Report No. 154
Proceedings of the Workshop conducted at Mumbai on 24-2-1996 A workshop on the Criminal Law was conducted at Mumbai on 24-2-96. The following participated:
1. Justice K. Jayachandra Reddy, Chairman, Law Commission.
2. Shri Ch. Prabhakara Rao, Member-Secretary, Law Commission.
3. The Honourable Shri Justice R.G. Vaidyanath.
4. The Hon'ble Shri Justice S.P. Kulkarni.
5. Shri V. K. Kulkarni, I/C Principal Judge, City Civil Court, Bombay.
6. Shri J.N. Patel, Judge, Designated Court, (Under TADA Act, 1987), Greater Bombay.
7. Shri P.K. Chavare, Judge, City Civil Court and Additional Sessions Judge, Greater Bombay.
8. Smt. M.R. Bhatkar, Judge, City Civil Court, Greater Bombay.
9. Shri A.H. Shah, Additional Principal Judge, City Civil Court, Greater Bombay.
10. Shri M.L. Tahaliyani, I/C Chief Metropolitan Magistrate, Esplande, Bombay.
11. Shri K.D. Patil, IInd Additional District Judge & Additional Sessions Judge, Akola.
12. Shri P.R. Borkar, Extra Joint District Judge, Aurangabad.
13. Shri A.D. Bhosale, IIIrd Additional District and Additional Sessions Judge, Aurangabad.
14. Shri B.R. Choudhari, Chief Judicial Magistrate, Aurangabad.
15. Shri A.V. Karnik, District and Sessions Judge, Ahmednagar.
16. Shri Subhash S. Deshmukh, IIIrd Additional District & Sessions Judge, Nashik.
17. Shri A.J. Rohee, IInd Addl. Distt. and Sessions Judge, Malegaon, sitting at Nashik.
18. Shri P.S. Mane, Distt. and Sessions Judge, Nashik.
19. Shri V.R. Kingaonkar, I/C Director, J.O.T.I., Nagpur.
20. (i) Shri S.S. Sabne, 1st Addl. Distt. & Addl. Sessions Judge, Nagpur.
(ii) Shri M.M. Parlikar, Ilnd Addl. Distt. Judge and Addl. Sessions Judge, Nagpur.
(iii) Shri S.B. Bahle, VIIIth Addl. Distt. judge and Addl. Sessions Judge, Nagpur.
21. Shri F.N. Velati, Joint District and Addl. Sessions Judge, Nagpur.
22. Dr. (Smt.) Pratibha Rasal, Vth Addl. District Judge and Addl. Sessions Judge, Nagpur.
23. Shri A.D. Anekar, IXth Addl. Distt. Judge and Asstt. Sessions Judge, Nagpur.
24. Shri P.G. Choudhari, Addl. Distt. and Sessions Judge, Osmanabad.
25. Shri K.P. Kotecha, IInd Addl. Distt. and Sessions Judge, Osmanabad.
26. Shri J C. Shirsale, Civil Judge, Sr. Division, Osmanabad.
27. Shri J.A. Patil, Distt. and Sessions Judge, Pune.
28. Shri S.R. Ghanavatkar, Distt. and Sessions Judge, Satara.
29. Shri S.V. Padhye, IVth Addl. Distt. Judge and Asstt. Sessions Judge, Solapur.
30. Shri A.B. Palkar, Distt. and Sessions Judge, Solapur.
31. Shri L.S. Pavashe, Chief Judicial Magistrate, Solapur.
32. Shri G.D. Tadwalkar, Addl. Distt. and Sessions Judge, Sindhudurga at Sawantwadi.
33. Shri S.Z.H. Kazi, Joint District and Sessions Judge, Thane.
34. Shri P.R. Borkar, Extra Joint District Judge and Shri A.D. Kulkarni, Addl. District Judge, Aurangabad.
35. Shri S.D. Gundwar, Distt. and Sessions Judge, Ratnagiri.
36. Shri R.B. Patil, Civil Judge (J.D.) & J.M.F.C., Deorukh,
37. Shri A.S. Yenegure, 2nd Addl. Distt. Judge and Asstt. Sessions Judge, Sawantwadi.
38. Shri M.G. Jadhav, Chief Judicial Magistrate & Jt. Civil Judge, S.D., Ratnagiri at Sawantwadi.
39. Shri M.D. Keskar, Chief Judicial Magistrate, Ratnagiri.
While inaugurating the workshop the Hon'ble Chief Justice Mr. Justice M.B. Shah stated that the present workshop was arranged to obtain opinions from various sections of the society on the provisions contained in Cr. P.C., I.P.0 and the Evidence Act. He indicated about the posts held by the Hon'ble Chairman of the Law Commission from time to time, i.e. he worked as High Court Judge, later on Supreme Court Judge wherein he had delivered important decisions on criminal law.
He has further stated that effort of the law is to punish the culprit and for that purpose if necessary the law has got to be amended. In that context he placed reliance on the reported decision in Collector v. Gurnal, wherein it has been indicated that the prosecution need not prove the guilt of the accused with mathematical precision. The presumption can be drawn on the basis of the circumstances. The fundamental principle of the jurisprudence has to be reaffirmed with reference to the statutes and in that context he referred to State of Punjab v. Balbir Singh, wherein Justice K.J. Reddy had dealt with section 50 of the NDPS Act.
2. He further suggested that investigating agencies should be established separately. The statements recorded at the time of enquiry should be considered as relevant, as being considered relevant under the Customs Act. He further stated that sufficient number of prosecutors are not being appointed which is Causing delay at the time of trial of the cases.
The bail applications that are being filed under section 438 of Cr. P.C. should be scrutinised very carefully at the time of granting bail and the anticipatory bail should be granted very cautiously. Under the accidental cases the victims are not getting sufficient financial help and the punishment being awarded to the guilty persons are not adequate under the present law.
3. Thereupon, Hon'ble Chairman of Law Commission dealt with the subject by stating that before independence, four Law Commissions were established and after the independence, the first Law Commission was constituted under the chairmanship of Shri Setalvad and brought about many important reports.
The Law Commission in its 41st report dealt•with the amendments on Cr. P.C. according to which the same was amended in 1973. Presently, being the Law Minister, the Prime Minister of India desired that the Law Commission should make a comprehensive study and come up with a report dealing with provisions contained in Cr. P.C. and I.P.0 Home Minister also desired accordingly.
Hence, the Commission is conducting workshops at various places to know the views of different sections of the society. After having deliberations, it will submit a report to the government. Presently, the litigant public are also interested in getting speedy and inexpensive justice.
Therefore, the Law Commission has prepared questionnaire on various topics and they are. as follows:
(a) Investigation.- The investigating officer is presently entrusted with other responsibilities such as bandobast to V.I.Ps. and maintenance of law and order. Due to the multifarious activities they are not able to cope up with efficient functioning of investigation which is quite important in any criminal case. Therefore, the suggestion is that there should be separate agency which should exclusively deal with investigation.
(b) Section 41, Cr. P.C.- The police has been empowered to arrest anybody on the basis of suspicion under section 41, Cr. P.0 But the criticism is that many innocent people are unnecessarily harassed. Therefore, arrest should be made only in exceptional cases according to the circumstances of the case. It is not mandatory on the part of the police to arrest everybody. Hence various views have been expressed on that subject.
(c) Sections 161 & 162, Cr. P.C.- Jt is a well-known fact that the statements under these provisions are not recorded on the spot and the police would generally prepare in their Station Houses and later on make the witness sign either by compulsion or and the like. The present practice is that the said statements are being utilised by the counsel in the court for the purpose of contradiction. But the suggestion is as to whether the said statement should be utilised for corroboration also.
Therefore in that connection he referred to the 14th and 41st report of the Law Commission wherein it was suggested to obtain the signatures or thumb impressions of the witnesses after the statements are recorded. Therefore, the Hon'ble Chairman suggested for valuable views from the participants.
Under section 167, Cr. P.C., the police custody is ordered for a fortnight. Whether this provision requires scrutiny or not is a matter for consideration.
(d) Nyaya Panchayats.- In 114th report of the Law Commission it was suggested for establishing Nyayalayas wherein a Law Officer and layman would be associated. It would appear that in some States the said Nyalayas are functioning. In Maharashtra it would appear that they are not functioning and as such the feasibility of establishing the same may be considered.
(e) Compounding of offences.- The concept of compounding offences should be broad based and more sections should be brought under this concept and particularly petty offences may be brought under this category.
(f) Plea-bargaining.- The concept of plea-bargaining should be tried in India particularly with reference to petty offences and the same is being practised in countries like U.S.A.
(g) Victimology.- The concept of victimology has to be inserted in Indian law as the State has got responsibility to take care of the victims. Whether the accused is convicted or acquitted, it makes no difference to the victim. When once there is a loss of life in the family, the dependents of the victim should be supported by the State Government. Therefore, there should be a provision for paying adequate compensation to such persons and certain amount of methodology has to be formulated in order to pay sufficient amount of compensation to the victims.
(h) Section 313, Cr. P.C.- The statement of the accused should be viewed under the principle audi alteram partem and of late statements of the accused are being recorded in a lengthy way and there is no purpose actually served by recording such statements. Therefore, it requires scrutiny about its utility.
Thereupon the participants came up with their views and the same are indicated below in seriatim.
Mr. Justice A.C. Agarwal.- The present law is mostly in favour of the accused and under Article 21 of the Constitution the principle of double jeopardy has been provided under which second trial is inadvisable and under Article 22 of the Constitution there is a guarantee for giving protection to the accused and the present practice is to lead all possible evidence which ultimately ends in acquittal due to the lacunae in the prosecution case. Our jurisprudence is particularly in favour of the accused as such it has got to be reviewed in the interest of justice.
Further he stated that the investigating agency should be separated from the prosecuting agency. Special magistrates/Executive magistrates should be appointed for supervising the investigating agency which should work under the Law Ministry. He has in that context suggested for changes in the process of leading Chief-examination and the cross-examination.
He has suggested for enlarging the scope for bringing many offences under the category of compoundable offences and petty offences can be tried by the Nyaya Panchayats. Thereupon the Hon'ble Chairman of the Law Commission came up with the information regarding category of the prosecutors. He suggested that public prosecutors should be appointed permanently and there should not be a change as and when the governments change. If there is a permanent agency like that, there will be coordination between the prosecuting and investigating agency.
Mr. justice A.A. Desai.- He suggested that there should not be meddling with section 313, Cr. P.C. as by this section certain right has been conferred on the accused under humanitarian consideration and this section should remain with some modification, i.e., the accused should be in a position to come up with his defence at the time of framing of charges. In other words he should be precluded from changing his defence at a later stage.
Thereupon few participants have come up with their views that section 313 statements are privileged right to the accused as such they should remain as they are.
Mr. Justice S.N. Variava.- Presently the law is in favour of the accused. Therefore, in order to bring home the guilt of the accused, the accused should declare his defence at the time of framing of the charges. Therefore, the law should be amended drastically on this aspect.
Mr. Justice Vishnu Sahai.- The present system of recording the statements of the accused under section 313, Cr. P.C., even though it remains in favour of the defence statements under section 161, Cr. P.C. can be utilised in corroboration also in addition to such statements being used for the purpose of contradiction.
Further, he has stated that under section 309, Cr. P.C, there should not be a limit without discretion for the judge to give adjournments. Therefore, the said provision does not require any amendment. Regarding the compounding of offences, he suggested that such type of compromise should be made possible at the stage of investigation itself. Honorary magistrates can be appointed to deal with petty offences on the basis of merit and credibility.
Similarly, the concept of victimology can be inserted in our law. Of late anticipatory bails are being granted indiscriminately and they are being misused. As such he opined that they should be granted only in exceptional cases in the interest of justice and certain amount of discretion should be given to the judge for granting anticipatory bail. He also pleads for such provisions to be provided under various laws to protect the rights of women folk.
Mr. Justice B.N. Srikrishna.- He suggested that it should be the aim of the law to punish the guilty whatever be the technicalities that may be in favour of the accused.
Mr. Justice R.G. Vaidyanatha.- Under section 438, there should be some control to grant bail to a person apprehending arrest and the benefit should not be conferred to the accused. Under section 162, Cr. P.C. the benefit if at all is available should not be used in favour of the accused only and the same can be used in favour of the prosecution also. Honorary magistrates can be asked to record the statements of the witnesses. The prosecuting agency should be independent.
Mr. Moore, Law Secretary.- He suggested that the prosecuting agency should be independent. Presently in Maharashtra the prosecuting officers are working under the police officers which is not desirable. Further he stated that the investigating officers have no knowledge of law and as such they should be associated with the prosecutors. In such circumstances the investigating officer would get the assistance of the prosecuting officer from the very beginning of the investigation.
Presently due to the lacuna in section 161 or the evidence being unavailable the courts are not able to convict the accused. This type of law should be changed drastically. Anticipatory bail should continue.
The Secretary (Appellate side) Law Department.- The present presumption as per jurisprudence is that the accused is always innocent. It should be changed. In other words the philosophy of the Indian criminal system should not be always in favour of the accused. At the time of punishing the accused the law should be quite deterrent. In the State of Maharashtra the Director, Prosecution is functioning and in order to have a coordination between the prosecuting agency and the Director, Prosecution certain modalities are being worked out.
Shri Adik Shirodkar, Sr. Advocate.- In the decided case by the Supreme Court namely, Nandini Satpalhy, the court had made an observation about the investigation collection of the evidence, obtaining necessary statements etc. under the credibility on the part of the police officers. Unless and until certain amount of credibility on the part of the investigating officer is ensured, the process will not be conducted effectively.
The present presumption of jurisprudence that the accused is innocent should continue and the law of contradictions and omissions was considered by the courts in many decided judgements. The status of the section 161, Cr. P.C. should remain as it is. Similarly, section 313, Cr. P.C. But the • statement of the accused under this provision may be curtailed. Because the law provides that the accused can defend himself. Anticipatory bail should continue as it is. In that context he referred to the cited case in Gurubaksh Singh.
He has further canvassed that the magistrates should be supplied with necessary law journals so that they can get their knowledge up to date. He agrees for the introducing plea bargaining and the compromising of the cases. He canvassed the idea for appointment of more magistrates and ultimately he stated that the prosecuting agency should be separate from the investigating agency.
Shri Vyasya, Senior Advocate.- He almost agreed with the views expressed by Shri Shirodkar and also the proposed amendments set out in the questionnaire. The presumption of jurisprudence that the accused is always innocent should continue.
Mrs. Desai, Govt. Pleader.- As the crime rate is going up, the law should .be changed drastically. Anticipatory bail should continue. Under section 167, Cr. P.C. fifteen days for police custody appears to be sufficient so as to complete the investigation. She suggested for review of section 67 of the Bombay Police Act. She further stated that the investigating officer should have the knowledge of law or obtain the assistance from the people having knowledge of law.
Shri Gupta, Senior Advocate.- He referred to the 152nd report of the Law Commission with regard to Custodial Crimes. He canvassed for the ideas of implementing the report.
Shri S.R. Chitnis, Senior Advocate.- He suggested that the present position with regard to sections 161 and 162, Cr. P.0 should continue. In Bhajan Lal's case the Supreme Court had clearly pointed out about the functions of the investigating agency. As provided under sections 437 and 438 the anticipatory bail should be granted sparingly and cautiously.
Shri Govindkar, Govt. Pleader.- The grant of anticipatory bail should continue and only persons with merit may be appointed as Special Prosecutors.
Shri Raja Bhosle, Govt. Pleader.- The public prosecutors should not work under any governmental department. The status with regard to section 162, Cr. P.C. should remain as it is and as provided under section 41, Cr. P.0 the police should have restricted power to arrest. The position under sections 138 and 438 should remain as it is.
Shri Thorakia, District Judge.- By appointing separate agency for investigation the problem will not be solved. In other words, the investigating officer should have proper training in performing his duties. He is of opinion that the power of the police to arrest should not be curtailed. Even the police officer should be given proper training to keep their knowledge up to date and there should be coordination between the investigating agency and the prosecuting agency.
The cases pertaining to petty offences should be entrusted to Nyaya Panchayats and for adjourning the cases in the court the judges should have discretion either to grant or not or otherwise on the basis of the circumstances. The list under the category of compoundable offences should be enlarged. He has also canvassed the idea of introducing plea bargaining. He suggested that for every agency credibility is the criterion.
Shri Kulkami and Shri Kotikar.- These District Judges have not contributed anything even at the request of the Chief Justice except approving the views as expressed in the questionnaire.
Shri Khobrey.- He formulated a scheme in order to make the investigating officers work effectively. He has furnished 'a scheme in a detailed way. This can be read as the part of the replies received with reference to questionnaire sent by the Law Commission.
Mrs. Desai, District Judge.- She canvassed the idea for creating the prosecuting agency as separate and suggested ways and means to make the investigating agency to work efficiently. She also suggested for keeping the status of section 162, Cr. P.0 as it is and the said statements can be utilised for the purpose of coordination also. The anticipatory bail should continue, but it should be restricted to only selected cases. At the time of recording statements of the accused under section 313, the accused should not be allowed to change the version from time to time. In other words, he should adhere to one version throughout either at the time of framing of charges or at the time of recording statement under section 313, Cr. P.C.
Mrs. Bhat, District Judge.- She canvassed a view for the appointment of prosecutors from the beginning of the case. For appointing such prosecutors the District Judges should be consulted.
There was cross discussion among the speakers. They have stated that since the material/evidence is being collected against the accused, he should be given opportunity to defend himself. Another suggestion was that the accused should be given time up to seven days to disclose his version. Another view was that physical arrest of the person under section 41, Cr. P.C. should be done away with.
Mr. Patel, District Judge.- The Judge should have discretion to admit a particular document or otherwise. Another view was that maintenance allowance should be increased under section 125, Cr. P.C. It was further suggested that the warrants issued by the courts are not being executed in time. There should be a provision for attachment of salaries of the husbands if the maintenance is not paid to their wives in section 125, Cr. P.C. proceedings.
Shri Agarwal, Secretary, Home Department.- In some cases copies of complaints are not supplied to the parties, particularly in the private complaints. The opposite parties are not getting opportunity to defend themselves in the absence of supply of material. This position requires proper consideration. Another suggestion was with regard to utilisation of video cameras and their admission for the purpose of evidentiary value.
After lunch Hon'ble Chairman of Law Commission stated that on the basis of report of the previous Law Commissions, certain amendments were proposed in I.P.C. and a Bill was introduced in the Parliament, but the same had elapsed due to the dissolution of the House. Thereafter, there was a rethinking and the Union Home Minister desired that instead of amending a few provisions, there should be thorough revision of the entire Act. Hence, the Law Commission has undertaken the task of making recommendations for amendment in I.P.C. by way of inserting new concepts. In that context, he dealt with the following topics:
1. Under the category of punishment, community service can be introduced.
2. Disqualification for public servants.
3. Public censure.
4. Constructive liability of the corporation under section 194A & B of the Companies Act.
5. Cheating of government in contracts by public servants.
7. Hijacking of vehicles.
8. Anti-social elements.
10. F.I.R. being not registered which is an offence.
11. The definition of sections 299 and 300, I.P.C. and the distinction in the phraseology in the two sections.
There was a little discussion on the above topics. Then, Hon'ble Chairman requested the participants to consider the above topics and reduce their views in writing in detail and send them to Law Commission. Thereafter the workshop ended with vote of thanks by the Hon'ble Chairman.