Crpc Compilation Final.pdf

Cr.P.C Project

PROJECT TOPIC: MALIMATH COMMITTEE REPORT – AN ANALYSIS

INSTRUCTOR: Prof. (Dr.) Sri Krishnadeva Rao Mr. Anup Pattanaik. Ms. Kuntirani Padhan

Submitted By – Siddharth Nigotia (14/BBA/048) Spandan Sreechandan (14/BBA/049) Sreyasi Banerjee (14/BA/047)

INDEX

Table of Authorities ............................................................................................................... 3 Background To Malimath Committee Report ....................................................................... 4 Adversarial System ................................................................................................................ 6 Court’s on Malimath Committee Report ............................................................................... 9 Right To Silence .................................................................................................................. 10 Rights of The Accused ......................................................................................................... 13 Courts on Rights of the Accused ..................................................................................... 14 Presumption of Innocence and burden of Proof .................................................................. 15 Justice to Victims ................................................................................................................. 16 Court’s on Justice to Victims ........................................................................................... 17 Courts and Judges ................................................................................................................ 18 Trial Procedures ................................................................................................................... 19 Witnesses and Perjury .......................................................................................................... 20 Problem of Perjury ............................................................................................................... 21 Vacation of Courts ............................................................................................................... 21 Offences, Sentencing and Compounding Of Offences ........................................................ 24 Reclassification of Offences ............................................................................................ 25 Offences Against Women .................................................................................................... 25 Organized Crimes ................................................................................................................ 26 Federal Laws And Crimes ................................................................................................... 27 Terrorism.............................................................................................................................. 28 Economic Crimes ................................................................................................................. 28 Investigation ......................................................................................................................... 30 Prosecution ........................................................................................................................... 38

TABLE OF AUTHORITIES

Cases H.N. Rishbud v/s State of Delhi : AIR 1955 SC 196: 1955 SCJ 283 ..................................... 30 Jainath Prasad v State of Bihar, (2015) 2 PLJR 798 ............................................................... 14 Maria Margarida sequeira fernandes v Erasmo Jack De, (2012) 5 SCC370 ............................. 9 Nilabati Behera v State of Orrissa, 1993 SCC (Cri) 527 ......................................................... 17 Railway Board c Chandrima Das, 1981 SCC (Cri) 225 .......................................................... 17 Sky Land International Pvt Ltd v Kavita P. Lalwani, 2013 AIR CC 808.................................. 9 Suresh v State of Haryana, (2015) 2 SCC 227......................................................................... 17 Reports Malimath Committee Report on Reforms of Criminal Justice System, Page 12, available at http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_system. pdf, last seen at 23/03/2016 ................................................................................................... 4

BACKGROUND TO MALIMATH COMMITTEE REPORT For more than past three decades there is a growing consensus that the Criminal Justice System in India is on the verge of collapse. There is consensus or common knowledge that inordinate delay in disposal of cases and huge pendency of criminal cases has overwhelmed the judicial system. The Three major codes; Criminal Procedure Code, Indian Penal Code and Indian Evidence Act are heavily skewed towards the accused, and as a result, in cases involving serious crimes there is very low conviction rate.

Malimath Committee was the first committee constituted by the state for a comprehensive and thorough review of the entire Criminal Justice System in order to make necessary and effective systematic reforms could be made to improve the Justice System. The notification, by which the committee was constituted did not expressly stated the reasons for constituting the Committee. The Report itself acknowledged this and stated that “the reasons are well known”. The committee was constituted “to consider measures for revamping the Criminal Justice System” implied that Criminal Justice System is in such a bad state as to call for revamping1

Malimath Committee recommended changes in the following areas of Criminal Justice System:

1. Adversarial System v Inquisitorial System 2. Right to Remain Silent & Rights of the Accused 3. Presumption of Innocence and Burden of Proof 4. Justice to Victims of Crime 5. Police Investigation 6. Public Prosecution 7. Courts and Judges 8. Trial Procedures 9. Witnesses and Perjury 10. Vacations for the Court 11. Arrears Eradication Scheme 12. Offences, Sentence, Sentencing and Compounding 1

Malimath Committee Report on Reforms of Criminal Justice System, Page 12, available at http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_system.pdf, last seen at 23/03/2016

13. Reclassification of Offences 14. Offences Against Women 15. Organized Crime, Federal Crime and Terrorism 16. Economic Crimes

ADVERSARIAL SYSTEM The Malimath Committee studied the Adversarial system of common law followed in India. Under the Adversarial system the accused is presumed to be innocent and the burden is on the prosecution to prove beyond reasonable doubt that he is guilty. The committee compared the Adversarial System followed in India with that of Inquisitorial system followed in countries such as Germany, France and other Continental Countries.

The Committee came to a conclusion that the Adversarial system in India is not satisfactory, and recommended some changes. The committee noted that: “The Adversarial System lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover truth as in the Inquisitorial system. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the Situation. During the trial, the judges do not bother if relevant evidence is not produced and plays a passive role as he has not duty to search for the truth. As the prosecution has to prove the case beyond reasonable doubt, the system appears to be skewed in favour of the accused”2 The Committee further concluded that: “It is therefore necessary to strengthen the Adversarial System by adopting with suitable modifications some of the good and useful features of the Inquisitorial System.3 The Committee felt that some of the good features of the Inquisitorial System can be adopted to strengthen the Adversarial System and to make it more effective.”4

2

Malimath Committee (n 1) 27 Malimath Committee (n 1) 27 4 Malimath Committee (n 1) 265 3

The committee proposed the following recommendations:

(1) A preamble shall be added to the Code on the following lines: “Whereas it is expedient to constitute a Criminal Justice System, for punishing the guilty and protecting the innocent. “Whereas it is expedient to prescribe the procedure to be followed by it, “Whereas quest for truth shall be the foundation of the Criminal Justice System, “Whereas it shall be the duty of every functionary of the Criminal Justice System and everyone associated with it in the administration of justice, to actively pursue the quest for truth.

(2) A provision on the following lines be made and placed immediately above Section 311 of the Code “Quest for truth shall be the fundamental duty of every court”. Committee’s Remarks: The Committee recommended this to “inspire ideal of ‘quest for truth’ in the Preamble and a specific provision in the Code imposing a fundamental duty to seek truth.

(3) Section 311 of the Code be substituted on the following lines: “Any Court shall at any stage of any inquiry, trial or other proceeding under the Code, summon any person as a witness or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined as it appears necessary for discovering truth in the case”. Committee’s Remarks: The committee proposed this section to cast a “duty to discover truth” on the judges. The committee noted that in practice it seen that when the witnesses are examined the courts rarely ask any questions to the witnesses, fearing that their neutrality may be doubted.5

(4) Provision similar to Section 255 of the Code relating to summons trial procedure be made in respect of trial by warrant and sessions procedures, empowering such court to take into

5

Malimath Committee (n 1) 31

consideration, the evidence received under Section 311 (new) of the Code in addition to the evidence produced by the Prosecution

(5) Section 482 of the Code be substituted by a provision on the following lines: “Every Court shall have inherent power to make such orders as may be necessary to discover truth or to give effect to any order under this Code or to prevent abuse of the process of court or otherwise to secure the ends of justice”. Committee’s Remarks: Inherent powers can be exercised in the interest of justice, in the absence of a statutory provision to meet the situation. The lower courts can be trusted to exercise inherent powers in accordance with settled principles.6 The committee noted that limited conferring of inherent powers to the High Court has contributed to unnecessary litigation and delay

(6) A provision on the following lines be added immediately below Section 311 of the Code. Power to issue directions regarding investigation “Any court shall, at any stage of inquiry or trial under this Code, shall have such power to direct the Supervisory Officer to take appropriate action for proper or adequate investigation so as to assist the Court in search for truth.

(7) Section 54 of the Evidence Act be substituted by a provision on the following lines: “In criminal proceeding the fact that the accused has a bad character is relevant”.

Explanation: A previous conviction is relevant as evidence of bad character Committee’s Remarks: The committee reasoned that “Just as evidence of good character of the accused is relevant, evidence regarding bad character of the accused should also be relevant. By the exclusionary rule of evidence prescribed by Section 54, the Court is denied of the benefit of a very valuable piece of evidence that would assist in the search for truth. In the inquisitorial system character and antecedents of the accused are relevant both in regard to determination of guilt and awarding of sentence.7

6 7

Malimath Committee (n 1) 38 Malimath Committee (n 1) 37

COURT’S ON MALIMATH COMMITTEE REPORT Sky Land International Pvt Ltd. v Kavita P Lalwani

The court in this case said that Court is not supposed to sit as an umpire in case, examine the evidence presented and give a decision. The Court is supposed to take active role in the proceedings and discovery of truth is the foundation of justice system. To achieve this courts should be statutorily bound to discover the truth. The court must punish those who attempt to surpass the judicial system and abuse the process of the court. Court relied on Malimath Committee Report to supports its findings.8

Maria Margarida sequeira fernandes v Erasmo Jack De

The Supreme Court relying on Malimath Committee Report emphasized that Judges need to play an active role in the discovery of truth. The acknowledged the fact that adversarial system lacks in this regard. Discovery of truth should guide the criminal proceedings and judges should not remain passive as mere umpires.9

8 9

Sky Land International Pvt Ltd v Kavita P. Lalwani, 2013 AIR CC 808 Maria Margarida sequeira fernandes v Erasmo Jack De, (2012) 5 SCC370

RIGHT TO SILENCE The Malimath committee noted that the accused is in most cases the best source of information. Therefore, it suggested changes in the CrPC to tap this information while respecting the rights of the accused. The committee reasoned that without subjecting the accused to any duress, the court should have the freedom to question the accused to elicit the relevant information and if he refuses to answer, to draw adverse inference against the accused.

The Committee proposed the following:

Section 313 of the Code may be substituted by Section 313-A, 313-B and 313-C on the following lines: i)

313-A In every trial, the Court shall, immediately after the witnesses for the prosecution have been examined, question the accused generally, to explain personally any circumstances appearing in the evidence against him.

ii)

313-B(1): Without previously warning the accused, the Court may at any stage of trial and shall, after the examination under Section 313-A and before he is called on his defence put such questions to him as the court considers necessary with the object of discovering the truth in the case.

If the accused remains silent or refuses to answer any question put to him by the court which he is not compelled by law to answer, the court may draw such appropriate inference including adverse inference as it considers proper in the circumstances.

iii)

313-C(1):No oath shall be administered when the accused is examined under Section 313-A or Section 313-B and the accused shall not be liable to punishment for refusing to answer any question or by giving false answer to them. The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, or any other offence which such answers may tend to show he has committed.

Committee’s Remarks:

The Committee stated that it is not violative of Article 20(3) of the constitution to draw adverse inference against the accused on his silence. The committee recommended amending of CrPC to include provisions for drawing adverse inferences if the accused chooses to remain silent.10

The committee noted that in the present system there is minimum participation of the accused. Further, Accused is not required to disclose his stand and the advantage of exception to any which he claims. This impedes the search for truth and skews the trial in favour of the accused. The committee therefore proposed that it should be required of the accused to file a statement disclosing his stand.

To improve the credibility and competence of the investigating agency the committee recommended following changes:

i)

Creation of an independent, competent and separate investigation agency. This agency should be isolated from political pressures

ii)

It should be ensured that during investigation the witnesses and accused are not subjected to any threats or torture. Further, only voluntary statements made by the accused and witnessed are recorded accurately and faithfully.

iii)

To appropriately amend Sections 161 and 162 of the CrPC to include recording and signing the statements made a person to the Police and to make such statements admissible as evidence.

iv)

Deletion of Sections 25 to 29 from the Evidence Act.

The committee after analysing the criminal law of different jurisdictions such as UK, Northern Ireland, America etc. and after acknowledging views of eminent jurists and Law Commission came to the conclusion that Adverse inference should be formed if the Accused Chooses to remain silent.

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Malimath Committee (n 1) 52

The committee also concluded that drawing of adverse inferences against the accused if he chooses not to speak is not violative of Fundamental Rights guaranteed under Article 20(3) of the Constitution.

RIGHTS OF THE ACCUSED The committee noted that it is the right of the accused that the state shall follow the due process of law, an impartial and quick trial. Further, the accused should be not torture to give force testimony and accused has the right to legal aid etc. The Court proposed that instead of the present approach of the courts, wherein the court’s only duty is to look at the evidence produced and balance the evidence for or against the accused, it would be advantageous to replace it with the discovery and search for truth as the basis.

Committee proposed that CrPC should be amended and conditions should be prescribed for handcuffing of the accused. An in-house mechanism should be provided for, if the police offers deviates from those conditions. Committee reasoned that restrictions in the present system on the power of police to handcuff the accused creates a lot of practical difficulties. It is very difficult to restrain the accused from escaping and it should also be ensured that these powers are not misused.

The committee proposed like in the case of women and children below 16 years, people with serious mental or physical conditions should not be allowed to be taken to place station for interrogation.

Courts on Rights of the Accused

Jainath Prasad v State of Bihar

The court here discussed the Right of the Victim to appeal against an order of acquittal passed by Appellate Court. Right to appeal against order passed The court rejected this right after reading the relevant provisions of the CrPC. Court referred to the Malimath Committee Report for Rights of the Victims, but said that since legislature has not provided for such a right in the Statute, the Court is bound to follow the Statute and no right to appeal lies to the Victim.11 The court noted that “Section 372 bars filing of an appeal unless it is expressly provided in the Code or any other law. The proviso to Section 372 confers right on the victim to prefer an appeal, against ‘any order passed by the court’ as indicated hereinbefore, to the Court, wherein an appeal, ordinarily, lies against order of conviction of such court. It is relevant to state that against order of conviction by appellate court, no provision of appeal is provided to High Court. On this score, too, a victim would not have any right of appeal against order of acquittal passed by an Appellate Court.”12

11 12

Jainath Prasad v State of Bihar, (2015) 2 PLJR 798 Jainath Prasad v State of Bihar, (2015) 2 PLJR 798

PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF The committee recommended the current standard of “proof beyond reasonable doubt” should be replaced with “clear and convincing” standard. The committee noted that standard of “proof beyond reasonable doubt” sets a very heavy burden of proof on the prosecution. The current standard favours the accused heavily and over burdens the prosecution as the prosecution is required to prove the guilt “beyond reasonable doubt”.

The Committee remarked it there is considerable subjectivity in coming to the decision that the doubt is reasonable. In the process of proving guilt beyond reasonable doubt, considerable attention shifts toward doubts and about their reasonability instead of focusing on discovery of truth. The committee further remarked that most of the acquittals of the accused are due to finding of the court that the prosecution failed to prove guilt beyond reasonable doubt. Committee noted that standard of “preponderance of probabilities” is a lower standard while standard of “proof beyond reasonable standard” is a higher standard. The object of any criminal system is to ensure that innocents are protected and every guilty person is punished. In India, a large number of accused escape due to the standard of “proof beyond reasonable doubt”. The committee felt that the standard between these two standards is the answer, a standard of “clear and convincing evidence.”

JUSTICE TO VICTIMS The committee noted that in the present system victims are not given protection and legal rights that they deserve. They are not allowed to take part in the criminal proceedings. The committee after analysing Criminal Law in different jurisdictions concluded that mainly two rights are given to the victims (i) Right to participate in the criminal trials (ii) right to victim compensation. The committee recommended that victim’s should be given the right to appeal against adverse order given by a trial court. The appellate court should be given jurisdiction to hear appeals against in case of acquittals as it now has jurisdiction to hear appeal against conviction. Victims should also have a right to counsel, and if the victim is an indigent, legal aid should be given to him as the accused gets. The present Criminal System ignores the victim’s right to compensation and to participate in the trial. He is not allowed to present arguments, or to lead evidence or to challenge evidence. To redress the committee recommended that a victim may be allowed to engage a counsel and also be allowed to participate in the prosecution in a limited manner, only with the permission from the court. The counsel so engaged will only act under the orders of PP only. Additionally, the victim may be allowed to submit written arguments in the trial after closure of arguments, only after permission from the court.

The committee proposed the following changes in related to Rights of Victims:

(i)

Right of Victim to be impleaded as a party in criminal proceedings if the offence is punishable with imprisonment of 7 years.

(ii)

A voluntary organization may implead in select cases notified by the government, with permission from the court in proceedings

(iii)

Right of the Victim to be represented by a counsel and to play a limited role in the proceedings.

(iv)

Right of the Victim to participate in criminal proceedings to include: (a) To produce documentary or oral evidence with permission of the court

(b) To examine the witness or to give suggestions about the questions to be asked to the court (c) To be allowed to say in respect of cancellation or grant of bail (d) To offer to continue the prosecution or to be heard if the prosecution seeks to withdraw from the case (e) To take part in negotiations involving compounding of offences. (f) Right to appeal against acquittal of accused passed by the court (g) To provide for victim compensation fund

Court’s on Justice to Victims

Suresh v State of Haryana13

The Court emphasized that Victims have a right to compensation. The court acknowledged that over the years the dominant function of the judiciary has been to protect the citizens and punish the offenders, and right of the victim have been ignored in the present criminal justice system. To remedy the injury of the victim if the state does not succeeds to punish the criminal, it is logical for the State to compensate for the victim. The victim has a right of compensation for crime. The court based its findings on Malimath Committee Report. The committee also took into account the decisions in Nilabati Behera v State of Orrissa14 and Railway Board c Chandrima Das15

13

Suresh v State of Haryana, (2015) 2 SCC 227 Nilabati Behera v State of Orrissa, 1993 SCC (Cri) 527 15 Railway Board c Chandrima Das, 1981 SCC (Cri) 225 14

COURTS AND JUDGES An extremely ineffective rate of conviction coupled with the ever increasing piling stack of cases are the two most drawbacks of Indian judiciary system. The immediate course of action should be to provide with an adequate constitution of the bench of judges so as to deal with the criminal justice system effectively.

APPOINTMENT TO SUBORDINATE COURTS

Statistics have majorly depicted the level of inadequacy when it comes to the number of judges at every level. The Supreme Court, five years after passing its judgment in (2002)4.S.C.247, All India Judges Association and others Vs. Union of India has, in phases, scrutinized the current situation and passed regulations to increase the number of judges per million people from 10.5 or 13 to 50. Article 21 of the Indian Constitution clearly talks about the rights to speedy trial.

APPOINTMENT TO HIGH COURTS

It is really considered to be a sad state of affairs when there are vacancies remaining permanently vacant in the High Courts inspite of the formula devised by the Arrears Committee to determine the strength of the judge as well to expedite the appointment process of the judges. Now that these appointment measures have comes under the ambit of the judiciary’s rule, the blame for its inadequacy is large put on the judiciary.

QUALITY OF APPOINTMENT

Quality of appointment has been suffering heavily. There have been complaints regarding how the executive arbitrariness has been replaced by judicial arbitrariness. Before the judgment of the Supreme Court in AIR 1994 S.C P.268, Supreme Court Advocates on Record Association Vs. Union of India, the overall impression was much better. As a result of this, a national debate is on-going currently on whether there should be a National Judicial Commission set up for the very purpose.

NEED FOR IMPROVING THE QUALITY OF JUSTICE Although increasing the strength of the judge’s bench would contribute to the eradication of a few of the issues, it is more about their capability and performance that will ensure speedy and fair justice. And unfortunately this aspect is never focused upon.

TRIAL PROCEDURES Criminal cases are widely categorized unto two kinds: warrant and summon cases. A warrant case is the one whose offence is punishable with death, life imprisonment or an imprisonment for a term exceeding two years.

In cases of conviction, the sentence about to be passed is limited by: a) the procedure adopted for trial purposes, and (b) the limits placed by section 29 Cr.P.C. on different classes of Magistrates.

All cases of summon and a few enumerated cases of warrant are summarily triable, by every class of Magistrates including Metropolitan Magistrate, as given under section 260 Cr.P.C. 10.4 Section 355, followed by the Metropolitan Magistrates, is a replacement for the same proforma of the judgment prescribed under section 263 for summary trials, with only a few judicial differences.

It is provided under sub-section (2) of section 360 that if during the summary trial, the Magistrate considers the nature of that very case to not be tried summarily, he may ask the witness, already examined and proceeded, again to re-hear the case according to the Procedural Code. The procedure adopted to record evidence varies according to the form of trial taking place. It is provided under section 376 (d) that no appeal shall lie from a convict when the sentence passed consists only of fine which does not exceed Rs. 200 in a case tried by the Magistrate summarily under according to section 260.

Only those Magistrates, apart from the CJMs and the MMs, can try a case summarily when they are empowered to do so either by their name, virtue of office or by the statute which hs created the offence.

The Judge of similar status sitting in his dual capacity of Metropolitan Magistrate who follows similar procedures as those of summary prescribed by section 355 is able to impose a sentence of three years imprisonment. The Law Commission has recommended for the facilitation of the limit of sentence given under section 262 of the Procedural Code to three years in its 154th Report. Large number of cases which do not concern any serious offence can be dealt with wuite expeditiously.

WITNESSES AND PERJURY Witnesses are ne o the most crucial elements of the administration of justice. His act of providing the court with the necessary evidence is seen as an act of service directed towards aiding the court in delivering justice. Such a witness ought to be treated with due care and honour.

The witness is not properly compensated for all the costs he incurs on his travelling and staying the town of the concerned court. The rates of allowances are fixed long ago which are extremely insufficient and does not meet the needs of the witness. Therefore initiatives should be taken to bring such scales of travelling and other allowance costs under scrutiny, which shall be inclusive of the prevailing cost of that area where the court is located.

One of the major issue concerns the safety of the witnesses along with their family members who face the wrath of the criminal proceedings at many stages. They are frequently threatened whose magnitude depends on the kind of case registered and also the background of the accused’s family. It’s high time India enacts comprehensive laws for the protection of the witness and his family members.

The witness if more than often sent back and asked to come some other day backed by the reasoning that the concerned has been already adjourned. When such happens, the witness’s

allowances are not compensated for. This is disrespecting the rights of the witness of getting reimbursed.

This aspect talks about the way a witness is being treated in a court of law during the trial. The current norm is to make the witness stand and give his evidence from the place designated for that sole objective. But the three things which should concern the Judge about the witness is his comfort, convenience and dignity.

As far as the witness is concerned, he should be true to his facts and evidence. But unfortunately this is not how the status quo is which is leading to even more cases of perjury.

PROBLEM OF PERJURY One of the major reasons behind the acquittal of most of the accused is due to the witnesses turning hostile and giving false testimonies. Numerous reasons are held responsible to such malady like delay in the trial of cases, threats from the accused’s family, etc. and since in criminal cases the prosecution depends largely on the oral evidence, thisa issue assumes huge importance.

VACATION OF COURTS No governmental institution in our country has been given the privilege of vacations except for the courts and educational institutions. A very common question which the Committee has had to face whenever it has gone is, why the courts, inspite of having such a huge backlog of cases, are given the scope of vacations? The fact that there are many other people who have been discharging even more important duties to the public without accessing to any vacationing privilege has caused an upsurge of unease in the minds of our citizens.

Vacations have evolved as way of them sending the Judges hailing from England back home so that they get to spend some time at home. But having access to fair and speedy trial as one of the fundamental rights of the citizens of the country, the courts ought to remain open round the year. The Committee thinks that its already high time to introspect and respond to the

litigant public in the country who have been waiting since ages for a fair and speedy delivery of justice.

The Committee has adverted to the reasoning given by the Government of India in their Arrears Committee report on the recommendations of the Chief Justice’s Conference asking for reduction instead of abolition of the vacation for 21 days for the High Courts. The vacations are for the Judges to catch with the current law and jurisprudential status of the world in general and at large which involves a lot of reading. But on the other hand, those Judges whose primary area of concern should be the issues of arrears, most importantly when the issues have reached such scary heights, should take the initiative of coming forward and making some sacrifices for the greater good for the coming years until and unless the issues are completely uprooted.

Most unfortunately the recommendations made by the Arrears Committee regarding the reduction of vacations by 21 days have not been implemented so far.

In comparison to other countries of the world, the Judges in India have a much heavier work pressure. There are certain cases where it is required by the Judges to read up and do background study on a major scale. That’s why the Committee feels that in place of complete abolition of vacations, they should be reduced.

The sensitivity of the courts for the prisoners suffering behind the bars for years waiting for justice is slowly fading away. In the High Court of Bombay there was this contention put forward according to which before the courts went shut for vacations they would be disposing off with all the accused whose cases were still pending there.

ARREARS ERADICATION SCHEME There’s a humongous backlog of criminal cases pending in our country. For over15 years in many states there are pending cases, both in criminal as well as in sessions court. The reforms recommended by the Committee, if followed, would ensure the delivery of speedy and fair justice but it wouldn’t be possible if a strong

headed initiative is not adopted. The

gravity of this major issue has been realized by Hon. Shri Ariun Jaitley, Minister of Law and Justice, Government of India, who has developed the concept of fast-Track Courts for the same purpose.

The Fast-Track Court, along with a few other conceptual modifications, would be the best solution the current problems. Since the whole objective of this proposed scheme would be to eradicate arrears, the name of this scheme is to be ‘Arrears Eradication Scheme’.

The arrears in the proposed scheme will depict those pending cases for two or more years, as in accordance with the date of the coming into force of the very scheme. Those cases which are pending for less than two years would be taken up as current cases. This would be a temporary solution for all the pending backlogs and arrears in the criminal justice system.

1A few of the recommendations put forward by the Committee will be aiding in solving most of the pending backlog of cases. The Committee has also proposed to increase the number of offences which has the scope to be compounded. That should be applicable in cases of pending cases as well. A lot of old cases can be settled through settlement. All the ‘Summons’ cases shall be tried summarily under section 262 of the Code, according to the recommendations of the Committee. All the pending cases can also be disposed of judiciously by following the summary procedure.

SCHEME FOR ERADICATING ARREARS In order to eradicate the arrears a scheme shall be adopted which shall be based on the ‘Fast Track Court Scheme’ whose course of action goes like this: 1. The Committee urges the Governments concerned to provide the funds required for successful implementation of the scheme. The Government of India may extend the requisite financial support in a generous way as it has done in respect of Fast Track Court scheme. 2. Commitment and aggressive pursuit at all levels is the key to solving the problems. Requisite finance, manpower and infrastructure should be made available without cringing. This is a small price to pay to mete out justice to the people. It’s high time some action takes place.

OFFENCES, SENTENCING AND COMPOUNDING OF OFFENCES Punishment is the method by which our society reflects its mechanism of denunciation of misbehaviour and in order to maintain the sense of respect for law, it is important that the form of punishment given out for graver crimes ought to depict the hatred and apathy felt by the society. For them, it is faulty to think of the objective of punishment to be deterrent or preventive or reformative and nothing else.

Punishment ought to be harsh enough to act as a deterrent but not too harsh that it is almost brutal. Very similarly, punishments should be lenient enough to be humane but not too much to become ineffective.

SENTENCING CONSIDERATIONS

Aspects of sentencing which hold relevance for consideration by the courts are laid down by all the courts in the world except where the statute comes with a minimum mandatory sentencing period.

Talks about the concept of breach of trust. This happens when somebody takes false advantage of someone who is interested in his career or someone who abuses his position in his office. A premeditated offence which has been executed with sordid professionalism is also considered to be a form of aggravation. Violence on a large scale, group offences or those committed by an individual on bail for some particular crime which is already prevalent in an area and create public disruption of peace are all given as examples of aggravating elements.

NEED FOR SENTENCING GUIDELINES

All Judges exercise their discretion in deciding the sentencing period according to the cases. Hence there is a lack of uniformity in the system.

Reclassification of Offences

NEED FOR CLASSIFICATION

It is high time that the ancient Indian laws underwent a transformation and are re-examined and restructured to strike a balance with the current society and its complexities. Along with how the society is changing, crimes are getting more complex, it is advisable for India to chalk out a redefined Criminal Justice System which will be in accord with the ethos of our country.

The Criminal Justice System has practically collapsed under the weight of the case laws and an intensive overhaul is needed to make it more speedy, efficient and cost-effective. Something that would restore society’s confidence in the criminal justice System would be it enhances its efficiency in delivering justice and becomes speedy as well as fair in it. For this to happen, it is important to not only reclassify the crimes but to do that in such a way that most of the crimes that involves a lot of time and money are dealt with in as much less time as possible at various levels by coming up with practical and sustaining alternate options to the current procedural system.

OFFENCES AGAINST WOMEN MAINTENANCE OF WIVES, CHILDREN AND PARENTS: SECTION 125 Cr.P.C.

The primary objective is to prevent vagancy and starvation by forcing the individual till he performs the liability which he owes with respect to his child, wife, mother or father who aren’t capable of supporting themselves.

A woman within her second marriage cannot claim for maintenance because according to the law of the land, a second marriage is not considered while the first marriage hasn’t been dissolved yet. Such a woman is not the wife by law although she is still a de-facto wife. It is seen very often that the man marries the second wife while suppressing the previous marriage

at the same time. In such cases, the second wife does not have the right to claim benefits under section 125 for no fault of hers.

MARRYING AGAIN DURING LIFETIME OF WIFE OR HUSBAND: SECTION 494 IPC Bigamy is constituted as an offence under Section 494 IPC. The second marriage will be voidable by reason of its taking place during the subsistence of the first marriage.

ADULTERY: SECTION 497 IPC

Our society looks down upon marital infidelity of any kind. The purpose of this section is to hold up the sanctity of a marriage. A man commits the offence of adultery when he involves himself in sexual intercourse with the wife of another man without the consent or connivance of the husband.

CRUELTY BY HUSBAND OR RELATIVES OF HUSBAND: SECTION 498 IPC This particular provision’s objective is protection of the wife from being subjected to cruelty by her husband or his relatives. According to this section, cruelty would constitute of conduct out of one’s own volition which has the potential to instigate the woman to commit suicide or Inflict serious injuries to herself or her life, body, health, mental or physical whatsoever.

ORGANIZED CRIMES A particular set of crimes are considered to belong to the public character domain as a result of containing aspects of evil which have an impact on the public at large and not solely the individual whose rights of property or person have been violated. such wrongs are categorized as crimes.

Organized crimes, under the ambit of legal and non-legal definitions, is much more serious in nature because of its being a “non-ideological enterprise” which works as a “continuing enterprise that rationally works to make a profit through illegal activities"and is flagged with a "distinguishing component" within the word itself, primarily, organization. Alan Block

provides that "organized crime is part of a social system in which reciprocal services are performed by criminals, their clients and politicians.”

Based on the idea of organized crimes since the last 80 years, Klaus Von Lampe observes that "organised crime has evolved from an integral facet of big-city life to an assortment of global criminal player who challenge even the most powerful countries like the United States".

The United Nations considers the consequential effects of organized crime as some grave social pathological phenomenon and its impact on the economic conditions of a nation as well as on a global scale. It has underscored all the socially pathological side-effects emanating from it and, accordingly, focused on the concept of Trans-Border organized crime and has also established a convention to suggest strict correctional measures.

The aforesaid Convention delegates a revolutionary initiative towards fighting against transnational organized crime, and has driven home the point of it all to the U.N. member states that this is a "serious and growing problem" that can only be resolved with the help of intimate international cooperation.

FEDERAL LAWS AND CRIMES Of all the others, one of the ‘terms of reference’ of this very Committee is to scrutinize the motivation for introducing the idea of a “federal crime”. The idea of declaring a certain set of crimes as federal crimes was put forward to the Committee on Police Reforms under the chairmanship of Shri K. Padmanibhaiya, in order to instigate the central Agency to engage in investigation without wasting any more time.

The Committee on Police Reforms thought that there must be a case for defining a particular category of cases as federal crimes and warned that extreme care and control need to be exercised in identifying the same when it happens.

Some of the examples that the Committee has provided with while categorizing federal crimes are: (a) Terrorism and organised crime having inter-State and international ramifications;

(b) Crimes in special maritime and territorial jurisdiction of India; (c) Murder of Head of State, Central Government Minister, Judge of the Supreme Court and internationally-protected persons;

While scrutinizing the idea of federal crimes along with the institutioning of a Federal Agency examinising those crimes suo moto is in need of examination with references to Constitutional Scheme on Relations between the Union and the States.

TERRORISM The beginning of terrorism can be traced back to the Sinai War in June 1967 when Israel allocated the militant forces of a few of the Middle East nations within a few days and infested a large part of their land. Since then the Arab world has been boiling with rage and want of revenge which has led to the initiation of "contemporary wave of terrorism" in the Middle East in 1968. Terrorism has no longer remained a way of protesting against a cause but become an international technique for a face-off with the superpower of the singularly headed world.

DEFINITION OF TERRORISM

The reasoning which it can provide is that the nature of the evil committed must be defined in a distinct fashion so as to fight it. But it is pretty tough to offer a concrete definition of terrorism which would be internationally welcomed.

The definition of terrorism has also underwent a transformation as terrorism is considered to revolve around the notion of power- as a way to achieving political power with an intensive control and authority over the State. There has been ongoing debates on the need for having an all-inclusive definition as revelation of new dangers and trends are happening.

ECONOMIC CRIMES During the earlier times, economies were less complicated and so were economy-related offences. But during the last century, due to the emergence of industry-based capitalism and their complexities, economic offences have got much more complicated. And more recently,

with the establishment of modern technologies advent of new and novel organizations of economic systems, there has been a major increase in the nature as well as the cost of economic offences. DEFINITION

The previous definitions of economic offences would not be held valid today because usually, economic offences are considered to be newer versions of the conventional crimes. The end result is lack of precise knowledge about these offences, especially because there is no exact definition or categorization. An economic offence could broadly be defined keeping in mind the fact that it has to act as a coverage for the future crimes too. Hence, an economic offence is an illegal act usually committed through misrepresentation or direct deception by an individual or a group of individuals with extra-ordinary skills, either professional or technical in order to achieve illegal, economic gain, collectively or individually.

Such a definition would be inclusive of every contemporary economic offence, would cover people who are exclusive of an organization and would not be limited to only non-violent white-collar crimes.

There are about seventy Central Laws responsible looking after many offences exclusive of those in the Indian Penal Code. In order to prevent and punish violations under economic crimes, there are a huge numbers of organizations with investigative as well as quasi-judicial powers. As the magnitude of economic crimes is tremendous, it is important to build strict laws and strengthen the regulatory, investigatory and enforcement systems sufficiently.

INVESTIGATION Investigation is basically an art of unearthing the truth for the purpose of successful detection and prosecution. In the words of the Supreme Court 16. The investigation generally consists of the following steps:

1) Proceeding to the spot;

2) Ascertainment of the facts and circumstances of the case;

3) Discovery and arrest of the suspected offender;

4) Collection of evidence relating to the commission of the offence which may consist of the examination of: a) various persons (including accused) and the reduction of statements into writing, if the officer thinks fit; b) the search of places and seizure of things considered necessary for the investigation and to be produced at the trial; and

5) Formation of the opinion as to whether on the materials collected, there is a case to place the accused before a Magistrate for trial and, if so, taking the necessary steps for the same for the filing of a charge sheet u/s 173 Cr.P.C.

The machinery of Criminal Justice System starts functioning when an offence or crime is registered and then investigated. A swift and quality investigation is therefore the groundwork of the effective Criminal Justice System. Police are engaged to perform multifarious duties and very often the important work of prompt investigation gets lowered in priority. A distinct wing of investigation with clear directive that it is answerable only to Rule of Law is the need of the day. Most of the Laws, both substantive and procedural were legislated more than 100 years ago. Criminality has gone through a tremendous change qualitatively and quantitatively. Hence the apparatus intended for investigation has to be armed with laws and procedures to make it practical as well as function in the present setting.

16

(in H.N. Rishbud v/s State of Delhi : AIR 1955 SC 196: 1955 SCJ 283,)

If the existing challenges of crime are to be met effectively, not only the approach of investigators needs a change but they have to be trained in cutting-edge technology, knowledge of varying economy, new dynamics of social engineering, efficacy and use of modern forensics etc.

The Malimath Committee asserted that investigation Agency is short-staffed, ill equipped and therefore the gross insufficiencies in basic facilities and infrastructure also need attention urgently. There is necessity for the Law and the society to have faith on the police and the police leadership to ensure improvement in their integrity. The Committee also felt that investigation requires specialization and professionalism of a type not yet fully achieved by the police agencies.

After making the above said observations the committee made the following recommendations:

(1) The Investigation Wing and the Law and Order Wing should be separated.

(2) National Security Commission and the State Security Commissions at the State level should be established, as suggested by the National Police Commission.

(3) To improve quality of investigation the following measures shall be taken: 

The post of an Additional SP may be created specifically for supervision of crime.

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One more Additional SP in each Dist. should be in charge of collection, collation and dissemination of criminal intelligence; maintenance and examination of crime data and investigation of significant cases .

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Every State should have an officer of the IGP rank in the State Crime Branch specifically to oversee the working of the Crime Police. The Crime Branch must have specialized squads for organized crime and other major crimes.

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Serious and sensational crimes having inter-State and transnational implications should be investigated by a group of officers and not by a single IO.

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The Sessions cases should be investigated by the senior-most police officer posted at the police station.

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Impartial and transparent mechanisms must be set up in place where they do not exist and improved where they exist, at the District Police Range and State level for redressal of public grievances.

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Police Establishment Boards should be set up at the police headquarters for posting, transfer and promotion etc of the District. Level officers.

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. The prevailing system of Police Commissioner’s office which is found to be more effective in the matter of crime control besides management will be introduced in the urban cities and towns.

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Dy.SP level officers, who are to investigate crimes need to be appraised for reducing the burden of the Circle Officers so as to facilitate them to dedicate more time to supervisory work. .

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xi. Stringent punishment should be provided for false registration of cases and false complaints. Section 182/211 of IPC be suitably amended.

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xii. Specialized Units/Squads should be set up at the State and District level for investigating specific category crimes.

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xiii. A panel of experts be drawn from various disciplines such as auditing, computer science, banking, engineering and revenue matters etc. at the State level from whom assistance can be sought by the investigating officers .

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xiv. With emphasis on compulsory registration of crime and removal of difference between non-cognizable and cognizable offences, the work load of investigation

agencies would increase considerately. Additionally, some investigations would be required to be done by a team of investigators. For liquidating the existing pendency, and, for prompt and quality investigation including increase in the number of Investigating Officers is of utmost importance. It is recommended that such number be increased at least two-fold during the next three years. 

Similarly for ensuring effective and better quality of supervision of investigation, the number of supervisory officers (additional SPs/Dy.SP) should be doubled in next three years.

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Infrastructural facilities available to the Investigating Officers especially in regard to accommodation, mobility, connectivity, use of technology, training facilities etc. are grossly inadequate and they need to be improved on top priority. It is recommended a five year rolling plan be prepared and adequate funds are made available to meet the basic requirements of personnel and infrastructure of the police.

(4) The training infrastructure, both at the level of Central Govt. and State Govts., should be strengthened for imparting state-of-the-art training to the fresh recruits as also to the in-service personnel. Hand-picked officers must be posted in the training institutions and they should be given adequate monetary incentive

(5) Law should be amended to the effect that the literate witness signs the statement and illiterate one puts his thumb impression thereon. A copy of the statement should mandatorily be given to the witness.

(6) Audio/video recording of statements of witnesses, dying declarations and confessions should be authorized by law.

(7) Interrogation Centres should be set up at the District. Hqrs. in each District., where they do not exist, and strengthened where they exist, with facilities like tape recording and or videography and photography etc.

(8) (i) Forensic Science and modern technology must be used in investigations right from the commencement of investigations. A cadre of Scene of Crime Officers should be created for preservation of scene of crime and collection of physical evidence there-from. (ii) The network of CFSLs and FSLs in the country needs to be strengthened for providing optimal forensic cover to the investigating officers. Mini FSLs and Mobile Forensic Units should be set up at the District./Range level. The Finger Print Bureau and the FSLs should be equipped with welltrained manpower in adequate numbers and adequate financial resources.

(9) Forensic Medico Legal Services should be strengthened at the District. And the State /Central level, with adequate training facilities at the State/Central level for the experts doing medico legal work. The State Govts. must prescribe time frame for submission of medico legal reports.

(10) A mechanism for coordination amongst investigators, forensic experts and prosecutors at the State and Dist. level for effective investigations and prosecutions should be devised.

(11) Preparation of Police Briefs in all grave crimes must be made mandatory. A certain number of experienced public prosecutors must be set apart in each District. to act as Legal Advisors to the District. police for this purpose.

(12) An apex Criminal intelligence bureau should be set up at the national level for collection, collation and dissemination of criminal intelligence. A similar mechanism may be devised at the State, District. and Police Station level.

(13) As the Indian Police Act, 1861, has become outdated, a new Police Act must be enacted on the pattern of the draft ‘prepared by the National Police Commission. (14) Section 167 (2) of the Code be amended to increase the maximum period of Police custody to 30 days in respect of offences punishable with sentence more than seven years.

(15) Section 167 of the Code which fixes 90 days for filing charge sheet failing which the accused is entitled to be released on bail be amended empowering the Court to extend the same by a further period up to 90 days if the Court is satisfied that there was sufficient cause, in cases where the offence is punishable with imprisonment above seven years.

(16) A suitable provision be made to enable the police take the accused in police custody remand even after the expiry of the first 15 days from the date of arrest subject to the condition that the total period of police custody of the accused does not exceed 15 days.

(17) A suitable provision be made to exclude the period during which the accused is not available for investigation on grounds of health etc., for computing the permissible period of police custody.

(18) Section 438 of the code regarding anticipatory bail be amended to the effect that such power should be exercised only by the Court of competent jurisdiction only after giving the public prosecutor an opportunity of being heard.

(19) Section 161 of the Code be amended to provide that the statements by any person to a police officer should be recorded in the narrative or question and answer form.

(20) In cases of offences where sentence is more than seven years it may also be tape / video recorded.

(21) Section 162 be amended to require that it should then be read over and got signed by the maker of the statement and a copy furnished to him.

(22) Section 162 of the Code should also be amended to provide that such statements can be used for contradicting and corroborating the maker of the statement.

(23) Section 25 of the Evidence Act may be suitably amended on the lines of Section 32 of POTA 2002 that a confession recorded by the Supdt. of Police or Officer above him and simultaneously audio / video recorded is admissible in evidence subject to the condition the accused was informed of his right to consult a lawyer.

(24) Identification of Prisoners Act 1920 be suitably amended to empower the Magistrate to authorize taking from the accused finger prints, foot prints, photographs, blood sample for DNA, finger printing, hair, saliva or semen etc., on the lines of Section 27 of POTA 2002.

(25) A suitable provision be made on the lines of sections 36 to 48 of POTA 2002 for interception of wire, electric or oral communication for prevention or detection of crime.

(26) Suitable amendments be made to remove the distinction between cognizable and noncognizable offences in relation to the power of the police to investigate offences and to make it obligatory on the police officer to entertain complaints regarding commission of all offences and to investigate them.

(27) Refusal to entertain complaints regarding commission of any offence shall be made punishable.

(29) Similar amendments shall be made in respect of offences under special laws.

(30) A provision in the Code be made to provide that no arrest shall be made in respect of offences punishable only with fine, offences punishable with fine as an alternative to sentence of imprisonment. (31) In the schedule to the Code for the expression “cognizable”, the expression “arrestable without warrant” and for the expression “non-cognizable” the expression “arrestable with warrant or order” shall be substituted.

(32) The Committee recommended for the review and re-enactment of the IPC, Cr.PC and Evidence Act may take a holistic view in respect to punishment, arrestability and bailability.

(33) Consequential amendments shall be made to the first schedule in the column relating to bailability in respect of offences for which the Committee has recommended that no arrest shall be made.

(34) Even in respect of offences which are not arrestable, the police should have power to arrest the person when he fails to give his name and address and other particulars to enable the police to ascertain the same. Section 42 of the Code be amended by substituting the word “any” for the words “of non-cognizable”

(35) As the Committee has recommended removal of distinction between cognizable and noncognizable offences, consequential amendments shall be made.

(36) The first schedule to the Code be amended to provide only the following particulars. i. Section ii. Offence iii. Punishment iv. No arrest / arrestable with warrant or order / arrestable without warrant or order. v. Bailable or non-bailable vi. Compoundable or non-compoundable vii. Triable by what court. Consequential amendments shall be made to part-II of the first Schedule in respect of offences against other laws.

(37) Rights and duties of the complainant/informant, the victim, the accused, the witnesses and the authorities to whom they can approach with their grievances should be incorporated in separate Schedules to the Code. They should be translated in the respective regional languages and made available free of cost to the citizens in the form of easily understandable pamphlets.

(38) Presence of witnesses of the locality or other locality or neighbourhood is required under different provisions of the existing laws. The Committee recommends that such provisions be deleted and substituted by the words “the police should secure the presence of two independent witnesses”.

PROSECUTION Prosecutors are the Officers of the Court whose duty is to assist the court in the search of truth which is the objective of the Criminal Justice System. Any amount of good investigation would not result in success unless the institution of prosecution has persons who are of merit and who are committed with foundation of a well-structured professional training.

The committee remarked that this important institution of the Criminal Justice System has been weak and somewhat neglected. Its recruitment, training and professionalism need special attention so as to make it synergetic with other institutions and effective in delivering good results.

The following recommendations were made in this regard:

(1) (i) In every State, the post of the Director of Prosecution should be created, if not already created, and should be filled up from among suitable police officers of the rank of DGP in consultation with the Advocate General of the State.

(2) In States where the term of the existing incumbents comes to an end, such appointments shall be made, after the expiry of the term.

(3) The Assistant Public Prosecutors and Prosecutors (other than the State Public Prosecutor in the High Court) shall be subject to the administrative and disciplinary control of the Director of Prosecutions.

(4) The duties of the Director, inter alia, are to facilitate effective coordination between the investigating and prosecuting officers and to review their work and meeting with the Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors from time to time for that purpose.

(5) The Director must function under the guidance of the Advocate General.

(6) i) All appointments to APPs shall be through competitive examination held by the Public Service Commission having jurisdiction.

(ii) 50% of the vacancies in the posts of Public Prosecutors or Additional Public Prosecutors at District level in each State shall be filled up by selection and promotion on seniority-cum-merit from the APPs.

iv)

Remaining 50% of the posts of Public Prosecutors or Additional Public Prosecutor shall be filled by selection from a panel prepared in consultation with District Magistrates and District Judges.

v)

No person appointed as APP or promoted as Public Prosecutor shall be posted in the Home district to which he belongs or where he was practicing.

v)

Public Prosecutors appointed directly from the Bar shall hold office for a period of three years. However, the State may appoint as Special public prosecutor any member of the Bar for any class of cases for a specified period.

vi)

In appointing to various offices of Public Prosecutors and Assistant Public Prosecutors sufficient representation shall be given to women.

(7) Assistant Public Prosecutors should be given intensive training, both theoretical and practical. Persons in service should be given periodical in-service training.

(8) To provide promotional avenues and to use their expertise. Posts be created in institutions for Training for Prosecutors and Police Officers.

(9) To ensure accountability, the Director must call for reports in all cases that end in acquittal, from the Prosecutor who conducted the case and the Superintendent of Police of the District.

(10)All Prosecutors should work in close co-operation with the police department, and assist in the speedy and efficient prosecution of criminal cases and render advice and assistance from time to time for efficient performance of their duties.

(11) The Commissioner of Police / Dist. Supdt of Police may be empowered to hold monthly review meetings of P.Ps / Additional PPs and APPs for ensuring proper coordination and satisfactory functioning.

(12)Provision may be made for posting Public Prosecutor / Senior Asst. Public Prosecutors at the Commissionerate / Dist. Supdt. offices for rendering legal advice.