court

The Superintendent Of Police Cbi ... vs Satish Sampatlal Surana And Ors on 18 June, 2015

Bench: R.M. Borde,P R Bora,

Cr.WP 1166/2010

BENCH AT AURANGABAD

Citation;2016 CRLJ1150

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Whether Special Judge can direct CBI to investigate criminal case under S 156 of CRPC??

After having considered the relevant provisions of the Code, we have no doubt in our mind that the Special Judge, Aurangabad exceeded his jurisdiction in directing investigation under Section 156(3) of the Code by CBI by the impugned order. The learned Special Judge failed in appreciating that CBI is an independent establishment created under the provisions of Delhi Special Police Establishment Act and in view of the provisions of Section and of the said Act, he was not empowered to direct investigation by it. The learned Special Judge further did not appreciate that CBI is not a local police station within his jurisdiction so as to invoke section 156(3) of the Code in directing investigation by it. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Writ Petition No. 1166 of 2010

The Superintendent of Police vs. Satish and Ors. 

Dated: 18.06.2015
Coram;
Borde and Bora JJ

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