Report No. 41
18.11. Procedure in Israel.-
Another country which does not have committal proceedings for the trial of grave offences is Israel. Under a recent law, it has dispensed with such proceedings. The law provides that the accused person may at any reasonable time inspect a copy of the investigation material in the possession of the prosecutor and that the prosecution may not produce any evidence in court or call any witness unless the accused has been given a reasonable opportunity to inspect and copy the evidence or statement of the witness during the investigation. The procedure is thus similar to that obtaining in India for the trial of warrant cases before Magistrates under section 251A of the Code.
18.12. Procedure in some Australian Provinces.-
Some of the Australian Provinces which have been following the traditional English system of a preliminary inquiry by a Magistrate followed by a jury trial before a Judge in the case of all serious offences have been feeling the delay, expense and inconvenience involved in the committal proceedings. They have recently been amending their laws so that such proceedings are shortened, particularly where the accused has pleaded guilty. As in England, statutory declarations are made admissible in lieu of oral evidence in these proceedings.
18.13. Committal proceedings not essential for a fair trial.-
We have mentioned these few foreign instances only to show that committal proceedings are by no means an essential part of a fair trial which a person accused of a grave crime has a right to expect. They are more in the nature of a convenience from the point of view of the prosecution as well as of the defence, especially in places where trial by jury is prescribed by law. A jury trial has necessarily to be concentrated into as short a period as possible and carried on without a break.
Committal proceedings help in presenting the evidence of the prosecution and the 'defence in an organised manner before the jury, besides, of course, affording a protection to the individual against having to face a jury trial when the evidence to support the charge against him is insufficient. With the abolition of jury trials, these advantages have lost much of their importance.
18.14. Committal proceedings dispensed with by law in certain cases.-
It should also be noticed that the Indian Legislature has occasionally provided for the direct trial of the accused person by the Sessions Court without any committal proceedings before a Magistrate. Section 198B of the Code, for example, dispenses with such proceedings when the prosecution is for defaming the President or Vic.-President of India, the Governor of a State, a Minister of the Union or of a State, or other public servant employed by Government. Under the Prevention of Corruption Act, Sessions Judges, appointed as Special Judges, take direct cognizance of certain serious offences involving bribery and corruption and try them more or less according to warran.-case procedure.
Special courts and tribunals have also been established from time to time for the trial of persons charged with grave offences without the case being committed to them after a magisterial inquiry. In all these cases, the avowed object of the special provision or law is to avoid the delay inherent in committal proceedings and expedite the trial of the offence. At the same time, it cannot be contended that the law has in any way failed to secure the essentials of a fair trial for the accused.
18.15. The main object of Chapter 18 of the Code in interposing a judicial inquiry by a Magistrate as a preliminary to every sessions trial is to secure that a prima facie case is made out against the accused person to the satisfaction of the Magistrate, and that, where the Magistrate is not satisfied that there are sufficient grounds for committing the accused for trial, the latter is discharged and saved the trouble and expense involved in facing the Sessions Court.
This would seem to be the only real justification for a procedure which involves the taking of the same prosecution evidence twice over, puts the State as well as the accused to additional expense and trouble and holds up the trial for a considerable period. Examination of the witnesses before the effective Court is postponed by weeks, sometimes months, because of this procedure. It would be well to remember in this connection Katyana's injunction to the Hindu kings of old.-
Mahan dosho bhavet kalat
[No delay should be permitted by the king in getting witnesses to depose; for lapse of time leads to great evil, marked by their deviating from the lawful course.]
18.16. No effective screening of flimsy cases.-
Even under the full committal proceedings in vogue before the amendment of 1955, it was noticed that the screening of flimsy cases, which these proceedings were designed to effect, was in fact not achieved. Subsequent to the amendment, the number of cases in which the committing Magistrates found it possible to discharge the accused because the evidence and documents produced by the prosecution "disclosed no grounds for committing the accused person for trial" was not unnaturally even smaller than before.
The amendment might have reduced to a certain extent the time taken in the committal proceedings, since the prosecution witnesses actually put forward and examined by the Magistrate were fewer, but this gain in time was offset in quite a few States, particularly in Uttar Pradesh and Bihar, by the time taken after commitment for the case to be brought up before the Court of Session for trial. The Commission was informed that this interval, which ought not to be more than three or four weeks, was in many cases about a year in Uttar Pradesh and in Bihar according to recent statistics. There is also no doubt that in almost all States the time spent in committal proceedings themselves continues to be considerable in spite of the amendment of 1955.
Many of the arguments put forward in support of retaining committal proceedings are based on the assumption that they effectively help in the screening of flimsy cases. For instance, when it is urged that evidence before committing Magistrate often establishes that there is no prima facie case against the accused or some of the accused and they are saved the trouble and expense of a sessions trial, or that the committal stage operates as a check against innocent persons being brought before the Court of Session on the basis of defective police investigation, or that committal proceedings save the time of Sessions Judges and congestion in their Courts, the argument conveniently turns a blind eye to the fact that the number of cases resulting in discharge of any of the accused persons by the Magistrate is very small indeed. The advantage on this score is consequently negligible as compared to the magisterial time and public money wasted in the great majority of committal proceedings.
18.17. Committal proceedings not essential for giving accused clear picture of the case.-
Another line of argument for retaining committal proceedings is that the accused must have a full and clear picture of the case against him before he is brought up before the Sessions Court and for this purpose it is essential that a Magistrate should record the statements on oath of all the prosecution witnesses, or, at any rate, of the "witnesses to the actual commission of the offence alleged". While one may readily agree that these depositions taken in his presence give the accused a better idea of the case against him than copies of their statements recorded by the police under section 161(3) and of the other documents relied on by the prosecution, we do not think that they are essential for a fair trial of the accused.
In order to prepare his defence, he has certainly a right to know the nature of the evidence which the prosecution has obtained against him, but this, in our opinion, is made available to him under section 173(4). It has to be remembered that what finally matters is the evidence before the Sessions Judge at the trial and not the statements recorded by the Magistrate or by the police in the first instance, and the longer the time taken in bringing the witnesses before the trial court, the better are the chances of their deviating from the truth.
18.18. Sessions Judge's evidence.-
We may quote here a Sessions Judge1 who writes from personal experience as follows.-
"Another fact which I have noticed is that the commitment proceedings are unduly delayed and there are instances where the accused have been committed to the Court of Session after more than two years of the date of offence. Even in serious offences like murder, the commAment proceedings take quite a long time. This has a number of evils in its train. The main evil is that there is a lot of gap between the examination of the witnesses in the Court of Session and before the Magistrate, and again in the Court of Session and the date of occurrence, and the witnesses who are by a large number illiterate make discrepant statements on some matters and this furnishes an opportunity to the defence to confront the witness with his previous statement made in the committing court or before the police.
Further, if there is a delay in the trial of the case the witnesses are likely to be won over. In some cases I have found that due to delay important witnesses disappear, and there is delay in the disposal of the trial. I have also found that when there is a delay in the trial of the case, important witnesses such as doctor, investigating officer, are transferred and sometimes it becomes difficult to procure their presence and this delays the finishing of the trial."
Similar views have been expressed by a number of other Sessions Judges with varying emphasis on the different points brought out in the above report.
1. Shri Rajendra Nath Aggarwal, District and Sessions Judge, Simla.
18.19. Abolition of committal proceedings recommended.-
After a careful consideration we are of the unanimous opinion that committal proceedings are largely a waste of time and effort and do not contribute appreciably to the efficiency of the trial before the Court of Session. While they are obviously tim.-consuming, they do not serve any essential purpose. There can be no doubt or dispute as to the desirability of every trial, and more particularly of the trial for a grave offence, beginning as soon as practicable after the completion of investigation.
Committal proceedings which only serve to delay this step, do not advance the cause of justice. The primary object of protecting the innocent accused from the ordeal of a sessions trial has not been achieved in practice; and the other main object of apprising the accused in sufficient detail of the case he has to meet at the trial could be achieved by other methods without going through a very partial and ineffective trial rehearsal before a Magistrate. We recommend that committal proceedings should be abolished.
18.20. Independent authority to control public prosecutions.-
We have mentioned above1 that one of the connected questions on which informed opinion was sought by us was whether an authority similar to the Director of Public Prosecutions in England would be useful and effective in Indian conditions, particularly in regard to the prosecution of sessions cases. The opinions received by us were generally in favour of such an authority, provided its independent character could be safeguarded and it was given an effective voice in advising whether the evidence collected by the investigating agencies was sufficient to put up the case before the Court of Session. Such an authority would doubtless be specially valuable after the abolition of committal proceedings.
1. See para. 18.6 above.