Special Courts, and the Letter of Request
Chapter Twenty
Syllabus topic 1, "Ombudsman"
Pages 91 to 94 of 1033
In one line
Cases the Lokpal sends for trial go to Special Courts the Government must set up on the Lokpal's recommendation, those courts are told to finish in a year and in no case beyond two, and where the evidence is abroad the court may write to a foreign court for it.
In the wording a student can write in an exam: section 35 of the Lokpal and Lokayuktas Act 2013 requires the Central Government to constitute such number of Special Courts as the Lokpal recommends to hear and decide cases arising out of the Prevention of Corruption Act 1988 or under this Act, and requires each trial to be completed within one year, extendable for reasons recorded in writing by periods of not more than three months each up to a total of two years; section 36 empowers a Special Court, on the application of an authorised officer of the Lokpal, to issue a letter of request to a court or authority in a contracting State to obtain evidence available there.
Why the Act creates courts at all
Because the last stage of the process it designs is a criminal trial, and an ordinary criminal court's list is long. A statute that gives the Lokpal power to inquire in ninety days, investigate in six months and sanction prosecution has achieved nothing if the trial then takes eleven years.
Notice who recommends and who constitutes. The Lokpal recommends the number; the Central Government constitutes them. So the institution can say how much court capacity its work needs, and the Government must provide it. Whether that has happened in practice is a fair question for an evaluative answer, and the honest answer is that the number of Special Courts has lagged the caseload.
Section 35: the Special Courts
Section 35(1). The Central Government shall constitute such number of Special Courts, as recommended by the Lokpal, to hear and decide cases arising out of the Prevention of Corruption Act 1988 or under this Act.
Section 35(2). The Special Courts shall ensure completion of each trial within one year from the date of filing of the case.
The proviso. Where the trial cannot be completed within a year, the Special Court shall record reasons and complete it within a further period of not more than three months, or such further periods not exceeding three months each, for reasons recorded in writing before the end of each such period, but not exceeding a total period of two years.
Read the proviso carefully, because it is a drafting pattern worth knowing. The outer limit is two years. Inside that, the extension is granted in three month blocks, and reasons must be recorded before the end of each block rather than afterwards. A requirement to record reasons in advance is stricter than one to record them later, because it forces the court to confront the delay while it can still do something about it.
Special Courts, and the Letter of Request
What happens if two years pass and the trial is not over. The Act does not say. A time limit with no consequence attached is a direction to the court rather than a bar on it, and no Indian court has held that a trial under this Act becomes void on the expiry of two years. That is a genuine weakness and an honest answer says so.
What "Special Court" means here. Section 2 defines it as the court of a special judge appointed under the Prevention of Corruption Act 1988. So the Act does not invent a new kind of court; it uses the existing special judge machinery and adds a timetable.
Section 36: the letter of request
When it applies. In the course of a preliminary inquiry, an investigation or a proceeding under the Act, an officer of the Lokpal authorised in that behalf may apply to a Special Court saying that evidence is required and that he is of the opinion that such evidence may be available in a place in a contracting State.
What the Special Court may do. On being satisfied that the evidence is required, it may issue a letter of request to a court or an authority in the contracting State competent to deal with it, asking that authority to examine the facts and circumstances of the case, to take such steps as the letter specifies, and to forward the evidence so taken or collected.
The non obstante clause. Section 36 operates notwithstanding anything in this Act or the Code of Criminal Procedure 1973, so the general provisions of the Code on evidence taken abroad do not confine it.
"Contracting State" means a State with which India has an arrangement for mutual assistance in criminal matters, whether by a bilateral treaty or a multilateral convention. The United Nations Convention Against Corruption, which the preamble recites, is itself such a framework, and its chapter on international cooperation is the reason this section exists.
Why this matters for the institution's reach. Section 1(3) applies the Act to public servants in and outside India. That would be an empty claim without a way of getting evidence from abroad. Section 36 is the machinery, and the pair should be cited together in any answer about the Lokpal's jurisdiction.
A worked example
The Lokpal investigates a Secretary alleged to have taken money into an account in a foreign country.
Section 20(5). The investigation is directed to an agency, to be completed in six months.
Special Courts, and the Letter of Request
The problem. The bank records are abroad and no Indian process reaches them.
Section 36(1). An authorised officer of the Lokpal applies to the Special Court, saying evidence is required and may be available in that country, which is a contracting State.
The Special Court is satisfied and issues a letter of request to the competent court or authority there, asking it to examine the facts, to take the steps the letter specifies, and to forward the evidence.
The evidence arrives. The investigation is completed and the report goes to the court having jurisdiction under section 20(6), with a copy to the Lokpal.
Section 20(7)(a) with section 23. The Lokpal grants sanction and directs a charge sheet.
Section 12(2). The Director of Prosecution files the case in the Special Court.
Section 35(2). That court must complete the trial within a year, and may extend only in three month blocks with reasons recorded before each block ends, to an outer limit of two years.
Section 29 and 30 in parallel. If the flat bought with the money is being sold, the Lokpal attaches it for ninety days and the Prosecution Wing applies within thirty days for confirmation.
What beginners get wrong
That the Lokpal tries the case. It does not. The trial is in the Special Court, which is a court of a special judge under the Prevention of Corruption Act.
That the Lokpal constitutes the Special Courts. It recommends the number; the Central Government constitutes them.
That the one year limit is absolute. It may be extended in three month blocks up to a total of two years, with reasons recorded in writing before the end of each block.
That the Lokpal issues the letter of request. The Special Court issues it, on the application of an authorised officer of the Lokpal.
Quick revision
s.35(1): the Central Government shall constitute Special Courts as recommended by the Lokpal, for cases under the Prevention of Corruption Act 1988 or this Act.
s.35(2): trial to be completed in one year from filing; extendable by three month periods, reasons recorded in writing before the end of each, to a maximum of two years. No consequence stated for exceeding it.
Special Court means the court of a special judge under the Prevention of Corruption Act 1988 (s.2).
s.36: on the application of an authorised officer of the Lokpal, the Special Court may issue a letter of request to a court or authority in a contracting State, notwithstanding this Act or the Code of Criminal Procedure, to examine the facts, take specified steps and forward the evidence.
Special Courts, and the Letter of Request
Read s.36 with s.1(3), which applies the Act to public servants in and outside India.
Test yourself
1. Who constitutes the Special Courts and how many are there to be? The Central Government constitutes them, and the number is that recommended by the Lokpal. They hear and decide cases arising out of the Prevention of Corruption Act 1988 or under the Lokpal and Lokayuktas Act. A Special Court is the court of a special judge appointed under the Prevention of Corruption Act.
2. State the time limit for a trial and how it may be extended. Each trial is to be completed within one year of the case being filed. If it cannot be, the Special Court must record reasons and complete it within a further period of not more than three months, or further such periods of not more than three months each, with reasons recorded in writing before the end of each period, subject to an outer limit of two years in total.
3. What is a letter of request and who issues it? It is a request from a court in one country to a court or competent authority in another asking it to examine the facts of a case, take specified steps and forward the evidence so obtained. Under section 36 it is issued by the Special Court, not by the Lokpal, on the application of an officer of the Lokpal authorised in that behalf who is of the opinion that the evidence may be available in a contracting State, and the section operates notwithstanding this Act or the Code of Criminal Procedure.
4. Why is section 36 necessary? Because section 1(3) applies the Act to public servants in and outside India, and a claim to reach conduct and assets abroad is worthless without a means of obtaining evidence located there. Section 36 supplies that means, and it reflects the international cooperation obligations of the United Nations Convention Against Corruption, which the Act's preamble recites as part of its purpose.
5. What is the weakness of the time limit in section 35(2)? That the Act attaches no consequence to its breach. It directs the Special Court to finish within one year and, at the outside, two, but does not say what follows if the trial runs longer. A time limit with no sanction operates as a direction to the court rather than a bar on the proceedings, and no court has held that a trial under the Act becomes void on the expiry of two years.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.