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Report No. 154

12. Arrears' Committee.- The Arrears' Committee (supra) recommended various remedial measures for arrears on criminal side as follows:

"36. Criminal appeals involving sentence of death or imprisonment for life and appeals against acquittals in cases which are likely to result in the imposition of the sentence of death or imprisonment for life should alone be heard by a Bench of two Judges. The relevant rules or statutory provisions applicable to different High Courts should be suitably amended.

37. The Court of Session should have exclusive power of revision against orders of criminal courts subordinate thereto. High Court should have power of revision only against the orders of the Court of Session/Special Courts other than those passed in exercise of their revisional jurisdiction. Section 397 of the Code of Criminal Procedure be suitably amended.

38. Power of granting anticipatory bail under section 438 of the Code of Criminal Procedure should be restricted to the Court of Session by effecting suitable amendment.

39. State Governments may set up proper machinery to carefully and objectively scrutinise proposals for preferring appeals against orders/ judgments of acquittals to prevent frivolous appeals being filed by the State against such decisions.

40. State Governments should appoint not less than two Additional Public Prosecutors for each Criminal Courts. Adequate attention must be paid to appoint competent lawyers as Public Prosecutors.

41. No paper books need be prepared in criminal appeals which are required to be heard by a single Judge.

42. The statutory rules or provisions which require printing of paper books/ record in criminal cases involving sentence of death be suitably modified providing for typed or cyclostyled paper books.

43. Every criminal court should be provided with at least one photocopying machine to speed up preparation of paper books and furnishing of copies under section 207 of the Code of Criminal Procedure.

44. Adequate number of police constables should be attached to each police station exclusively to attend to the work of each court as per its direction.

45. Appropriate provision should be made for effecting services on medical officers, expert witnesses and even investigating officers through their respective Heads of Departments.

46. Respective State Governments should take immediate steps for providing presiding officers to man all the criminal courts.

47. All States Governments should promptly provide adequate staff, funds and stationery for all the criminal courts within their respective States."

13. The National Police Commission felt that substantial improvement if criminal justice system could be effected by reducing the institution of fresh cases, withdrawing old cases from courts according to some accepted norms and expediting the disposal of pending cases by simplifying the procedure. (Para 28.5, Ch. XXVIII, Fourth Report of the National Police Commission), Venugopal Rao in "Criminal Justice-Problems and Perspectives in India" at page 195 while endorsing the recommendations of the National Police Commission and recommendations of Arrears Committee observed:

"It would a good proposition to devise some guidelines regarding the disposal of old cases and fix priorities for the disposal of new ones. If this strategy is properly planned and more time is provided for the disposal of new cases in preference to the old, the system can improve. At the same time as suggested by the National Police Commission, a periodical review of the old pending cases can be undertaken with a view to striking them out from the court calendars.

It may appear contrary to the principles of natural justice, but what is happening in the present situation is not only a gross violation of the Directive Principles of the Constitution but a virtual denial of justice. It is a question of choice of the better of two bad options."

14. All the aforesaid reports demonstrate the frightful urgency for combating the problems of over-loading and arrears. Indeed, the problem of delay in trial of criminal cases has, of late, assumed gigantic proportions. It has shaken the confidence of the people in the criminal justice system. While the reforms that emerge from the recommendations of various committees and commissions as mentioned above, if fully implemented might meet the long term requirements of the current situation of judicial stagnation.

We however, feel that there is still ample scope for additional measures mentioned below which might relieve the present stagnation and help the judicial machinery to start rolling smoothly for dispensation of justice. The reforms which we have suggested in are intended to avoid delay in disposal of criminal cases and expedite the disposal of pending cases as well as discharge of the accused in certain old and long pending cases involving minor offences.

15. There should be a separate cadre of investigation agency in every district subject to supervision by the higher authorities. In this regard an officer of such agency should be the in charge of the case throughout till the conclusion of the trial. He should be enjoined the responsibility of production of witnesses, production of accused and for assisting the prosecuting agency. Such a measure will have a definite impact of speeding up the trial in as much as the officer in charge of the investigation will be accountable and responsible for expeditious prosecution of the case.

(Ch. II, para. 7)

16. With the advent of the modern scientific gadgets and technology, accused are often using modern scientific techniques to commit crime as well as to avoid tracing out their involvement. In such a situation, outdated methods of investigation do not match the modem techniques of committing the crime. Consequently, new technology such as computers, photography/videography, new methods of interrogation technology, new observation gadgets and highly sophisticated search equipments, etc. are essential for effective investigation of traditional and new types of organised crimes.

(Ch. II, para. 8)

17. Much delay in trial of cases has been caused due to lack of coordination between investigating agency and the prosecuting agency. In order to minimise delay on this ground, there should be co-ordination between investigating agency, namely police and prosecuting agency for the efficient prosecution of cases at the stage.

(Ch. III, paras. 8, 9 & 10)

18. A Directorate of Prosecution be established as provided in clause 4 of the Code of Criminal Procedure (Amendment) Bill, 1994 and a new section 25A be inserted on those lines. However, sub-section 4 of the proposed section 25A whereby public prosecutor appointed for the High Court has been placed subordinates to the Directorate of Prosecution be deleted as the public prosecutor appointed to conduct cases on the appellate side in the High Court should be separate from those public prosecutors appointed to conduct cases in the lower courts.

(Ch. III, para.12)

19. The Government while appointing public prosecutors and assistant public prosecutors under sections 24 and 25 shall, as far as practicable, appoint sufficient number of Women Public Prosecutors and Asst.. Public Prosecutors to effectively deal with cases involving women.

(Ch. III, para. 14)

20. A provision should be made in the Code for obtaining a fresh police custody of accused if sought by CBI during investigation but it should not exceed 15 days on the whole. Accordingly, section 167(2) be amended.

(Ch. V, para. 2).

21. In order to avoid delay in disposal of appeals against acquittal and for enhancement and to secure presence of the acquitted accused, a new section 437A be inserted in the Code, empowering all the criminal courts (including the First Appellate Court) to take bail and bail bond before the conclusion of the trial or disposal of the appeal requiring the accused to bind themselves to appear before the next appellate court in case an appeal against acquittal or for enhancement of sentence is filed in the higher court. Such a bond shall be in force for a period of 12 months from the date of the judgment disposing of the cases either by the trial court or by the First Appellate Court as the case may be subject to order by the higher Appellate Court, if any for furnishing fresh bail bond.

(Ch. VII, para. 2)

22. In order to reduce the pendency in the High Courts, we suggest amendments to sections 377 and 378 of the Code permitting of filing of appeals in the Sessions Court against the orders of the Magistrate in respect of enhancement or against the order of acquittal.

(Ch. VII, para 3)

23. In order to avoid multiplicity of procedure which is resulting in delay of trials, summons procedure can be dispensed with. We feel that all summons cases should be tried summarily except those which by virtue of their nature or circumstances of the offences or accused warrant a regular full trial when the court finds that the summary procedure is not salutary. However, when a magistrate wants to have recourse to such a procedure, he should give valid reasons for dispensing with the summary procedure in that particular case. This will act as a check in exercising the discretion indiscreetly.

Since the summons procedure is being dispensed with, a suitable amendment to section 260 to cover such situations is also recommended. Further section 2(x) defining "warrant cases" be amended to the effect that warrant case means a case relating to an offence punishable with death, or imprisonment for term exceeding three years. Likewise section 2(w) should be amended to the effect that summons case means relating to an offence and not being a warrant case summarily triable under Chapter XXI thereby laying down that all offences, which do not fall under the definition of warrant case, fall under the category of summons cases summarily triable.

(Ch. VIII, paras. 12 and 14)

24. In order to curtail the delay in trial of cases we recommend that in cases arising out of a police report, all statements having been recorded during investigation should be supplied in advance and the cross-examination should proceed continuously. In cases other than on police report also, evidence already recorded before issuing process would be available furnishing sufficient material for cross examination, and thus many adjournments granted by the court just for the purpose of carrying on further cross-examination can be avoided. Accordingly, sections 242(2), (3) and 246(4) of the Code be amended on the aforesaid lines.

(Ch. VIII, para. 17)

25. We feel that some changes are necessary with regard to the examination of witnesses by police and recording of their statements under sections 161 and 162 to make the police statements more authentic so that they can properly be used while examining the witnesses during the trial for corroboration or contradiction. In view of the inaccuracies that may creep in the recording of the statement by the police, we recommend that statements of material witnesses should be recorded under section 164 which should be more authentic and also prevent the witnesses from turning hostile.

We also feel that sections 161, 162, 164 and 172 be also amended on the lines suggested in Chapter IX, para. 7. This course is more salutary and can be very effective in rendering criminal justice in a speedy manner. However, the changes contemplated, namely, setting up and separating the investigating agency, and structuring the same and appointment of large number of magistrates will take some time.

We, in the alternative recommend to retain the provisions of sections 161, 162 and 172 as they are but with some checks in the direction of improving the authenticity of such statements recorded by the police and also obtaining signatures of the persons examined, if they are literate. Further, a copy of the statement should be given to the deponent under acknowledgment and also send them to the Magistrate and to the superior officers. That provision would ensure against any error or malpractice being committed by the officer. Accordingly, section 162 be suitably amended.

(Ch. IX, paras. 7, 8, 11, 12, 13 & 15).

26. In order to avoid delay in trials the listing of cases should be done in such a way that the witnesses who are summoned, are examined on the day they are summoned, for and adjournment should be avoided meticulously. The list should be prepared in such a way that a day or two are devoted continuously to all cases of a particular police station and cases should not be proceeded mechanically just according to the chronological order regardless of the fact of their likelihood of their being tried or not. The courts should also proceed with trial on a day-to-day basis and the listing of the cases should be on those lines.

(Ch. X, para. 7).

27. The plight of witnesses appearing on behalf of the State expenses ii pitiable. The allowances paid to them are very meager. That apart, they are kept waiting for the whole day without being examined and the cases are adjourned in the last moment. Therefore, necessary steps have to be taken in the matter of paying allowances on realistic basis for all the days they attend. They should also be piovided with adequate facilities for their stay in the Court premises and they should be given necessary protection and instil confidence and faith in their minds so that they can dutifully attend the Courts.

(Ch. X, para. 2).

28. In order to reduce the docket explosion in the Courts, State should enact legislation on Nyaya Panchayats to suit their local needs and conditions. The Andhra Pradesh Mandala Nyaya Panchayats Bill, 1995 may be adopted as a model on the composition, powers and jurisdiction of the Nyaya Panchayats.

However, we feel that the recommendations of the Law Commission in its 114th Report on the presiding officers of Gram Nyayalayas may not be feasible because serving Munsifs/Civil Judges will not be able to shoulder the addition burden of presiding over Gram Nyayalayas in the rural areas. We are also not in favour of engaging lawyers by the parties to appear before the Nyaya Panchayats for it would introduce technical legal formalities into the system leading to delays in the disposal of cases. Indeed it would frustrate the very purpose for which the Gram Nyayalayas are being introduced.

(Ch. XIV, para. 6)

29. To minimise the delay in trial we recommend that the court can take the assistance of the prosecutor and defence counsel and prepare the questions which are to be put in a concise form to the accused under section 313 of the Code. The court can also permit the filing of written statements by the accused as sufficient compliance with section 313 of the Code.

(Ch. XI, para. 6)

30. As a measure of rendering speedy justice to the accused at an early stage we are of the view that there is need to properly avail the scope of stages provided under sections 227, 239, 245 of the Code of Criminal Procedure.

Section 226 of the Code obliges the prosecution to describes the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. Under section 227 of the Code, if upon consideration of the record of the case and the documents submitted therewith and after hearing the prosecution and the accused, the Judge comes to the conclusion that no sufficient ground exists to proceed against the accused he shall discharge him. However, he has to record the reasons in writing therefor. Similarly under section 239 of the Code (which deals with trial of warrant cases) on prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith.

Section 245 contemplates when accused shall be discharged in cases instituted otherwise than on police report. It envisages that if upon taking all the evidence referred to in section 244, the Magistrate considers that no case against has been made out shall, if rebutted would warrant his conviction, the Magistrate shall discharge him. However he has to record reasons in writing therefor.

In the aforesaid provisions the common question arises whether the accused shall be discharged or whether there is sufficient ground to proceed against the accused. In so deciding the Judge under section 226 has to consider: (i) the record of the case, and (ii) the documents produced therewith. Under section 239 the Magistrate has to consider the police report and the documents sent with it under section 173 and making such examination, if any of the accused as the Magistrate thinks necessary.

Under section 245(1) the Magistrate has to consider all the evidences referred to in section 244. Further an incidental question arises as to what would be the scope of hearing the submissions of the practice. Should it be confined to hearing oral arguments alone. We feel that if the accused succeeds in producing any relevant material at that stage which might fatally affect even the very sustainability of the case, it would be too harsh in the interest of the accused to suggest that no such material shall be looked into by the Court at that stage.

If the case ends at that stage itself, it will save a lot of time of the Court, avoid human efforts, cost and harassment to various parties. The underlying fact is that if the materials produced by the accused even at that early stage can clinch the issue, there is no reason as to why the Court should shut it out only on the ground that such material would be looked into only during the trial despite the fact that the Court feels certain that there is no prospect of the case ending in conviction. The heavy pressure of work-load on the Courts is undeniable.

In a recent case of Satish Mehra v. Delhi Administration, 1996 (5) SCALE 523 the Supreme Court also laid down under paragraphs 13, 14, 15 as follows:

"Similar situation arises under section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind.

There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by 'the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evidence to prove charge.

The stage of providing such an opportunity as is envisaged in section 227 of the Code is to enable to Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human effort and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should be Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions, Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in section 227 of the Code.

But when that Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the session's courts in India are under heavy pressure of workload. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of section 227 of the Code itself."

In order to make the scope of such stage effective, as suggested by the Supreme Court, any materials produced by the accused even at that early stage which would clinch the issue, the Court shall take them into consideration at that stage itself instead of putting them off for consideration at a later stage so that delay can be avoided. This aspect has to be borne in mind by the Criminal Courts at the stage contemplated under sections 227, 239 and 245 as well as in the preliminary stages of the summary trials.

31. On the aspect of compounding of offences under sub-section (2) of section 320 (offences compoundable with the permission of the court) we recommend that sections 324, 325, 335, 343, 344, 346, 379, 403, 406, 407, 411, 414, 417, 419, 421, 422, 423, 424, 428, 429, 430, 451, 482, 483 and 486 should be deleted from the Table laid down under sub-section and be included in the Table to sub-section (1) of section 320.

(Ch. XII, para. 10)

Further section 498A be inserted in table under sub-section (2) of section 320 whereby it can be compounded with the permission of the Court in order to avoid hardship in cases, wherein though the parties wanted to compound yet in the absence of enabling provision, they could not do so. The parties, therefore, have to resort to proceedings under section 482 of the Code to get quashed the proceedings pending against the accused.

(Ch. XII, para. 4)

There is no provision mentioned in the tables appended to the section 320 regarding compoundability where the accused is constructively liable under sections 34 and 149, I.P.C. If the provision is left as it is, then only in respect of substantive offences mentioned in the Tables, compounding is possible and not in respect of cases of constructive liability for the same offence. Likewise, in respect of offence of rioting resulting in the offence mentioned in the two Tables, there is no provision for compounding.

The offences punishable under sections 147 and 148 of I.P.C. committed during the same transaction, the transaction being one of the same, where the guilt is proved, the accused are to be convicted under all those sections. It will be anomalous if one part of the offence is compoundable and other part remains non-compoundable where the convictions are capable of being made under both the provisions. Accordingly, sub-section 3 be amended suitably.

(Ch. XII)

32. In order to reduce the arrears of cases pending before the trial courts or appellate courts, we feel that in case of offences compoundable with the permission of the court under section 320, if the accused pleads guilty, the court may pass an order of conviction and suspend the sentence if the accused agrees to pay the aggrieved party compensation. If the accused, however, fails to pay compensation to the aggrieved party, he will be required to undergo imprisonment for default in payment. In cases of offences compoundable by the agreement of the parties, the proceedings may be terminated by recording the compromise and the accused may be acquitted by the court.

(Ch. XII).

33. We are also of the view that the Code of Criminal Procedure should empower the investigating officer to compound offences which are compound-able, at the investigation stage and make a report to the magistrates who will give effect to the compounding of such offences. This step will reduce the number of cases proceeding for trial at the threshold stage itself and relieve the court docket to a great extent.

We recommend for insertion of a new sub-section (3A) to section 173 of the Code on the lines indicated. In order to ensure that there is no coercion or abuse by the police staff, the report of the investigating police officer incorporating the desire of the disputants to compromise can be got attested preferably by a member of the District Legal Services Authority after the same is signed by the respective disputants. Such a measure will have salutary effect and will be contributory in expeditious disposal of cases.

(Ch. XII, paras. 11 & 12)

34. In order to reduce delay in disposal of criminal trials and appeals and also to alleviate the suffering of under-trial prisoners, we feel that the concept of plea bargaining be made applicable as an experimental measure to offences which are liable for punishment with imprisonment of less than 7 years and/or fine including the offences covered by section 320 of the Code. We further recommend that plea bargaining can also be availed of in respect of nature and gravity of offences and the quantum of punishment, (para. 8, Chapter XII). However, plea bargaining should not be available to habitual offenders, accused of social/economic offences of a grave nature and offences against women and children.

(Ch. XII, para. 8)

35. To enable a quick disposal of petty cases and to reduce congestion in the court of Magistrate, we recommend that under section 206(1) of the Code the amount of fine be raised from Rs. 100 to Rs. 1,000 since the value of the money has gone down considerably as laid down in section 25 of the Code of Criminal Procedure (Amendment) Bill, 1994. Accordingly, we endorse the proposed amendment in sub-section (1) of section 206 on the following lines:

(a) in the opening paragraph, after the words and figures "under section 260", the words and figures "or section 261" shall be inserted;

(b) in the proviso, for the words "one hundred rupees", the words "one thousand rupees" shall be substituted."

36. In order to give discretion to the Session Judge to transfer a case either to the Chief Judicial Magistrate or to any other Judicial Magistrate of the First Class and to fix a date for the appearance of the accused before the Chief Judicial Magistrate or the Judicial Magistrate as the case may be, so that lot of time which is wasted in summoning the accused by the Magistrate, may be saved, as provided in clause 27 of the Code of Criminal Procedure (Amendment) Bill, 1994,
we feel that in section 228 of the principal Act, in sub-section (1), in clause (a), for the words "and thereupon the Chief Judicial Magistrate", the words "or any other Judicial Magistrate of the first class direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit and thereupon such Magistrate" shall be substituted. Accordingly, we have endorsed the provisions of clause 27 of the bill in Chapter XIX.

37. The right of speedy trial as extended to the insane under-trial mandates that a time limit should be fixed for the period of postponement of trial. Indefinite postponement is an infringement on personal liberty and rights of insane under-trials. We also suggest that amendments to sections 328, 329 and 330 in respect of pre-enquiry and pre-trial proceedings as specified in para. 16 of Chapter XVI be made.

(Ch. XVI, para. 16)

38. For expeditious justice in respect of the maintenance of wives, children and parents, we recommend that the summary trial procedure for recording evidence etc. be adopted and the evidence by way of affidavits also be made admissible. Accordingly, section 126 (2) of the Code be amended.

(Ch. XVII, para. 9.3)

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