Report No. 14
36. Delays in Criminal Trials and Inquires
1. Separation as a means to speedy disposal.-
An important measure, which is bound to result in the-speedier disposal of criminal cases is the separation of the judiciary from the executive. It has been amply demonstrated in some of the States where it is in force, that it results in a quicker disposal of cases. In non-separation States, the magistrates are frequently compelled to put aside criminal judicial work in order to attend to urgent executive duties. Apart from this the expedition which can be achieved only by a close and continuous scrutiny of the magistrates' work by a High Court Judge, as in Madras, is possible only if the judiciary is separated and put under the control of the High Court.
2. Causes of delay.-
The other causes which occasion delay in the disposal of criminal cases are not very different from those that obtain in civil cases. The absence of witnesses, absence of counsel, adjournments-on adequate grounds or otherwise-crowded lists and failure to examine witnesses though present, absence of a system of day-to-day hearing, and delay in the delivery of judgments are all causes which lead to delay in criminal cases also.
We have earlier called attention to the reluctance of witnesses to appear in Courts. We were informed in several States, particularly in Bihar and Madhya Pradesh that witnesses, including the investigating and other police officers often failed to attend the Courts, and, in consequence, cases had frequently to be adjourned. The adjournments caused considerable hardship to the accused, specially if he was in custody. We were told in Bihar that even sessions cases had to be adjourned several times on account of the nonattendance of witnesses. A large number of judicial officers and lawyers who were examined in Bihar, also attributed the failure of witnesses to attend as the principal cause of the delay in the disposal of criminal cases.
It was said by the judicial officers that the police did not serve the summonses in time, while the police stated that the summonses were issued too late by the Courts for service in time. These, in our view, are matters which should be dealt with at the district level by a close co-operation between the Sessions Judge or the District Magistrate and the District Superintendent of Police. The Magistrates must undoubtedly share part of the blame for the failure of witnesses to attend which not infrequently arises from careless postings, and a failure to examine witnesses who have attended court and are present.
The prosecution of cases instituted on police report is undertaken by the State. These cases usually involve offences which need to be punished in the interests of society. The expenses of the prosecution are borne by the State. The State provides the Courts and their machinery and the prosecuting agency. The State, however, overlooks the important circumstance that if the convenience of the witness is not attended to and his reasonable expenses are not paid, the prosecution which has been started in the interests of society will suffer for want of the necessary evidence.
4. Convenience of witnesses not considered.-
No provision is as a rule to be found in the court houses for the convenience of the witnesses when they come to court. In several States the witnesses have to wait under the trees in the grounds of the court houses or in the verandahs of the court houses. No protection is provided to them from the sun and rain. No conveniences of any kind exist. In some Courts, there is what is known as the witnesses' shed, roofed but exposed on all sides. In many places even this shed is made use of for other court purposes.
5. Inadequate travelling allowance.-
The scales of travelling allowance and daily batta paid to the witnesses are very inadequate in many States. It frequently happens that the budget provision for these expenses and batta is itself inadequate so that it soon gets exhausted and witnesses attending the courts after the allotted sum has been expended are not paid even the inadequate travelling allowance and batta that is sanctioned.
6. No payment in certain areas (Mysore).-
We may in this connection refer to a rule which obtains in the portion of the State of Mysore which constituted the old Mysore State. It states: "The attendance of complainants and witnesses at the criminal courts being a public duty, payment should be made only to such as are poor, or to those who have been put to considerable expense in attending the court. And, as a general rule, not more than four annas will be allowed to each witness for every day's attendance at the court, or for every day's journey of ten miles to and from court."1
1. The Criminal Rules of Practice and Circular Orders, Vol. 1, Ch. XXX, 1934 Edn., p. 163.
The rule appears to have classified the witnesses into four classes: the batta being Rs. 3, Re. 1, annas 8 and annas 4 for each of these classes.
The Inspector-General of Police, Mysore told us that witnesses attending the magistrate's courts were not being paid any travelling allowance or batta at all. He stated that they were being paid "something" in the Sessions Court. The officer had served in four States and told us that Mysore was the only State where witnesses were not paid any batta.
The majority of the witnesses who appear in magistrate's courts would belong to the classes entitled to payment at the rate of annas eight or annas four per day. It is obvious that the amounts provided by the rules cannot be a sufficient recompense to these witnesses for the trouble and expense to which they are put. It is idle to talk in a sanctimonious manner of it being the duty of the citizen to attend as witnesses in criminal courts when the persons concerned would by reason of attendance in courts be taken away from their daily vocations and be put to the expense of travelling and food during the time that they are attending the courts. The suggestion that a subsistence allowance of annas four for a day is adequate even for witnesses of the lowest class is ludicrous.
Kerala.- We are informed that in the State of Kerala a sum of rupees twenty-five is allotted annually to each criminal court for meeting the expenses of witnesses appearing in that court. Once the amount of Rupees twenty-five is exhausted, the witnesses cease to be paid anything at all. It is not surprising that in these circumstances in that State witnesses who are served with process very frequently do not attend court.
A further evil was brought to our notice in this connection. In several of the inferior courts the batta intended for the witnesses fails to reach them either wholly or in part. Payments are made by ministerial officers who make some unwarranted deductions from these monies before paying them to the witnesses or pocket them altogether.
7. Adequate provision to be made for batta and conveniences.-
It is regrettable that while Governments have been repeatedly expressing their concern over delays in the disposal of criminal cases, they should forget the difficulties created by their own action in this respect. It is imperative that proper conveniences should be provided for the witnesses in court houses and that they should not be herded together and treated, as they are in some places, as cattle. It is necessary also to take immediate action to prescribe adequate scales of allowances for the witnesses and adequate budget provision for such payments. It is necessary also to provide a proper machinery for supervision so that the witnesses may be assured of the receipt in full of the allowances meant for them.
8. Punishment of recusant witness.-
Even when the witnesses have been served in due time to enable them to appear before the Court but fail to do so, the magistrates seldom take any penal action. Under the Criminal Procedures Code, it is open to the magistrate to file a complaint and to have the witnesses prosecuted for non-attendance under section 174 of the Penal Code. Section 195 of the Criminal Procedure Code lays down that no court shall take cognizance of an offence punishable under section 174, Indian Penal Code except on the complaint in writing of the public servant concerned. Thus, a magistrate who has issued a summons for the appearance of a witness and finds that the witness though served does not appear, cannot proceed to deal with the witness himself but must file a complaint before a competent court having jurisdiction.
9. Section 485A, Criminal Procedure Code (A lacuna).-
The recent amendment to the Code has however introduced a new provision in section 485A. It provides that where a witness who has been summoned to appear before a criminal court neglects without just excuse or refuses to attend the Court before which the witness is to appear may take cognizance of the offence and after a summary trial sentence him to a fine not exceeding one hundred rupees. This provision is in the nature of an exception to the general prohibition contained in section 195 of the Criminal Procedure Code.
The Legislature, however, appears to have overlooked the fact that under section 487, no judge other than a Judge of a High Court shall try any person for any offence referred to in section 195 when such offence is committed before himself or in contempt of his authority except as provided in sections 480 and 485. Section 480 lays down the procedure for certain cases of contempt and authorises a criminal court to take cognizance of the offences specified therein. Section 485 lays down the manner of dealing with a witness or a person called to produce a document who either refuses to answer questions or to produce the document required.
Except in these two classes of cases, the Judge of a criminal court or a Magistrate cannot try any person for any offence referred to in section 195. In view of the prohibition contained in section 487, it appears to be a matter of doubt whether the new section 485A which was intended to confer the power on criminal courts to deal with a witness who has wilfully absented himself, has in fact conferred such a power. Section 487 would appear to require amendment so as to create an exception in respect of proceedings under section 485A.
10. Stern action to be taken.-
If section 485A has not altered the position the magistrate would have in such cases to file a complaint which would be heard by some other magistrate having jurisdiction. It is not surprising that the magistrates have not availed themselves of the power to file complaints against witnesses who have remained absent though served with summonses. Such proceedings if adopted by the magistrates would throw an additional burden of work upon them. It is no doubt open to magistrates to issue warrants under which the witnesses can be arrested and produced before the Court in such cases.
In our view magistrates should not hesitate to adopt this drastic measure in cases in which the witnesses have wilfully remained absent. Magistrates and Sessions Judges should not hesitate to forfeit the bonds of witnesses who after having been bound over to appear on a particular day fail to appear. Stern action on the part of presiding officers by way of the issue of warrants and the forfeiture of bonds cannot fail to have a salutary effect all round and result in a marked improvement in the attendance of witnesses.