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Report No. 154

Proceeding of the workshop held at Patna on 3-2-1996

The workshop was attended by Hon'ble Chief Justice of Patna, five High Court Judges, six lawyers, three District Judges and five police officers including the D.G.P. At the outset Hon'ble Chief Justice of Patna High Court Shri Justice D. P. Wadhwa welcomed the gathering and expressed his happiness to arrange the present workshop and hear the views from the Hon'ble Chairman and others.

2. The following were present:

(1) Hon'ble Chairman Justice K. Jayachandra Reddy

(2) Hon'ble Member Justice R L. Gupta

(3) Hon'ble Member Ch. G. Krishna Murthy

(4) Hon'ble Chief Justice D.P. Wadhwa

(5) Hon'ble Member-Secretary, Ch. Prabhakara Rao

(6) Hon'ble Law Minister, Bihar-Shri Bijendra Pd. Yadav

(7) Hon'ble Justice S.K. Homchaudhurj

(8) Hon'ble Justice Nagendra Rai

(9) Hon'ble Justice S.N. Jha

(10) Hon'ble Justice Aftab Alam

(11) Hon'ble Justice R.M. Prasad

(12) Hon'ble Justice N.K. Sinha

(13) Hon'ble Justice P.K. Sarin

(14) Shri Braj Kishore Prasad, Chairman, Bar Council

(15) Shri P.N. Pandey, Sr. Advocate

(16) Shri Kanhaiya Pd. Singh, Sr. Advocate

(17) Shri Janardan Rai, Advocate

(18) Shri K.P. Gupta, Advocate

(19) Shri J.P. Gupta, Advocate

(20) Shri D.P. Maheshwari, Home Commissioner

(21) Shri Krishna Choudhary, D.I.G. Police

(22) Shri S.K. Saxena, DG. Police

(23) Shri Anil Kumar, I.G. (C.I.D.)

(24) Shri P.K. Sarkar, Law Secretary

(25) Shri N.N. Singh, Registrar-General

3. Hon'ble Chairman Mr. Justice K.J. Reddy had stated that Prime Minister and Home Minister had called upon the Law Commission of India to redraft the Criminal Law in order to bring about speedy justice and come up to the standards of the litigant public. Hence, the Law Commission has been arranging these type of workshops in order to elicit opinion from the various sections of the society.

4. Of late the law of crime has taken new dimensions as the white collar offences are being committed frequently. The British rulers had enacted various laws in the past which have stood the test of the time and even the laws that were passed in 19th century are still being followed by us. They have used their wisdom by understanding the conditions prevailing in India and see that the law is passed which is being applied till today.

But due to the growth of various types of crimes, the courts are unable to dispose of the cases promptly and even the under-trial prisoners have to languish in jails for months/years thereby the public is feeling frustrated due to the delay being caused in the disposal of cases by the courts. Even for minor offences much time is being wasted.

It may be due to various reasons; viz., the lawyers are asking for more adjournments, the prosecution is not able to procure witnesses and with the overcrowdedness of the dockets, the courts are not able to cope up with the same thereby the delay is being caused. We have therefore to find out ways and means to ensure speedy disposal so that the innocent people may not languish in jails unnecessarily.

5. Hon'ble Chairman had highlighted important topics on which the questionnaire had been prepared by the Law Commission of India. He had dealt with the subjects one by one namely:

a. Investigation: In any criminal trial the investigating officer has got an important role at the time of investigating the crime from the very beginning. Of late the investigation is not being conducted effectively due to various reasons. For example, the investigating officer while investigating a particular offence may be drafted for other duties like bandobast and maintenance of law and order.

If the investigation is not perfect and effective the entire case would be exposed to criticism before the court. It was therefore emphasised that steps should be taken to make the investigation perfect and effective. For achieving the objective, we should appoint investigating officers separately whose duties should be exclusively for the investigation. In other words, there should be separate wing only for that purpose and they should be trained in that particular field.

b. Prosecuting Agency: Another agency which would ensure perfect trial before the court is prosecuting agency. There should be separate Director of Prosecution. It was suggested that at the State level there should be Director of Prosecution and at the District level there should be Additional Director of Prosecution. There should be mutual discussion and briefing among the Prosecutor and Director/ Additional Director of Prosecution of the police personnel. A cadre has to be created and necessary rules on that behalf may be formulated in order to ensure the creation of the said posts. Even though in some of the States Director (Prosecution) has been functioning there is no similar office in other States. Therefore, uniformity may be ensured.

c. Trial: It has been suggested that the procedure for the summons cases and warrant cases should be scrutinised thoroughly in order to make it simple. Presently, two types of procedures are being followed for the said offences. Therefore, suggestions are solicited for the purpose of simplifying the procedures. For example, offences punishable up to two years can be summarily tried.

d. Section 161, Cr. P.C.: This is a matter where Defence Counsel are finding fault with the statements made by the witnesses and recorded by the police officers. Entire criminal cases trial depends upon the evidences of the various witnesses and the defence counsel would naturally take advantage of the lacuna that is noticed in the statements recorded by the police officials who are criticised for obtaining the signatures or thumb impressions of the witnesses without reading the contents to them and certain amount of coercion is being influenced on the witnesses at the time of recording the statements of the witnesses.

Generally, the police officers prepare the statements in the police station and present the same as if they have been taken in the presence of the witnesses. Therefore, a suggestion has been made by the Hon'ble Chairman to consider this aspect as to whether section 161 of Cr. P.0 statements should be deleted or retained in the statute.

e. Honorary magistrates: Hon'ble Chairman suggested for the appointment of honorary magistrates who can be entrusted with the responsibility of petty offences. They were trying such offences in the past and they have been lately abolished. He therefore suggested to revive the said office.

f. Compromise: Within the ambit of section 320 of Cr. P.C. attempts should be made seriously to compound the offences. In other words, the parties should be tree to compromise the offences either at the beginning of trial or during the course of the trial.

g. Plea-bargaining concept: In some of the developed countries the concept of plea bargaining is being applied. In India except in small compoundable offences, the concept is not being applied. Even in compoundable offences it is not quite negligible. Therefore, efforts should be made to bring in the concept by incorporating it in the statute so that the court can save some time if the accused confess to have committed the crime and plead for some concession at the time of award of sentence.

h. Concept of victimology: Again in other countries helpless victims are being provided some financial assistance either by order of the court or by order of the State. In India the court is presently in some deserving cases awarding compensation to the victims while taking the circumstances into consideration. If the accused is not able to pay the compensation, there can be creation of some fund so that the compensation can be paid to the victims out of the said fund. How to get the money is the matter of modality which can be formulated in due course.

6. The Hon'ble Chairman has pointed out various other minor things in the light of the questionnaire prepared by the Law Commission on Cr. P.C. He has requested the participants to convey their views in writing if not orally.

7. Justice Nagendra Rai and Justice S.N. Jha: The Judges have agreed that the investigation agency should be separate from the present set up. There should be a separate officer like Director of Prosecution who should work in co-ordination with the D.G.P. They have suggested that D.G.P. should be the head of the organisation and would keep liaison or co-ordination with the Director of Prosecution.

They have not favoured the proposal for creation of honorary magistrates as experience in the State of Bihar is not happy because those posts are likely to be filled up on various political considerations. They have also suggested for deletion of section 161, Cr. P.C. statements. But they have emphasised on the applicability or use of section 164 statement very rigorously.

They have also dealt with the aspect of arrest within the ambit of section 41, Cr. P.C.

8. Mr. Krishna Choudhary, D.I.G.: He also agreed with the proposal for separation of investigating agency from the police department. In other words a separate wing in the police department and in that connection he has suggested for separate provision for making the investigating agency liable for laches in the investigation.

He has advocated for giving freedom to the police people for handcuffing prisoners. It is the unhappy situation prevailing in Bihar as there are cases of escaping. Due to the judgments of various courts they are not able to effectively control the prisoners at the time of transport etc. He also agreed for police custody for fifteen days.

9. Mr. D.P. Maheswari, Home Commissioner: He has particularly dealt with the functions of the Director of Prosecutions. He stated that in the State of Bihar Director of Prosecution is monitoring the prosecutions only and the appointments are being made by the Law Department thereby the independence of the office has been ensured.

10. Mr. Gupta, Advocate, Ranchi: He has advocated for introduction of Gram Nyayalaya. He had emphatically suggested that after creation of the said Nyayalayas, petty offences can be entrusted to them. Presently the courts are overburdened with the trial of petty cases which is not desirable. If the Gram Nyayalayas are created efforts can be made seriously to settle the disputes easily. He also suggested for restriction of grant of adjournments.

11. Mr. P. N. Pandey, Advocate: To a suggestion made earlier for deletion of section 91 of the Cr. P.C. by one of the speakers, he suggested that there is no need to delete the said section. He has also advocated for introduction of plea bargaining concept in our criminarlaw.

12. Thereafter, there was some discussion regarding utility of section 313 of Cr. P.C. statements. To a clarification sought by Shri Saxena, D.G.P., Hon'ble Chairman has • explained the implication of the plea of pre-bargaining. It was stated by various speakers that it does not serve any useful purpose except observing the formality and wasting the time of the court. Therefore, the general consensus of the gathering was that it may be considered for deletion.

13. Post-lunch Session: The Hon'ble Chairman has suggested that Law Commission of India had prepared a questionnaire on I.P.C. and copies thereof are distributed to the gathering on that day. Therefore, he highlighted various topics dealt with in the questionnaire and requested the participants to convey their views in writing afterwards. He had stated that the necessity of fresh thinking on the redrafting of sections 34 and 141 of I.P.C. Under section 141, I.P.C. the presence of five or more persons is required and this section has to be read along with section 34 which deals with the common intention.

There are many offences wherein guilt of the accused is proved, but it fails due to the lack of requirement of five persons. Therefore, it requires fresh thinking and he had also dealt with subjects like community service, holding public offices, public censure, constructive liability of the company, authorisation, highway accidents, publishing scurrilous matters in the press, blackmailing, culpable homicide, fresh thinking on sections 299 and 300, I.P.C., hit and run cases, wrongfull restriction, hijacking of aircraft and under Article 21 of the Constitution.

Hon'ble Chairman has elaborately explained the distinction in the provisions contained in sections 299 and 300 while citing illustrations thereunder. He has further stated that the Home Minister had called upon the Law Commission to give the report on the law of evidence also. But it was felt that the said Act does not require much changes except suggesting for amendment of sections like 6, 8, 11, 25, 30 and 114.

14. The workshop concluded with the vote of thanks by Hon'ble Chairman and reply by Chief Justice of Patna.

The Code of Criminal Procedure, 1973 Back

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