Report No. 154
10. Law Commission of India
10.1. The Law Commission made various recommendations in the past in its Thirty Second Report on section 9 of the Code of Criminal Procedure (1967); Thirty Third Report on section 44 of the Code of Criminal Procedure (1967); Thirty Fifth Report on capital Punishment (1967); Thirty Seventh Report on sections 1 to 176 of the Code of Criminal Procedure (1967); and Forty first Report on the Code of Criminal Procedure (1969) to remove anomalies, ambiguity of the Criminal Justice Process and to suggest ways and means of speedy trials and avoiding delays.
In view of the recommendations made by the Law Commission, the new Code of Criminal Procedure 1973 has been enacted taking into consideration the need for speeding up disposal of criminal cases on the following aspects:
(i) The preliminary inquiry otherwise known as committal proceedings is abolished, since it causes delay;
(ii) the jury trial is abolished;
(iii) a provision is made for the summons procedure for trial of offences punishable with imprisonment upto two years;
(iv) a provision is made for the summons procedure for all summary trials for offences punishable with imprisonment upto two years;
(v) the powers of revision against interlocutory orders are taken away;
(vi) the compulsory stoppage of proceedings by a subordinate court on mere intimation from a party of his intention to move a higher court for transfer of the case is omitted;
(vii) a provision is made for payment of costs by the party at whose instance adjournments are granted;
(viii) a provision is made for service of summons by registered post in certain cases;
(ix) in petty cases, the accused is enabled to plead guilty by post and remit the fine specified in summons;
(x) a re-trial need not necessarily be ordered in case a court of appeal or revision discover any error, omissions or irregularity in the charge leading to failure of justice; and
(xi) continuation of part-heard cases by the successors in office in respect of courts of magistrate is extended to courts of sessions.
Sections 167, 309 and 468 of the new Code synthesis the above mentioned changes particularly relating to speedy trial, elimination of delays in investigating and trial proceedings.1
1. See also K.L. Bhatia, Gurdeep Singh, Jagmohan Singh A Riddle Wrapped in a Mystery inside an Enigma, 37 J.I.L.I., pp. 42, 45-46 (1995).
10.2. Earlier the Law Commission of India presided over by Mr. M.C. Setalvad, in its Fourteenth Report made in 1958, went into all aspects relating to Reform of Judicial Administration, including the question of delay in the disposal of cases in different courts and exhaustively dealt with the matter. Successive Law Commissions have, after that also, when making their recommendations for revision of the procedural Codes, addressed themselves, inter alia, to the need for reducing delay at various stages of the trial, both in civil and in criminal cases. Reference may be made, in particular, to the 27th and 54th Reports of the Law Commission dealing with the Code of Civil Procedure and the 41st Report dealing with the Code of Criminal Procedure.
When the Law Commission reviewed the structure and jurisdiction of the higher judiciary (58th Report), it took note of the imperative need to reduce arrears in the higher courts.
While dealing with the question of delay and arrears in Trial Courts in criminal cases, the Law Commission of India in its 77th Report on 'Delay and Arrears in Trial Courts' made the following recommendations:
"In criminal cases, it is particularly necessary that delay be eliminated, since the decision upon oral rather than documentary evidence, and with the passage of time, the memory of witness fades.
Every criminal court should keep a register showing the number of witnesses summoned for a date, the number examined, the number sent back and reasons for sending them back without examination. The tendency of some criminal courts of sending back witnesses without examining them must be deprecated.
The law should be amended to enable a Session Judge to act on evidence partly or wholly recorded by his predecessor.
At least two police officials at every police station should be set apart for getting service of summons effected upon witnesses for cases relating to that police station and for ensuring their presence on the date of hearing.
The police quite often deliberately refrain from producing all material witnesses on one date, the object being to clear up the lacunae in the prosecution evidence after the defence case becomes manifest by cross-examination. This practice is unfair and not warranted by the Criminal Procedure Code, and results in prolongation of the trial.
In one metropolitan city, in the courts of Magistrates, there was a huge pending file relating to traffic and municipal offences to be tried summarily, some of which were more than one or two years old. Delay in disposal was attributed to the fact that the police had not been able to get service effected upon the accused.
Officials at the police station who are concerned with investigation should concentrate on investigation. As far as possible, they should not be deputed for other purposes.
Desirability of separating the investigating agency of the police from that dealing with law and order may have to be considered. The question whether the investigating agency should not be susceptible to executive interference and, for that purpose, be independent of executive control may also need consideration.
The Motor Vehicles Act, 1939, section 130(1) provides for a special procedure for certain traffic offences whereunder the accused can plead guilty to the charge by post and remit the specified fine. In the case of persons other than professional drivers for some specified offences of a minor nature, the ticket issued by the policeman should also contain separately the amounts of fine for various categories of traffic offences in respect of different types of vehicles, so that if the person committing the infraction of law is so inclined, he can plead guilty and also remit the amount of fine to the court concerned before the date of hearing.
Disposal of cases in which there is a large number of accused, gets delayed because one of the accused absents himself on the date of hearing. The trial court in such contingencies should consider the advisability of directing representation of the accused by counsel.
Having regard to the importance attached to the framing of the charge, the trial magistrates should not leave it to the prosecutor to frame a charge.
In recording statements of the accused under section 313, Cr. P.C. the magistrates should ensure that all incriminating pieces of evidence are put to the accused.
Complaints have been heard that there are not enough number of prosecutors, particular in cases under the Prevention of Food Adulteration Act and those investigated by the central Bureau of Investigation. Steps should be taken to ensure that there are as many prosecutors as there are Criminal Courts.
Where the same Judicial Officer exercises both civil and criminal powers, normally he should not fix both types of cases on the same day. If such a course cannot be avoided, he should set apart separate time for civil and criminal cases.
Cases in which there is possibility of death sentence should receive priority over all other cases."