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Report No. 14

11. Section 487, Criminal Procedure Code to be amended.-

In order that steps could be easily taken against recalcitrant witnesses, we recommend that the summary power contemplated in section 485A should be made available to all criminal courts by a suitable amendment of section 487. The criminal courts should in all proper cases utilise this provision to punish witnesses who flout the processes of courts.

12. Services of summonses.-

Magistrates generally send a packet containing summonses by post to the concerned police station within whose jurisdiction the witnesses reside. Generally no record is kept by the Station House officer to show the receipt of the packet of summonses. Often the police officers allege that these summonses were not received by them or did not reach them in time to effect service. In this connection we may draw attention to certain instructions framed in the State of Madras. These rules provide that a magistrate, whenever he has to issue summonses, should hand over the summonses to a police officer of that station which has to serve them if he appears before him that day in any connection or is otherwise present in court.

This would be easy because summonses would be ready in respect of the cases which are posted a fortnight or three weeks ahead. Ordinarily, the police officers or constables of that station would appear in the court of the magistrate either in connection with a pending case or for the delivery of property or the return of warrants and other purposes. The summonses are handed over to the police officer on such occasions and his acknowledgment is taken in a register kept for the purpose. A similar register is maintained at the Police Station in which the receipt of the summonses is recorded against the name of the court. Immediate action is expected to be taken for the service of summonses and the served copies thereof have to be sent to the Court in advance of the hearing.

Superior Police Officers have to inspect these registers,with a view to ensuring that prompt action is taken on receipt of the summonses. They are also authorised to look into the register of summonses kept by the Court and compare them with the police registers. We have referred to certain other details of this method in our chapter on the Supervision of Subordinate Courts. Similar instructions issued elsewhere would, in our view, help to avoid delays arising from non-service of summonses. These instructions will achieve their purpose only if their working is properly supervised.

13. Adequacy of Prosecuting Staff.-

With the increase in the incidence of crime and in the number of criminal courts, it is obvious that there should be a corresponding increase in the strength of the prosecuting agency. Though it may not be possible, nor even necessary, to provide a prosecutor for each and every court, a sufficient number has nevertheless to be made available so that the trial of the cases may not be delayed for lack of a prosecuting officer. There have been complaints of such delays having occurred.

It is imperative that the work of courts should not be delayed or impeded for want of a prosecuting officer. In cases where a single prosecuting officer is provided for two or more courts the practice generally is that each court fixes a number of days which are devoted exclusively for cases arising on police reports. These days are so arranged that the days fixed by one court for such cases do not clash with the days fixed by the other or other courts. This practice normally enables the prosecuting officer to move from one court to another and to attend the different courts on the days fixed by them.

But such arrangements do not always work satisfactorily, as the number of cases requiring the Prosecutor's assistance would fluctuate. This is however a matter which may be arranged so as to avoid delays in courts by the local officers such as the District Magistrate and the District Superintendent of Police. But it must be pointed out that the provision of an adequate strength of Prosecuting Officers is essential to the speedy disposal of the cases.

14. Absence of the Prosecutor. Quite often cases are adjourned in magistrates' courts on the ground that the prosecuting police officer or the assistant public prosecutor is not present in court. Such absence may arise from a variety of reasons. In cases where the absence is due to an inadequacy of the prosecuting staff, the only remedy would be to increase its strength suitably.

But even with the existing strength delays can to a large extent be avoided by a methodical posting of the cases. If the same prosecutor has to attend more courts than one, it should be possible to fix definite days in the week in which a prosecutor is to appear in a particular court and cases in which his presence is required should invariably be posted to those days.

Similarly in cases which are prosecuted by officers of departments other than the police it should not be difficult for the magistrate to ascertain in advance the convenience of the departmental officers in charge of the prosecution and to post all cases prosecuted by that department to a particular date suitable to him.

It may also be pointed out that many cases, particularly petty ones, need not be adjourned merely by reason of the absence of the prosecutor. In Madras this difficulty has been got over by instructions to the presiding officers that in simple cases when the prosecutor is absent the magistrate should himself examine the prosecution witnesses on the basis of the memorandum annexed to the charge sheet which indicates the facts to which the witnesses are expected to depose.

15. Cases under Special Acts.-

Cases under special Acts appear to suffer greater delays. In such cases the Court has generally to rely on the police for the apprehension of the accused and the service of summonses though in some of these cases such as those under the Forest Act, the Excise Acts or the Municipal Laws, the departmental agency also undertakes a part of these duties. Police officers naturally do not display the same amount of interest in these cases which are primarily the concern of the other departments as in cases under the Indian Penal Code, even where the successful conduct of the prosecution depends to some extent upon the co-operation of their department.

It must also be noted that cases under these special enactments are far more numerous now-a-days than formerly. When, as happens fairly frequently, the departmental personnel fail to apprehend the accused or effect service on the witnesses, the task may finally be entrusted to the police. The delay arising in the disposal of these cases only emphasises the need for efficiency in the service of processes, particularly in the cases handled by the departments themselves.

16. The Court is practically powerless in the matter because the case has necessarily to be kept pending by reason of the failure to apprehend the accused or to serve the witnesses. In some of these cases, especially petty ones which burden the files from month to month without any progress being made for the causes mentioned, the presiding magistrate may well draw the attention of the department concerned to the position and suggest a withdrawal of the cases unless he considers them suitable for taking action under section 512 of the Criminal Procedure Code.

17. Delays in postings and hearings.-

These delays and the way in which they can be remedies have been examined in the chapter on Supervision. We do not wish to repeat what has been stated there. The problem is essentially one of supervision, capable of remedy by alert and watchful superior judicial officers.

18. Inadequacy of Magisterial strength.-

A major reason for delays in the disposal of criminal cases is undoubtedly the inadequacy of magisterial strength in the various States.

Separation States.- It is easy in States where the separation of judiciary from the executive has been effected to ascertain the sufficiency or otherwise of the number of magistrates having regard to the files of criminal cases. In several such States we came across heavy magisterial files. This congestion can be relieved and the necessary dispatch in criminal work achieved only by the appointment of additional magistrates. In some States we were informed that even though the High Court and the Government have recognised the need for appointing more magistrates, the appointments were not made because of the absence of buildings in which the magistrates' courts could be housed. Clearly, the remedy lies in a greater realisation by the State Governments of their responsibility in the matter of the administration of criminal justice.

Other States(Division of officers).- In regard to the States in which the judiciary has not yet been separated from the executive, the task of assessing the adequacy of magisterial strength is difficult. The Chief Justice of Bihar has in a note, referred to the extreme difficulty in assessing the number of magistrates necessary as the Executive Magistrates did not devote their whole-time to magisterial work. The officers are burdened with both magisterial and executive duties, and they seem to work on no fixed pattern, their executive duties very often calling them away by fits and starts from their magisterial work.

Notwithstanding these difficulties, however, we have been able to reach the conclusion that even in these States the magisterial strength needs to be augmented. If separation is not introduced, it would be advisable as far as possible to divide these officers into two groups and assign some officers to purely magisterial work while others may be entrusted solely with executive duties. Apart from yielding other beneficial results, such a division will tend to the quicker disposal of magisterial work as an officer will devote himself continuously to a particular kind of work. Interruptions and adjournments due to the urgent demands of miscellaneous executive work, which are a common feature in the non-separation States, will be avoided.

19. Difficulties of accommodation etc.-

But unfortunately even where the need for adding to the strength of the magistracy is realised, other administrative requirements, such as buildings seem to stand in the way of making adequate provision. We fail to see any justification whatever for this situation. If the proper working of the machinery of criminal justice is essential, which is not denied, and if for its working we need more magistrates, the so-called difficulties have to be faced and overcome. No purpose is served by crying ourselves hoarse with complaints about the inordinate delays of the law and blaming the judiciary and procedural laws for them, when the Government responsible for the administration of justice do not appoint much needed additional judicial personnel even though repeatedly called upon to do so. What is needed is a radically different approach to the problem on the part of many of the State Governments.

The position in Bombay, Bihar and West Bengal.- We understood that while the arrears in the Presidency Magistrates' Courts in Bombay would justify the appointment of additional magistrates, there is no place for them to hold their Courts, if appointed. The problem therefore becomes a financial one and the Government have to find funds for building court-houses if suitable buildings cannot be rented or requisitioned. In Bihar, we learnt that in six districts in which separation had been introduced, the need for twenty-four additional judicial magistrates was felt as far back as in 1956.

In the non-separation areas, as many as ninety-four more magistrates were said to be required. Even so, the Government while appreciating the need, were unable to depute the required number of magistrates "in view of the acute shortage of experienced officers required for various development works". In West Bengal also, the lack of accommodation has prevented the appointment of more magistrates. The problem exists in a more or less acute form in other States also.

We can only conclude with the observation that the matter really rests with the State Governments. It is for them, realising as they do, the need for increasing the strength of magistrates for the due administration of justice to make proper provision in this regard as early as possible.

20. Plea of guilty in the absence of accused (section 130, Motor Vehicles Act).-

A method by which delays in the disposal of cases can be reduced and the time of the courts saved has relation to the large volume of petty cases which the magistrates are now-a-days called upon to try. Section 130 of the Motor Vehicles Act, 1939, provides for the summary disposal of cases arising under that Act in respect of a specified class of offences thereunder. The section makes it possible for the accused person to plead guilty to the charge by registered letter and remit to the court as fine such sum not exceeding Rs. 25 as the Court may specify. We need not refer to the other parts of the section.

Though this Act has been in force from 1939, we understood, that it was not till recently that this procedure was largely tried in the case of traffic offences in the city of Madras. It appears that this procedure is not being used adequately or at all elsewhere. The expedition with which cases of this kind can be disposed of under this procedure and leaving the court free to utilise its time for more important cases, hardly needs emphasis. The question, that we propose to consider is whether this procedure can be extended to a large number of minor offences.

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