'SWARNIM SANKALP' of Zero Pendency in Criminal Cases
I shall introduce my subject with by reiterating prologue..The injunction of our ancient jurist Kautilya.
न काल हरणं कार्यम् राज्ञ साक्षी प्रभाषणे ।
महान दोषो भवेत् कालात् धर्म व्यावृत्ति लक्षण ।।
Meaning thereby, ‘ No delay should be permitted by the king in getting witnesses to depose, for lapse of time leads to great evil marked by their deviating from the lawful course.’
When proceedings delayed in court of justice for longtime it is similar to injustice. ‘Justice delayed Justice Denied’ is a very popular maxim. Failure in punishing the guilty and rendering justice to victims in reasonable time is a biggest drawback for system. We are facing problem of delayed justice, and huge backlog of pending cases in our Criminal justice delivery system.
Gazing at statistic published by National Judicial Data Grid regarding pending cases, there are total 1,39,87,102 criminal cases pending in the country and Gujarat stands on third place with 22,09,433 cases after Uttar Pradesh and Maharashtra.
In order to resolve this crucial problem all probable solutions are implemented in the state and evening courts, Fast Track courts are being established and Lokadalats are being arranged including such other remedies but all those efforts are not enough to find out solution of pendency completely. As a little soldier of justice delivery system question accrues in my mind that, Is it not possible to eradicate the pendency completely without any extra efforts? Can it be done with minimum cost and contamination without compromising the principles established by the law? My answer as a small part of Criminal Justice Delivery System after studying present procedure and examine it on the touchstone of legislative mandate of Cr.P.C my answer is Yes, it is possible. And it will not take long time but we can resolve this problem within a year almost. To solve the pendency cordial efforts from all stakeholders i.e investigation, Prosecution and Court is essential.
To resolve any problem permanently, we must find out the root cause of its creation. Thereafter we should reach unto the roots of the problem and its underlying causes. And by giving proper treatment to root causes problem can be resolved. Now with this principle, we analyze the problem of pendency in criminal Courts, We must find out its root causes. How it created? Why it continues for years together? Whether these cases registered correctly when entered in the criminal courts? Whether procedure adopted in past and prevailing now in our criminal courts is according to law? If we find out the answers of above query, problem of pendency could be eradicated.
Criminal justice delivery system consists of Police Investigation and Court proceedings. Reality is that for investigation, cognizance of offence and in conducting trial provisions of Code of Criminal Procedure is rarely followed rather ignored. Same is the situation in the court of law where striking provisions of Procedure Code is bypassed. Investigation agency and court both have ignored salient provisions of Cr.P.C which are mandated to avoid pendency. It would reflect from the data of National Crime Records Bureau for the year 2014 and NJDG.
There are following striking Errors prevailing procedure of Investigation and Criminal Trial and require remedial efforts from higher authorities to eradicate problem of pendency of criminal cases.
POLICE – AN INVESTIGATION AGENCY
Target cases by Police.
Cases under Prohibition Act, MVA, IPC 171 to 188, GPA created by raid or target given to police to registered certain Numbers of cases. It creates bottleneck in Case Register. These types of targeted cases have no quality and its mere burden on criminal Justice Delivery System.
There is no such Provision to create criminal cases, even though such cases are not refused at the threshold by courts and to get easy disposal criminal court conduct trials and finally grant acquittal.
Implementation of provisions of 156 to 158, 167 and a 170.
True procedure after registration of FIR for investigation and fine distinction to avoid false FIR and normal situation u/s 156,157,158 is completely ignored. And all FIR resulted in to chargesheet u/s 173 and send for trial. These tendency creates huge backlog in the court.
As per NCRB data Gujarat Police has decide not to investigate in only 296 matters out of total 1,57,435 registered Case during year 2014. It means investigation agency found no case where immediate proceedings not required Or where name of accused is declared in FIR and immediate investigation or arrest is not required. Offence like fraud and cheating proper cases where procedure u/s 157 should be adopted and no immediate arrest is required. Positive implementation of this provision reduce in flow of criminal matters and would shorten long and lengthy regular trial in order to scrutiny u/s 159 of Cr.P.C by court.
Implementation of Procedure laiddown u/s 170 read with sec 173 of Cr.P.C
There is clear provision u/s 170 Cr.P.C to produce accused or with his bail bond along with complainant and important witness in the court when he investigation is completed and arrest of accused is made u/s 41. But this provision is completely bypassed and even in petty offences it is not followed.
Instead of following 170, Police agency in most of each and every case police arrest accused and produce them before court and unanimously file charge sheet at the end of 60 or 90 days. It is completely against Procedure and though it continues in our courts.
Prevailing Arrest of Accused without complete investigation and unanimous production in the court and thereafter delayed charge sheet causes large time gap and it create another problem of securing presence of accused to face trial and witness to testify. It overburdens both agency investigation as well as court. Procedure laid down u/s 170 is very important to render prompt and proper justice to society but unfortunately not followed.
Routine Production of all accused U/S 167 without following its procedure.
It’s a normal procedure without any exception to produce every accused u/s 167 before complete investigation. Further, in the Production of Accused before magistrate when investigation cannot be completed u/s 167 no mandatory requirement is fulfilled by investigation and in our criminal court without hesitation such productions are accepted.
Mandatory conditions of sec.167 like, production by PSO or Police Officer not below the rank of sub inspector, case dairy and reasons for arrest are overlooked except in the situations when investigation demands police custody.
Due to these wrong and illegal procedure creates backlog as after bail out from court either accused absconded or witness unavailable or investigating officer transferred or case transferred.
COURT– TRIAL CONDUCTING AND SENTENCING AUTHORITY
Taking Cognizance Of Case.
Normal procedure prevailing in the court is without any enquiry or perusal our court accepts charge sheets submitted by police and took cognizance and issue process to accused. There is no existing system of inspection in by Assistant Public Prosecutor prior its submission in the court to satisfy sufficient evidence and bail bond of witness and things recovered. Cases u/s 171 to188 IPC where court cannot take cognizance except up on complaint of concern authority or his superior, even though there are millions of criminal cases charge sheeted by investigation and trial are also conducted in our criminal courts resulted finally in to acquittal after years of condemnation to accused.
Service Of Summons
It is clear mandate of Procedure Code for service of summon to witness and accused may be through police in the local jurisdiction of concern magistrate and for outside jurisdiction summon should be served through concern magistrate having jurisdiction. But this provision is ignored in our court and every summons supplied to local police stations. Further summons to public servant through his superior Officer and in certain situation service of summon through Registered Post also ignored resulted in pendency.
‘Discharge’ in the case before the trial starts
In the all criminal trial there is one crucial stage of discharge of accused where there is no sufficient ground to frame charge or Plea u/s 227,239,245,257 of Cr.P.C. Cases where there is nothing in the record to frame charge or record plea, such cases should be discharged. But this self analysis rarely happened in criminal court by itself.
Method of taking evidence
Criminal courts guided by Cr.P.C. in which evidence recording procedure has been clearly mentioned, also specified kinds of trials according to the seriousness of crime, i.e. 1) Summons trial 2) Warrant Trial 3) Summary Trial. In summons trial evidence is required to be taken down in substance and not in verbatim, while in warrant trial it is in detail. Although, in our criminal court trial never categorized and conducted in manner beautifully distinguished in Sec.274, 275, 276 in Chapter 23 Cr.P.C.
Though, crystal clear provision under sec 274(1) and 275(3) procedure to taken down evidence is differentiated between summons trial and warrant trial, but unfortunately this provision has not been ignored during trial of summons or warrant cases in the most of magistrate courts. There is beautiful segregation of crime at all level according to its culpability and grievousness but unnecessary more court hours are being spent in the routine dealing of the matters.
It may worthy to quote 41st and 154th Law commission reports for anxiety of law makers for follow procedure laid down in Cr.P.C.
If directions of Summons trial and Warrant trial and its evidence taking procedure strictly followed it would reduce atleast 30% time in the trial which would results in more disposals.
Implementation of Evidence Act.
It is well established principle of evidence which envisaged that oral evidence must be relevant evidence u/s 5 to 16 of evidence Act and not otherwise. No evidence is required to be allowed which irrelevant per sec.5. But in most of the criminal matters conducted in lower courts this basic rule is hardly followed and lengthy oral evidence more particularly at cross examinations allowed in the trial which is useless for its non relevancy. Presiding officer’s error or lack of understanding this aspect of law creates bulky record, disgusting truthful witness in the court room and create tiring situation in deciding of appeal or revision.
Relevancy rule has been completely neglected in criminal justice delivery system. Now a days it is very common practice in criminal trials, where criminal court allowed endless oral evidence and lengthy and tiring cross examination of witnesses with full fledged independence to bar without considering relevancy of questions put to witnesses.
Lengthy and endless evidence is a second great reason of delayed trial and due to this lacuna criminal trial suffers at all stages i.e. appeal and revisions.
Compounding of Offence
Cr.P.C Sec.320 has given list of offences which can be compounded with or without permission of court. Rest of the offences are non compoundable. It is often and often observed in the judicial system that if any single offence of the trial is compoundable, parties put compromise and then trial court start mock trial of the case which finally results in acquittal. Precious court hours consumed in such mock trials in which all witness either tutored or won over by defense. It provides easy disposal to presiding officer and rather easy acquittal to lawyer, but as it consume time of court, it indirectly delayed another really contested criminal trial and real victim who is waiting in the queue for his turn to come.
To curb this fashion of easy disposals, when matter compromised between parties, authority to scrutinize compromise should confer to concern Assistant Public Prosecutor. He in turn apply his mind make proper endorsement and if satisfy give application to withdraw prosecution if he found no serious offence. In the appropriate cases power to apply for the withdrawal from the prosecution u/s 321 Cr.P.C may liberally be allowed to APP, which discharges the accused. Moreover, Accused may also take recourse of plea bargaining under chapter 21A of Cr.P.C which appears to remain useless in statute book.
Encouraging Prosecutor to utilize provision of Sec.321 would be very powerful instrument to reduce backlog of criminal cases.
Procedure to adduce Documentory Evidence in the trial.
There are clear and cogent provisions for adducing documentary evidence in trial u/s 294 Cr.P.C and Sec.61 to 65 of evidence Act to prove contents of documents by primary or secondary evidence. But practically in the criminal trial such provision of law has been ignored completely and all documents including complaint, Panchnama, Medical Certificates and all disputed documents are submitted during testimony of concern witness. It will create multiple adjournments and linger criminal trial.
Moreover, to prove Panchnama of investigation all Panch witnesses are called to testify in the court. And unfortunately most of Panch Witnesses are stoke witness it would be fatal blow to prosecution. According to Sec.100(5) Cr.P.C witness of police investigation should not summon to testify unless prosecution or defense demands but this provision has also being overlooked in criminal courts.
Points system for evaluation of the Judges.
Most striking reason of backlog of criminal cases is assessment system of judicial officer. In the present assessment system points are calculated at the end of trial and only work assessed which ends in ‘by judgment’ dispossal. Results thereof is, ‘by judgment’ disposal tried to be achieved by hook or crook in most of criminal proceeding in the court room. Here I don’t intend to criticize but when such assessment system is existing who will take care of disputed and lengthy criminal trial where multiple oral evidence to record and bulky documentary evidence to analyze for days or month long after such laborious task at the end of quarter be ‘POOR’ assessed.
I would suggest to modify this assessment system in four different stages of one criminal trial points considered for 1) Production, bail and remand up to registration of charge sheet, complaints 2) Cognizance u/s 190, charge, Process or plea and discharge 3) Evidence to Further Statement of accused 4) Hearing of argument and judgment. Total point which is given for disposal of case may be divided in to four parts with variable proportion according to task would change the scenario of pendency and it would even encourage hardworking judges.
It would be proper to conclude this paper that, pendency is a dark spot for any judicial system. We, the members of judicial system should resolved to create positive and proper police machinery, impartial independent and intelligent prosecution, Respectable and responsible Bar, loyal and lawful sensitive judiciary to eradicate the problem of pendency. I have prepared this paper to satisfy my emotions with noble intention to improve our system. I must announce that, I have not written a single word to hurt any respectable organ of system and understanding contain in the paper nothing blessings of my parents and master. Last but not least I could not prevent myself to quote my department tagline “।। सत्यं नास्ति परो धर्म ।।“ There no other duty to perform except preventing TRUTH.
Dharmendrasinh Gemalsinh Rana
Assistant Public Prosecutor
Legal Department, Government Of Gujatat
Resi. Ganeshnagar, Opp.Taluka Primary School,
Valia Dist. Bharuch 393 135
Tags :Criminal Law