Report No. 154
Proceedings of the Workshop on Criminal Law by the Law Commission of India and Criminal Justice, Society of India held at Haryana Niwas, Chandigarh on 20-1-1996
Under the auspices of Law Commission of India and Criminal Justice Society of India, a workshop on Criminal Law was held on 20-1-1996 at Haryana Niwas, Chandigarh.
The following persons attended the workshop: S. No.
1. Mr. Justice K.J. Reddy, Chairman, Law Commission.
2. Mr. Justice S.P. Kurdukar, C.J., Punjab & Haryana High Court.
3. Mr. K.T.S. Tulsi, Additional Solicitor-General of India.
4. Hon'ble Mr. Justice R.P. Sethi, Punjab & Haryana High Court.
5. Hon'ble Mrs. Justice Dr. S. Saksena, Punjab & Haryana High Court.
6. Mr. Kalyan Rudra, I.P.S., DG(P), Haryana.
7. Mr. O.P. Sharma, I.P.S., DG(P), Punjab.
8. Mrs. Alice Jacob, Member, Law Commission.
9. Sh. Prabhakar Rao, Member, Law Commission.
10. Sh. R.L. Gupta, Member, Law Commission.
11. Sh. S.C. Srivastava, Joint Secy., Law Commission.
12. Mr. K.P.S. Gill, Ex. DGP (Pb.).
13. Mr. M.S. Chahal, I.A.S., Financial Commissioner, Punjab.
14. Mr. S.S. Brar, Home Secretary, Punjab Civil Secretariat.
15. Mrs. Kakshish Kaur, Legal Remembrancer, Govt. of Punjab.
16. Mr. M.K. Bansal, Legal Remembrancer, Govt. of Haryana.
17. Mr. Pardeep Mehra, I.A.S., Advisor to U.T. Adm., Chandigarh.
18. Mr. H.L. Sibal, Advocate-General, Haryana 29/5-A, Chandigarh.
19. Mr. M.L. Sarin, Advocate-General, Punjab, 48/4-A, Chandigarh.
20. Sh. B.L. Kulati, Registrar, Pb. & Hry. High Court.
21. Sh. G.L. Chopra, District Judge, Amritsar.
22. Sh. A.S. Sodhi, District Judge, Hoshiarpur.
23. Sh. M.S. Nagra, District Judge, Gurgaon.
24. Mrs. Nirrnal Yadav, Addl. District Judge, Rohtak.
25. Sh. R.C. Kathuria, District Judge (Vig.) Haryana, Chandigarh.
26. Sh. Amar Dutt, District Judge, Chandigarh.
27. Sh. B.B. Parsoon, Additional District Judge, Chandigarh.
28. Mr. K.K. Atri, I.P.S., I.G.P., Litigation, Punjab, Chandigarh.
29. Mr. R.K. Gupta, I.P.S.. I.G.P., (Trg. I) Punjab, Chandigarh.
30. Mr. R.C. Prasad, I.P.S., D.I.G. Ferozepur Range, Ferozepur.
31. Mr. R.C. Singh, I.P.S., S.S.P. Hoshiarpur.
32. Mr. D.R. Markan. Law Officer, CID Punjab, Chandigarh.
33. Mr. R.S. Dalai, (I.P.S.), D.I.G.. Ambala Range, Ambala.
34. Mr. Rakesh Malik (I.P.S.), D.I.G. Crime, Panchkula.
35. Mr. V.N. Rai, (I.P.S.), D.I.G. Rules, Panchkula.
36. Mr. S.N. Vashisht (I.P.S.), S.P. Crime, Panchkula.
37. Mr. L.R. Dabbas (I.P.S.) A.I.G. T & T, Panchkula.
38. Mr. R.P. Singh, 1.P.S., I.G.P., Chandigarh.
39. Mr. C.S.R. Reddy, I.P.S., S.S.P., Chandigarh.
40. Harijai Singh, Editor-in-Chief, The Tribune, Chandigarh.
41. Mr. Kanwar Sandhu, Editor, Indian Express, Chandigarh.
42. Sh. Y.S. Bajwa, Advocate, Legal Correspondent, Indian Express, 19/18-A, Chandigarh.
43. Sh. P.S. Thiara, Advocate, Legal Correspondent, Ajit, 2549/19-C, Chandigarh.
44. Sh. S.K. Gambhir, Advocate and Secy. Genl. of the Criminal Justice Society, New Delhi.
45. Mr, P.K. Chaube, Advocate, R-19 (2nd Floor), Gulmohar Park, New Delhi.
Shri K.T.S. Tulsi, Additional Solicitor-General of India and President of Criminal Justice Society of India, in his welcome address, referred to the grave situation prevailing in our society where innocent people are convicted, but the real criminal who may be more dangerous, remain untouched. He further added that there is a need to restore public confidence in the criminal justice system. He also focused the attention to the alarmingly low rate of conviction of terrorists and non-terrorists.
Hon'ble Shri S.P. Kurudukar, Chief Justice, Punjab and Haryana High Court, in his inaugural address, emphasized the need to amend the Code of Criminal Procedure, Indian Penal Code and the Indian Evidence Act. He also emphasised the need to review the sentencing policy.
The Chairman, Law Commission of India, Shri Justice K. Jayachandra Reddy, in his presidential address, apprised the participants about the reference made by the Government of India to the Law Commission to undertake a comprehensive revision of the Code of Criminal Procedure, the Indian Penal Code and the Indian Evidence Act. He invited responses from the participants for suggesting amendments to the existing criminal justice system apart from the need to reform law in the light of changing circumstances and the principle of according speedier justice.
He highlighted the main issues mentioned in the questionnaire on Code of Criminal Procedure particularly the aspect of delay, arrest, creation of separate investigating agency, provision for separate directorate of prosecution, police custody, Nyaya Panchayat, plea bargaining, victimology, and to review the scheme of summons, warrant and summary trial cases. He also referred to the changes to be brought in respect of compounding of offences.
Mr. Justice R.P. Sethi of the Punjab and Haryana High Court called for major overhaul of the procedural law and stressed on the need for delegation of trial of minor offences by the Nyaya Palikas. He favoured scrapping of section 164 of the Cr. P.C. which deals with confession of the accused and the statements of witnesses to be recorded by the magistrates during investigation, which according to him, do not serve any useful purpose.
His Lordship was of the opinion that both sections 162 and 164 are not necessary. He said that section 161 should be made effective by associating people. He also pointed out that accused may be asked: "Have you heard the statement? Do you want to say anything?"
Justice Sethi also suggested that minor offences be delegated to Nyaya Panchayat.
He felt that when people are associated, presumption of guilt be presumed in favour of prosecution for heinous offences where investigation is properly done.
Mr. Justice Sethi was also of the opinion that major part of the fine should be awarded to the victim.
Justice Sethi called for a delegation of powers to the 'Nyaya Palikas' for petty offences subject to appeal to the appellate authorities.
The factor of delay in justice, especially in the case of women and old persons, was stressed by Justice Dr. S. Saxena. She suggested that the time limit for the husband to file a written reply evidence be fixed. She regretted that husbands adopted dilatory tactics in payment of maintenance and a woman had to wait as if she was begging.
Justice (Mrs.) Saxena suggested that in granting relief, the capacity of the woman should not be considered, and the only thing that to be considered should be whether she really had a source of income. She felt the court must be empowered to get the maintenance amount reduced from the source of earning of the persons itself.
Justice (Mrs.) Saxena also emphasized the need for revision for inter-locutory order and enhancement of the amount of maintenance prescribed in the court.
Referring to the rape offences, Justice (Mrs.) Saxena felt that section 327 of the Code of Criminal Procedure is hardly observed. She also pointed out the aspect of delay in disposal of cases due to the absence of witnesses.
Referring to the Indian Evidence Act, Justice (Mrs.) Saxena felt that this section has been misused and has been applied even where no recovery has been made. She, therefore, pleaded for amendment of section 27.
Justice Chellapathy suggested that certain offences must be transferred to the Nyaya Panchayats. Citing the example of the Karnataka Gram Panchayat Act, he remarked that it had some very good clauses with respect to the Nyaya Panchayats.
He regretted that although it was the duty of the presiding officers to prepare questionnaires, in most instances, it was done by clerk at the court.
Mr. Hira Lal Sibal, Advocate-General, Haryana, called for changes in the lodging of the F.I.R. system. He remarked that the F.I.R. often did not represent the statement of the complainant. The evidence and the witnesses are collected by the complainant with the help of the police to substantiate the story of the complainant.
He added that the F.I.R. was generally recorded some days after the incident. He suggested that a provision must be made that every statement which was recorded be sent to the magistrate. He felt the accused defence was never investigated and no evidence was taken by the police. Usually, no attempt was made by the police to find out the truth, but if it was done, it would acquire greater credibility, he added.
While opposing the idea of completely doing away with the statement of the accused, which is recorded under section 313, Cr. P.C. Mr. Hira Lal Sibal, said that it should be retained for particular type of offences, such as those under 409 of the I.P.C. He also spoke about enacting special procedures for terrorist crime.
Mr. K.P.S. Gill, former Director-General of Police, Punjab, said that different types of crime should be dealt with differently and the terrorist crime should not be grouped with other types of crime and said that it needed a separate investigational strategy with a different approach. He also insisted upon the daily writing of case diaries by the investigating officers and proper check by the supervisory officers to avoid manipulations later.
He narrated his experience as a S.P., wherein he introduced the practice of the daily recording of the diary. Each officer at the thana was required to write what he had done all day long, and the report was sent to the S.P. daily. The consequence, according to him, was reduction in the conviction rate and speedier disposal of cases. This method, he said, could be enlarged with the latest electronic devices. He felt that the most of the delays were deliberate because the investigating officer had a vested interest in it.
Mr. R.S. Cheema, senior advocate, stressed on the relief of anticipatory bail, under section 438, Cr. P.C., as the basic bull work for democracy and opposed its scrap. Mr. Cheema also talked about section 313, Cr. P.C. being a formality and wanted it to be modified so as to strengthen the existing provision of putting written defence by the accused.
Mr. G.S. Grewal and Mr. Piara Singh Mann spoke about putting more strength in the criminal procedure for speedy trial of cases in the courts. Mr. Grewal maintained that an independent prosecuting agency would ensure quicker justice.
He said that what was needed was a revolutionary change in the laws as the era of "a tooth for a tooth" no longer exists.
He also said the special circumstances and the situation of the country in the era of organised crime and terrorist activities called for a more rational approach. Stating that procedures must be friendly to the common man, he suggested that some responsible people of the community must be involved at the time of the lodging of the F.I.R. as well as the time of recording of the statement.
Mr. M.L. Sharma, Joint Director, C.B.I., felt that the laws were not adequate to handle the situation and hence police often resorted to measures which were not approved. He added that in a conspiracy situation and in the case of sponsored crime, the number of people involved ran into dozens. He felt that a confession made before the S.P. should be made admissible in the court, as often the same person often pleaded not guilty before the court. He also suggested that the testimony of the undercover agents and wiretapping be accepted in the courts as in the western countries.
He advocated a particular definition for organised crime and supported the retention of provisions of 161, Cr. P.C. (evidence of witnesses during investigation) though with certain modifications.
Mr. R.S. Dayal, D.I.G., Ambala range, and Mr. R.C. Prasad, D.I.G., Ferozpur range, expressed their views on the problems being faced by the investigating agencies and the "mistrust" which the other connecting agencies like the prosecution and the courts had about them.
Mr. Bansal, Legal Remembrancer, Haryana emphasized the need to amend section 304A to impose more fine.
As regards sessions trial, he was of the view that pre-1973 position be restored, i.e. on the same time the prosecution and defence may produce witnesses. He also pointed out that recording of statement of eye-witnesses should be imposed.
Mrs. Baxi, Legal Remembrancer, Govt. of Punjab, also suggested the need to review section 468. She felt that the question of maintenance under section 125 Cr. PC be transferred to family court. This, according to her, would save time.
Prof. Paras Dewan felt that as in Germany at the time of charge-sheet the question should be asked from the accused so that inquisitorial system, namely, the court should investigate, be adopted.
He also felt that listing of cases in courts be made on some understanding. A monthly review be also made by the High Court taking stock of situation, he added.
Mr. Gambhir, Advocate, felt that there is no need to change section 161, Cr. P.C. He, however, felt that under section 309(2) a time limit be put on remand.
Mr. Kathuria, Sessions Judge, pointed out that cases under section 125, Cr. P.C. should not be transferred to family courts.
He also felt that section 200, Cr. P.C. be amended and it should be left to the discretion of the magistrate to record complaint. He did not favour any change in section 169.
Mr. R.K. Gupta I.G., Punjab felt that whenever a complaint is made to the police, F.I.R. must be registered. He was also of the view that stay given under section 482 of the Code of Criminal Procedure delays the trial. If stay is not effected within six months, the investigation should go on, he added.
Dr. B.B. Parsoon, Additional District and Sessions Judge, Chandigarh, proposed that career in judiciary should start from the Nyaya Panchayats where the judicial officer could be associated with the members of the Panchayat and the jurisdiction of the presiding officer could be fixed by making cluster of village panchayats.
This, he said, would facilitate grassroot judicial democracy. He also called for an amendment in the provisions of section 125, Cr. P.C. so that the destitute females are provided maintenance not only from the income, property of the husband but also the in-laws, in case the husband does not possess any income or property as in case of joint families. Mr. Parsoon also condemned the gender bias against females by the investigating agencies.
Mr. R.C. Kathuria, District and Sessions Judge (Vigilance), Haryana, laid emphasis on the care the system needed to take of the victims of the crime. He stressed on more frequent invocation of the provisions of Cr. P.C. (search warrants for illegal detention of the detainees) rather than invoking the provisions of Article 226 (for habeas corpus).
G.S. Grewal, Advocate, remarked that anybody who could misuse law tried to misuse it. He cited the instance of TADA where one-year time was granted for the purpose of investigation. According to him, not a single case had come to his notice where the investigation was carried out within a period of one year. The two remedies, according to him, are day-to-day trial and increase in the efficiency of the investigating officer.