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Report No. 14

31. Division into summons and warrant cases arbitrary.-

The division between summons cases and warrant cases is undoubtedly arbitrary. What the Legislature intended seems to be that offences which can be described as somewhat serious, applying the test of the punishment which the law provides, should be tried with more deliberation than others not so serious. The arbitrary nature of the division into summons and warrant cases will be clear from a consideration of the following instances. An offence under section 168, Indian Penal Code, is committed when a public servant unlawfully engages himself in trade and is punishable with simple imprisonment upto one year or fine or both. This is accordingly a case triable under the summons procedure.

Section 169, Indian Penal Code deals with an offence committed by a public servant unlawfully buying or bidding for property the punishment for which extends to imprisonment foi' two years. The case is triable under the warrant procedure. There is, as far As we can see, no difference in principle in the two types of offences; but for a purely arbitrary division on the basis of the punishment provided by the law, there is no reason why the latter offence should not also be tried as a summons case.

The offence of wrongfully confining any person (section 342, I.P.C.) carried a punishment of imprisonment extending up to one year, while the offence of wrongful confinement for three or more days (section 343, I.P.C.) is punishable with imprisonment up to two years; the offence becomes graver still when the wrongful confinement is for ten or more days and the maximum punishment provided for this offence is three years (section 344, I.P.C.). The first alone is triable as a summons case, although all the three offences under sections 342, 343 and 344, Indian Penal Code are of like nature.

The essential ingredients of the offence of wrongful confinement are the same in all these three cases except for the duration of wrongful confinement which is the particular circumstance that makes the offence lighter or graver. No prejudice will be caused to an accused person, if all these offences are made triable under the summons procedure.

32. Three years imprisonment limit for summons cases.-

It, therefore, seems to us that, as a general rule, all offences which do not carry punishment of imprisonment for more than three years can be tried under the summons procedure, without any prejudice to the accused. If this course is adopted, the result will be the addition of one hundred and twenty seven more offences under the I. P. C. alone to the existing list of offences triable by the procedure applicable to summons cases.

33. Procedure in warrant cases (On private complaint).-

We shall now deal with the procedure as it applied to cases arising from a private complaint. In these cases, the inquiry commences with the examination of the witnesses for the prosecution in the presence of the accused. The accused has the right to cross-examine them. If, after taking such evidence and examining the accused, the magistrate thinks that no case against the accused has been made out which, if unrebutted would warrant his conviction, the magistrate discharges him. The magistrate is competent to discharge the accused at any earlier stage of the case if, for reasons to be recorded, he considers the charge to be groundless.

If, however, on the evidence and the examination of the accused, the magistrate thinks that there is ground to presume that the accused has committed an offence triable as a warrant case, which he is competent to try and adequately punish, he proceeds to frame a charge. The charge is read out and explained to the accused, and he is asked whether he is guilty or has any defence to make. If he pleads guilty, the plea is recorded and the magistrate convicts him. If the accused pleads not guilty, the case is adjourned after recording the plea, and, at the next hearing, the accused is asked if he wishes to cross-examine any of the prosecution witnesses already examined.

The witnesses he desires to cross-examine are made available for the purpose. Thereafter the evidence of the remaining prosecution witnesses is recorded and the witnesses summoned by the accused for his defence are also examined. The magistrate then passes judgment either of acquittal or of conviction. In this class of cases also, the magistrate is at liberty to discharge the accused, if the complainant is absent on any date fixed for the hearing of the case before the charge has been framed, provided that the offence is not a cognizable offence or may be lawfully compounded.

34. On police report (Police statements to be supplied to accused free of cost).-

The procedure outlined above formerly applied to all warrant cases alike whether they arose out of a private complaint or on a police report. But the recent amendment of the Code has made a material alteration in the procedure in police cases. In these cases, there would have been a prior police investigation. Police officers would have examined and recorded statements of witnesses and gathered the material necessary for the prosecution of the offender. The Code requires that following such investigation, the investigating officer should submit a report to the magistrate setting out the names of the parties, the nature of the evidence, the names of persons who appear to be acquainted with the circumstances of the case and such other matters.

Before the commencement of the proceedings in the court, the officer is required to furnish to the accused a copy of the report forwarded to the magistrate, a copy of the first information report and copies of all other documents or extracts thereof on which the prosecution relies, including statements and confessions made and recorded under section 164 and the statements of witnesses recorded under section 161 Cr. P.C.

Charge framed on their perusal.- Before the commencement of the inquiry the magistrate is required to satisfy himself that the documents referred to above have been furnished to the accused. In cases tried under the amended warrant procedure, these records are expected to take the place of the actual examination of the witnesses prior to the framing of the charge. They constitute the "inquiry" stage in contrast to the later proceedings which form the "trial" of the accused for the offence with which he is charged. The magistrate examines these documents, makes such examination of the accused, if any, as he thinks necessary.

After giving the prosecution and the accused an opportunity of being heard, the magistrate either discharges the accused, if he considers the charge to be groundless, or proceeds to frame a charge in writing against the accused. It will be noticed that under this amended procedure, the initial examination of the prosecution witnesses is dispensed with and a charge is framed against the accused straightway if, upon a perusal of the documents and the statements made by the witnesses during the police investigation and upon hearing the prosecution and the accused, the magistrate believes that there is ground for presuming that the accused has committed an offence.

The time that would be taken by an examination of the prosecution witnesses and their cross-examination by the accused at this stage is thus saved. In substance, therefore, under this procedure, the trial of the accused commences on the very first day of the hearing of a case. The charge is framed in the manner stated above and the magistrate proceeds to fix a date for the examination of the witnesses thereafter. On this adjourned date, all the evidence that is produced in support of the prosecution is recorded by the magistrate. The accused is then permitted to cross-examine the prosecution witnesses.

The Code directs the magistrate to thereafter question the accused on the case generally before the accused is asked to enter on his defence. The answer given by the accused may be taken into consideration in the trial of the case. Thereafter, the accused either produces his witnesses or causes them to be summoned and they are examined and cross-examined. This marks the conclusion of the case. After hearing the arguments on either side, the magistrate proceeds to give judgment.

35. Differences between the two procedures.-

The differences between the two warrant procedures in their application to cases instituted on police reports and on private complaint are substantial. In so far as the duration of the proceeding is concerned, the amended procedure certainly has the effect of shortening it. Apart from the time occupied in summoning the witnesses and procuring their attendance, one stage of the proceeding, as it obtained earlier, has been done away with, altogether.

While under the earlier procedure the magistrate had to examine all or some of the prosecution witnesses before the framing of the charge and make them available for cross-examination by the accused, both at the stage of inquiry and subsequently after the framing of the charge, the amended procedure requires them to be examined and cross-examined only after the framing of the charge. The former procedure also required that after recording the plea of the accused, the trial should be proceeded with only on an adjourned date.

This interval was designed to enable the accused to study the evidence against him and to call for further cross-examination, one or more of the prosecution witnesses examined earlier. It gave him, therefore, the opportunity to cross-examine the prosecution witnesses on two different occasions. That opportunity has been taken away. The witnesses are not, therefore, now required to attend the court on more than one occasion. On these two heads alone, there has been a considerable saving of time and expense in the conduct of the prosecution.

36. Objections to the new procedure.-

Many are the objections to the new procedure that have been urged before us. Several lawyers with large criminal practice have complained that the new procedure places the accused in a very disadvantageous position in that he does not know all the "evidence" against him till after the charge has been framed. In a way, this is no doubt true, because the charge is framed after a perusal of the documents prepared by the police during investigation and on the strength of the statements recorded by the investigating officer of persons who are yet to be examined as prosecution witnesses.

Obviously, the statements recorded by the police officer during investigation are not "evidence" led before the court. Leaving aside the question of the reliability of the statements recorded by the police, it is argued that these statements are not tested by cross-examination and that it is not proper to place reliance upon them even for framing a charge against the accused.

It is said that the police in an excess of zeal may record only those parts of the statements of the witnesses which are favourable to the prosecution, that at the stage of inquiry by the police, interested parties might make statements without being under any obligation to speak the truth and that it is not possible for the investigating officer to check these statements in the manner in which a cross-examination on behalf of the accused can test them. It was also claimed that the former procedure which gave the accused the "right" to cross-examine the prosecution witnesses at two stages was a very valuable right and that the accused had been prejudiced by that right being taken away.

37. Objections answered.-

It is true that under the new procedure, the charge against the accused is based upon the statements made by witnesses to the police and other documents. It may also be conceded that in relying upon these statements for the purpose of framing a charge, the Code requires the magistrate to accept them in advance as evidence though they have not been made on oath in the presence of the accused. It must, however, be remembered that they do not form part of the evidence on the basis of which the magistrate will finally proceed to deliver judgment.

The magistrate is not entitled at that stage to rely upon these police statements. He has to proceed only upon the evidence that has been duly recorded by him in the presence cf the accused who had the right and the opportunity to cross-examine the witnesses. All that the magistrate does in the opening stages of the case is to examine these statements, examine the accused if he thinks it necessary, hear the prosecution and the accused and, if he is of the opinion that there is ground for presuming that the accused has committed an offence, to frame a charge.

It must be conceded that while under the old procedure a charge had to be framed only if the magistrate took the view that it was necessary after hearing the witnesses in the case, he has, under the new procedure, the liberty to discharge the accused without framing a charge, only if, after perusing the records of statements and the documents, he considers that the case against the accused is groundless. There is no doubt that the number of cases in which the magistrate would find it possible to discharge the accused merely on a perusal of the statements would be far fewer than those in which he can do so after the examination of the witnesses.

But we are of the view that the mere fact that a charge has been framed against the accused in the above manner does not cast any heavier burden upon him. Though, technically under the old procedure, there was an inquiry followed by a trial only if a charge was framed, the burden of facing the inquiry under it was not less onerous than that of facing a trial. The omission of the inquiry stage cannot, by itself, be regarded as having prejudiced the accused in any manner, particularly, as it was open to the magistrate to frame a charge before the entire prosecution evidence had been recorded.

There is, perhaps, some substance in the claim that the right of the accused to cross-examine the prosecution witnesses a second time after the framing of the charge had some value. But the availability of the second opportunity to cross-examine the witnesses after the charge, generally resulted in counsel waiving or limiting the initial cross-examination before the framing of the charge. In most cases, the witnesses were subjected to an effective cross-examination at only one of these two stages.

It may be that in a very small percentage of complicated cases, a further cross-examination of some of the prosecution witnesses in the light of the entire evidence might serve some useful purpose and might elucidate some points in favour of the accused. Even under the amended Code, ample powers are given to the magistrate to recall any witness for further cross-examination. What was formerly a right of the accused, has now been made to depend upon the proper exercise of judicial discretion by the Magistrate. If he is, satisfied that such further cross-examination is necessary for the purpose of justice, it is open to him to call the witnesses for further cross-examination.

38. Further curtailment not desirable.-

We must, however, strike a note of caution against making further inroads upon the procedure in a feverish search for expedition. Speedy administration of criminal justice is, undoubtedly, of the greatest importance to the well-being of society; but at the same time, in any criminal proceeding, the life and liberty of the citizen are in hazard; the elementary principles of justice require that an accused person should not be denied a fair opportunity of defending himself. Any alteration in the procedure which would infringe that right will ultimately bring the administration of justice itself into disrepute.

Men with ripe experience have deplored the fact that in India "owing to factions in villages, lack of public co-operation with the administration of criminal justice, distrust of the police force, absence of social conscience, perjury is rife." It is no doubt true that these factors work often in favour of the accused; but this fact does not lessen the need for ensuring that an accused person is given a fair trial and has no cause for complaint, that his case has not been considered fully and fairly. The true remedy for the evils mentioned above has to be found in measures other than an amendment of the procedural laws.

39. Essential steps in a fair criminal trial.-

There are four principal steps in a criminal trial:

(1) Informing the accused of the offence he is charged with having committed;

(2) Examining the prosecution witnesses in his presence and giving him an opportunity to test that evidence by cross-examination;

(3) Giving the accused an opportunity of explaining the circumstances in the evidence against him; and

(4) Giving him an opportunity to produce his evidence in defence. However much a proceeding may be shortened, none of these four steps which are vital to a just hearing can be done away with. Whether a case is tried under the old or the new procedure, the procedure itself is generally not the cause of delay in the duration of the trial. The reasons for the delay and the methods for avoiding them are examined later.

40. Amended procedure satisfactory.-

The conclusion we reach is that the amended warrant procedure has not in any manner operated to the prejudice of the accused. But it would not be proper to shorten it further. It has to be remembered that the more serious offences call for very careful examination and trials of the accused for them cannot be rushed for achieving a quick administration of justice. To do so would be to sacrifice the principles of natural justice to mere expedition. Swift injustice is worse than tardy justice.

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