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Report No. 154

Chapter XXII

Conclusions and Recommendations

1. In the light of the discussions made in the earlier chapters of this report the Commission is of the opinion that it is essential to make appropriate amendments in the Code of Criminal Procedure, 1973, particularly for rendering speedy Justice. We have also examined the proposed changes brought out in the Code of Criminal Procedure (Amendment) Bill, 1994.

2. We have indicated in each chapter of the report, the provisions which should be made in lieu of, or in addition to, the existing provisions, and also the amendments, both major and minor, to be made in them. We do not consider it necessary to give a complete summary of all the recommendations made in the foregoing pages. The main changes proposed by us are set out below in broad outlines.

3. There should be a separate and exclusive cadre of investigating agency to investigate grave offences in every district subject to supervision by the higher authorities. When a case is taken up for investigation by an officer of such agency, he should be in charge of the case throughout till the conclusion of the trial. He should take the responsibility for production of witnesses, production of accused and for assisting the prosecuting agency.

(Ch. II, para. 7)

4. The police official entrusted with the investigation of grave offences should be separate and distinct from those entrusted with the enforcement of law and order and other miscellaneous duties. Separate investigating agency directly under the supervision of a designated Superintendent of Police be constituted. The hierarchy of the officers in such agency should have adequate training and incentives for furthering effective investigations. The respective Law and Home Departments of various State Governments may work out details for structuring and betterment of their conditions of service.

(Ch. II, para. 9)

5. The officials of the investigating police force be made responsible for helping the courts in the conduct of cases and speedy trail by ensuring timely attendance of witnesses, production of accused and proper co-ordination with prosecuting agency. Other necessary steps should also be taken for promoting efficiency in investigation. Accordingly, that necessary changes in the Police Acts, both Central and State, Police Regulations, Police Standing Orders, Police Manuals, be made by the Home Department in consultation with the Law Departments of State Governments.

(Ch. II, para. 9)

6. A Directorate of Prosecution be established as provided in clause 4 of the Code of Criminal Procedure (Amendment) Bill, 1994, and new section 25A be inserted. However, sub-section (4) of new section 25A placing the public prosecutors appointed under section 24(1) to conduct cases in the High Court to be subordinate to the Director of Prosecution need not be there as, the Public Prosecutors appointed exclusively to conduct cases on the appellate side in the High Court should be differentiated from those prosecuting officers appointed to conduct cases in the lower courts. Accordingly, sub-section (4) of the proposed section 25A be deleted.

(Ch. III, para. 12)

7. The structuring of the proposed Directorate of prosecution shall be on the lines recommended by the National Police Commission. Some of them may be earmarked to advise the investigating agencies and to examine whether there is a fit case for filing the charge-sheet. However, the Government while appointing Public Prosecutors and Assistant Public Prosecutors under sections 24 and 25 shall, as far as practicable, appoint sufficient number of woman Public Prosecutors and Assistant Public Prosecutors so that they can effectively deal with cases involving women who are under 18 years of age and in respect whom offences under sections 354, 376, 376A to 376E (both inclusive) proposed by the National Commission for Women and 509 of the Indian Penal Code.

(Ch. Ill, paras. 9, 10 & 13)

8. In view of the recommendations to establish the Directorate of Prosecution, section 25(3) and section 302 to the extent that they enable police officers to conduct prosecution, needs to be suitably amended.

(Ch. Ill, para. 17)

9. Regarding law of arrest in view of the guidelines enunciated by the Supreme Court in Joginder Kumar's case and also the consequent recommendations of the Law Commission in its 152nd Report on "Custodial Crimes" the new sub-section to section 41 be inserted in the Code. Further a new section 41A be also inserted in the Code.

(Ch. IV, para. 11)

10. The police custody need not be during the first fifteen days of remand alone. A provision should also be made for a fresh police custody, if sought by the CBI during investigation but it should not exceed 15 days in the whole.

Accordingly, section 167(2) be amended.

(Ch. V, paras. 1 & 2)

11. In order to eliminate the discrimination against the poor and the indigent accused in the grant of bail for bailable offences, clause 40 of the Criminal Procedure Amendment Bill, 1994 seeks to amend section 436 of the Code to make a mandatory provision that if the arrested persons accused of a bailable offence is an indigent and cannot furnish security, the court shall release him on his execution of a bond without sureties. The amendments referred to above as those are consistent with the Supreme court's pronouncements and juristic opinion that poor accused committing bailable offences should not be denied bail on the basis of indigency.

(Ch. VI, paras. 8.4 & 8.5.)

12. Section 436A be inserted in the Code as a protection for under-trial prisoners accused of non-capital offences and released on bail as contained in Clause 41 of the Code of Criminal Procedure (Amendment) Bill, 1994 except the words "instead of the personal bond with or without sureties" occurring in the proviso to clause 41 of the Bill.

(Ch. VI, para. 10)

13. In order to make the provision under section 437 more stringent and ensure that the accused released on bail does not interfere or intimidate the witnesses section 347 be amended as provided under clause 42 of the Code of Criminal Procedure (Amendment) Bill, 1994.

(Ch. VI, para. 11)

14. The provision contained under section 438 regarding anticipatory bail should remain in the Code but subject to the amendments suggested in clause 43 of the Code of Criminal Procedure (Amendment) Bill, 1994 which provides adequate safeguards.

(Ch. VI, para. 18)

15. To eliminate the pernicious evil of professional and fake sureties in the bail process section 441A be incorporated in the Code as provided in clause 44 of the Code of Criminal Procedure (Amendment) Bill, 1994.

(Ch. VI, paras. 19.4 and 19.5)

16. In keeping with the tune of amendments to sections 436, 437, 438 and the insertion of sections 436A and 441A, the amendment of sub-section (3) of section 446 on the lines set out in clause 45 of the Bill be inserted.

(Ch. VI, paras. 20.3 to 20.5)

17. A new section 437A be inserted empowering all the criminal courts (including the 1st 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 an appeal for enhancement is filed in the higher court. Such a bond shall be in force for a period of 12 months from the date of judgement disposing of the case either by trial court or by the 1st appellate court as the case may be. We feel, the twelve months limit would be enough to cover the period of limitation for processing and filing of such appeals.

(Ch. VII, para. 2)

18. Summons procedure be dispensed with. Accordingly, Chapter XX be deleted. The definition of warrant case be amended as one relating to an offence punishable with imprisonment for a term exceeding three years. Likewise, definition of summons cases be amended relating to an offence not being warrant case summarily triable. Section 260 be also amended that all summons cases as per the proposed definition should be summarily tried and the magistrate shall have the power to award sentence of imprisonment only up to a period of six months or a fine up to Rs. 3000.

However, in case of serious nature if the Magistrate is of the opinion that it is undesirable to try summarily, he may convert the same into a warrant case and try accordingly after giving sufficient and valid reasons. Sub-sections (1) and (2) of the section 260 be amended accordingly. The new comprehensive procedure as per the amended section 262(2) and also in the existing sections 263 and 265 shall be followed.

(Ch. VII, paras. 12, 13, 14 & 15)

19. In cases arising out of a police report, all the statements having been recorded during investigation should be supplied in advance and the cross-examination should proceed continuously. In the case of other types of case arising otherwise than on police report also, evidence already recorded before issuing process would be available furnishing sufficient material for cross-examina lion, and many adjournments just for the purpose of carrying; on further cross-examination can be avoided. Accordingly, sections 242(2)(3) and 246(4) be amended.

(Ch. VIII, para. 17)

20. The statements of material witnesses recorded under section 164 which could be more authentic and also prevent the witnesses from turning hostile. Further sections 161, 162, 164 and 172 be amended on the lines suggested in Chapter IX, para. 7. This course is more salutary and will prove to 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 acknowledgement 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.

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

21. The allowances payable to the witnesses for their attendance in courts should be fixed on a realistic basis and that payment should be effected through a simple procedure which would avoid delay and inconvenience. Section 312 of Cr. P.C. and the rules made thereunder will have to be suitably amended. They should be paid allowances for all the days they attend. Adequate facilities should be provided in the court premises for their stay. The treatment afforded to them right from the stage of investigation up to the stage of conclusion of the trial should be in a fitting manner giving them due respect and removing all causes which contribute to any anguish on their part.

(Ch. X, para. 6)

22. Listing of the cases should be done in such a way that the witnesses who are summoned are examined on the day they are summoned and adjournments should be avoided meticulously. The lists 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 the likelihood of their being tried or not. The courts also should proceed with trial on a day-to-day basis and the listing of the cases should be on those lines. The High Courts should issue necessary circulars to all the criminal courts giving guidelines for listing of cases.

(Ch. X, para. 7)

23. We are of the view that the Courts can take the assistance of the prosecutor and defense counsel and prepare the questions which are to be put in a concise form to the accused under section 313. The Court can also permit the filing of written statements by the accused as sufficient compliances with section 313.

(Ch. XI, para. 6)

24. 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. 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.

(Chapter XII, paras. 4 & 10)

25. 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 and 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, we are of the view that sub-section (3) be amended suitably.

(Ch. XII, para. 5)

26. We recommend that the concept of plea bargaining may be made applicable as an experimental measure, to offences which are liable for punishment with imprisonment of less than seven years and/or fine including the offences covered by section 320 of the Criminal Procedure Code. Plea-bargaining can also be in respect of the nature and gravity of offences and the quantum of punishment. However, plea bargaining should not be available to habitual offenders, those who are accused of socio-economic offences of a grave nature and offences against women and children.

(Ch. XIII, paras. 8 & 9)

27. A plea bargaining can be availed to by the accused in the categories of offences mentioned above before the Court at any stage after the charge sheet is filed by the investigating agency in police cases and in respect of private complaints at any stage after the cognizance is taken. An order passed by the court on such a plea shall be final and no appeal shall lie against such an order passed by the Court accepting the plea.

(Ch. XIII, para. 9.6)

28. A separate Chapter XX1A on Plea Bargaining be incorporated in the Code of Criminal Procedure on the lines indicated in para. 7 to 9.9.

(Ch. XIII, paras. 7 to 9.10)

29. The recommendations of the Law Commission in its 114th Report on Gram Nyayalaya regarding appointment of presiding officer may not be feasible because serving Munsifs/Civil Judges will not be able to shoulder the additional burden of presiding over Gram Nyayalayas in the rural areas. As it is, there is docket explosion in the civil courts and the civil justice delivering system is adversely affected by the phenomenon of huge backlog of cases leading to long delays in disposals.

Restricting to serving judicial officers only prevents the consideration of retired judicial officers and other personnel who have served in the government in various capacities. Engaging lawyers by the parties to appear before the Nyaya Panchayats 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)

30. The 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.

(Ch. XIV, para. 7)

31. In view of the weaknesses of the existing provisions for compensation to crime victims in the criminal law, it 'is necessary to incorporate a new section 357A in the Code.

(Ch. XV, paras. 13 & 17)

32. A time limit should be fixed for the period of postponement of trial of insane under-trial. Indefinite postponement is an infringement of the personal liberty and rights of insane under-trails. In order that personal liberty is not arbitrarily deprived in the name of therapy, it is essential that the period for which the enquiry or trial can be postponed, should be subject to limitation.

For the accused whose condition is treatable and who can be better equipped to defend themselves postponement of trial furthers fair trial. For incurables postponement is of little utility and only operates as a mechanism for punishing without trial. It, therefore, seems appropriate that they should be discharged of the charged offence.

If their mental condition makes them a danger to themselves or others i.e. they are incapable of looking after themselves and nobody is available who is willing to look after them, then the procedure for involuntary civil commitment should be initiated to institutionalize these persons. Accordingly, sections 328, 329, 330 of the Code in respect of pre-enquiry and pre-trial proceedings be amended.

(Ch. XVI, paras. 12, 14, 15 & 16)

33. Regarding maintenance under section 125 the increase in ceiling from Rs. 500 to Rs. 1500 suggested in the 1994 Bill would not serve the purpose owing to spiraling inflationary conditions. Nor altogether dropping the ceiling limit is desirable. Justice would be done to awardees if the ceiling is raised to Rs. 5000.

(Ch. XVII, para. 5)

34. Under the existing law, there is no right to appeal against an order passed by the magistrate under section 125. Only a revision is possible. There is need to amend the law providing right to appeal.

(Ch. XVII, para. 9.1)

35. Summary trail procedure for recording evidence etc., under section 126 be adopted and the evidence by way of affidavits also be made admissible. Accordingly section 126(2) be amended.

(Ch. XVII, para. 9.3)

36. It is necessary to empower the magistrate to attach the property of the person liable to pay maintenance and sell in order to recover the amount. If the husband is employed, the magistrate shall have power to direct the employer to deduct the amount of maintenance and arrange the payment. To give effect to this suggestion, section 128 has to be amended suitably.

(Ch. XVII, para. 9.4)

37. An absolute condition provided in proviso to clause (a) of Bill formulated by the National Commission for Women, namely, that an offence under section 376 of the Indian Penal Code (rape) shall be tried only by any such court presided over by a woman may not be feasible in practice always. The word "only" be substituted by "as far as practicable" in the proviso.

(Ch. XVIII, para. 4.2)

38. The age of the woman to be questioned only in the presence of her parents etc. should be eighteen and not fifteen as suggested by the National Commission for Women.

(Ch. XVIII, para. 5.4)

39. Section 160 be amended on the lines suggested by the National Commission for Women subject to certain modifications. In sub-section (3) the age of "twelve years" be raised to "eighteen years" in conformity with the Convention on the Rights of the Child. The recommendation made in sub-section (4) of National Commission on Women Bill is not practicable having regard to the present condition and dearth of female police officers.

It may also not be practicable for the victim or any person interested in her to approach the person mentioned in sub-section (3). Instead sub-section (4) may be amended to the effect that where a female police officer is not available and to contact the person mentioned in sub-section (3) is difficult, the officer in charge of the police station, for reasons to be recorded in writing, shall proceed with the recording of the statement of the victim in the presence of a relative of the victim.

(Ch. XVIII, para. 6.9)

40. The insertion of section 164A as recommended by the National Commission for Women is eminent desirable subject to the modification that medical examination be made preferably by a female medical practitioner. Further a speedy and detailed medical examination of rape victims by doctors is essential for effective trial of rape offences. Likewise speedy despatch of the report to the investigating officer is also necessary.

(Ch. XVIII, para. 7.3)

41. Some of the amendments to section 327 mentioned in the Bill proposed by the National Commission of Women are not practicable. Accordingly, in sub-section (2), the word "only" be substituted by the words "as far as practicable" because to limit such trials only by women judges as mandatory would unduly delay the trial. However, the amendment in sub-section (3) lifting the ban on printing or publication of rape trial procedures but mandating confidentiality of the names and addresses of the parties be made.

(Ch. XVIII, para. 12)

42. The Women prisoners be exempted from the rigour of section 433A of the Code for the reasons set out in Chapter XVIII.

(Ch. XVIII, para. 15.7)

43. In order to make the provision explicit so as to give benefit of set-off to the life convicts also section 428 can be amended by adding the words "or imprisonment for life" after the words "sentenced to imprisonment for a term."

(Ch. XIX, para. 2.)

44. After section 144 a new section 144A is to be inserted in the Code to enable the District Magistrate to prohibit mass drill (or training) with arms in public places, in order to curb the militant activities of certain communal organisations and to strengthen the hands of the State authority for effectively checking communal tension.

(Ch. XX, para. 5.1)

45. Section 176 be amended to provide that in the case of death or disappearance of a person or a rape of a woman while in the custody of police, there shall be a mandatory judicial inquiry and in case of death, examination of the dead body shall be conducted within twenty-four hours of death.

(Ch. XX, para. )

46. A new proviso to sub-section (1) of section 190 of the Code be inserted to empower a magistrate to authorise further detention in custody of an accused person for a period not exceeding a week, after recording reasons, during the interim period of submission of the police report and before taking cognizance of the offence disclosed by the police report. Such a provision is necessary to enable the Magistrate to pass an order of remand where it is not possible for him to take cognizance of an offence under clause (b) of section 190.

(Ch. XX, para. 5.3)

47. Two provisos to sub-section (1) of section 389 of the Code be added to the effect that the Appellate Court would give notice to the prosecution before releasing a convicted person on bail, if he was convicted of an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and also to enable the prosecution to move an application for cancellation of such bail granted by the Appellate Court.

(Ch. XX, para. 5.7)

48. A proviso be added to section 428 providing for a set-off of the period of detention during investigation and trial against period of 14 years of actual imprisonment. This amendment is necessary so that the convicted accused can get a benefit of the period suffered by him as detention during the trial and investigation being set off against period of 14 years mentioned in section 433A.

(Chs. XIX and XX)

49. In respect of bailable offences, there are instances where the person has to remain in jail for his, inability to furnish bail, till the case is disposed of. The amendment of section 436(1) to make mandatory provision to release such indigent person on an execution of a bond without sureties, is a salutary provision.

(Ch. XX, para. 5.9)

50. The new sub-section (4) added to section 46 to prohibit to arrest of a woman after sunset and before sunrise except in unavoidable circumstances.

(Ch. XX, para. 6.3)

51. A proviso be added to section 46(1) regarding the arrest of a woman providing that where the woman is to be arrested and submission to custody on an oral intimation the arrest shall be presumed. However, we suggested that existing sub-section (2) will be numbered as sub-section (3) and sub-section (3) as sub-section (4).

(Ch. XX, para. 6.3)

52. A new section 164A be inserted in the Code to provide for a medical examination of the victim of rape by a registered medical practitioner.

(Ch. XX, para. 6.7)

53. A new sub-section (3A) be added to section 173 to enable the police to take note of the desire of the parties to compound offences even at the stage of investigation.

(Ch. XX, para. 6.8)

54. In order to guard against the arbitrary exercise of power and to reduce reckless acquittals, section 378 be amended providing an appeal against an order of acquittal passed by a Magistrate in respect of cognizable and non-bailable offence filed on a police report to the Court of Session as directed by the District Magistrate. In respect of all other cases filed, on a police report, an appeal shall lie to the High Court against an order of acquittal passed by any other court other than the High Court, as directed by the State Government.

The power to recommend appeal in the first category is sought to be vested in the District Magistrate and the power in respect of second category would continue with the State Government. Section 376 be accordingly amended prescribing limitations for filing the appeal and limiting the scope thereof.

(Ch. XX, paras. 6.12 and 6.13)

55. A new section 436A be inserted providing for release of under-trial prisoners who are in jail for a long period, with necessary modification.

(Ch. XX, para. 6.14)

56. To combat with the problem of adjournments the measures as laid down under order XVII of the Code of Civil Procedure be inserted in the Code. Further an additional provision as laid down in State of Gujarat v. Narendar Singh Lukhubhai, 1995, (Vol. 1) Crimes 445, be incorporated.

(Ch. XXI, paras. 42.7 and 42.8)

57. There is need for appointing more Special Magistrates to deal with minor nature of criminal cases. Necessary changes accordingly be made in sections 13 and 18 of the Code of Criminal Procedure.

(Ch. XXI, para. 43.11)

58. The Court may consider materials produced by the accused affecting the very maintainability of the case at the preliminary stages contemplated under sections 227, 239 and 245 as well as in the preliminary stages of the summary trials

(Ch. XXI, para. 31)

59. In order to minimise the long pending cases, it is necessary to adopt the directions given by the Supreme Court in Common Cause v. Union of India, 1996 (4) SCALE 127, with certain modifications. Further the directions given by the Supreme Court should not be made applicable to cases where the accused has been convicted more than once or against whom more than one case is pending. Moreover, the directions of the Supreme Court should be made applicable only to pending cases and not in respect of future cases. However, there should be a periodical review from time to time preferably every three years.

(Ch. XXI, para. 41.9)

60. It is highly desirable a separate Process Serving Agency under the control of courts be established to avoid delay in the service of summons or execution of warrants issued by the court.

(Ch. XXI, para. 41.3)

61. A special machinery should be provided in order to procure vehicles for producing the accused before the court on each date any time.

(Ch. XXI, para. 41.4)

62. There should be a periodical review of the strength of the courts to effectively deal with the arrears pending in the courts and accordingly a new section 23A be incorporated in the Code.

(Ch. XXI, para. 41.2)

63. The Court may consider materials produced by the accused which affects the very maintainability of the case at the preliminary stages contemplated under sections 227, 239 and 245 as well as in the preliminary stages of the summary trials.

(Ch. XXI, para. 30)

We recommend accordingly.

Justice K. Jayachandera Reddy, Chairman.

Justice R.L. Gupta, Member.

Ch. G. Krishnamurthy, Member.

Professor Alice Jacob, Member.

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