Report No. 41
Inquiry Into Cases Triable by The Court of Session or High Court
18.1. Nature of committal proceedings until 1955.-
Chapter 18 prescribes the procedure for the preliminary inquiry before a Magistrate where the case is triable exclusively by a Court of Session or a High Court or, in the opinion of the Magistrate, ought to be tried by such Court. Committal proceedings, as these inquiries are commonly called, have been a distinct feature of the Code from the beginning. Ordinarily, a Court of Session or High Court may take cognizance of an offence and try the case only on the basis of a committal made to it by a Magistrate under the provisions of this Chapter. Until 1955, the procedure for the committal inquiry was the same, whether the proceedings had been instituted before the Magistrate on a police report or on a complaint or in any other manner.
He was required to take all the evidenc.-oral and documentar.-that may be produced in support of the prosecution, or on behalf of the accused, or that may be called for by the Magistrate himself, examine the accused and satisfy himself that there was sufficient ground for committing the accused to the Court of Session. If he was so satisfied, he framed a charge or charges against the accused, bound over the witnesses, committed the accused and sent up the case to the Court of Session. If he was not so satisfied, he discharged the accused.
18.2. Main object not attained in practice.-
The main object of the committal proceedings was to ensure that innocent persons alleged to have committed grave offences were not harassed by being made to face a sessions trial straightaway and that only those persons against whom a prima facie case was made out before a Magistrate underwent that ordeal. But, to quote from the Statement of Objects and Reasons appended to the Amendment Bill of 1954.-
"Experience, however, has shown that Magistrates commonly commit practically all the persons brought before them by the police. The proportion of persons discharged at this stage does not exceed 2% or thereabouts. These commitment proceedings, however, are made extremely lengthy, involve many adjournments and cause not only the prosecution, but the accused as well, trouble and heavy expense. Even after the commitment, the sessions trial may not commence for some months. The result is that persons guilty (sic) of extremely grave offences have to remain in suspense for more than a year or so."
18.3. Proposal in 1954 to abolish committal proceedings in police cases not accepted.-
It was accordingly proposed in that Bill that, in all cases instituted on a police report, committal proceedings should be abolished and the accused should be put up by the Magistrate directly before the Court of Session for undergoing trial. These proceedings were, however, retained for cases initiated by private complaints on the ground that "the safeguards to the accused which become available in cognizable cases through police investigation are no.-existent."
This proposal did not find favour with Parliament which eventually adopted a via media in the shape of a slightly abbreviated form of committal proceedings in police report cases. The procedure was set out in a comprehensive new section 207A consisting of sixteen su.-sections, and the old sections 208 to 220 in the Chapter were made applicable to cases instituted otherwise than on a police report. It should be borne in mind that such cases are very few indeed as compared to the cases instituted on a police report.
18.4. Present positio.-main differences between procedure in police cases and complaint cases.-
The main differences between the two procedures may be briefly noted. In a police case, the accused has to be furnished with a copy of the police report, of the statements of prosecution witnesses as recorded by the police and of all documents on which the prosecution relies. The Magistrate is required to satisfy himself that this has been done at the commencement of the committal proceedings. (This innovation introduced in 1955 applies equally to warrant cases tried by Magistrates). In a complaint case, this is of course not possible and hence not required.
In a police case, the Magistrate is required "to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged". While he has a discretion to take the evidence of other prosecution witnesses if he considers it necessary in the interests of justice, he is not expected to take the evidence of any defence witness. In a complaint case, on the other hand, the Magistrate has to take "all such evidence as may be produced in support of the prosecution or on behalf of the accused".
In a police case, the Magistrate proceeds to frame a charge against the accused if, on the basis of the statements of witnesses recorded by the police under section 161(3) and those recorded by himself, he "is of opinion that the accused should be committed for trial". In a complaint case, the Magistrate frames a charge when he "is satisfied that there are sufficient grounds for committing the accused for trial". This difference in wording suggests a higher standard for the prosecution evidence in complaint cases.
The difference is somewhat more noticeable in regard to the circumstances in which the Magistrate is expected to discharge the accused. In a police case, he may do so only "if he is of opinion that (the) evidence and documents (before him) disclose no grounds for committing the accused person for trial". In a complaint case, he may do so "if he finds that there are not sufficient grounds for committing the accused person for trial".
These differences, however, are not very material, nor of any great consequence since, as mentioned above, the number of session cases instituted otherwise than on a police report is very small. We may accordingly concentrate attention on section 207A under which most committal inquiries are now conducted by Magistrates.
18.5. Controversy over revised procedure.-
The purpose of providing a shorter procedure in police cases was, of course, to speed up the committal proceedings and to avoid, as far as possible, a duplication of the taking of evidence, first, by the committing Magistrate and then, by the Court of Session. Ever since its introduction, the new procedure has been a subjec.-matter of controversy. Even in 1958, the Law Commission noted in the earlier Report that "the views expressed x x x before us were sharply divided on this question. One view supported the abolition of the committal stage altogether so that the Sessions Court may be seized straightaway of these police report cases.
On the other hand, a large section of opinion emphatically supported a reversion to the old full committal procedure. There was little support for the continuation of the present shortened committal procedure."1 While taking the view that the abolition of committal proceedings altogether will not be justified, the Commission at that time felt "that it would not be right to reach definite conclusions on this question in view of the fact that the amended committal procedure has been in operation only for a little over two years.
Greater experience of its working has to be gained before a decision is reached to make radical changes in legislation so recently enacted."2 For the time being, the Commission only recommended two amendments in section 207A,3 one in su.-section (4) so that all witnesses to the commission of the crime and all other important witnesses should be examined in the committal proceedings, and the other in su.-section (6) changing "disclose no grounds" to "there are not sufficient grounds".
1. 14th Report, Vol. II.
18.6. High Courts, Bar Associations and State Governments consulted.-
When the revision of the Code was taken up in 1960 and suggestions were received from the public, they were found to be of the same conflicting nature as before in regard to the utility of committal proceedings. In view of the importance of the subject, the Commission decided to ascertain in greater detail the views of those who were competent to speak on it, and addressed a letter1 to the High Courts, the leading Bar Associations and the State Governments soliciting their views specially on the following questions:
(1) Are commitment proceedings under section 207A of the Code an improvement over the pr.-1955 position from the point of view of securing a speedy and fair trial for the accused?
(2) If not, should the pr.-1955 position be restored in respect of commitment proceedings by repealing section 207A and making suitable modifications in the other sections?
(3) Do commitment proceedings serve any useful purpose at all and would it be better to dispense with such proceedings?
(4) Will an authority similar to the Director of Public Prosecutions in England be useful and effective in Indian conditions, particularly in regard to the prosecution of sessions cases?
One or more Members of the Commission also held discussions on these points at various places with Judges, members of the Bar Associations and others.2 As was only to be expected, the views expressed in the replies to the Commission's letter and at the personal discussions revealed a sharp difference of opinion.
1. Letter dated 23rd August, 1968.
2. See Introduction to this Report.
18.7. English procedure for trial of felonies.-
Before considering the arguments for and against the abolition of committal proceedings, it will be useful to refer to the evolution of the English procedure for the trial of felonies or indictable offences. As stated by Holdsworth1.-
"Early law did not contemplate any preliminary enquiry into the guilt or innocence of an accused person. Criminals were presented for trial either by the jury of presentment, or in consequence of the finding of the coroner's inquest. If they were taken in the act, they were generally executed out of hand. x x x. In fact, in the seventeenth century, the examination conducted by the magistrates was of an inquisitorial nature. The prisoner was closely examined. The witnesses for the prosecution were not examined in his presence. Their evidence was only for the information of the court.
Even as late as 1823 it was stated to the grand jury that, when a magistrate was conducting this preliminary examination, he was acting inquisitorially and not judicially; that such proceedings might and ought to be conducted in secret; and that information so ascertained might be communicated to the prosecutor but not to the party accused. In 1836, the Prisoners' Counsel Act allowed accused persons to inspect all depositions taken against them. In 1848, it was enacted that the witnesses for the prosecution should be examined in the presence of the accused. The accused person was allowed to make any statement he pleased or to call any witnesses he pleased; but he was not to be obliged to do either; and the Magistrate must inform him about this. The preliminary examination before the Magistrates was thus made an entirely judicial proceeding."
The pattern thus set in England for the trial of serious to offence.-a preliminary judicial inquiry before Magistrates followed by a ful.-fledged jury trial before the court of assize or quarter session.-was copied while codifying the law of criminal procedure in British India.
1. Holdsworth History of English Law, (1922), Vol. I, pp. 295 to 297.
18.8. Change made by the Criminal Justice Act of 1967.-
Recently, however, an important change has been made in England by the Criminal Justice Act, 1967 in respect of proceedings before examining justices. It has introduced a new type of "committal for trial without consideration of the evidence". Under the ordinary procedure, examining justices are obliged to consider the evidence, which must be adduced orally before them, and any statement of the accused. They cannot accept written statements as evidence and must satisfy themselves that there is sufficient evidence to place the accused upon this trial. The Act of 1967 enables them to admit as evidence, subject to certain safeguards, written statements of witnesses to the same extent as oral evidence to the like effect. A learned writer in a Law Review comments on the new procedure as follows1.-
"Committal proceedings have long been recognised as tim.-consuming and potentially productive of a sense of unfairness and of risk of prejudice for the defence when reported in the press. Witnesses did not come up to proof and thus counsel's opening speech was sometimes unwittingly inaccurate; evidence was admitted at committal proceedings but rejected as inadmissible at the trial; only the prosecution case was given at committal and the press report was necessarily on.-sided, and often haphazard and fortuitous; at the trial the Judge always had to warn the jury to put out of their minds anything they had read about the case.
Accordingly a new simplified committal procedure and restrictions on reporting, while retaining the essential principle that the accused is entitled to know in advance the case he has to meet at the trial, and to have press publicity if he wishes, are very welcome. Where the accused is legally represented, committal may now take place formally by consent on the basis of written statements, served on the defence before the hearing which will not even be read out aloud in court nor even read by the Magistrates, if the defence does not wish the prosecution witnesses to be called."
1. A. Samuels in the Modern Law Review, (1968), p. 17.
18.9. No committal proceedings in Scotland.-
In Scotland there are no committal proceedings at all. The Lord Advocate and the Crown Office staff in Edinburgh are responsible for deciding whether the evidence justifies prosecution, the offence to be charged and the Court in which the prosecution is to be brought. The procurato.-fiscal in a county (corresponding to our Public Prosecutor in a district) has a wide discretion as to the prosecution of lesser offences and receives guidance from the Crown Office regarding more serious crimes.
He sends to the Crown Office "pr.-cognitions" (i.e., the statements of witnesses recorded before trial) and reports of crime received from the police and from private individuals. Each prosecution witness is pr.-cognised privately, the accused being neither present nor represented by counsel. The function of the procurato.-fiscal corresponds more to the investigating judge in continental procedure than to Magistrates conducting a preliminary inquiry in England. It is his duty to ensure that pr.-cognitions are as full as possible and faithfully represent the evidence of witnesses.
18.10. Main features of Scottish procedure.-
It is a rule of Scottish procedure1 "that every indictment must have appended to it a list of all productions which are to be used as evidence by the Crown at the trial and of all Crown witnesses with their addresses. The indictment is served upon the accused not less than six clear days before the first diet, that is the sitting of the Court at which the accused is called on to plead 'guilty' or 'not guilty'. If the accused does not plead guilty, the trial takes place at the second diet, which must be not less than nine clear days after the first diet.
There is therefore a minimum of fifteen clear days between the date when the accused person first receives the list of the witnesses and of the productions which may be used against him and the date of trial. In practice the time is usually considerably longer." The defence is also obliged to provide a list of its witnesses to the prosecutor who may pr.-cognise them. The pr.-cognitions, however, are merely aids to the examination of the witnesses in Court. They are not disclosed to the Judge or jury.
1. W.G. Normand The Public Prosecutor in Scotland, (1938) 54 LZR, p. 353.