LEGAL SABOTAGE IN
Previous to 1882 there was no uniform law of criminal procedure for the whole of
1. To provide adequate facilities to every accused person for defending himself in proper manner.
2. To ensure speedy disposal of all criminal judicial business, so that innocent persons should not suffer from protracted proceedings and real offenders should be punished as early as possible after proper trial.
The need for further changes in the Code was felt and the Law Commission presented a comprehensive report for the revision of the Code, namely, Forty first Report, was in September 1969. And the same was passed into the present Code in 1973. The main recommendations are:
a. Accused must get a fair trial in accordance with the principles of natural justice
b. Every effort should be made to avoid delay in investigation and trail which is harmful to society and individual.
c. The procedure should be easier and fair to poor sections of the community.
d. Separation of judiciary from the executive on all-India basis.
e. Legal aid to indigent accused
f. Payment of compensation by the accused to the Victims of crimes
g. When a commission is issued for the examination of a witness for the prosecution, the cost incurred by the defense including pleader’s fees may be ordered to be paid by the prosecution.
h. Hear the accused before imposing the punishment.
The need for a reform was felt again for the reason that the system, devised more than a century back, has become ineffective; a large number of guilty go unpunished in a large number of cases; the system takes years to bring the guilty to justice; and has ceased to deter criminals. Crime is increasing rapidly everyday and types of crimes are proliferating. Simple to say due to failure to punish the guilty, delay etc system wants a change is the cause for a further change.
There again another reason for a reform is that the citizens of India live in constant fear and so the Government of India, Ministry of Home Affairs constituted a Committee on reforms of Criminal Justice System (in short CRCJS) to make a comprehensive examination of all the functionaries of the Criminal Justice System, the fundamental principles and the relevant laws. Dr. Justice V.S. Malimath is the Chairman S. Varadachary, IAS (Retd.) Amitabh Gupta IPS (Retd.), Prof.(Dr.)N.R. Madhava Menon, D.V. Subba Rao as members and Durgadas Gupta as Member-Secretary of the committee.
Accusatorial and inquisitorial system : There two types of criminal judicial system which followed in the trail of accused - The Inquisitorial and Accusatorial or Adversarial or accusational systems. The goal of both the adversarial system and the inquisitorial system is to find the truth. But the adversarial system seeks the truth by pitting the parties against each other in the hope that competition will reveal it, whereas the inquisitorial system seeks the truth by questioning those most familiar with the events in dispute. The adversarial system places a premium on the individual rights of the accused, whereas the inquisitorial system places the rights of the accused secondary to the search for truth.
In the Adversarial System, two or more opposing parties gather evidence and present the evidence, and their arguments, to a judge or jury. The judge or jury knows nothing of the litigation until the parties present their cases to the decision maker. The defendant in a criminal trial is not required to testify. This system is used in the
In the Inquisitorial system, the presiding judge is not a passive recipient of information. Rather, the presiding judge is primarily responsible for supervising the gathering of the evidence necessary to resolve the case. He or she actively steers the search for evidence and questions the witnesses, including the respondent or defendant. Attorneys play a more passive role, suggesting routes of inquiry for the presiding judge and following the judge's questioning with questioning of their own. Attorney questioning is often brief because the judge tries to ask all relevant questions.
A criminal defendant in an inquisitorial system is the first to testify. The defendant is allowed to see the government's case before testifying, and is usually eager to give her or his side of the story. In an adversarial system, the defendant is not required to testify and is not entitled to a complete examination of the government's case.
A criminal defendant is not presumed guilty in an inquisitorial system. Nevertheless, since a case would not be brought against a defendant unless there is evidence indicating guilt, the system does not require the Presumption of Innocence that is fundamental to the adversarial system.
A trial in an inquisitorial system may last for months as the presiding judge gathers evidence in a series of hearings. The inquisitorial system does not protect criminal defendants as much as the adversarial system. On the other hand, prosecutors in the inquisitorial system do not have a personal incentive to win convictions for political gain, which can motivate prosecutors in an adversarial system. Most scholars agree that the two systems generally reach the same results by different means.
CRCJS Committee has taken both the systems and recommended the following change in the Preamble of the Code: "Whereas it is expedient to constitute a criminal justice system for punishing the guilty and protecting the innocent. With out saying it we know that it is the aim of the system to punish the guilty and protect the innocent. This Insertion is unnecessary in the Code.
"Whereas it is expedient to prescribe the procedure to be followed by it, "Whereas quest for truth shall be the foundation of the criminal justice system, It is the basic of the system we followed. Why an unnecessary insertion of a fact which every body has knowledge.
"Whereas it shall be the duty of every functionary of the criminal justice system and everyone associated with it in the administration of justice, to actively pursue the quest for truth. It is the basic duty of the criminal judicial system which we now followed. Why an unnecessary insertion of a fact which every body has knowledge.
An insertion of “Quest for truth shall be the fundamental duty of every court” immediately above Section 311, which is for the recalling reexamining of witness etc is not necessary as it will reduce the judicial standard of interpretation of the Code as it is because the foundation of the Criminal judicial system is to find out the truth nothing but truth. Witness are deposing before the court truth nothing but truth. Then why a quest for the truth is added as a hunch back to this section. This adding or insertion of words will not in any way stream line the system to a new track from the existing one. But this may be a caution to the judicial fraternity that you should quest the truth at any means. This indication of any means effect to a section has its own consequences. This indication put the judicial officer into the Referees stand or Prosecutors stand. If it is of prosecutor the system is malignant. Other wise as referee, the system is following now of the same track. Nothing new in inserting quest for truth .. I the code in section 311.
A new provision is recommended to be added immediately below Section 311 of the Code. This is as follows: "Any court shall, at any stage of inquiry or trial under this Code, have such power to issue directions to the investigating officer to make further investigation or to direct the Supervisory Officer to take appropriate action for proper or adequate investigation so as to assist the Court in search for truth." This adding will give the prosecution to improve their case by filling up the lacuna after the evidence is taken. This is unfair and unnecessary interference of the Judiciary in the investigation. Here it is meant that the magistrate is investigating the case in the trail. This is also unfair.
Committee recommends that the provision of acquittal or conviction under Chapter XX for Trial of Summons cases by Magistrates to be applied to Section 248 under Chapter XIX for trial of Warrant Cases by Magistrates and to Section 235 under Chapter XVIII for Trial Before a Court of Session empowering such Court to take into consideration, the evidence received under Section 311 (new) of the Code in addition to the evidence produced by the prosecution.
Section 482 of the Code is recommended to be substituted by a provision on the following lines: "Every Court shall have inherent powers to make such orders as may be necessary to discover truth or to give effect to any order under this Code or to prevent abuse of the process of court or otherwise to secure the ends of justice." This replacing is intended to supply Inherent powers to all courts in the country including the magistrate courts.
Section 482 is Saving of inherent powers of High Courts. This section envisages three circumstances in which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the code; (ii) to prevent abuse of the process of the Court; and (iii) to otherwise secure the ends of justice (R.P.Kapoor V. State of Punjab, AIR 1960 SC 866 at page 868).The jurisdiction of the high Court is confined to the Courts subordinate to it in the State for which the High court has been constituted. Inherent power includes administrative as well as judicial. The inherent jurisdiction of the High court is preserved under this section is vested in it by “law” within the meaning of Article 21 of the Constitution (AIR 1967 SC 1639). Article 21 says “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Inherent power are powers which are not specified in the Code. It is a settled law of the land that subordinate judiciary also enjoys the inherent powers for protecting the rights of the parties involved. The rule of inherent powers has its source in a Latin Maxim “Quando lex aliquid alicui concedit, cocedere videtur id sine quo res ipsa esse non potest”, which means that “when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist.” Inherent powers under this section can be exercised only when no other remedy is available to the litigant and not where specific remedy is provided in the statute. The powers of High court under this section are indeed very wide. This section cannot invoke for normal processes and inquiries prescribed in the Code. So giving this power to every Court will give a judicial dilemma.
Section 54 of the Evidence Act be substituted by a provision on the following lines: "In criminal proceeding the fact that the accused has a bad character is relevant."
Explanation: A previous conviction is relevant as evidence of bad character. Section 52 to 55 of the Indian Evidence Act, 1872 deals with the relevancy of the evidence of character of parties in civil and criminal proceedings. General rule is that if the character of a party is in issue the good or bad character will admitted as evidence of a fact in issue. But when it is not an issue the evidence of good or bad character of a party will be rejected as inadmissible was the principle followed by Indian Courts so far. Section 53 is about relevancy of previous good character in criminal cases is dealt with. This section accords with English rule; viz., “Though general evidence of bad character is not admissible against the prisoner, general evidence of good character is always admitted in his favor. ”In criminal cases a mans character is important in explaining his conduct and in judging his innocence or criminality. Many acts of an accused person would be suspicious or free from all suspicion when come top know the character of person by whom they are done. Section 54 is “Previous bad character not relevant, except in reply.- In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it become relevant. The prosecution cannot give the evidence of bad character in the first instance and as part of their case, but when the accused gives evidence of his good character under the proceedings section, the prosecution may rebut it by evidence of bad character. Previous conviction is considered by the courts while deciding the sentence of the guilty accused. Several issues will be raised by the insertion of this section by giving relevancy to the bad character of the accused. First and foremost is the Court must not be under the impression that all accused are guilty without proving the case by prosecution. This presumption is dangerous to the Indian standards as we have such a system which can be manipulated by the criminal administration. Further ho w bad character is assessed? What is the measuring rod? Who is the authority? What is bad character? Can we say a person is bad only he kill a man in provocation. Or due to ideology or due to just necessity, or a person was implicated in a crime is called a bad man. So this section will be mis-utilized by this Countries police and politicians with the aid of administration. In a country where 54 years a man is kept as under trial, several persons were blinded by the police, several innocent arrested and kept dowry cases it is so easy to make a good bad and even ugly. This position was not seen examined by the committee.
The theory of MUM is the sole basis of accusatorial system of trial. The committee recommended changing that by going against the Right to Silence as contemplated under Article 20(3) of the Constitution. The right to silence is a fundamental right guaranteed to the citizen under Article 20 (3) of the Constitution which says that no person accused of any offence shall be compelled to be a witness against himself. It is true that the best person who knows what transpired at the scene of occurrence is the accused, how can we say that the police or investigating agency is right in fixing the accused. If the agency goes wrong can we import thgis new principal in Indian criminal system? The answer is decently not. The reasoning of the committee in recommending such a change is “As the accused is in most cases the best source of information, the Committee felt that while respecting the right of the accused a way must be found to tap this critical source of information.” The Committee feels that without subjecting the accused to any duress, the court should have the freedom to question the accused to elicit the relevant information and if he refuses to answer, to draw adverse inference against the accused. When a person refuses to answer against him how can an inference adverse to him can be drawn. A draconian idea, purely against the cultural and traditional background of
Committee recommend change in section 313 “questioning of accused after closing prosecution evidence or at any time of the trial. At present the participation of the accuse din the trial is minimal. He is not even required to disclose his stand and the benefit of special exception to any which he claims. This results in great prejudice to the prosecution and impedes the search for truth. The Committee has therefore felt that the accused should be required to file a statement to the prosecution disclosing his stand. For achieving this, the following recommendations are made:-
a) 313-A: In every trial, the Court shall, immediately after the witnesses for the prosecution have been examined, question the accused generally, to explain personally any circumstances appearing in the evidence against him.
b) 313-B(1): Without previously warning the accused, the Court may at any stage of trial and shall after the examination under Section 313-A and before he is called on his defence put such questions to him as the court considers necessary with the object of discovering the truth in the case.
If the accused remains silent or refuses to answer any question put to him by the court which he is not compelled by law to answer, the court may draw such appropriate inference including adverse inference as it considers proper in the circumstances.
c) 313-C(1): No oath shall be administered when the accused is examined under Section 313-A or Section 313-B and the accused shall not be liable to punishment for refusing to answer any question or by giving false answer to them.
The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, or any other offence which such answers may tend to show he has committed. The words “adverse inference and appropriate inference” in the new section 313-B if the accused refuses to answer the question is a bad law. In 313 questioning accused is asked about the circumstances which are incriminating against him. He can keep shut to many answers if the questions are incriminating to him. When in such a circumstance if the court infer things it is unfair and against the natural justice. S.313-C and 313-B are contradictory. He is not going to be punished for giving false evidence under 313-C by baring the administration of oath in 313 questioning. That means he is free to give evidence with out fear of the Damocles sword on him by false evidence. At the same time he will be punished by adverse inference or appropriate inference. The committee failed to appreciate the actual intend of section 313 in the original code. This insertion of new sections will defenetly destroys the criminal judicial system a mockery.
Committee recommends incorporation suitable provisions in the Code on the following lines:
a) Requiring the prosecution to prepare a 'Statement of Prosecution' containing all relevant particulars including, date, time, place of the offence, the nature of evidence oral and documentary, names of witnesses, names and similar particulars of others involved in the commission of the crime, the offence alleged to have been committed and such other particulars as are necessary to fully disclose the prosecution case. b) 'Prosecution statement' shall be served on the accused. c) On charge being framed the accused shall submit the 'Defense Statement' within two weeks. The Court may on sufficient cause being shown extend the time not beyond 4 weeks. This is purely a tribunal method. d) In the defense statement the accused shall give specific reply to every material allegation made in the prosecution statement .e) If the accused pleads guilty he need not file the defense statement. f) If any reply is general, vague or devoid of material particulars, the Court may call upon the accused to rectify the same within 2 weeks, failing which it shall be deemed that the allegation is not denied. g) If the accused is claiming the benefit of any general or special exceptions or the benefit of any exception or proviso, or claims alibi, he shall specifically plead the same, failing which he shall be precluded from claiming benefit of the same. h) Forms and particulars to be furnished in the prosecution statement and defense statement shall be prescribed. i) If in the light of the plea taken by the accused, it becomes necessary for the prosecution to investigate the case further; such investigation may be made with the leave of the court.
(a) and (b) are the original Final report U/s 173 of the Code. Nothing new in it. Under (c) fixing his defense at the earlier occasion is just like fixing the defense like “alibi’ in the earlier occasion. Under (f) direct interference of the court by making his mind on defense and prosecution will give a partisan attitude. (g) is unfair and against natural justice. Such a presumption cannot be taken by the court. That will destroy the independent and impartial attitude of the court. Accused is at liberty to take any defense consistent or inconsistent in his trial. a) On considering the prosecution statement and the defense statement the court shall formulate the points of determination that arise for consideration. b) The points of determination shall indicate on whom the burden of proof lies. c) Allegations which are admitted or are not denied need not be proved and the court shall make a record of the same. (a) The criminal courts in preparation of judgments only fixing the points to be considered. But at no stage in the trail to the conclusion of trial points are not fixed. This will restrict or confine the court from the earlier occasion to keep it mind on the points only. Dragging the judicial system to quasi-civil is suicidal. (b) is also a civil nature which is against the criminal jurisprudence. Admission of allegations in (c) will save time of the court.
Indian Constitution and by the judgments the Supreme court of India had awarded several rights to accused lavishly taking into consideration the human rights. The accused has the right to know the reason of arrest, the allegation against, he must be given legal aid, he must be given medical aid, to inform the nearest relatives or friends etc. The Committee therefore felt that all the rights of the accused flowing from the laws and judicial decisions should be collected and put in a Schedule to the Code. The Committee also felt that they should be translated by each State in the respective regional language and published in a form of a pamphlet for free distribution to the accused and the general public. The following recommendations are made in regard to the rights of the accused:-
(a) The rights of the accused recognized by the Supreme Court may subject to the clarification in Chapter 4 and the manner of their protection be made statutory, incorporating the same in a schedule to the Criminal Procedure Code.
(b) Specific provision in the Code be made prescribing reasonable conditions to regulate handcuffing, including provision for taking action for misuse of the power by the Police Officers.
In several countries in the world the standard is proof is on 'preponderance of probabilities.' There is a third standard of proof which is higher than 'proof on preponderance of probabilities' and lower than 'proof beyond reasonable doubt'. The Committee after careful assessment favours a mid level standard of proof of 'courts conviction that it is true’. The recommendation of the committee is: (a) The Committee recommends that the standard of 'proof beyond reasonable doubt' present followed in criminal cases shall be done away with. (b) The Committee recommends that the standard of proof in criminal cases should be higher than the 'preponderance of probabilities' and lower than 'proof beyond reasonable doubt.' (c) Accordingly, the Committee recommends that a clause be added in(Section 3 on the following lines:- "In criminal cases, unless otherwise provided, a fact is said to be proved when, after considering the matters before it, the court is convinced that it is true." (d) The amendments shall have effect notwithstanding anything contained in the contrary in any judgment, order or decision of any court. Done away with the present evidential system “proof beyond reasonable doubt” in (a) above will destroy the balancing of Indian police, judicial and executive administrative system. (c) above is only an individual mental element without any aid of the legal instruments and only a convincing of the court that a fact is true. It has far reaching consequences. How the truth will be assessed? How a proof beyond reasonable doubt will be equated with the convincing of the court that a fact is true. How this will tally with preponderance of probability. There must be a base to a change. What is the guideline of this change? What will be the consequences of this change? Bringing every thing to the mental orthodoxy of a court is unfair and much below the standard of a big democracy with high standard of legal sensitiveness of ancient Indian culture.
To ensure justice to the victims is a welcoming change.
Hence it is recommended to (a) The victim, and if he is dead, his legal representative shall have the right to be impleaded as a party in every criminal proceeding where the offence is punishable with 7 years imprisonment or more. b) In select cases notified by the appropriate government, with the permission of the court an approved voluntary organization shall also have the right to implead in court proceedings. c) The victim has a right to be represented by an advocate of his choice; provided that an advocate shall be provided at the cost of the State if the victim is not in a position to afford a lawyer.
(a)(b) and (c) is unwarranted and no purpose for a speedy disposal, ensure justice etc will be served. A defacto complainant is always at liberty to assist the Prosecution with permission of the court. Further he can appoint an Advocate apart from a prosecutor to assist the prosecutor in his own expense. The Prosecutor is representing the State and the victim to an extent for finding out the truth in fairness to the accused and victim. Victim is represented by the State. Further representation for personal interest on the expense of the state is not necessary as it will subject much legal battle in the court which will drag the proceedings in the court to some other arbitrarily and partisan levels.
d) The victim's right to participate in criminal trials shall, inter alia, include:
a) to produce evidence, oral or documentary, with leave of the Court and/or to seek directions for production of such evidence b) to ask questions to the witnesses or to suggest to the court questions which may be put to witnesses c) to know the status of investigation and to move the court to issue directions for further to the investigation on certain matters or to a supervisory officer to ensure effective and proper investigation to assist in the search for truth. d) to be heard in respect of the grant or cancellation of bail e) to be heard whenever prosecution seeks to withdraw and to offer to continue the prosecution f) to advance arguments after the prosecutor has submitted arguments g) to participate in negotiations leading to settlement of compoundable offences. d.(a) Producing evidence by the victim, (b) asking questions by interfering in the prosecution conducting by an impartial state prosecutor, (c) interfering to the court proceedings with vested personal interest for the quest to revel the truth, (d) hearing the victim in the matter of bail (Suicidal to the legal system an going to Barbarian Arabian deserts), (f) arguments from victim separately, (g) negotiations will always be done through the counsel or in person of the defacto complainant or victims relatives.
e) The victim shall have a right to prefer an appeal against any adverse order passed by the court acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such a court. f) Legal services to victims in select crimes may be extended to include psychiatric and medical help, interim compensation and protection against secondary victimization. g) Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted. This is to be organized in a separate legislation by Parliament. The draft bill on the subject submitted to Government in 1995 by the Indian Society of Victimology provides a tentative framework for consideration. h) The Victim Compensation law will provide for the creation of a Victim Compensation Fund to be administered possibility by the Legal Services Authority. The law should provide for the scale of compensation in different offences for the guidance of the Court. It may specify offences in which compensation may not be granted and conditions under which it may be awarded or withdrawn
One thing is sure in the Indian standards of legal mechanism that the inclusion of the victim in the criminal proceedings will drag on the proceedings to any extent and to any level. Better and quicker justice is only a dream. The rights of victims are recognized by law and restitution for loss of life, limb and property are provided for in the system then greed breed greed.
A separate wing of investigation with clear mandate that it is accountable only to Rule of Law is the need of the day. Here the question is how to accountable to Rule of Law when the right to silence, interfering of victim directly to the judicial proceedings, withdrawal of presumption innocence, introduction of Inquisitorial system and the finding of truth with out protecting the right of accused by the courts etc etc are the foundation stones of the Rule of Law .
The following recommendations are made:
The Investigation Wing should be separated from the Law and Order Wing.
National Security Commission and the State Security Commission at the State level should be constituted, as recommended by the National Police Commission.
To improve quality of investigation the following measures shall be taken:
i) The post of an Addl SP may be created exclusively for supervision of a crime.
ii) Another Addl. SP in each District should be made responsible for collection, collation and dissemination of criminal intelligence; maintenance and analysis of crime data and investigation of important cases.
iii) Each State should have an officer of the IGP rank in the State Crime Branch exclusively to supervise the functioning of the Crime Police. The Crime Branch should have specialized squads for organized crime and other major crimes.
iv) Grave and sensational crimes having inter-State and transnational ramifications should be investigated by a team of officers and not by a single IO.
v) Sessions cases must be investigated by the senior-most police officer posted at the police station. f) Fair and transparent mechanisms shall be set up in places where they do not exist and strengthened where they exist, at the
vi) Police Establishment Boards should be set up at the police headquarters for posting, transfer and promotion etc. of the District Level officers.
vii) The existing system of Police Commissioner's office which is found to be more efficient in the matter of crime control and management shall be introduced in the urban cities and towns.
viii) Dy. SP level officers to investigate crimes need to be reviewed for reducing the burden of the circle Officers so as to enable them to devote more time to supervisory work
ix) Criminal cases should be registered promptly with utmost promptitude by the SHO's
x) Stringent punishment should be provided for false registration of cases and false complaints. Section 182/211 of IPC be suitably amended.
xi) Specialized Units/Squads should be set up at the State and District level for investigating specified category crimes.
xii) A panel of experts be drawn from various disciplines such as auditing, computer science, banking, engineering and revenue matters etc. at the State level from whom assistance can be sought by the investigating officers.
xiii) With emphasis on compulsory registration of crime and removal of difference between non-cognizable and cognizable offences, the workload of investigation agencies would increase considerably. Additionally, some investigations would be required to be done by a team of investigators. For liquidating the existing pendency, and, for prompt and quality investigation including increase in the number of Investigating Officers is of utmost importance. It is recommended that such number be increased at least two-fold during the next three years.
xiv) Similarly for ensuring effective and better quality of supervision of investigation, the number of supervisory officers (additional SPs/Dy.SPs) should be doubled in next three years.
xv) Infrastructural facilities available to the Investigating Officers specially in regard to accommodation, mobility, connectivity, use of technology, training facilities etc. are grossly inadequate and they need to be improved on top priority. It is recommended that a five year rolling plan be prepared and adequate funds are made available to meet the basic requirements of personnel and infrastructure of the police.
The training infrastructure, both at the level of Central Government and State Governments, should be strengthened for imparting state of the art training to the fresh recruits as also to the in-service personnel. Hand-picked officers must be posted in the training institutions and they should be given adequate monetary incentive.
Law should be amended to the effect that the literate witness signs the statement and illiteterate one puts his thumb impression thereon. A copy of the statement should be mandatorily given to the witness.
Supplying copy of the statement to witness is mandatory. But the signing in it or putting thump impression will definitely confine the giver of the statement to his earlier signed statement while in the trial. The police is not trust worthy then how a statement taken by such a police is taken into account only because one is signed or impressed his thump on it.
Committee recommends the the lawful authorization of Audio/video recording of statements of witnesses, dying declarations and confessions. Interrogation Centres should be set up at the District Hqrs. in each District, where they do not exist, and strengthened where they exist, with facilities like tape recording and or videography and photography etc. a) Forensic Science and modern technology must be used in investigations right from the commencement of investigation. A cadre of Scene of Crime officers should be created for preservation of scene of crime and collection of physical evidence there-from. b) The network of CFSL's and FSL's in the country needs to be strengthened for providing optimal forensic cover to the investigating officers. Mini FSL's and Mobile Forensic Units should be set up at the District/Range level. The Finger Print Bureaux and the FSL's should be equipped with well-trained manpower in adequate numbers and adequate financial resources. Forensic Medico Legal Services should be strengthened at the District and the State/Central level, with adequate training facilities at the State/Central level for the experts doing medico legal work. The State Governments must prescribe time frame for submission of medico legal reports. A mechanism for coordination among investigators, forensic experts and prosecutors at the State and District level for effective investigations and prosecutions should be devised.
Preparation of Police Briefs in all grave crimes must be made mandatory. A certain number of experienced public prosecutors must be set apart in each District, to act as Legal Advisors to the District police for this purpose. An apex Criminal intelligence bureau should be set up at the national level for collection, collation and dissemination of criminal intelligence. A similar mechanism may be devised at the State, District, and Police Station level. As the Indian Police Act, 1861, has become outdated, a new Police Act must be enacted on the pattern of the draft prepared by the National Police Commission.
Section 167 (2) of the Code be amended to increase the maximum period of Police custody to 30 days in respect of offences punishable with sentence more than seven years. The present provision for 15 days is sufficient for police custody.
Committee’s recommendation for 180 days time to file charge u/s 167 is welcoming. Section 167 of the Code which fixes 90 days for filing charge sheet failing which the accused is entitled to be released on bail be amended empowering the Court to extend the same by a further period up to 90 days if the Court is satisfied that there was sufficient cause, in cases where the offence is punishable with imprisonment above seven years.
At present the courts are granting the anticipatory bail only after hearing the prosecution. Recommendation that S. 438 of the Code regarding anticipatory bail be amended to the effect that such power should be exercised by the Court of competent jurisdiction only after giving the public prosecutor an opportunity of being heard. Is welcoming.
Section 161 of the Code be amended to provide that the statements by any person to a police officer should be recorded in the narrative or question and answer form. This change is not necessary. As a statement to police officer u/s 161 is admissible in evidence only for contradictions not for corroboration.
In cases of offences where sentence is more than 7 years it may also be tape / video recorded. Why a restricted to 7 years. In all cases the statement recording must be video graphed by the police.
Section 162 be amended to require that it should then be read over and signed by the maker of the statement and a copy furnished to him. This cannot be because the maker of the statement is confined to the signed statement.
Section 162 of the Code should also be amended to provide that such statements can be used for contradicting and corroborating the maker of the statement. Corroboration has a bad effect in legal proceeding. Contradiction alone is good in the existing Indian scenario.
Section 25 of the Evidence Act may be suitably amended on the lines of Section 32 of POTA 2002 that a confession recorded by the Supdt. of Police or Officer above him and simultaneously audio/video recorded is admissible in evidence subject to the condition that the accused was informed of his right to consult a lawyer. This is a law in violation of the Indian Legal jurisprudence. Identification of Prisoners Act 1920 be suitably amended to empower the Magistrate to authorize taking from the accused fingerprints, footprints, photographs, blood sample for DNA, fingerprinting, hair, saliva or semen etc., on the lines of Section 27 of POTA 2002. Taking this recommendation except the draconian element in S.32 of POTA 2002.
A suitable provision be made on the lines of section 36 to 48 of POTA 2002 for interception of wire, electric or oral communication for prevention or detection of crime. Taking the POTA 2002 into the judicial circle is unhealthy as POTA 2002 it self is against human rights and constitutional rights. Suitable amendments be made to remove the distinction between cognizable and non-cognizable offences in relation to the power of the police to investigate offences and to make it obligatory on the police officer to entertain complaints regarding commission of all offences and to investigate them. The removal of distinction between cognizable and non-cognisable and giving effect of cognizibility and a mandatory investigation to all is not necessary as that will enhance the load of police and number of cases in the Court. Further recommendation of refusal to entertain complaints regarding commission of any offence shall be made punishable is also will invite unnecessary legal congestion. In the schedule to the Code for the expression "cognizable", the expression "arrestable without warrant" and for the expression "non-cognizable" the expression "arrestable with warrant or order" shall be substituted. This substitution will not improve the present situation.
The recommendations to improve the system of prosecution is welcoming one. It is true that the Prosecutors are the Officers of the Court whose duty is to assist the court in the search of truth which is the objective of the Criminal Justice System. This important institution of the Criminal Justice System has been weak and somewhat neglected. Its recruitment, training and professionalism need special attention so as to make it synergetic with other institutions and effective in delivering good results.
It is recommended that: (a) In every State, the post of Director of Prosecution should be created, if not already created, and should be filled up from among suitable police officers of the rank of DGP in consultation with the Advocate General of the State. (b) In States where the term of the existing incumbents comes to an end, such appointments shall be made, after the expiry of the term. (c) The Assistant Public Prosecutors and Prosecutors (other than the State Public Prosecutor in the High Court) shall be subject to the administrative and disciplinary control of the Director of Prosecutions. (d) The duties of the Director, inter alia, are to facilitate effective coordination between the investigating and prosecuting officers and to review their work and meeting with the Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors from time to time for that purpose. (e) The Director must function under the guidance of the Advocate General. (f) a) All appointments to APP's shall be through competitive examination held by the Public Service Commission having jurisdiction. b) 50% of the vacancies in the posts of Public Prosecutors or Additional Public Prosecutors at District level in each state shall be filled up by selection and promotion of seniority-cum-merit from the APP's. c) Remaining 50% of the posts of Public Prosecutors or Additional Public Prosecutor shall be filled by selection from a panel prepared in consultation with District Magistrates and District Judges. d) No person appointed as APP or promoted as Public Prosecutor shall be posted in the Home district to which he belongs or where he was practicing. e) Public Prosecutors appointed directly from the Bar shall hold office for a period of three years. However, the State may appoint as Special Public Prosecutor any member of the Bar for any class of cases for a specified period. f) In appointing to various offices of Public Prosecutors and Assistant Public Prosecutors sufficient representation shall be given to women. (g) Assistant Public Prosecutors should be given intensive training, both theoretical and practical. Persons in service should be given periodical in-service training. (h) To provide promotional avenues and to use their expertise. Posts be created in institutions for Training for Prosecutors and Police Officers. (i) To ensure accountability, the Director must call for reports in all cases that end in acquittal, from the Prosecutor who conducted the case and the Superintendent of Police of the District. (j) All prosecutors should work in close cooperation with the police department, and assist in speedy and efficient prosecution of criminal cases and render advice and assistance from time to time for efficient performance of their duties. (k) The Commissioner of Police / Dist. Supdt of Police may be empowered to hold monthly review meetings of P.P.'s / Addl. P.P.'s and APP's for ensuring proper coordination and satisfactory functioning. (l) Provision may be made for posting Public Prosecutor / Senior Asst. Public Prosecutors at the Commissionerate / Dist. Supdt. offices for rendering legal advice.
The committee noted that there is gross inadequacy of judges, deterioration in the quality of judges, requirement to lay down the precise qualifications, experience, qualities and attributes that are needed in a good judge, complaints of serious aberrations in the conduct of the judges. Following recommendations are made:- a) Qualifications prescribed for appointment of judges at different levels should be reviewed to ensure that highly competent judges are inducted at different levels. b) Special attention should be paid to enquire into the background and antecedents of the persons appointed to the Judicial Offices to ensure that persons of proven integrity and character are appointed. c) Intensive training should be imparted in theoretical, practical and in court management to all the Judges. d) In the Supreme Court and High Courts, the respective Chief Justices should constitute a separate criminal division consisting of such number of criminal benches as may be required consisting of judges who have specialized in criminal law. e) Such judges should normally be continued to deal with criminal cases until they demit office. f) Vacancies in the criminal divisions should be filled up by appointing those who have specialized knowledge in criminal law. (g) In the subordinate courts where there are more judges of the same cadre at the same place, as far as possible assigning of civil and criminal cases to the same judge every day should be avoided.(h) In urban areas where there are several trail courts some corust should have lady judges who should be assigned as far as possible criminal cases relating to women.(i) A High Power Committee should be constituted to lay down the qualifications, qualities and attributes regarding character and integrity that the candidate for the High Court judgeship should possess and specify the evidence or material necessary to satisfy these requirements. Reasons should be recorded with reference to these criteria by the selecting authority.
(j) The Chief Justice of the High Court may be empowered on the lines of the US Judicial Councils Reform and Judicial Conduct and Disabilities Act 1980 to do the following:-
a) Advise the judge suitably
b) Disable the judge from hearing a particular class of cases
c) Withdrawing judicial work for a specified period
d) Censure the judge
e) Advise the judge to seek voluntary retirement
f) Move the Chief Justice of India to advise the Judge or initiate action for impeachment.
The Chief Justice of the High Court may issue circulars:-
a) That immediately below the cause title of the judgment order the following particulars shall be entered:- a) Date of conclusion of arguments b) Date of reserving the judgment c) Date of pronouncement of judgment d) At the bottom of the judgment the following particulars shall be entered:- 1. Date when the dictation was completed 2. Date when typing was completed and placed before the judge 3. The date when the judge signed
b) The Court Officer shall enter in a separate register:- a) The time when the judge assembled.
b) The time when the judge rose c) Copy of this record shall be sent to the Chief Justice on the same day and put up on the notice board.
The Committee recommends that the Law Commission's consultation paper on case management be accepted and the proposals carried out without any delay.
At present, a large number of cases in which punishment is two years and less are tried as summons cases. The summary procedure prescribed by Section 262 to 264 of the Code, if exercised properly, would quicken the pace of justice considerably. Section 206 of the Code prescribes the procedure for dealing with 'petty offences.' The following recommendations are made:- a) Section 260 of the Code may be amended by substituting the word "shall" for the words "may if he think fit." b) Section 260 (1) (c) of the Code be amended empowering any Magistrate of First Class to exercise the power to try the cases summarily without any special empowerment in this behalf by the High Court. c) The limit of Rs. 200/- fixed for the value of property under Section 260 (1) (c) (ii, iii, iv) be enhanced to Rs. 5000/- d) Section 262(2) be amended to enhance the power of sentence of imprisonment from three months to three years. e) Section 2(x) be amended by substituting the word "three" for the word "two."
That all Magistrates shall be given intensive practical training to try cases following the summary procedure. Section 206 be amended to make it mandatory to deal with all petty cases in the manner prescribed in sub-section (1).1] the proviso to sub-section (1) the fine amount to be specified in the summons shall be raised to Rs. 2000/-. 2] Notice to the accused under Section 206 shall be in form No. 30-A and the reply of the accused shall be in form No. 30-B as per annexures. In sub-section (2) of Section 206 the limit relating to fine be raised to Rs. 5000/-.
a) Sub-section (3) shall be suitably amended to empower every Magistrate to deal with cases under sub-section (1). Offences which are compoundable under Section 320 or any offence punishable with imprisonment for a term not exceeding one year or with fine or with both.
b) a) Section 62 of the code be amended by deleting reference to the need for rules by State Government for alternate modes of service. b) In Section 69 before the word "witness" the words "accused or" be added wherever the word "witness" occurs.
Witnesses: The committee further recommends that a) Witness who comes to assist the court should be treated with dignity and shown due courtesy. An official should be assigned to provide assistance to him.b) Separate place should be provided with proper facilities such as seating, resting, toilet, drinking water etc. for the convenience of the witnesses in the court premises.
T.A and D.A to the witness should be reviewed so as to compensate him for the expenses that he incurs. Proper arrangements should be made for payment of the allowances due to the witness on the same day when the case is adjourned without examining the witness he should be paid T.A. and D. A. the same day.
A law should be enacted for giving protection to the witnesses and their family members on the lines of the laws in
a) Section 344 of the Code may be suitably amended to require the court to try the case summarily once it forms the opinion that the witness has knowingly or willfully given false evidence or fabricated false evidence with the intention that such evidence should be used in such proceeding. The expression occurring in Section 344(1) to the effect "if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating as the case may be, false evidence" shall be deleted. b) The Committee recommends that the punishment of three months or fine up to Rs. 500/- or both should be enhanced to imprisonment for two years or fine up to Rs. 10000 /- or both. c) Sub-section 3 may be suitably amended to the effect that if the Court of Session or Magistrate of first class disposing the judicial proceeding is however satisfied that it is necessary and expedient in the interest of justice that the witness should be tried and punished following the procedure prescribed under Section 340 of the Code, it shall record a finding that effect and proceed to take further action under the sai d provision. Section 341 providing for appeal is unnecessary and shall be deleted.
Administartion of the Oath is now an empty formality and have no effects on the witness. So it is recommended that a provision should be incorporated requiring the judge administering the oath or affirmation to caution the witness that he is in duty bound under Section 8 of the Oaths Act to speak the truth and that if he makes a false statement in violation of the oath or affirmation that has been administered to him, the court has the power to punish him for the offence of perjury and also to inform him of the punishment prescribed for the said offence.
Committee recommends reduction of vacations and increasing of working days. The working days of the Supreme Court and High court to be raised to 206 days and 231 days respectively. Consequently, the Supreme Court and the High Courts shall reduce their vacations by 21 days on the increase in their working days.
For speedy and effective disposal of cases a new scheme “Arrears Eradication Scheme” was recommended to be introduced. Recommendation 91 to 99 is regarding this scheme.
Committee felt a need to have new forms of punishments such as community service, disqualification from holding public offices, confiscation orders, imprisonment for life without commutation or remission etc. Hence the Committee is in favour to review the IPC.
The Committee recommends that wherever fine is prescribed as one of the punishments, suitable amendments shall be made to increase the fine amount by fifty times. This is not a correct approach. Punishment to the offence and not to the offender. If that be so the each offence has to be taken individually without generalizing the fine and punishment.
Alternative sentence to death: In respect of offences for which death is a punishment, the sentence of "imprisonment for life without commutation or remission" be prescribed as an alternative sentence. Suitable amendments shall be made to make it clear that when such punishment is imposed, the government is precluded from commuting or remitting the sentence. An alternative sentence to death is not a good suggestion. In Indian political and administrative climate, alternative sentence will be used arbitrarily, due to several reasons to avoid death sentence. Death sentence can be substituted by death sentence only.
Pregnant women: When a woman who is pregnant or has a child below 7 years is sentenced to any term of imprisonment, a provision shall be made to give effect to that sentence by directing that she shall remain under house arrest during that period. Similar provisions shall be made in respect of such women who are remanded to judicial custody. What is house arrest is to be detailed in this recommendation?
Community service v. fine: IPC empowers the court to prescribe the sentence of imprisonment when the accused commits default in payment of fine. The Committee recommends that a suitable provision should be made empowering the court to prescribe an alternative to default sentence, community service for a specified time.
Sentencing guideline: The Committee recommends that a statutory Committee be constituted to lay down sentencing guidelines to regulate the discretion of the court in imposing sentences for various offences under the IPC and Special Local Laws under the Chairmanship of a former Judge of the Supreme Court or a retired Chief Justice of a High Court who has experience in the Criminal Law, and with members representing the Police department, the legal profession, the Prosecution, women and a social activist.
Offences Against Women: As a man can be punished under Section 497 of the IPC for adultery, for having sexual intercourse with a wife of another man, it stands to reason that wife should likewise be punished if she has intercourse with another married man. Gross misuse of S.498A also is noted by the committee. S.498 A is non-bailable and non-compoundable. Committee recommends to convert this section to bailable and compoundable. Good suggestion.
Rape: The Committee recommends sentence of imprisonment for life without commutation or remission to the rapist if he kills the victim. Following recommendations are put forward by the committee: (a) Definition of the word "wife" in section 125 of the Code be amended to include a woman who was living with the man like his wife for a reasonably long period. (b) Section 494 of the IPC be suitably amended to the effect that if the man and woman were living together as husband and wife for a reasonably long period the man shall be deemed to have married the woman according to the customary rites of either party. (c) Section 497 of the Indian Penal Code regarding offence of adultery be amended to include wife who has sexual intercourse with a married man, by substituting the words "whosoever has sexual intercourse with the spouse of any other person is guilty of adultery." (d) The Code may be suitably amended to make the offence under Section 498A of the IPC, bailable and compoundable. (e) Forcible penetration, penile/oral, penile/anal, object or finger/vaginal and object or finger/anal should be made a separate offence under the IPC prescribing appropriate punishment on the lines of Section 376 of the IP Code. (f)
The Committee is not in favour of prescribing death penalty for the offence of rape. Instead the Committee recommends sentence of imprisonment for life without commutation or remission. (g) A suitable provision should be made requiring the officer investigation to complete investigation of cases of rape and other sexual offences on priority basis and requiring the court to dispose of such cases expeditious within a period of four months. (h)
Specialized training should be imparted to the Magistrates in regard to trial of cases of rape and other sexual offences to instill in them sensitivity to the feelings, image, dignity and reputation etc. of the victim. (i) Provision should be made in the Code permitting filing of FIRs in respect of offences under Section 376, 376A, 376B, 376C, 376D and 377 of IP Code within a reasonable time.
About (a) changing the section 125 provision i.e., maintenance of wives, children and parents to “maintenance of a woman who was living with the man like his wife for a reasonably long period, children and parents” will destruct the morale values of Indian family system. To maintain a women who lives with a man for long cannot be considered as wife in Indian society. It is a social problem. No Indian wife will agree to maintain a ‘keep’ of the husband. This recommendation drags the Indian family system to an unsacred terrain. Recommendation (b) is illegal, irregular, immoral and not suited to Indian culture and Indian Family concept. How to presume things is a delicate question. How such an immorally shrink idea blended with the recommendation? (c) is a good suggestion. Change in 498A is welcoming.
A special mechanism be put in place to deal with the cases involving a Central Minister or a State Minister, Members of Parliament and State Assemblies to proceed against them for their involvement. That the Code of Criminal Procedure provide for attachment, seizure and confiscation of immovable properties on the same lines as available in special laws.
A Central, special legislation be enacted to fight Organized Crime for a uniform and unified
Terrorism: A comprehensive and inclusive definition of terrorists' acts, disruptive activities and organised crimes be provided in the Indian Penal Code 1860 so that there is no legal vacuum in dealing with terrorists, underworld criminals and their activities after special laws are permitted to lapse as in the case of TADA 1987. The sunset provision of POTA 2002 must be examined in the light of experiences gained since its enactment and necessary amendments carried ut to maintain human rights and civil liberties. Possession of prohibited automatic or semi-automatic weapons like AK-47, AK-56 Rifles, Machine Guns, etc., and lethal explosives and devices such as RDX, Landmines detonators, time devices and such other components should be made punishable with a punishment of unto 10 years.
(a) The procedural laws regarding presumption of burden of proof in the case of economic crimes should not be limited to explanation of an accused who must rebut charges conclusively. (b) Adverse inference should be drawn if violation of accounting procedures are prima facie established and public documents, including bank documents, should be deemed to be correct (AIR 1957 SC 211: 1957 Cr.LJ 328) (c) Sentences in economic offences should not run concurrently, but consecutively. Fines in these cases should be partly based on seriousness of offence, partly on the ability of the individual/corporation to pay, but ensuring that its deterrence is not lost. (d) An Asset Recovery Agency at the Federal level and similar agency at the State Levels may be created. (e) It is recommended that a mechanism by name 'Serious Fraud Office' be established by an act of Parliament with strong provisions to enable them to investigate and launch prosecution promptly.
'Serious Fraud Office': To inspire the confidence of the people and to ensure autonomy, the Chairman and Members of the Serious Fraud Office be appointed for a term of not more than five years following a procedure that itself should inspire confidence, integrity, objectivity and independence. In a similar manner, State Government must set up Serious Fraud Office, but appointment be made in consultation with the Chairman of the Central Fraud Office to eliminate political influence.
The Committee recommends that for tackling serious economic offences, it is necessary that our domestic laws are made compatible with laws of other Countries. Mutual legal assistance, under appropriate Conventions/Treaties/Protocols of the United Nations should be developed for exchange of information of a continuous basis is a welcome note.
Violations of environmental laws having serious economic and public health consequences must be dealt with effectively and expeditiously. It is now an essentiality to have environmental laws effectively.
As the 155th recommendation the Committee proposed the enactment of a law to protect informers, covering major crimes. This in Indian conditions may be abused by the informers for personal and vexatious interest. As the last and 158th recommendation the committee proposed a provision be incorporated in the Constitution to provide for a Presidential Commission for a periodical review of the functioning of the Criminal Justice System.
Adv. K.C. Suresh, B.A., LL.M (Crimes), PGDHR (Human Rights)Special Public Prosecutor. Legal Adviser (Rtd) Vigilance & ACB, Kerala
Tags :Criminal Law