The Code Of Criminal Procedure, 1973 (Act No 2 Of 1974) Vol I

[Cites 156, Cited by 0]

Law Commission Report

The Code Of Criminal Procedure, 1973 (Act No 2 Of 1974) Vol I

LAW COMMISSION OF INDIA

ONE HUNDRED AND FIFTY FOURTH
REPORT

THE CODE OF CRIMINAL PROCEDURE,

1973
(ACT No.2 OF I974)

(VOL. I)

1996

JUSTICE CHAIRMAN

LAW COMMISSION
K- JAY/'CHANDRA REDDY GOVERNMENT op INDIA

SHASTR1 BHAWAN
NEW DELHI - 110001

Tel. Off. : 3384475
Res. : 3019465

August 22, 1996

Dear Law Minister,

1 have great pleasure in forwarding herewith the 154th
Report of the Law Commission of India on the "Code of Crimi-
nal Procedure, l973". This brings to a conclusion one of the

major tasks assigned to the Law Commission by the Government
of India.

2. A detailed examination of the Code with a View to do
comprehensive revision was undertaken by the Commission
immediately when I assumed charge on 15th July, 1995.

3. In order to elicit public opinion on the subject, the
Commission circulated a working paper and detailed questionnaire
on the Code of Criminal Procedure, 1973 setting out various
aspects of the subject under study.

4. The Commission had also organised workshops under
the auspices of High Courts at Allahabad, Ahmedabad, Mumbai,
Chandigarh, Delhi, Hyderabad, Cochin, Madras, Patna and at
some selected district Headquarters.

5. The Commission also examined the provisions of the
Code of Criminal Procedure (Amendment) Bill, 1994, while
making out recommendations.

6. We have endeavoured to make the present Report, a
comprehensive one and included in it some of the provisions of
the Criminal Procedure (Amendment), Bill, 1994.

7. Finally, we wish to express our appreciation for valu-
able help received from Dr. S. C. Srivastava, Joint Secretary &
Law Oﬂicer in drafting of this report, preparing questionnaire
and assisting the Commission right through.

With regards,

Yours sincerely,
(SCH
(K. JAYACHANDRA REDDY)

Hon'ble Shri Ramakant Khalap,

Minister of State for Law & Justice

Government of India,

Shastri Bhavan,

New Delhi.

(T()NTENTS

V01 UMIZ I

CI-IAPTFR PAGES
I. Introduction 1-4
Il. Establislimcnt of Separate Investigating Agency 5-7
H], Independent Prosecuthtg Agency 8----l2
IV. Law'of Arrest 13----18
V. Custod_v. Remand and changes in Section 167(2) l9--20
V1. Bail, Anticipatory bail and Surctics 21- 30
VII. Bmil-Attendance of Accused-Appellate Stage 31
VIII. Summon Cases-Warrant Cases-Summary Trial-Changes in Proccdurc 32» 36
IX. [Examination of witnesses and Record of their Statements : Sections

16! and 162 37----42
X, Protection and facilities to witnesses 43--44
XI. Examination of Accused under Section 3l3 - 45~~46
XII. Compounding of offences 2 Section 320 47--50
XIII. Plea Bargaining 51--~54
XIV. Nyaya Panchayats 55._-55
XV. Victimology 57»-65
XVI. Enquiry and Trial of persons of Unsound mind (,5._71
XVII. Procedure for Maintenance of Wives, Children and Parents 72--~75
XVIII. Special Protection in respect of Women 75__g3
XIX, Punishm;-nt ol' Imprisonment for life, sentencing and Set-off 84._85

XX. Code of Criminal Procedure (Amendment) Bill, 1994 : Proposed
changes 35.89

XXI. Speedy Justice 9o-_1 15

XXII. Conclusions and Recommendations: ll7+#l25

CHAPTER l

lN'l'R()l)UC'l'lON

l. After coming into force of the Constitution of India, the First Law
Commission in its Fourteenth Report on Reform of Judicial Administration made
extensive recommendations on the reform of criminal justice system in 1958.'
The Commission had examined the subjects of organization of criminal courts.
police investigation, prosecuting agencies. delays in criminal trials, committal
proceedings. criminal appeals, revisions and inherent powers, procedure for trial
of perjury cases. etc. As a result. the Code of Criminal Procedure, I898 was
amended to give effect to some of the recommendations. On reconstitution. the
Law Commission was asked by the Government of lndia to undertake a compre-
hensive review of the Code. While this review was in progress. the Commission
rendered certain reports on speciﬁc problems arising out of certain provisions of
the Code. Those were:

(I) Report on the Evidence of Officers of the Mint and of the Indian
Security Press regarding Forged Stamps, Currency Notes, etc. (S. 510
of the Code)?

(2) Report on Section 9 of the Code regarding the Appointment of Ses-
sions Judges. Additional Sessions Judges and Assistant Sessions
Judges."

(3) Report on Section 44 of the Code and a suggestion to add a Provision
relating to the Reporting of, and the Disclosure in Evidence about,
Offence relating to Bribery,' and

(4) Report on Sections 497. 498 and 499 of the Code with reference to
the Question of Granting of Bail with Conditions?

(5) Report on the first fourteen Chapters comprising sections 1 to 176 of
the Code."

1.2. The Fifth Law Commission undertook a detailed study of the Code
from where the previous Commission had concluded its Report, viz., Section 177
and rendered the Forty-first Report representing a comprehensive review of the
Code in l969. Consequent to that Report, the Parliament enacted the Code of
Criminal Procedure, 1973 which came into eﬁect on April 1, 1974.

1.3. Subsequent to the coming into force of the new Code. the Law Com-
mission has given the following Reports on speciﬁc subjects relating to the
criminal justice system.

I. Some Questions under the Code of Criminal Procedure Bill, 1973.7
2. Delay and Arrears in Trial Courts.'

3. Congestion of Undertrial Prisoners in Jails.'

. Rape and Allied Offences---Some Questions of Substantive Law, pro-
cedure and Evidence."

LII

. Section 122(1) of the Code of Criminal Procedure, 1973 : Imprison-
ment for Breach of Bond for keeping the Peace with Sureties."

6. Need for Amendment of the Provisions of Chapter IX of the Code
of Criminal Procedure, I973 in order to Ameliorate the Hardship and
Mitigate the Distress of Neglected Women, Children and Parents."

7. Concessional Treatment for Offenders Who on their Own Initiative
Choose to Plead Guilty Without Bargaining."

8. Report on Custodial Crimes."
1.4. With a view to removing certain difﬁculties experienced in its work-
ing, the Code of 1973 underwent several amendments in 1974, 1978, 1980. 1983.
1988, 1990, 1991 and 1993 for speciﬁc purposes.

I.5. In May. 1994 the Government of India introduced the Code of Cri-
minal Procedure lAmcndment) Bill, H94 in the Rajya Sn/i/la incorporating many
amendments in the Code. The Bill is at present before the Parliamentary Stand-
ing Committee on Home Affairs,

1.6. In the meantime, the Government of India has made a reference to
the Law Cominission to undr:rtal»;c compmlieiisivc revision of the Code of Cri-
minal Procedure and suggest rcforms in the law,

In view of the above, the Law Commission has undertaken a study of
comprehensive revision of the Code of Criminal Procedure. I973. so as to remove
the germurw problems leading to consequential delay in disposal of criminal
cases.

In order to elicit public opinion on the subject, the Commission circulated
a working paper, a detailed questionnaire on the Code of Criminal Procedure,
1973 (Annexure I & II) setting out various aspects of the subject under study.
The questionnaire was sent to all the State Governments, Director General of
Police of all States. Supreme Court and High Court Judges, Bar Associations.
Professors of Law, Advocates and Non-Governmental Organisations. Varied
responses received on the questionnaire are summarised in /'tnnexure Ill.

The Commission had also organised workshops under the auspices of High
Courts at Allahabad. Ahmedabad. Bombay, Chandigarh. Delhi, Hyderabad, Kochi.
Madras and Patna. At all these places the Commission had the benefit of dis-
cussions with the High Court Judges, senior lawyers, District and Sessions Judges.
pojliee'ofﬁcers..legal academicians and non-Governmental organisations on the sub-
jects inclentiﬁed by the Commission for review and reforms. Art Jaipur. the Central
Law Commission and the Rajasthan State Law Commission had organised the
workshop, At Guntur and Thiruvananthapuram, the Commission had meetings
with local Bar Associations and Judges on the scope of the amendment of the
Code (Annexure IV). The Commission has. while formulating this Report, taken
into consideration the views expressed at various workshops.

1.7. The Code of Criminal Procedur (Amendment) Bill, 1994 contains 49

clauses incorporating amendments. The signiﬁcant amendments pertain to the
following subject-matter:

Grant of autonomy to the prosecution agency (S. 24). setting up of the
Directorate of Prosecution (S. 25A), Procedure of arrests and ,.Sa.f€-
guards thereon for arrest of women (Ss, 45, 46. 50A): medical exa-
mination of the accused generally. (SS. 53 and 54) of the person accus-
ed of rape (S. 53A): identiﬁcation of arrested persons (S. '54Al; pro-
clamation of absconded persons committing grave offencestunder
[PC (S. 82): Dealing with offences under the Foreigners Act, 1946
to check,the flow of undesirable foreigners into the country (S. I10);
raising the ceilinlg of maintenance of parents, wives and children
(S. 125): empowering the district magistrate to prohibit mass drill or
Ina'LS".s' training with arms in a public place in order to check communal
tension and foster a sense of security for the public (S. 144A); medical
examination of the victim of rape by government registered medical
practitioner or in their absence. by any other registered medical
practitioner (S. l64Al; to facilitate compozmding of offences at the
stage of investigation for quick disposal of cases (S. 173); manda-
tory judicial inquiry in case of death or disappearance of a person
or rape of women in police custody and conducting of post mortem
examination within 24 hours of death (S, 176); empowering the ma-
gistrate to authorise further detention in custody of an accused for 8
limited period after recording reasons (S. 190); protection given to
members of Armed Forces accused of offences to be extended to
other public servants charged with the maintenance of public order
(5. I97); making it obligatory on the magistrate to inquire or direct
investigation of the case before summoning the accused residing
beyond his jurisdiction (S. 202); empowering the Sessions Court also
to hold joint trial on the application 0-f the accused persons (S. 223);
empowering the Sessions Judge to transfer a casenot only to» the
Chief Judicial Magistrate but also to any other judicial .. magistrate

1.8. The Law Commission had also

(S. 228): expansion of the category of cases for summary trials
(S. 260) making nwmoruuslum of identiﬁcation memo prepared by
magistrate udntis-.sil)Ie in evidence without formal proof of facts stat-
ed therein. with a discretion conferred in the court to examiine the
magistrate on the subject matter of the memorandum on the appli-
cation of the prosecution or the accused (S. 29lA): empowering ma-
gistrates to issue directions to any one including an accused person
to givevspecimen signatures and handwriting (S. 311A); permission
to tile an appeal in the Sessions Court instead of High Court On
the basis of inadequacy of sentence passed by a magistrate (S. 377):
provision for appeal against a<:quiItu1.s~ by magistrate to the Sessions
Court (S. 378): appellate court to give notice to the prosecution be-
fore releasing on bail a person convicted of an offence punishable
with death, imprisonment for life or imprisonment for a term of
not less than ten years (S. 389): provision that the period for which
the life convict remained in detention during investigation, inquiry
or trial be setotl against the period of I4 years of actual imprison-
ment (S. 433A): an arrested person accused or' a bztilable offence, if
indigent and cannot furnish security. be released on execution of
bond without sureties (S. 436) detention of undertrial prisoner, except
the one accused of an offence punishable with death, not to exceed
one--half of the maximum period of imprisonment for the offence;
mandatory release on his personal bond with or without sureties;
absolute ban on detention beyond the maximum period of imprison-
ment for the offence IS. 436A): certain restrictions in the grant of'
bail to previous convicts of grave offences and other conditions on
the grant of bail with a view to ensuring that the accused on bail
does not imerfere or intimidcrre witnesses (S. 437); Provision for
more stringent conditions for the grant of anticipatory bail -by the
Sessions Court and High Court (S. 438): Surety to disclose to the
court as to in how many cases he has already stood surety for accus-
ed persons (IS. 44lA): f0.rfeirm'e of bond for appearance before a
court and the court's powers thereon (S. 446): amendments to First
and Second Schedules of the Code of Criminal Procedure; amend-
ments to Indian Penal Code. namely, (i) S. l53AA punishment for
violation of prahibitory order on mass drilt or training with arms
in public places, (ii) S. l74A prescribing punishment for proclaimed
offenders. (iii) S. 229A prescribing punishment for persons released
on bail failing to appear and surrender to custody.

undertaken an intensive study of

the Code with a view to eliminating the problems and bottlenecks leading to
delay in the disposal of criminal cases as well as other remedial measures. The
Commission set about its task by identifying the following areas in the Code
which needed redesigning and restructuring: '

2-.1M of L & J/ND/97

(xi) Compounding of Offences
(xii) Plea Bargaining.

ti) Establishment of Separate Investigating Agency.
(ii) Independent Prosecuting Agency.

(iii) Law of Arrest.

(iv) Custody. Remand and Changes in Section 167(2).
(V) Bail. Anticipatory Rail and Sureties.

(vi) Bail----Attendance of ACcused~--Appellate Stage.

(vii) Summons cases-----Warrant Cases~--Smmnrtr_v Trial; Changes in Pro-

cedure.

(viii) Examination of Witnesses and Record of their Statements under sec-

tions l6l and l62.

(ix) Protection and Facilities to Witnesses.

(x) Examination of Accused under Section 313.

Section 320.

(xiii) Setting up of Nyaya Panchayats : Scope of Jurisdiction and Nature
of Offences to be Tried by them.

(xiv) Vi¢'li:iir1'I0g__t- and (fumpemming the Victims: Insertion of New Pru-

visions.

(xv) Inquiry and Trial of Persons of Unsouml Mind.

(xvi) Procedure for

Maintenance of Wives. Children and Parents.

(xvii) Special Protection in respect of Women.

txviii) Punishment of Imprisonment for Life. Sentencing and Set 01}.

(xix) Code of
Changes.

(xx) Speedy Justice.

We have examined the aforesaid

Criminal

Procedure (,Amendment)» Bill, I994: Proposed

problems in detail keeping in view the

various re.sp0nse.s received on the questionnaire and the views expressed in the

workshops.

Accordingly. we have made our recommendation particularly from

the point of view of "speedy trials".

I~'ooTNorEs

1. 14th Report:
----849.

. 25th Report:

Ix)

. 36th Report :
. 37th Report :
48th Report :
. 77th Report :
78th Report :
. 84th Report :
"ll.
l2.
l3.
14.

. 32nd Report :
. 33rd Report :

IO2nd Report :
I32nd Report 2
l42nd Report :
l52nd Report :

Submitted on September 26. I958. Sec. Vol. I], 714

Submitted on Sept. 27, I963.
Submitted on May 29, 1967.
Submitted on December 15, I967.
Submitted on January 9, 1968.
Submitted on February I9, I968.
Submitted on July 25, 1972.
Submitted on November 27, I978.
Submitted on February 2, 1979.
Submitted on April 25. 1980.
Submitted on July 2. 1984.
Submitted on A-pril I9, 1989.
Submitted on August 22, 1991.
Submitted on August 26, 1994.

CHAPTER ll

ESTABLISHMENT OF SEPARATE INVESTIGATING AGENCY

l. The need for expeditious and effective investigation of offences as
contributing to the achievement of the goal of speedy trial cannot be gainsaid.
The investigating agencies have an important role to play in the administration
of criminal justice.

2. lnvestigatioin of crime is a highly specialized process requiring a lot
of patience, expertise, training and clarity about the legal position of the specific
offences and subject matter of investigation and socio-economic factors. It is
basically an art of unearthing hidden facts with the purpose of linking up ditto-
rent pieces of evidence for the purpose of successful prosecution. it requires
specialisation and professiomilisni of a type not yet fully perceived by police
agencies. For discharging such a task eﬂiciently, a separate investigating wing
of the police which replenishes its knowledge and skills from developing tech-
nology is a desideratum.

3. lt is the common complaint of police officers that the police depart-
ment is understaffed and has a heavy duty to perform. The requirements of
the law and order situation, baiidabasz duties. escort of prisoners to courts,
parrot' duties, tratﬂic arrangements, security to VIPs, rise in crime graphing the
country in general and the creation of new kinds of substantive offences have
increased manifold the work of the police. Further, many a time while the
investigating officer is in the midst of the investigation, he would be called away
in connection with some other duty. Consequently, he would be constrained to
suspend the investigation or hand it over to a junior o-fﬁcer. 'Further, it also
happens that investigating officers are transferred without being allowed to com-'
plete the investigation in hand. Even in grave otfences there is piecemeal
investigation by different police otﬁcials in the hierarchy which inevitably re-
sults in variation of statements by the witnesses examined and recorded at diffe-
rent times. Such variation would ultimately destroy the efficacy of the evidence
of witnesses when examined in the court. This is a defect in the inveatigational
process, advantage of which is taken by the defence. --

4. The Law Commission in its Fourteenth Report had examined in de-
tail the drawbacks in the then existing investigative machinery and of the
igiv'estigatioiial processes. _The_Commission made the following suggestions to
jn{"[31'0Vc the quality of investigation:

=?We think on the whole that there is great force in the suggestion that,
as far as practicable, the investigating agency should be distinct
fr(_-}I'll the police staff assigned to the enforcement of law and order,
'W do not. however. suggest absolute separation between the two
Maiiclies. Even officers of the police department have taken the
i,:,,;' that if an olﬁccr is entrusted with investi ation duties. his.
5e.--.ige.s should not be required for other work wiile he is engaged
in invcS[l.gati0n- The separation of the investigating machinery may
g,,.\.,;.,g Mm; additional cost. _ We think, however, that the exclu-
site' attention oi" the mvestigatlng Officer is essential to the conduct
of an 8/f,-C,-e,.,, imiestigation and the additional cost involved in the
implementation of our proposal is necessary.' The adoption" of such
3 scparatima, a.,;ti en" e _undivided attention to the detection of
crimp, it win 3150 provide additional strength to the police esta~
bits]-imam which needs an increase in most of the States."'

5. The National Police C()nnni53ii;i'~.' in its Fourth Report bemoaned the
lack of exclusive and single minded devotion Of P059' Umcials in ""5 l"V¢5liga'
tion of crimes for reasons beyond their contro. The Commission found on 2:
sample survey carried out in six states in diif61'€nI'f3'«§.,I_1'5 Of 'he COUNTY ,"131.*'-"
average investigating officer is able. to devote only 37 C6111 Of his I1_mer it'
investigational work while the rest of his time is taken up by whet duties. In
view of this the Police Commission has pointed out that there is aiﬁiuvgeiit need:

-..;:r. .. ,..

for increasing the cadre of investigating officers and for restructuring the police
hierarchy to secure. inter alia. a large number oi' officers to handle investigation
work."

6. This is one of the issues on which the Law Commission had consulta-
tions with the Members of the Bench and the Bar. prosecuting agencies and
senior police oﬂicers during the legal workshops held at various places. It is
the unanimous opinion that investigation of serious olliences punishable with
sentence of seven years or more shoul(l invariably be unclertakeii by senior oili-
cers not below the rank of Inspector of Police. It is. therefore. desirable to

separate the investigating police from the law and order police for the following
reasons:

Firstly. it will bring the investigating police under the protection ' of
judiciary and greatly reduce the possibility of political or other types of inter-
ference. The Punjab Police Commission (]96l-62), the Delhi Police Commis-
sion (1968), the Goray Committee on Police Training (I972). the National Police
Commission (l977--80l. the MP. Public Police Relations C0mmittee (1983)
have unanimously criticised political interference in the work of the police.

Secondly, with the possibility of greater scrutiny and supervision by-the
magistracy and the public prosecutor, as in France, the investigation of police
cases are likely to be more in conformity with the law than at present which is
often the reason for failure of prosecution in courts.

Thirdly, eﬂicient investigation of cases will reduce the possibility of un-

justitied and unwarranted prosecutions and consequently of a large number Of
acquittals.

Fourthly, it will result in speedier investigation which would entail
speedier disposal of cases as the investigating police would be completely reliev-
ed from performing law and order duties, VIP duties and other miscellaneous
duties, which not only cause unnecessary delay in the investigation of cases but
also detract from their efficiency.

Fifthly, separation will increase the expertise of investigating police.

Sixthiy, since_the investigating police would be plain clothes men even
when attached to police station will be in a position to have good rapport with

the people and thus will bring their co-operation and support in the investiga
tion of cases.

'Seveiithly. not having been involved in law and order duties entailing ilk '

use of force like tear gas. lathi charge and tiring. they would not provoke pigbijc
anger and hatred which stand in the way of police-public co«opc['ati0n in "

. . . . . . . 1~"<"tCk-
ing down crimes and criminals and getting information. £tSSiSlijm;e um,
mtelligencc which the police have a right to get under the provisiorls. or _5"_s_ 37

to 44 of the Code of Criminal Procedure."

7. There should be a separate cadre ol investigating agcvm 5" every
district subject to supervision by the higher ilUli1q,I:lIlCS. When 1. (-2.55 fakch
up for investigation by an otlicer of such agency. he slioulg', be in may 6 r
the case throughout till the conclusion of the trial, Hc :8'/iﬁiyujd lake the ,-esp",
sibility for production of witnesses: production of ~.ict.;i',5¢(j "mi for assisting ma
prosecuting agency. As observed. in the i'0tIrtceI'ali1 Rep'-,,-i or the Law com.
mission, there need not be absolute sepuiiition betj;,,».-L-,1 the [W0 bralicked.

8. Eﬁicient investigation pre-supposes indui-{ion of Sciemiﬁc Work CH1.
ture in police. New technology. such as computers. ph0{{\qrav,,'hy vjdeog;-aphy_
new methods of interrogation technology. new gbgel-Va1ign'gaagets and highly
sopliisticatetl search equipment. etc._ are; essential for gﬁectlve investigation of
l1'3d1t10n31 and WW WP'-'$ Oi ""Ea"l'{feCi crimes. The rapid advances in science
and technology haV€AL-'Wally' inﬂuenced poi". investigation as also the techni-
QUES ad0PPi€d bx Crmlinﬂls 10 leave no traces or clues at the scene of crime.
But the Wefage 111V€St1gﬂ.l?i'ﬁg otﬁcer still depends on traditional methods of
recording Slatemﬁlﬁﬁioeoi witnesses or getting confessions from accused to com-
P7033 T115 progess' of investigation. Such heavy dependence on -these traditional
m8th0dS may be ascribed to lack of knowledge and awareness» about the scien-

tiﬁc technologies available to him for crime detection. This difficulty could be
overcome by providing scientiﬁc facilities and by imparting regular in-scfvice
training at periodical intervals.' Thus there is a great heed for systcmatized
training for investigating oflicers in scientiﬁc methods oi investigation. The
nature of training and details thereof have to be worked out by the experts.
lurthcr, we are ol' the v.icw that there is an urgent need to create a separate
investigating agency. As to how a separate investigating agency is to be struc-
tured, is a matter of details which can be considered by the concerned depart-
ments.

9. We recommend that the police officials entrusted with the Investigation
of grave offences should be separate and distinct from those entrusted with the
enforcement of law and order and other miscellaneous duties. Separate investi-
gating agency directly under the supervision of a designated Super'mtendem of
Police be constituted. The hierarchy of the ollicers in the investigating police
force should have adequate training and incent:'\'a.s for furthering effective inve-
stigations. We suggest that the respective Law and Home Departments 0!'
various State Governments may work out details for betterment of their condi-
tions of service.

The oﬁicials of the investigating police force be made responsible for
helping the courts in the conduct of cases and speedy trial by ensuring timely
attendance of witnesses, production of accused and proper co-ordination with
prosecuting agency. Other necessary steps should also be taken for promoting
elliciency in invsetigation. Accordingly, we recommend that necessary Chan es
in the Police Acts, both Central and State. Police Regulations, Police Standing
Orders. Police Manuals, be made by the Home Department in consultation with
the Law Departments of State Governments.

Foornorrs s :

741, 762.

2. Fourth Report of the National Police C.'o:rrmi.\'.s'i'mr. para 27.7, p. 3.

1. Fourteenth Report of the Law Cammission, Vol. 11 para 24, pp.

3. See R. Deb, "Police and Administration of Criminal Justice." Vol.
XXVI. No. 2 CB! Bulletin 7 at 8-9, (1992).

4. Supra note 1 at 762-763.

CHAPTER 11]
INDEPENDENT PROSECUTING AGENCY

1. In criminal law prosecution has an important role to play. Our system
of administration of criminal justice contemplates fair and effective prosecution of
oilences. Under the present scheme of the Code of Criminal Procedure, the pro-
secution machinery has been completely separated lrom investigating agency and
the prosecuting oﬂiccrs are supposed to be independent from police. Under sec-
tion 24 of the Code. the public prosecutors of High Courts are appointed by the
Central Government or the State Government. as the case may be, on the recom-
mendations of the High Court. The public prosecutors and additional public
prosecutors are appointed in. Sessions Courts on the recommendations of the
Sessions Judge. Section 24 also provides for appointment of such public prosecu-
tors by the Central Government for the purpose of conducting any case or class
of cases. in some States, Directorates of Prosecution have been set up. However.
there is a common complaint that required number of prosecuting oﬁiccrs have
l]Oll been appointed and the prosecutions are not being conducted elliciently and
in the manner expected.

2. it has to be borne in mind that the quality of criminai justice is closely
linked with the calibre of the prosecution system and many of the acquittals in
courts can be ascribed not only to poor investigations but also to poor quality of
prosecutions. There is a strong opinion in favour of the autonomy of the public
prosecutors and creation of a separate prosecution agency under the control of as
Directorate of Prosecution to exercise administrative suppervision over the work
of a network of public prosecutors at various levels. The Supreme Court in
518. Shahane v. State of Malmraslzfra' heid that the prosecution agency he auto-'
nomous having a regular cadre of Prosecuting oﬂicers. There is a general com-
plaint that the public prosecutors in lower courts do not prepare cases carefully
and that the quality of prosecutions is poor. Therefore, there should be careful
selection and appointment of prosecutors who can closely coordinate with the
investigation. No doubt, they have to closely coordinate with the police system
since prosecutions are conducted on behalf of the police. There should not be
communication gap between the police and the prosecutors during the investiga-
tion stage. The police, however, are of the view that investigation and prosecu-
tion form a continuous link process in the administration of justice and, therefore.
both should be closely coordinatted in order to ensure successful prosecution of
criminal cases. They also stress that total detachment of prosecution department
from the police will not only create conﬂiats between the two but also result in
each throwing the responsibility on the other with the result that there will not
be any effective control over. the maintenance of law and order or prosecution of
criminals. The police are ﬁrmly of the view that the prosecutors have to cons-
tantly advise the police in investigation of grave offences and collection of evidence
to sustain the prosecution with success.

3. It is a matter of common knowledge. that a public prosecutor has a
dual role to play. namely, as a prosecutor to conduct the trial and as a legal
adviser to the police department in charge of investigation. For some reason or
thc other, in the present administration, the latter part is not given due weight and
a virtual c0mmlmz'cattion gap exists. The police oﬂicers also strongly feel that
the concept of autonomy has done considerable harm, not from the point of
objectivity but in reducing the scope for securing appropriate legal advice at the
investigation stage. While nobody doubts the need for objectivity, it is felt that
they should provide legal guidance at the stage of investigation. It is also noticed
that some of the mistakes committed by investigating officers could have been
avoided. if there had been some mechanism. to provide legal guidance and assis-
tance during the course of investigation.

4. The Law Commission in its l4th Report considered this issue. It is
noted that a man of imegrify should be chosen to be in charge of prosecution
and the purpose of a criminal trial being to determine the guilt or innocence of
the accused, the duty of a public prosecutor is not to represent any particular
party bu-t to act in an objective manner. The Commission also noted that very
often there arise complicated cases which require legal assistance even during the

stage of investigation. But the public prosecutor has. however. neither the povfcr
to interfere in the investigation nor can he call for the police papers and scrutinise
them or otherwise examine the available evidence before a report is actually tiled.
This is anomalous because though he is. responsible for the conduct of the pro-
secution in court, he has no opportunity oi' controlling or shaping the material
on which the case is to be founded and presented beforethe court. The Law
Commission, after making an in--depth study about the prosecuting systcnts obtain-
ing in other countries and also the system in our country. made several sugges-
tions. One ﬁrm suggestion was that "the prosecuting agency should be Completely
separated from the police department. in every district 21 separate prosecution
department may be constituted and placed in charge of an oﬂieial. who may be
called the Director of Public Prosecutions. The entire prosecution in the district
should be under his control. ln order to ensure that he is not regarded as the
part of the police department. he should be an independent otﬁcial."'~' The Com-
mission. however. concluded that as the head of the entire prosecuting machinery
of the district. he should arrange for the prosecution of all cognizable cases through
additional public prosecutors and distribute the work among them and should
advise the police department and other government departments at the district
level on the legal aspects of the case at any stage of criminal proceedings includ-
ing the stage of investigation. The Commission also suggested "that the Director
of Public Prosecutions should be a full -time government servant and should not
be allowed the right of private practice."-' The Commission has also given some
guidelines for structuring such prosecuting agency at the district level.'

5. The Commission also considered the diﬁicultics arising from the lack
of cooperation between the police department and the public prosecutors and
observed that the Superintendent of Police as the Head of the Police in the
district has a duty to see that the prosecutors are given all the assistance and
information they need at the trial.

6. We may also point out that the Law Commission in its 4lst Report
endorsed the recommendations made in the 14th Report and regretted that the
same have not been given serious consideration by the State Governments. Further.
it was recommended that "with the abolition of committal proceedings, it will
be the responsibility of the public prosecutor to scrutinise the police report or
charge-sheet before it is ﬁled and see whether a case, which is exclusively traiable
by Court of Sessions, is made out from the evidence. At this stage, the public
prosecutor should have the authority to send the case back for further investiga-
tion and to modify the proposed charge whenever he ﬁnds it necessary to do so."'
Of course. this will have to be done subject to the constraints of limitation pres-
cribed.

7.]. The National Police Commission in its Fourth Report surveyed the
development of the prosecution agency and suggested a new set up, namely, that
"the post of Assistant Public Prosecutors. Additional Public Prosecutors and
Public Prosecutors should be so designed as to provide a regular career structure
for the incumbents for the entire state as one unit."" "The Public Prosecutor in
a district should be made responsible for the efficient functioning. of the subordi-
nate prosecuting stalf in the district and he should have the necessary supervisory
control over them for this purpose." The Police Commission also recommended
that a supervisory structure over the district «prosecuting staff should be develop-
ed with Deputy Directors of Prosecution at the regional or district level and a
_Director of Prosecution at the State level."

7.2. As regards recruitment. the Police Commission also recommended
minimum qualiﬁcations for being appointed to these posts and also noted that
judicial oﬂicers with experience may be appointed. For appointment to the post
of Assistant Public Prosecutor Grade II. Assistant Public Prosecutor Grade I.

.-Additional Public Prosecutor, Public prosecutor. Deputy Director of Prosecution.

Additional Director of Prosecution and Director of Prosecution. a speciﬁed mini-
mum number ol' years of practice at the Bar or experience as a judicial ollicer be
stipulated. For the post of Deputy Director of Prosecution. seven years practice
at the Bar or seven years experience as a judicial oﬂicer of which at least three
years should be as a Sessions Judge or three years experience as Additional Public
Prosecutor or Public Prosecutor was recommended. For the post of Director
of Prosecution and Additional Director of Prosecution, ten years practice at the

Bar or ten years experience as a judicial oflicer of which at least five years should
be as a Sessions Judge or three years exprience as Deputy Director was recom-
mended."

8. During our workshops. though it was felt that prosecution agency should
have autonomy, it was suggested that coordination between investigating agency.
namely police and the prosecuting agency is vital for the eﬂicient proescution of
cases at the trial stage. How to achieve this coordination'? The National Police
Commission recommended that the prosecuting cadres be constituted into a sepa-
rate legal wing to function under a Director of Prosecution as an integral part of
state police. This is not valid as it runs contrary to the law laid down by the
Supreme Court in .S'hahane'.s case.

9. We also recommend that the Home Departments of the State Governi-
ments should prescribe guidelines to achieve the desirable coordination between
the Director of Prosecution and the Investigating Agency of the Police for eflicient
prosecution of cases.

Pursuant to our recommendation that there should be a separate investiga-
tion agency for investigation of grave offences. i.e. offences punishable with im-
prisonment of seven years and above and/or ﬁne. it is further recommended that
such investigating agency should work in close coordination with the Directorate
of Prosecution at state and district levels. We are of the view that some of the
-prosecutors may be earmarked at one time for advising the investigating agency.

I0. We are of the view that the Directorate of' Prosecution shall be struc-
tured as suggested by the National Police Commission and accordingly a cadre
be created on those lines with necessary modiﬁcations as the Home and Justice
Departments of the State Governments may deem ﬁt.

ll. Clause 3 of the Code of Criminal Procedure (Amendment) Bill, 1994
seeks to insert the following Explanation to section 24(6) after the proviso which
shall be deemed to have been inserted with effect from 18th day of' December.
1978. ~

(a) "regular Cadre of Prosecuting Officers" means a Cadre of Prosecuting
Ofﬁcers which includes therein the post of a Public Prosecutor. and
which provides for promotion of Assistant Public -Prosecutors. to that
post;

(b) "Prosecuting Ofﬁcer" means a person appointed to perform the func-
tions of a Public Prosecutor. an Additional Public Prosecutor or an
Assistant Public Prosecutor under this Code.

These changes are sought to be introduced keeping in view the promotional
avenues to the members of the regular cadre of prosecuting ofﬁcers in a state where
such cadre exists.

12. We approve of the recommendations of the National Police Commis-
sion to establish a Directorate of Investigation and also clause 4 of the Amend-
ment Bill providing for insertion of new section 25A. which reads as under:

"25A(l) The State Government may establish a Directorate of Prosecution
consisting of a Director of Prosecution and as many Deputy Directors
of Prosecution as it thinks ﬁt.

(2) The Head of the Directorate of Prosecution shall be the Director of
Prosecution. who shall function under the administrative control of
the Head of the Home Department in the State.

(3) Every Deputy Director of Prosecution shall be subordinate to the
Director of Prosecution.

(4) Every Public Prosecutor. Additional Public Prosecutor and Special
Public Prosecutor appointed by the State Government under sub-sec-
tion (1) or as the case may be, sub-section (8) of section 24 to conduct
cases in the High Court shall be subordinate to the Director of Pro-

" secution.

(,5) livery Pubhc Pl'tl\'\'Clli0t'. Additional Public Prost-7e11to_r, and Speciat.
Public Prosecutor appointed by the State Governinent under sub-sec-
tion (3), or as the case may be. sub-section (8) of section 2-1 to conduct
cases in "District Courts and every Assistant Public Prosecutor appo-
inted under sub-section (I) of section 25 shall be subordinate to the
Deputy Director oi' Prosecution.

(6) The powers and functions of the Director of Prosecution and the
Deputy Directors of Prosecution and the areas for which each oi" the
Deputy Directors of Prosecution have been appointed shall be such
as the State Government may by notiﬁcation specify.

(7) The provisions of this section shall not apply to the Advocate General
for the State while performing the functions of a Public Prosecutor.

We. however. feel that sub-section (4) of new section 25A placing the public
prosecutors appointed under section 24(1) to conduct cases in the High Court
to be subordinate to the Director of Prosecution need not be there as, in our view.
the Public Prosecutors appointed exclusively to conduct cases on the appellate
side in the High Court should be differentiated from those pro-sectuing officers
appointed to conduct cases in the lower courts. in this context, we may also
point out that the object underlying the establishment of Directorate of Prosecu-
tion is to facilitate and expedite the trial work and also to bring about coordina-
tion with investigating agency which is very much essential in a criminal trial.

We accordingly suggest the deletion of sub--section (4) of the proposed
section 25A.

13. We recommend that the Government while appointing Public Prose-
cutors and Assistant Public Prosecutors under sections 24 and 25 shall, as far as
practicable, appoint suﬂicient number of woman Public Prosecutors and Assistant
Public Prosecutors so that they can effectively deal with cases involving women
who are under 18 years of age and in respect of whom oﬁences under sections
354, 376, 376A to 37613 (both inclusive) proposed by the National Commission
for Women and 509 of. the Indian Penal Code.

14. In Sum'! Kumar Pal v. Phota Shaikh" the Public Prosecutor appeared
on behalf of accused persons which lent support to the allegation that the accused
were supported by the ruling political party in the State of'West Bengal. The
Supreme Court held that the trial was vitiated and remanded the case to another
Sessions Court for re-trial. With regard to the role played by the Public Prosecutor.
the Court observed, "that is inconsistent with the ethics of legal profession and
fair play in the administration of justice for the Public Prosecutor to appear on
behalf of the accused."

At this stage while considering the observations made by the Supreme
Court in the case of Szmil Kumar Pal v. Plzafa Sheikh, we are also of the View
that where there are conflicting interests and where propriety requires that the
prosecution in such a case has to be conducted by someone other than a member
of the Directorate of Prosecution, such court should have the power. in its discre-
tion. to permit any other person competent to coordinate the prosecution in con-
sultation with the appropriate government, who shall act under section 24(8) expe-
ditiously. The appropriate government should make the appointment in accor-
dance with section 24(8). Section 24(8) be amended accordingly.

IS. in the various workshops. views were expressed that though it is the
bounden duty of the State to conduct prosecution, as crime is against society. the
private complainants or victims of crime or his dependence be also given a role
in bringing the otfender to justice. The Code of Criminal Procedure in section
301 permit the private counsel to assist the prosecutor and section 302 empowers
the Magistrate to permit the prosecution to be conducted by any other person
as well.

in Balm v. State of lﬂrirzlrr. the Kerala High Court graphically described
the role of Public Prosecutors as follows:"

"Public Prosecutors are really Ministers of Justice whose job is none other
than assisting the State in the administration of justice, They are not

3-1 M of L 8: JKND/97

"representatives of any party. Their job is to assist the Coitrt by placing
before the Court all relevant aspects of the case. They are not there
to see the innocent go to the gallows; they are also not there to see
the culprits escape the conviction."

These observations were made in a case where a magistrate had refused
permission under section 302 of the Criminal Procedure Code to the complainant

to engage an advocate to conduct the prosecution. The High Court examined

section 301 of the Code under which the advocate engaged by a private person
can assist the Prosecutor in the conduct of the prosecution. But under section
302 the magistrate may permit the prosecution itself to be conducted by any
aggrievedjperson or an advocate. The distinction is that when permission under
section 302 is given, the Public Prosecutor virtually disappears from the scene
and the private lawyer takes over the prosecution. There is a vast difference
between assisting the Public Prosecutor under section 301 and conducting the
prosecution on the basis of a permission granted under section 302. The Court
pointed out that though the magistrate has a discretion under 302. this discretion
be exercised only under exceptional circumstances where he feels that denial of
permission will obstruct justice.

16. Section 302 has to be used if necessary, by the magistrate in granting
permission to the private complainant where ends of justice require, particularly
where he ﬁnds that Public Prosecutors are not effectively discharging their duties
thereby subverting the process of law and justice. So far as the interest of the
complainant in Sessions cases is concerned. section 301 permits a private person
to instruct the prosecutor. To that extent the complainant's interest is being
taken care of and such private person need not take the place of public prose-
cutor. Consequer1'tly. no further change is necessary in section 301. As regards
Section 302 which is applicable only to the trials before the Magistrates, the
magistrate has ample discretion to permit the prosecution to be conducted by any
person. As observed by the Kerala High Court in Brrbu's' case, in appropriate
cases. the Magistrate may exercise that power by permitting the complainant's
advocate to conduct the prosecution. So no change is necessary.

17. In view of the recommendations to establish the Directorate of Prose-
cution, section 25(3) and section 302 to the extent that they enable police oﬂicers
to conduct prosecution, need to be suitably amended.

Foornorizsz
1. AIR 1995 SC 1628.
2. Fourteenth Report of the Law Coniniission. para 15, page 77 (1958).
3

i . Id at para 17. page 772.

4. Id at paras 19, 20, page 773. .

5. Forty First Report of the Law Foniniission. para l8.26. page 152.
(1969).

6. Fourth Report of the Natl'on~al Police C0mrz1iss'ion.. para 29.6, page
24 (I980).

7. Id at para 29.7, page 24.
8.4Id at para 29.12. page 25.

9. Id at para 29.17, page 24-25.
10. (1984) 4 SCC 532.

ll. 1984 Cri. LJ. 499 (Ker) at 502.

CHAPTER [V
LAW OF ARREST

1. Arrest entails deprivation of a «pcrson's liberty by legal authority or at
least by apparent legal authority. In a democratic country such as ours. the Coiis-
titution and laws value personal liberty of every individual and contain provi-
sions for safeguarding it. The right to personal liberty is a basic human right
recognised by the Universal Declaration of Human Rights, 1948 and the liiter-
national Government on Civil and Political Rights. l966 which India has ratiﬁed.
Furthermore. the Constitution of India recognises it: as a fundamental right in
Article 2] thus: "No person shall be deprived of his life or personal liberty except
according to procedure established by law". In Man=eka' Gandhi v. l/nirm of
lnditr,' the Supreme Court has interpreted that the procedure under this Article
must be "right. just and fair" and not arbitrary. fanciful or oppressive.

2. The provisions relating to arrest with or without warrant and the riglits
of arrested persons are incorporated in sections 41 to 60 of the Code of Criminal
Procedure. Section 41 speciﬁes the various categories of persons whom any police
officer may arrest without warrant or an order from a magistrate. Out of this.
the most important category is found in sub-clause (a) of clause (1) which refers
to any person "who has been concerned in any cognizablc offence. or against whom
a reasonable complaint has been made, or credible information has been received.
or a reasonable suspicion exists, of his having been so concerned."

3. One of the compelling issues in the sphere of the law of arrests is how
to balance the protection of human rights to personal liberty consistent with the
society's interest in crime detection and maintenance of law and order in civil
society. As pointed out very pertinently by the Supreme Court in Jogirider K umar

v. State of U.P.'"':

"The horizon of human rights is expanding. At the same time.' the crime
rate is also increasing...The law of arrest is one of balancing individual
rights, liberties and privileges, on the one hand. and individual duties,
obligations and responsibilities on the others. of weighing and balanc-
ing the rights, liberties and privileges of the' single individual and those
of individuals collectively; of simply deciding what is wanted and where
to put the weight and the emphasis, of deciding which comes t"irst--~--

the criminal or society the law violator or the law abider..."

4. The National Police Commission had observed in its Third Report
that the power of arrest is one of the sources of police corruption. As a result of
-the sample study made of the quality of arrests made in one State during the
three year period 1974-1976, the Commissioin observed 2

"It is obvious that a major portion of the arrests were connected with very
minor prosecutions and cannot, therefore, be regarded as necessary
from the point of view of crime prevention. Continued detention in
jail of the persons so arrested has also meant avoidable expenditure
on their maintenance. In the above period, it was estimated that 43.2
per cent of the expenditure in the connected jails was over such persons
only who in the ultimate analysis need not have been arrested at all."

5. The National Police Commission had recommended the following guide-
lines for making arrests.' An arrest during the investigation of a cognisable case
may be considered justiﬁed in one or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery. rape.
etc. and it is necessary to arrest the accused and bring his movements
under restraint to infuse conﬁdence among the terror stricken victims.

(ii) The accused is likely to abscond and evade the processesvof law.

(iii) The accused is given to violent behaviour and is likely to commit
further offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he its
likely to commit similar offences again.

lit would be desirable to insist through departmental instructions, that a
police officer making an arrest should also record in the case diary the reasons
for making the arrest, thereby clarifying his conformity to the specified guidelines.

6.1 The Supreme ('ourt in Jogiritler Kimzm".s- case laid down some guide-
lines regarding the power of arrest by the police. The Court referred to the
Report of Sir Cyril Phillips Committee"--Report of the Royal Commission on
Criminal Procedure (Command Papers 802 1981) wherein the following sugges-
tion was made:'

"To help to reduce the use of arrest we would also propose the introduc-
tion here of a scheme that is used in Ontario [Canada] enabling a
police officer to issue what is called on appearance notice. That pro-
cedure can be used to obtain attendance at the police station without
resorting to arrest provided a power to arrest exists, for example to be
lingerprinted or to participate in an identification parade. It would
also be extended to attendance for interview at a time convenient both
to the suspect and to the police ollicer investigating the case."

6.2 The Supreme Court also referred to Section 56(l) of the Police and
Criminal Evidence Act. 1984 in the United Kingdom which provides:"

"Where a person has been arrested and is being held in custody in a police
station or other premises, he shall be entitled. if he so requests, to
have one friend or relative or other person who is known to him or
who is likely to take an interest in his welfare told. as soon as is
practicable, except to the extent that delay is permitted by this section.
that he has been arrested and is being detained there."

63 The Court referred to the Royal Commission's Enunciation of Guide-
lines as follows:'

"We recommend that detention upon arrest for an offence should continues
only on one or more of the following criteria :

(a) the person's unwillingness to identify himself so that a summons
may be served upon him;

(b) the need to prevent the continuation or repetition of that offence:

(d) the need to secure or preserve evidence of or relating to that
offence or to obtain 'such' evidence from the suspect by question-
ing him; and

(e) the likelihood of the person failing to appear at court to answer
any charge made against him."

6.4 The Supreme Court after examining the law in England. proceeded to
lay down guidelines for making arrest. Balancing the need for arrest with the
right to personal liberty in Article 21 of the Constitution, the Court observed?

The existence of the power to arrest is one thing. The justification for the
exercise of it is quite another. The police oiﬁcer must be able to jus-
tify the arrest apart from his power ll() do so, It would be prudent
for a police officer in the interest of protection of the constitutional
rights of a citizen and perhaps in his own interest that no arrest should
be made without a reasonable satisfaction reached after some investi-
gation as to the genuineness and balm ﬁdes of a complaint and a
reasonable belief both as to the person's complicity and even so as to
the need to effect arrest. Denying a person of his liberty is a serious
matter... A person is not liable to arrest merely on the suspicion of
complicity in an offence. There must be some reasonable justification
in the opinion of the officer effecting the arrest that such arrest is
necessary and justiﬁed. Except in heinous offences. an arrest must
be avoided if a police officer issues notice to person to attend the
Station House and not to leave station without permission would do.

6.5. The Court formulated the following requirements for effective protec-
tion of Fundamental Rights of Articles 2] and 22(1):"

''(I) An arrested person being held in custody is entitled. if he so requests
to have one friend relative or other person who is known to him or
likely to take an interest in his welfare told as far as is practicable
that he has been arrested and where is being detained.

(2) The police officer shall inform the arrested person when he is brought
to the police station of this right.

(34) An entry shall be required to be made' in the diary as to who was
informed of the arrest. These protections from power must bc held
to flow from Articles 2] and Zltll and enforced strictly."

6.6. The Court also laid down that it shall be the duty of the magistrate
before whom the arrested person is produced, to satisfy himself that the require-
ments have been complied with.

7.]. The Law Commission in its One Hundred and Fifty Second Report
on (.7u.smdia'I Crimes 11994) has recommended the insertion of two sections.
namely. that in S. 41 after sub-section (I), the following new sub-section (IA)
be inserted":

"'4l(lA) A police officer arresting a person under clause (21) of sub-sec-
tion (I) of this section must be reasonably satisﬁed. and muﬁt
record such satisfaction, relating to the following matters;

la) the complaint. information or suspicion referred to in that
clause, is not only in respect of a cognizable Offence having
been committed, 'but also in respect of the complicity of the
person to be arrested, in that offence:

(b) arrest is necessary in order to bring the movements of the per-
son to be arrested under restraint, so as to inspire a sense of
security in the public or to prevent the person to be arrested
from evading the process of the law or to prevent him from
committing similar offences or from indulging in violent -
haviour in general." }

7.2. A further suggestion to incorporate a new section 41A on the basis
of the Supreme Court's decision in Jagintder Kmnnfs case was made."

_ "4lA. N0t'ice of appearance---Where the ease falls under clause (a) of
sub-section (1) of section 41. the police officer may, instead Of
arresting the person concerned, issue to him a notice of appearance
requiring him to appear before the police officer issuing the notice
or at such other place as may be speciﬁed in the notice and to Co-
operate with the police officer in the investigation of the offence
referred to, in clause (a) of sub-section (1) of section 41.

(2) Where such a notice is issued to any person, it shall be the duty of
that person to comply with the terms of that notice.

(3) Where such person complies and continues to comply with the notice,
he shall not be arrested in respect of the offence referred to in the
notice unless, for reasons to be recorded, the police is of the
opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of
the notice, it shall be lawful for the police officer to arrest him
for the offence mentioned in the notice, subject to such orders as
may have been passed in this behalf by a competent c0urt."'

8.1 The Law Commission of India in its 135th Report on "Women in
(,'u.smdy" the following recommendations regarding the arrest of women:

/4508. Arrest of women.-(i) Where a woman is to be arrested under

this Code. then unless the circumstances indicate to the contrary.
her - submission to custody on an oral mtimation of arrest shall be
presumed, and unless the circumstances otherwise require or unless

I5,

thc= police oﬂicer arresting is a lemale, the police officer shall not
m~mu[I_y mm,/1 the /)w.tr=n of NH' immun for m(lkIn,i,' her ur'L;e.sr.
(See para 2.2).

(2) Except in unavoidable circumstances. no woman shall be arrested

" after sun.wr and before .iL1rIri.w. and where such unavoidable cir-
cumstances exist. the police otlicer shall. by making a written
report. obtain the prior permission of the immediate superior
ollicer not below the rank. of an inspector for effecting such arrest Or.
if //II' ('I \e is (JHU of e.\:'r('me urgemy. he shall, after making the
arrest, /oizilmm re/ml the mailer in writing to hlzls such immedia-.tc
mperiur trfficc/'. with the reasons for arrest and the reasons for not
taking prior permission as aforesaid and shall also make a similar
report to the Magistrate within whose legal jurisdiction the arrest
has been made." (See para 2.3). i:

'l he itloresaid recontmendation has been adopted as sub-section (4) of

l section 46 in clause 7 of the I994 Bill in the following manner:

t"'{4) Save in exceptional circumstances, no woman shall be arrested after
sunset and before sunrise and where such exceptional circumstances
exist, the police oﬂicer shall, by making a written report, obtain
the prior permission of his immediate superior ofﬁcer l'or cllccting
such arrest or, if the case is one of extreme urgency and such prior
permission cannot be obtained before making such arrest, he shall.
after making the arrest. forthwith report the matter in writing to
his immediate superior oﬂicer explaining the urgency and the rea-
sons ioi not taking prior permission as aforesaid and shall also
make a report to the Magistrate within whose local jurisdiction the
arrest had been made." it .

' We reiterate this recommendation.

iii. '_V'8.2. We suggest the following amendments to Section 46- of the Code of
Criminal Procedure: 4

"In the light of the discussion in the preceding para,' proviso (b) on the
following lines be added to sub-section (I) of section 46 in the
following manner: . _

1 as 'Provided that where a woman is to be; arrested then, unless the

' ' circumstances indicate to the contrary. her submission to cus-
tody on an oral intimation, arrest shall be presumed and.
unless the circumstances otherwise require or unless the police
oﬂicer arresting is a female the police oﬂicer shall not actually
touch the person of the woman for making her arrest.' " '

8.3. We also suggest that the following new sub-section (2) be inserted
in section 46 in the following manner: '

"(2) Save in exceptional circumstances, no woman shall be arrested after
sunset and before sunrise, and where such exceptional circumstan-
ces exist, the police ofﬁcer shall, by making a written report,
obtain the prior permission of his immediate superior oﬂicer for
ctlecting such arrest, or if the case is one of 'extreme urgency and
such prior permission cannot be obtained before making such arrest,
he shall, after making the arrest, forthwith report the matter in
writing to his immediate superior olﬁcer explaining the urgency and
the reasons for not taking prior permission as aforesaid and shall
also make a report to the Magistrate within whose local jurisdiction
the arrest had been made."

as provided in Clause 7 of the 1994 Bill.

8.4. In view of above proposed changes, the other existing sub-sections
be re--numbered.

port on (fustottial Criiitea

-- 9. lite' law (Ti-'viiiiiii\'.-it'iii: til'. littlizi in its" .l52tt<l RC
tion 50 in lhefotle Of

iecoitiniencled that a new section 50/\ be inserted after sec
Criminal Procedure. I973 on the following lines:

50A. (l) whenever a person is arrested by a police ollicer, intimation Of
the arrest shall be immediately sent by the police ofﬁcer (along
with intimation about the place of detention) to the following

person:
, la) a relative or friend or other person known to the arrested

person. as may be nominated by the arrested person:
lb) failing (a) above. the local legal aid committee.

'(2) Such intimation shall be sent by telegram Or telephone. as may be
convenient, and the fact that such intimation has been sent shall
be recorded by the police officer under the signature of the arrested

person.

'(3) The police olficer shall prepare a custody memo and body receipt of
the person arrested, duly signed by him and by two witnesses of
the locality where the arrest has been made. and deliver the same
to a relative of the person arrested, if he is present at the time Of
arrest or, in his absence. send the same along with the intimation
of arrest to the person mentioned in (I) above.

(4) The custody memo referred to in (3) above shall con-tain the following
A particulars: ' ' - '
fi) name of the person arrested and fathers nameor husband's
name;

(ii) address ol' the person arrested:
(iii) date. time and place of arrest;
(iv) offence for which the arrest has been made:

(v) property, if any, recovered from the person arrested and
taken into charge at the time of the arrest; and '

(vi) any bodily injury which may be apparent at the time of arrest.

(5). During the interrogation of an arrested person, his legal practitioner
shall be allowed to remain present.

(6) The police otﬁcer shall inform the person arrested, as soon as he is
brought to the police station. of the contents of this section and
shall make an entry in the police diary about the following facts:

ON'

(a) the person who was informed of, the arrest;,

(b) the facts that the person arrested has been informed of the
contents of this section; and

Ic) the fact that a custody memo has been prepared, as required
by this section.}'''

I0. The Law Commission of India in its l52nd Repoiit on Custodial
(T 'ines recoiiimeiided that Section 57A be inserted in the Code of Criminal
Procedure, 1973 on the following lines:

"57A. Ditty of A/lagi's'rale to verify (pi-lair: farts.

When a person arrested without warrant is produced before the Magistrate,
the Magistrate shall. by inquiries to be made from the arrested
person. satisfy himsell' that the provisions of sections... have been
complied with (sections relating to safeguards in connection with
arrest, rights on arrest, etc. to be entered) and also inquire
about, and record, the date and time of arrest.' 1'

-- 11. In \ie\\ of the gmildeliites cnunviaterl h_\' the 51J['!'€II1C ("m.11't in
.lU_ginder KI4In('tr',\ case and also the consequent recommendations of the Law
('onunission in its l52nd Report the following new sub--clause to section 4| be
inserted in the Code:

"41(3). A police officer arresting a person under clause (a) of sub-sec-
tion (l) of this section must be reasonably satisﬁed that arrest is
necessary and must record such satisfaction in respect of matters
covered every clause of sub-secti0n(l)."i

Further a new section 41A be also inserted in the Code on the following
lines:

"'4lAtl). The police ofﬁcer may, if satisﬁed that immediate arrest of
the person concerned is not necessary. issue to him a notice requir-
ing him to appear before the police otﬁcer at speciﬁed time and
place for further investigation and it shall be the duty of that person
to comply with the terms of the notice.

(2) if such person fails to comply with the terms of the notice. it shall
be lawful for the police oﬂicer to arrest him for the offence men--
tioned there.in."': (Ch. IV para ll)

Foorxorns
1. AIR 1978 SC 597.
2- (,'rimes l994 (2) 106 at 107.
3. Third R(.'p0rt Of the National Police (,'0:rz/Itissivrt, para 22.23,
pages 30-31 H980).
4. Id at 32.
'5'. Supra note 2 at llt).
6. Id at lll.
7. Id at I09-I10.
8. Id at H0.
9. Id at lll.

. It'). See l52nd Report on "Custodi;tl (Trimes". paras l4.4.-14.0, pages
165-167 (I994) (Unpublishecll.

ll. Ibid.

I2. See 135th Report on "Women in Custody", page 33 (I989).
I3. See note 10, para 14.7 pages I67-169 (1994).

I4. See note 10, para 14.9, page 172 (1994).

CHAPTER V

CUSTODY, RI-LVIAND AND CHANGES IN SECTION 167(2)

1. In the Central Bureau of Iuvestiga-zirm Special lnvestigrrtivn Cell-1.
New Del/ii v. Ann/mun J. Is;'uIkt.»'.rm". the Supreme Court held that under the
proviso to Section 167(2) of the Code, the police custody can be only during
the first l5 days of the remand and not later. It was generally felt in all the
Workshops that such limitation would cause practical ditiiculties in carrying
out investigation in some cases. In VlCW of this, we suggest that it should
be permissible for the prosecution to seek police custody during the period of
remand at any time if a need arises. However. the total remand of police
custody should not exceed 15 days.

2. Of late, it has been a matter of common knowledge that invcnﬁgation
of many important cases is entrusted to CBI by the appropriate Government
after great delay. Consequently, the CBI has been experiencing considerable
ditiiculties in obtaining the police custody even if it became absolutely necessary.
There may be cases where the original investigating agency might have obtained
police custody upto 15 days or considerable part of the period. In such a
situation. the CBI is very much handicapped. After having considered the
various views and keeping in view the present scenario and the types of otlences
coming to light, it is necessary to see that the investigation by CBI is effective
and meariingful. For this purpose. obtaining of the fresh police custody by
CBI becomes absolutely necessary. Therefore, we are of the view that a
provision should he made for a fresh police custody if sought by the CBI but
it should not exceed 15 days on the whole. Accordingly, section l67(2) be
amended in the following manner:

The Magistrate to whom an accused person is f0rwarded under this
section may. whether he has or has not jurisdiction to try the case,
from time to time, authorise the detention of the accused for a
term not exceeding fifteen days at a time but the total period shall
not exceed (i) ninety (lays. where the investigation relates to an
olfence punishable with death, imprisonment for life or imprison-
ment tor a term not less than ten years, (ii) sixty days, where the
investigation relates to any other otlence.

2(b) During such custody the. Magistrate if he thinks ﬁt, may authorise
the detention of the accused person in custody of the police for a
total number of 15 days on the wholew

Provided that if the investigation is transferred to Delhi Special Police
Establishment, a Magistrate may also authorise detention of accused for another
15 days on the whole irrespective of the earlier period of police custody, on
being satistied with the reasons necessitating such cust0dy mentioned by investi-

gating otiiccr of Delhi Special Police Establishment, after recording reasons.

On the expiry of the said period of ninety days, or sixty days, as the
case may be. the accused person shall be released on bail if he is prepared
to and does furnish bail, and every person released on bail under this sub-
section shall be deemed to be so released under the provisions of Chapter
XXXIII for the purposes of that Chapter:

2(c) No Magistrate shall authorise detention in any custody under this
section unless the accused is produced before him:

21d) No iVlag_ist1'ate of the second class, not specially empowered in Int:
behalf by the High Court, shall authorise detention in the custody
of the police.

19
4--1 M eff. Q J!ND;'97

lhplunation I.~*For the avoidance of doubts. it is hereby declared that.
notwithstanding the expiry of the period speciﬁed in paragraph (a), the accused
sfiail be detained in custody so long as he does not furnish bail.

Explanation lI.--If any question arises whether an accused person was
produced before the Magistrate as required untier paragraph (c), the production
of the accused person may be proved by his signature on the order authorising
detention.

FoarNOTE

1. (1992) 3 SCC 141.

CHAPTER V1

BAIL, ANTICIPATORY BAIL AND SURETIES

1. The Law relating to bail is contained in sections 436 to 450 of
chapter XXXIII of the Code of Criminal Procedure, 1973.

2. The law of bails, which constitutes an important branch of the pi'occ~--
dural law dovetails two conﬂjcting interests namely, on the one lltllltl, the
requirements of shielding the society from the hazards of those coniinittiiig
crimes and on the other, the fundamental principle of criminal jurispiudcmcc.
namely, the presumption of innocence of an accused till he is found guilty.'

3. With a view to fulﬁlling the above objectives, the legislature has
provided directions for granting or refusing bail. Where law allows tllscrtitlvll
in the grant of bail, it is to be exercised according to the guidelines provided
therein; further the courts have evolved certain norms for the proper exercise
of such discretion.

4. Though the Code of Criminal Procedure has not deﬁned bail, the
team "bailable. offence" and "non-bailable offence" have been defined.' Bail in
eelence means security for the appearance of the accused person on giving winch
he is released pending investigation or trial. The Supreme Court in Mozi RLi'"
v. State of M.P." has held that bail covers both release on one's own bond, Wllll
or without securities.

5. The Code has classiﬁed all offences into "bailable" and "non~bailablc"
oﬂences- Under S. 2(a) "bailabie oﬁfence" means an offence which is listed as
bailable in the First Schedule or which is made bailable by any other law to;
the time being in force and "non-bailable offence" means any other otlence.
The Code has not provided any criteria to determine whether any particular
oﬁence is bailable or non-bailable. It depends on whether it has been shown
atbailable or non-bailable in the First Schedule. An examination of the pro-
visions of the Schedule would reveal that the basis of the classiﬁcation is b.I.sc'.l
on divergent considerations. However, the gravity of the oflciices, nani.iy,
'offences punishable with imprisonment for three years or more have becn
treated as no-n-bailable offences. But this is not a hard and fast rule. lherc

are exceptions to the same.

6. A person accused of a bailable oﬁence is entitled to be released on
bail as a matter of right if he is arrested or detained without warrant. But it
the offence is non-bai.able, depending upon the facts and circumstances or the
case, the court may grant bail on its discretion. The scope of discretion varies
in inverse proportion to the gravity of the crime. The courts have formulated
the following guidelines for grant of bail in non-bailable offences:

(i) the enormity of the charge;

(ii) the nature of the accusation;

(iii) the severity of the punishment which the conviction will entail;
(iv) the nature of the evidence in support of the accusation;

(v) the danger of the accused person absconding if he is released on
bail;
(vi) the danger of witnesses being tampered with;
(vii) the protracted nature of the trial;

(viii) opportunity to the applicant for preparation of his defence and
access to his counsel;

(ix) the health, age and sex of the accused;

(X) the nature and gravity of the circumstances in which the offence" is
committed;

(xi) the position and status of the accused with t'elct'encc to the victim
and the witnesses and

(xii) the probability of accused committing more offences it' released on
bail, etc.

7. These considerations are by no means exhaustive. factors such as
previous convictions, criminal records of the accused and the possibility of the
accused committing offences if enlarged on bail are also taken into account
while deciding the question of bail.'

8.1. Does the bail system discriminate against the poor'?

8.2. On this question, the Report of the Legal >Aitl Committee appointed'

by the Government of Gujarat. in l97l has commented on the bail system
thus": '
The bail system causes discrimination against the poor since the poor
would not be able to lurnish bail on account of their poverty while
the wealthier persons otherwise similarly situate would be able to
secure their freedom because they can aﬁord to furnish ball. This dis-
crimination arises even if the amount of the bail fixed by the Magis-
trate is not high, for a large ma'jorit'y 'of those who' are twotigltt before
the Courts in criminal cases are so poor that they would find it ("ill-

cult to furnish bail even in a small amount.

The evil of the bail system is that either the poor accused has to fall
back on touts and professionai sureties for providing ball or sulfer
pre--trial detention. Both these consequences are fraught with great
hardship to the poor. in one case the poor accused is ﬂeeced of
his moneys by touts and professional sureties and sometimes has
even to incur debts to make payment to them for securing his
release; in the other he is deprived of his liberty without trial and
conviction and this leads to grave consequences, name y; (I) though
presumed innocent he is subjected toethe psychological and physi-
cal deprivatious of free life; (2) he loses his job, if he has one, and
is deprived of an opportunity to work to support himself and his
family with the result that burden of his detention falls heavily on
the innocent members of the family, (3) he is prevented from con-
tributing to the preparation of his defence; and (4) the public ex-
chequer has to bear the cost of maintaining him -in the jail.

8.3. Subsequenfy, a Central Committee on Legal Aid reported in
similar vein":

...[w]e think that a liberal police oi conditional release without monetary
surcties or ﬁnancial security and release on one's own recognizance
with punishment provided for violation will go a long way to re-
form the bail system and help the weaker and poorer sections of
the community to get equal justice under law. Conditional release
may take the form of entrusting -the accused to the care of his rela-
tives or releasing him on supervision. The court or the authority
granting bail may have to use the discretion judiciously. When the
accused is too poor to ﬁnd suretics, there will be no point in insis-
ting on his furnishing bail with sureties, as it will only compel him
to be in custody with the consequent handicaps in making his
defence."

8.4.111 o:der to eliminate the discrimination against the poor and the
indigent accused in the grant of bail for bailable offences, Clause 40 of the
Criminal Procedure Amendment Bill, 1994 seeks to amend section 436 of the
Code to make a mandatory provision that if the arrested persons accused of
I bailable offence is an indigent and cannot furnish security, the court shall
release him on his execution of a bond without sureties. The amendment is
as follows:

In section 436, in sub-section (_l}--»

ta) in tile first proviso, for the words "may, instead of taking bail," the
words "may, and shall, if such person is indigent and is unable to
furnish security". shal be substituted:

(1)) after the first proviso the following ljxplanation shall be inserted:

Explanation: Where a person is unable to give bail within a week of
the date of his arrest, it shall be sufficient ground for the oilicer
or the court to presume that he is an indigent person for the pur-
poses of the priviso.

8.5. The C0ll1l11lSSlOl1 reconimends the amendments referred to above as
they are consistent with tl1e Supreme Court's pronouncements and juristic opin-

ion that poor accused committing bailable offences should not be denied bail '

on the basis of indigency.

Pre-trial Detention:

9. The purpose of pre-trial detention is not punishment. A survey of
decided cases reveals that the law favours release of accused on bail, which
is the rule, and refusal is the exception'.

9.1 '1 he plight of undertrial prisoners was vividly brought out in Hus
sainara Klmtuun I v. Home Secretary." The case disclosed a dismal state of
affairs in the State of Bihar in regard to administration of criminal justice.
Hordes of men and women un-dertrial were languishing in Bihar jails for
periods ranging from three to ten years without the commencement of trials.
fhey were in jails for much longer periods than they would have been had
they been found guilty and sentenced after trial. They were in jails not be-
cause they were found guilty but were too poor to afford bail and the trials
did no-t commence. In this context the following observations of P.N. Bhagwati
J.. (as he then was) are apposite".

"One reason why our legal and judicial system continually denies justice
to the poor by keeping them for long years in pre-trial detention
is our highly unsatisfactory bail system. it suffers from property
oriented approach which seems to proceed on the erroneous assum-
ption that risk of monetary loss is the only deterrent against ﬂeeing
from justice. The Code of Criminal Procedure, even after its re-
enactment, continues to adopt the same antiquated approach as the
earlier Code enacted towards the end of the last century and where
an accused is to be released on his persona». bond, it insists that
the bond should contain a monetary obligation. requiring the accu-
sed to pay a sum of money in case, he fails to appear at the trial.
Moreover, as if this were not suﬂicient deterrent to the poor, the
courts mechanically and as a matter of course insist that the accu-
sed should produce sureties who will stand bail for him and these
sureties must again establish their solvency to be able to pay up
the amount of the bail in case the accused fails to appear to answer
the charge. This system of bails operates very harshly against the
poor and it is only the non--poor who are able to take advantage
of it by getting themselves released on bail. The poor ﬁnd it dim.
cult to furnish bail even without sureties. because very often the
amount of the bail ﬁxed by the court is so unrealistically excessive
that in a majority of cases the poor are unable to satisfy the police
or the magistrate about their solvency for the amount of the bail
and where the bail is with sureties as is usually the case, it becomes
an almost impossible task for the poor to ﬁnd persons sufﬁciently
solvent to stand as sureties. The result is that either they are
fieeced by the police and revenue oﬂicials or by touts and pro-
fessional sureties and sometimes they have even to incur debts for
securing their release or, being unable to obtain release. they have
to remain in jail until such time as the court is able to take up
their cases for trial, leading to grave cmtseqttenccs." '

It is high time that our Parliament realises that risk of monetary
loss is not the only deterrent against ﬂeeing from justice, but there
are also other factors which act as equal deterrents against ﬂeeing
. . . . . . . ..Parliament would do well to consider whether..... ...considera-
tions such as family ties, roots in the community. job security,
membership of stable organisations etc., should be the determinative
factors in grant of bail and the accused should in appropriate cases
be released on his personal bond without monetary obligation.
Of course, it may be necessary in such a case to provide
by an amendment of the pena. law that if the accused wilfully fails
to appear in compliance with the promise contained in his per-
sonal bond, he shall be liable to penal action. But even under
the law as it stands today the courts must abandon the antiquated
concept under which pre-trial release is. ordered only against bail
with sureties.

9.2. R.S. Pathak J. (as he then was) opined that there should be a clear
provision in the Code of Criminal Procedure which enables the release, in
appropriate cases, of an undertrial prisoner on his bond without surcties and
without any monetary obligation.

9.3. The first Husmzirzara decision was followed by orders passed by
the Supreme Court" from time to time furnishing guidelines for release of under-
trials languishing in jails for want of expeditious disposal of pending cases. In
Hussaina-ra Khatc/on VII" a criminal miscellaneous petition was filed seeking
general orders on the basis of guidelines already issued by the court, namely
tor undertaking an inquiry for setting up of additional courts in every state,
providing investigating agencies with more experts, simplifying the procedure
for sanction of prosecution, strict compliance with s. 167 of the Code, circula-
tion of guidelines to the courts in states and revision of categories of undertrials
in Bihar jails. The Supreme Court, while refraining from issuing general
orders, observed:

The enforcement of the guildelines by the subordinate courts functioning
in different states should now be the responsibility of the different
High Courts . . . . ..General orders for release of under-trials without
reference to speciﬁc fact situations in different cases may prove to
to be hazardous. While_there can be no doubt that undertrial pri-
soners should not languish in jail on account of refusal to enlarge
them on bail for want of their capacity to furnish bai. with monetary
obligations, these are matters which have to be dealt with on case-
to-case basis keeping in mind the guidelines laid down by this court
.... ..General orders in regard to judge strength of subordinate judi-
ciary in each State must be attended to, and its functioning overseen,
by the High Court of the State ......................... ..Withdrawal of
cases from time to time may not always be an appropriate and acce-
ptable remedy, but what is required is to evolve a mechanism which
would enable early disposal of cases."

9.4. In a public interest litigation case on the undertrials in Tihar Jail,
Delhi, National Capital Territory. the Supreme Court in R.D. Uprtd/ryay v_ Stan;
of And/rm Frades/1"' issued, speciﬁc directions for expediting the trial of under-
trials accused of serious oifences as murder, attempt to murder etc. under I.P.C.,
Arms Act, Customs Act. Narcotic Drugs and Psychotropic Substances
Act., Oﬂicial Secrets Act, Extradition Act, Terrorist and Disruptive
Activities Act and Dowry Prohibition Act. The Court also issued dir-
ections for release on bail without the necessity of application for bail in cases
where undertrials are charged with attempt to murder under IPC and cases have
been pending for more than two years. In cases where undertrials are charged
with the offences of kidnapping, theft. cheating, counterfeiting, rioting,
hurt, grievous hurt or under the Arms Act, Customs Act if they have been in
detention for more than one year, they should be released on bail without an
application of bail.

9.5. To prevent the undertrial prisoners from languishing in jails for
periods longer than the period of maximum period of imprisonment for the

to
'J:

alleged offence, clause 41 of the Code. of Criminal Procedure (Amendment) Bill
proposes to insert .1 new section 436/\ on the following ittcs.

S. 436/~\ where a person has. during the period of investigation, inquiry
or trial under this Code of an offence under any law(not being on offence
for which the punishment of death has been speciﬁed as one of the
punishments under that law) unclergone detention for a period ex-
tending up to one-half of the maximum period of imprisonment speci-
ﬁed for that offence under that law, he shall be released by the Court
on his personal bond with or without sureties:

Provided that the Court may, after hearing the Public Prosecutor and for
reasons to be recorded by it in writing. extend the period of deten~
-- lion oi' sucli person for a longer period longer than one-half of the
said period. or release him on bail instead of the personal bond
with or without sureties.

Provided further that no such person shall in any case be detained dur-
ing the period of investigation. inquiry or trial for more than the
maximum period of imprisonment provided for the said ofTence
under that law;

Iixplmmtio/t.------~ln computing the period of detention under this section
for granting bail the period of detention passed due to delay in proceeding
caused by the accused shall be excluded.

!0. Section 436/\ be inserted in the Code as a protection for undertrial
prisoners accused of non-capital offences and release on bail as contained in
Clause 41 of the Code of Criminal Procedure (Amendment) Bill except the
words "instead of the personal bond with or without sureties." occurring in
proviso to Clause 41 of the Bill be omitted.

10.1 Section 437 deals with grant of bail in respect of non-bailable and
cognizable offences. Clause 42 of the Criminal Procedure Code (Amendment)
Bill seeks to amend section 437 to provide that if' a person commits a cogni-
zable offence and he has previously been convicted on two or more occasions
of a cognizable ~oﬂ"cnce punishable with imprisonment not less than three years,
he shall not be released except in the circumstances speciﬁed in the provision.

10.2 It is further provided in the Bill that if an accused appears before
the Court while in juidicial custody and prays for bail, or a prayer for bail is made
on his behalf. the Court shall grant bail only after giving an opportunity of
hearing to the prosecution. if the alleged offence committed by the accused is
punishable with death. imprisonment for life or imprisonment for not less than
seven years.

103 Under the present sub-section (3) of section 437 of the Code, the
court has the discretion to impose certain conditions for the grant of bail.
Where conditions are thus imposed. the bond executed under section 441(2)
shall incorporate those conditions.

ll. ln order to imtke the provision under section 437 more stringent and
ensure that the accused released on bail does not interfere or intimidate the
witnesses, Section 437 be amended as provided under c'ause 42 of the Code of
Criminal Procedure (Amendment) Bill. 1994:

In section 437 of the principal Act. (i) in sub-section (1),

ta) in clause (ii). for the word "a non-bailable and cognizable offence",
the words "a cognizable offence punishable with imprisonment for
not less than three years" shall be substituted:

(bi after the third proxiso, the following p1'o\'iso shit'! be inserted,
nntnelv.

"Provided also that no person shall. if the offence alleged to have
been committed by him is ptllllslldbic with death. imprison-
ment for life or imprisonment for seven years or more be re-
leased on bail by the Court under this sub-section without
giving an opportunity of hearing to the Public Prosecutor."

(ii) in :ub--scCtion (3) for the portion beginning with the words -.L"1lic
Court may impose" and ending with the words "the interests of
Justice", the folowing shall be substituted, namely: i

"the Court shall impose the conditions,----~

(a) that such person shall attend in accordance with the conditions
of the bond executed under this Chapter,

tb) that such person shall not directly or indirectly make any in-
ducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him from, disclosing such
facts to the Court or to any police oiﬁcer or tamper with the
evidence and may also impose, in the interests of justice, such
other conditions as it considers necessary."

437 We recommended the adoption of the aforesaid amendments to section

12. The directions issued by the Supreme Court in Common Cause v.
Union of lmlia". namely: .

"l(a) Where the offences under l.P.C. or any other law for the time
being in force for which the accused are charged before any cri-
minal court are punishable with imprisonment not exceeding three
years with or withoutfﬁne and if tria's for 'such offences are pen-
ding for one year or more and the concerned' accused have not
been released on bail but are in jail for a period of six monthsﬂor
more, the concerned criminal court shall release the accused on bail
or on personal bond to be executed by the accused and subject' to
such conditions, if any, as may be found necessary, in the light of
Section 437 of the Criminal Procedure Code [Cr. P.C.].

l(b) Where the offences under I.P.C. or any other law, for tl1e_.titne
being in force for which the accused are charged before any cri-
minal court are punishab'e with imprisonment nzotexceeding five
years, with or without ﬁne, and if the trials for such offences are
Birding for two years or more and the concerned accused have not

11 released on bail but are in jail for a period of six months or
more, the concerned criminal court shall release the accused on bail
or on personal bond to be executed by the accused and subject to
the imposing of suitable conditions, if any. in the light of section 437
Cr. P.C.

l(c) Where the oﬁences under I.P.C. or any other law for the time being
in force for which the accused are charged before any criminal
court are punishable with seven years or less, with or without ﬁne.
and if the trials for such offences are pending for two years or more
and the concerned accused have not been released on bail but are
in jail for a period of one year or more, the concerned criminal
court shall release the accused on bail or on personal bond to be
executed by the accused and subject to imposing of suitable condi-
tions, if any. in the light of Section 437 Cr. P.C." '

are salutary in liberalising the grant of bail in respect of undertrial prisoners
where trials are pending and not concluded.

However the aforesaid directions should not be applicable in subsequent
oifences committed by the same offenders or against whom more than one case is
pending or when a person has been convicted for more than one case.

ANTTCIPATORY BAIL

13.1. Section 438 empowers the Sessions Court and the High Court to
grant anticipatory bail, namely a direction to release a person on bail even before
he is arrested». 7 i ' W * ' '

13.2 The Law Commission in its 41st Report _rec~on1mended the inlcorpora-~
tion of a provision on anticipatory bail. The Commission had observed":

The necessity for granting anticipatory bail arises mainly because some-
times inﬁuentia persons try to implicate their rivals in false cases for
the purpose of disgracing them or for other purposes by getting them
detained in jail for some days. In recent times. with the acccntuation
of political rivalry, this tendency is showing signs of steady increase.
Apart from false cases. where there are reasonable grounds for hold-
ing that a person accused of an offence is not likely to abscond. or
otherwise misuse his liberty while on bail. there seems no justification
to require him first to submit to custody. remain in prison for some
days and then apply for bail.

13.3 The Code of Criminal Procedure as amended in 1973 has incorpo-
rated the concept of grant of anticipatory bail in Section 438.

13.4 The Law Commission, in its 48th Report, gave vent to the impres-
sion that had gained ground in the interregnum about the misuse of the provi-
sion on grant of anticipatory bail in the following observations":

[l]n order to ensure that the provision is not put to abuse at (the instance
of unscrupulous petitioners. the ﬁnal order should be made only after
notice to the Public Prosecutor. The initial order should only be an
interim one. Further, the relevant section should make it clear that
the direction can be issued only for reasons to be recorded and if
the court is satisﬁed that such a direction is necessary in the interest
of justice.

It wi'l also be convenient to provide that notice of the interim order as
wellhas of the final orders will be given to the Superintendent of Police
fort with. , »

14-. Since the introduction of the provision of anticipatory bail under
section 438, its scope has been under judicial scrutiny. The leading case on
the subject is Gurhaksh Singh Sibbia v. Stare of Pzmjab." The Supreme Court,
reversing the Full Bench decision of the Punjab and Haryana High Court in
this case" which, had given a restricted in.teI'Pl'et1ati'on of the scope of section
438. held that in the context of Article 21 of the Constitution, any statutory
provision (s. 438) concerned with personal liberty could not be whittled down
by reading restrictions and limitations into it. The Court observed":

"Since denial 'of bail amounts to' deprivation of personal liberty, the
Court should lean against the imposition of unnecessary restrictions
on the scope of section 438, especially when no such restrictions
have been imposed by the legislature in the terms of that section".

The Court also held that the conditions subject to which the bail can be
granted under section 437(1) should not be read into section 438. While allow-
ing unfettered jurisdiction to the High. Court and the Count of Session, the Sup-
reme Court fondly. hoped that a convention may develop whereby the High
Court and the Court of Session would exercise their discretionary powers in
their wisdom. The Court laid down the following clariﬁcations on certain
points which had' given rise to' misgivings" :

(i) The person applying for anticipatory bail should have reason to
believe that he will be arrested. Mere 'fear' of arrest cannot amount
to 'reasonable belief'. '

(ii) The High Court and the Count of Session must apply their mind
with care and circumspection and determine whether the case for
anticipatory bail is made out or not.

(iii) Filing of FIR is not a condition precedent to the exercise of power
"under section 438. s '

(iv) Anticipatory bail can be granted even after the ﬁling of FIR.
(v) Section 438 cannot be applied after arrest. A S

' (vi) No blanket order of' anticipatory bail can be passed by any cam-t;
s-1 Mail. & 1/NDI97 's'

15. The working of Section 438 has been criticised in that it hampers
effective investigation of serious crimes, the accused misuse their freedom to
criminally intimidate and even assault the witnesses and tamper with valuable
evidence and that whereas the rich, inﬂuential and powerfitl accused resort to
it and the poor do not, owing to their indigent circumstances thus giving rise
to the feeling that some are "more equal than others" in the legal, process.

16. In View of the above circumstances, some state governments have
made local amendments to the Code of Criminal Procedure. Uttar Pradesh Le-
gislature has repealed section 438 by the Amending Act of 1976. West Bengal
Legislature enacted amendments in 1990 incorporating certain limitations on
the power to grant anticipatory bail. Those are : (ii Mere ﬁling of applica-
tion in the High Court or Court of Session for grant of anticipatory bail does
not debar the police from apprehending the offenders: (ii) 'the High Court or the
Court of Session be required to dispose of an application for anticipatory bail
within thirty days from the date of such application and (iii) in offences puni-
shable with death, imprisonment for life or imprisonment for a term not less
than 7 years, no ﬁnal order shall be made' without giving the state a minimum
of seven days' notice to present its case.

17. The Code of Criminal Procedure Amendment Bill in clause 43 seeks
to amend section 438. echoing the recommendations of the Law Commission
in its 48th Report and also -on some other grounds referred to above. in the
following manner 2

"In section 438 of the principal Act for sub-section (1), the following
sub-sections shall be substituted, namely :

(1) Where any person has reason to believe that he may be arrested
on accusation of having committed a non-bailable offence, he
may apply to the High Court or the Court of Session for a
direction under this section tliat in the event of such arrest, he
shall be released on bail; and that Court may, after taking
into considera-tion, inter alia, the following factors, namely:

(i) the nature and gravity of the accusation:

8 (ii) the antecedents of the applicant including the fact as to whe-
ther he has previously undergone imprisonment on conviction
by a Court in respect of any cognizable offence:

(iii) the possibility of the applicant to ﬂee from justice: and

(iv) where the accusation has been made with the objection of in-
juring or humiliating the applicant by having him so arrested.

either reject the application forthwith or issue an interim order for
the grant of anticipaitory bail:

Provided that, where the High Count or, as -the case may be, the Court
of Session, has not passed any interim order under this subsection
or has rejected the application for grant of anticipatory bail, it shall
be open 'to an oﬂicer-in-charge of a police station to arrest, without
warrant the applicant, it' there are reasonable grounds for such arrest.

(IA) Where the Court grants an interim order under sub-section '(1),
it shall forthwith cause a notice being not less than seven days no-
tice, together with a copy of such. order to be served on the Public
Prosecutor and the Superintieindent of Police, with a view to give
the Public Prosecutor a reasonable opportunity of being heard when
the application shall be finally heard by the Court.

»(1B) The presence of the applicant seeking anticipatory bail shall be
obligatory at the time of ﬁnal hearing of the application and passing

of ﬁnal order by the Court, if on an application made to it by the
Public Prosecutor, the Court considers such presence necessary in the
interest of justice."

]8._In the various workshops diverse views were expressed regarding
the retention 'or deletion of the provision of anticipatory bail. One view is that
1!-3,18: being misused by afﬂucnt and inﬂuential sections of accused in society and

hence be deleted from the Code. The other view is that it is a salutary provi-
sion to safeguard the personal liberty and therefore be retained. Misuse of the
same in some instances by itself cannot be a ground for its deletion. However,
some restraints may be imposed in order to minimise such misuse. We are,
however, of the opinion that the provision contained under section 438 regard-
ing anticipatory bzail should remain in the Code bu.t subject to the amendments
suggested in clause 43 of the Code of Criminal Procedure (Amendment) Bill,
1994 which lays down adequate safeguards. A

SURETIES

19.1 The ball procedure is becoming a shame in courts with the accused
in criminal cases abscondmg after arranging fake sureties on fake identities and

address. Accordingly the procedure of securing release on the basis of forged

documents. has become easy.

19.2 in Delhi the practice seems to be that when the court allows ac-
cuscd's release on bail after a local person is willing to stand surety, the gua-
rantor has to produce documents to the Court to prove his domicile and sol~
v-ency. This is done by producing a ration card or a passport. in addition, a
power-of-attorney attested by a Notary Public, a motor vehicle registration docu-
ment, a bank ﬁxed deposit receip=t or a certiﬁcate from the Income Tax Depart-
ment is required to be submitted to authenticate the guarantors solvency.

19.3 There are touts operating in the Court permises, who help out, on
a price tag, those accused who scheme to obtain bail with the idea of abscond-
ing. These touts give surety on the basis of fake identity. They operate with
numerous fake ration cards which substantiate their domicile in Delhi each in
a rdiﬁerent name and address. A back dated stamp paper is procured on which
details regarding the power-of-attorney of the guaran-tor's property in Delhi are
stated and is attested by a Notary Public. They also have in their possession
fake letterhcads of private organisations, fake identity cards of themselves as
government servants and fake motor vehicle registration papers. The touts
have to be paid 20% to 3 at of the surety amount before the presentation
of the-surety.". ' ' s ,

19.4 Clause 44 of the Code of Criminal Procedure (Amendment) Bill
seeks to incorporate a new section, S. 441A to deal with the abuse of profes-
sional and fake sureties which reads as under:

Every person standing surety to an accused person for his release on bail,
shall make a declaration before the court as to the number of per-
sons to whom he ha.s stood surety including theaccused, giving there-
in all the relevant: particulars. . ._ '

1915 We are of the view that section 441A be incorporated in; the Code
to eliminate the pernicious evil of professional and fake suneties in the bail
process. It will eliminate collusion between professional sureties, administra-
tors of criminal justice system and criminals.

20.1 S. 446 of the Code prescribes the procedure for forfeiture of bonds
either for appearance or production of property, Before forfeiting the surety
bond, the court should give notice to surety to show cause as to why the surety
bondbe not fo'rEei'ted. Once a hearing is given to the surety and . the court
is satisﬁed that the bond is forfeited, it shall record the grounds of such proof
and call upon the surety to pay the penalty.

20.2 Subsection 3 of section 446 empowers the court, at its discretion.
to remit" any portion of the penalty and enforce payment in part only; It has
been held by various decisions of the High Courts that a case for tlleexercise
of discretion under this sub-section will arise in cases where the accused has
been subsequently arrested or -the amount forfeited is excessive and'tlt=e' surety
is -unable to pay. It is also not irrelevant to consider whether the surety. did not
act irresponsibly and there was no connivance or negligence on the part of the
surety.'-"3 ' ' ' '

r ': 20.3 Clause '45' of - the Code of Criminal Procedure (Ameridment) Bill
seeks to amend sub-section(3) to provide that the court shall record, reasons be-
fore reducing the penalty.

20.4 The proposed amendment is as follows:

In section 446 of the principal Act, for the words "at its discretion",

the words "after recording its reasons for doing so" shall be subs-
tituted.

20.5 We are of the view that in keeping with the tune of amendments _ to
section 436, 437. 438 and the insertion of sections 436A and 441A, the amend-
ment of sub-section (3) of section 445 on the lines set out above to require ri-
gorous exercise of discretion by the Courts by recording reasons prior to the

reduction of penalty and enforcement in part. is

proper and warranted.

FOOTNOTES :

2.
3.

:-r-I»
F-'C50

i--'-n---v--- n---i--o---n----r--
\OOO\l O\-UI_-R0339

22.

. See Rtto Harnarain. Sfngh v. State, AIR 1958 123;

. Rao H amarain

Supdt., & Remembrcmcer of Legal Affairs' v. Ktmmr Roy Chaudhury
(1974) 78 Cal W. N. 320. 325.

S. 2(a).
(1978) 4 SCC 47.

State V. Captain
Jtrgjit Singh AIR 1962 SC 253: Gurcharan Singh v. State (Del.
Admn.) (1978) 1 SCC 118; Gudikanth Narasimhulu V. Public Pro-
secutor (1978) 1 SCC 240, Bltaigiratti Singlz V. Judeja, AIR 1984 SC
372; Jolmy Wilson V. State of Rajasthan, 1986 Cri. L.J. 1235 (Raj).

. Rep0'rt or the Legal Aid' Commmee (1971) quoted in Moti Ram v.

State of M.P. supra note 3.

. Report 09' the Expert Committee on Legal Aid Processual .lu.s'tice _t0_

the Pwplei (1973) quoted in Mott' Ram case, ibizl.

Singh v. State Gudikartth Nararimhulu V. _Publi'e
Prosecuthor, Gurcharart Sing/i V. State (Del. Admn.), Supra note 4.

(1980) 1 scc 8.1; (-1930;
(1930) 1 so 98 ; (1980)

Hussainara Khatoon [I] V. Home Secretary,
1 SCC 91; (1980) SCC 93; (1980) 1 SCC 98,
1 SCC 108; (1980) 1 SCC 115.

. Id at 84, 85, 87.

. Supra note 8.

. Hussainara Khatoon VII v. Home Secretary (1995) 5 SCC 326.
. Id. at 328.

. 1996 (Crimes) 189 (SC).

. 1996 (4) Scale, 129. .

. Forty_First Report, para 39.9, page 321 (1969). A
. For-ty Eighth Report, Some Questions under the Code of Criminal.

Procedure Bill, 1970 para 31, page 10 (1972).

. (1980) 2 SCC 565.

. Gurubaksh Singh Sibbia V. State of 'Punjab,
. Supra note 17 at 586. 5

. Id at 589-590. g

. See "Sureties for Sale-----Bail Racket Unearthed'-',

AIR 1978 P&H. , _L

ed.) 28th May, 1995, pages 1, 9.

See Dayal Chand V. State of Rajasthan, 1982 Cri. L.J. 1008 (Raj.)';Vl
Ramdkam' Simopurkaskar v. State, 1989 Cri. _LJ.-- 1264 -(B0'm'.)'§ 0.)'.
Anand v. State, 1989 Cri. LJ. 2464 (Del). S' .. ;; ..:.. .~.~

': .~-_'.
.... s.

7 Statesnian' .~ (I.)e1l1-ii

CHAPTER VII
BAIL~--ATI'ENDANCE OF ACCUSED-----APPELLATE STAGE

1. The Code of Criminal Procedure 1973 is silent on the point of secur-
ing attendance of the accused at a later stage after the acquittal in cases where
appeals against acquittals have been ﬁled or in cases where appeals for en-
hancement of sentence are ﬁled. There are many instances Where the appel-
late courts having admitted an appeal against acquittal are not in a position
to secure presence of acquitted accused. Even though non-bailable warrants
are issued the police agency has been unable to serve the notices as well as
the non-bailable warrants on the respondents accused in spite of lapse of long

time. Some time they are returned saying that the police have no information whatsoever Iegarding the respondents or their whereabouts. A large number of such appeals after admission have been pending in various appellate courts including the Supreme Court without being disposed of since the service could? not be effected or where the presence of acquitted accused could not be secured in spite of issuance of non-bailable warrants. Number of such matters for want of service are piling up and have added to the pendency. The Division Bench of Gujarat High Court in Appeal No. 51/91 in its judgment dated' 13-1-1994 considered these aspects and have recommended to make a special provision and amend Form-45 in Schedule 11 of the Code, suitably.

. 2. Form 45 pertains to bonds and bail bonds for attendance ..bc,f.0.I;c. Oﬂice Incharge of Police Station or Court, bearing relevance to section 436. 437, 438(iii) and 440. The perusal of the form shows that it is prescribed in two proforma whereby the accused and sureties undertake to appear in the first instance before the investigating agency and in the 2nd before the .'Ifria1_, Court, during the trial. It does not provide for securing the attendance of"the accused at the appellate stage. If this gap is not properly ﬁlled, the disposal of ' appeals against the acquittal in these circumstances becomes diﬁicult"and" even result in injustice, and the same has to be remedied. Accordingly, we recommend insertion of, a new section 437A empowering all the criminal courts (including the first appellate court) to take bail and bail 'bonds before the conclusion of the trial or disposal of the appeal requiring the accused to "bind? themselves to appear before the next appellate court; in case an appeal against acquittal or an appeal for enhancement is ﬁled in the higher court such a bond shall be in force for a period of 12 months from the date of the judgment _,di_s_-_ posing of the case either by the trial court or by the ﬁrst appe1late'coui°t,"as' the case may be. We feel the twelve months limit would be enough to cover the period of limitation for processing «and filing, of such' appeals.

3. A question may arise whether such a provision is likely to be chal- lenged as unconstitutional by virtue of Articie 21 of the Constitution on the ground that the bail bond restricts the personal liberty of the individual. We are of the view that sections 377 and 378 Cr.P.C. provide for ﬁling such appeals by 'the State, and a period of limitation is also prescribed. Therefore binding over the accused till such time will not amount to a 'restraint on his personal- freedom. Even oherwise. it may amount to a restriction permissible under law particularly when there is no deprivation of his liberty or freedom of movement.

4. The proposed section 437-A may be on the following lines:

(1) Before conclusion of the trial and before disposal of the appeal,.the' trial court or the appellate court; as the case may be, require the 'accused to execute bail bonds with sureties, which slrallbe in force for twelve months. undertaking to appear before the higher court. as, and when such court issues notice in respect of any appea1'7or"peti-

tion ﬁled against the judgement 'of those ;_re_spec_t;ive¢_co,u;rts." -- K .-

' (2)_'If' such accused fails to appear, the bond-stands .forfeited- and" the. ' 1 procedure under section 446 shall be applieable._ - -L. _.f,;{- , On the same lines Form 45 has to be amended.-

31' CHAP"IE'R' V1.11 SUMMON CASES--WARRAN'I' CASES--SUMMARY TRIAI.--CHANGES IN PROCEDURE

1. The Code of Criminal Procedure is essentially a procedural law gvvithlv the object of providing a machinery for the punisliment of offenders under the substantive criminal law. it lays down the procedure to be followed in__every investigation, enquiry and trial, for every offence under the "Indian Penal C de or under any other law. The concern for speedy triai is the main premise under¥ lying the Code, both with regard to investigation and also with regard to trial. In respect of offences other than those tried at the Session Courts. a broad divi» sion into summons cases and warrant cases, is made.

2. Section 2 (x) deﬁnes warrant-case as one relating to an offence puiiisli'-ﬁg able with death, imprisonment for life or imprisonment for it term exceeding two years.

Section 2(w) lays down that the summons-case means a case relating to an oﬂence, and not being a warrant case, thereby implying that all cases relating to offences punishable with imprisonment not exceeding 2 years, shall come in the category of summons cases.

3. Chapter XIX provides for two types of procedure for the trial of warrant cases by the Magistrate, viz. those instituted upon a police report and those 'instituted upon a complaint. The procedure therein is somewhat elaborate.' In respect of cases instituted on police report, Section 239 provides for the discharge of the accused if the Magistrate upon consideration of the police report and the documents sent with it and after making such examination. lf any"

of the accused, considers the charge to be groundless before framing of the charge and if the accused pleads guilty conviction follows under Section 241.' Sections 242 and 243 lay down the procedure for taking evidence by the prosecution and defence respectively. In respect of the cases instituted otherwise than on police report the Magistrate, as provided under section 244 has to hear the prosecution and take the evidence as may be produced. _ _ ,_ " o Section 245 provides for discharge of the accused it the "evidence t ken makes out no case against the accused. e -

Sections 246 and 247 elaborate the further procedure where the accused is not discharged, and in the opinion of the Magistrate, the regular trial has to go on after framing a charge etc. Sections 248 to 250 deal with conclusion of. the trial and are common'

-to both types of cases. .. ._ . _-_ X' 4. In' respect of the summons cases Chapter XX containstthe necessaryg' procedure. The main difference between the two procedures is that in respect:

of the summons cases there is no need to frame..the' charge.'. In: this class i': --of; cases arising on a private complaint or on a police report, the etvidénce-«of» both sides generally has to be made ready and has to be recorded at a single sitting and is to be followed by a judgement without any delay. The trial of the cases under this procedure is thus designed to occupy the minimum amount offtime. - 2 " 2 ' ' ' I " " I ' 'l',..,__ ' S. In both procedures section 249 and 256 provide tthatrin the absence of the complainant, the accused may be" discharged or acquitted. - In the case of summons procedure section 257 provides 'for the withdrawal 'of the com- plaint. One other important provision in respect of sur'nmon's"procedure is sec- tion 259 whereunder the court 'has the power to convert summons case into warrant case.' If in the course of-_th_e-trial» of a'. stImmons"case:rel'ating' to an offence punishable with imprisonment for a term exceeding six months, if the Magistrate thinks that in the interest of justicethe _otfence_should be tried i.n accordance with the procedure for the trial of warrant cases, he"may,.do so. .-. "« 324' 33 , 6. Chapter XXI deal.s with summary trials. As provided under section

260. certain Magistrates of First Cass, especially empowered by the High Court may try in a summary way any of the offences mentioned therein. Sub-section

2. of Section 260 lays down that when in the course of summary trial it appears to the Magistrate that the nature of the case is such that it is undesi'rable'Vt.d try summarily, he may even recall the witnesses and proceed to rehear the case in the manner provided by the Code. Section 261 gives powers to Second Class Magistrate to try summarily an offence which is punishable only with ﬁne or with imprisonment for a term not exceeding six months.

'7. Section 262, however. lays down that in summary trial the procedure speciﬁed for the trial of summons cases shall be followed except as mentioned therein. Section 262 (2) further lays down that no sentence of imprisonment for a term exceeding 3 months shall be p-assed in the case of any conviction under that Chapter. Section 263 gives the particulars to be entered in the record to be made at the time of summary trial. Section 264 lays downrthati in every case tried summarily in which accused does not plead guilty. the Magis- trate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the ﬁnding. A combined reading the provi- sions of the summons procedure and the summary trial procedure wou'd show that the latter is meant to be more brief and the summons procedure to be fol- lowed in respect of summary trials is further abridged by virtue of sections' 263 and 264. The Court is required to record only reasons in a brief manner in support of the ﬁndings.

8. The Fourteenth Report of the Law Commission observed that the division between the summons cases and warrant cases is arbitrary. It has also observed that in certain classes of offences, the ingredients' of 'the'oife'nces are the same. But some of the «them fall under the category of summons cases merely on the basis of sentence. The Law Commission recommended that as a general rule alloffences 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. such a course is adopted. there will be the addi- tion ofone hundred and twenty seven more offences under the Indian Penal Code alone to the existing list of offences triable by the procedure applicable to "summons cases and that alone where sentence is of similar nature.

9. A perusal of the two procedures would show that they are somewhat alike' in many respects. To ensure speedy' trial, the procedure must be simpli- ﬁed so that the bulk of cases which are being handled by the Magistrate can be disposed of more expeditiously. In all the workshops conducted, it was unani- mously voiced that the 'summary procedure is not being adopted 'and_ that is one 'of the reasons for heavy pendency and delay. It is also suggested that all the summons cases and the other otfences mentioned under section 260 should be made compulsorily triable by wav of summary trials. The survey coductcd alsoshows that there is unanimity about the suggestion to convert all offences carrying punishment upto three years imprisonment into summons cases and to make it mandatory that_al' such offences should be tried summarily.' '

10. The important aspect to be noticed is whether all the summons cases can be tried summarily except such of those which by virtue of the nature or circumstances of the offences or accused warrant a _full trial and if in respect of such class of cases summary procedure is not found to be salutary then whether a provision has to be made enumerating such offences which cannot be tried by way of summary trials or leave it to the discretion of the magistrate as "provided under sub-section (2)'of section 260. This provision applies when the magistrate "during the course of the trial discovers that it_will be more appro- priate for the court to try the accused on the regular side because of the character and nature of the case. Naturally. such a course should be exceptional and the magistrate should give sufficient reasons for adopting such a course. For such class of cases. the warrant procedure can be applied and all the other catego- ries of cases called summons cases should be tried summarily. Then the sum- mons procedure under Chapter XX can be dispensed with. A provision can also be made bv amending section 260 to 'the effect that in all 'cases tried suin-

-marily. the punishment cannot exceed six months or ﬁne unto Rs 3000 /--.t Ac-

cfordinsv.lv* Section'262(2l be deleted. If provisions are made to this effect. sec-

'tion 206 which provides issuing such summons tincases of ~-petty» offences 34 enabling the accused to put forward his plea in writing where he pleads guilty and transmit the same by post or his pleader to plead on his behalf can also be revi- sed. In such special summons, the amount of ﬁne to be levied can also be speciﬁed. Even scope for the accused for plea bargaining as well as indicating his willingness to compound the otfence should be made available. On the basis of such plea, the magistrate can record his plea and pass appropriate orders. In all summons cases which can be tried summarily as indicated above, the proce- dure can be simpliﬁed as provided under sections 263 and 264.

II. We are also of the view that as voiced in many workshops. the summons procedure is not strictly being followed and the summary trial proce- dure is also not being adhered to and as a result, heavy pendency is there and trials are inordinately delayed.

_ 12. In the light of the above discussion, we suggest that section 2(x) deﬁning warrant cases should be amended to the effect that warrant case means a case relating to an offence punishable with death, or imprisonment for term exceeding three years. Likewise Section 2(w) should be amended to the effect that summons case means re'ating to an offence and not being a warrant case summarily triable under Chapter XXI thereby laying down that all offences. which do not fall under the deﬁnition of warrant case, fall under the category of summons cases summarily triable. In this context, it can also be noticed * that section 274. which deals with the recording of evidence in summons cases, also is to the effect that in all summons cases tried, the magistrate shall. as the examination of each witness proceeds, make a memorandum of substance of the evidence in the language of the court. This is in accordance with the summary procedure under Chapter XXI as well as the changes' proposed' by us and this section be! changed by adding the word "summarily" after the words "summons cases trie ".

13. As we are trying to bring under the umbrella of summons cases all those oifenoes which are punishable with imprisonment of three years, the cove- rage thus gets increased and a large number of offences can also be brought under summary rtrial. However, we have suggested the amendment of section 260 so that the magistrate shall have the power to award sentence of imprison- ment upto a period of six months or a ﬁne upto Rs. 3.000/-. Bu-t there may be cases of serious nature warranting higher punishment depending upon the seriousness and gravity of oﬁence and other circumstances. In such a situation. the magistrate who is trying the case summari'y can have recourse to sub-section (2l of section 260. It may be mentioned that section 259 in Chapter XX pro- vides that the courts shall have the power to convert the summons case into a warrant case where in the course of trial of summon case relating to an olfence punishable with imprisonment for a term exceeding six months. in the interest of justice, it appears to the magistrate that the same should be tried asga warrant case. he may proceed to do so. Since we are proposing to dispense with surn- mons procedure altogether. sub-section (2) of section 260 needs further amend- ment to the effect that where the magistrate takes recourse thereunder should give valid reasons for doing so, namely, that it is undesirable to try summarily and he may convert -the same into a warrant case and try accordingly.

14. As a consequence of the above proposed changes, Chapter XX pro- viding for summons cases can be deleted and sub-section (1) of section 260 shall also be amended to the effect that all summons cases as per the proposed deﬁni- tion should be summarily tried. ' In Section 260(1) the Sub-clauses (i) to (ix) stand deleted. A new clause (cl) under sub-section (1) should be inserted with eﬁect that in all cases tried summarily, the imprisonment shall be uptosix months or fine up to Rs. 3,000/-. Further Section 260(2) be amended as mentioned above.

15. Coming to the procedure to be adopted in such summarily trials, the question is to what extent some of the provisions. of summons nrocedure are to be followed in view of section 262(1). The said provisions lav down that in summary trials under Chapter XXI, the procedure speciﬁed in the Code for the trial of summons-case shall be followed except as thereinafter mention- ed. Now as we are suggesting the deletion of Chapter XX dealing with the 'trial of summons cases, some provisions in that chapter have to be incorporated 35 in Chapter XXI, rather appropriately in Section 262. The aspects of proce- dure contained in sections 251, 252. 253, 256, 257 and 258 of the Code can lui-tably be incorporated in Section 262 by way of an amendment. Section 262 should then read as under:

"262. Procedure for summary trials------

(1) When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accsued shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make. b11t it shall not be necessary to frame a formal charge.

(2) If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon.

(3) Where a summons has been issued under section 206 and the accused desires to plead guilty to the charge without appeyring before the Magistrate, he shall -transmit to the Magistrate, by post or by mes-

senger, a letter containing his plea and also the amount of ﬁne speci- ﬁed in the summons.

(4) If the Magistrate does not convict -the accused under sub-sections (2) and (3), the Magistrate shall proceed to record evidence as provided under section 274 and conclude the trial as provided under sections 263 and 264. 6 (5) (a) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, the complaint does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day.

(b) The provisions of clause (a) shall, so far as may be. apply also to cases where the non-appearance of the complainant is due to his death.

(6) If a complaint, at any time before a ﬁnal order is passed in any case under this chapter, satisfies the Magistrate that there are suﬂici- ent grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn.

(7) In any summons-case tried summarily instituted otherwise than upon complaint, a Magistrate of the ﬁrst class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magis- trate, may, for reasons to be recorded by him stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded. pronounce a judgment of acquittal, and in any other case release the accused, and such release shall have the effect of discharge."

Accordingly, the existing sub-sections (1) and (2) of section 262 be delet- ed and substituted by the aforesaid sub-sections (1) to (7) in section 262. How- ever, if the Magistrate does not convict the accused under section 262(2) and 3 he shall proceed with summary trial in accordance with sections 263, 264 and

265. However, in view of the deletion of clause (i) to (ix) of section 260, clause (1') section 263 stands deleted.

16. Even in respect of warrant cases triable under Chapter XIX, it has to be considered whether the procedure can be further simpliﬁed.

17. The Law Commission in its 41st Report suggested certain changes to the then existing provisions' and we ﬁnd in the Code of 1973 the changes have 6----l M on & J/ND/97 36 been introduced to a large extent. However, even in_the existing pgrovisions under Chapter XIX. we ﬁnd the two procedures to some extent beinig the Same with a difference upto a particular stage in respect of the cases arising out 61' police report and those arising otherwise than on a police report.

The Law Commission in its Fourteenth Report also noticed the difference and recommended no change.

18. In the workshops held, it has been voiced that the manner of examina- tion of the witnesses needs modiﬁcation. It is also highlighted that unnecessary time is being taken by postponing the proceedings in view of the procedures regulating the witnesses for further cross-examination. We ﬁnd that the views expressed are correct and some changes have to be made in this regard.

19. In cases arising out of a police report, all the statements having been recorded during investigation should be supplied in advance and the cross-exa- mination should proceed continuously. In the case of other types of cases aris- ing otherwise than on police report also, evidence already recorded before issuing process would be available furnishing sufﬁcient material for cross-exami- nation, and many adjournments just for the purpose -of carrying on further cross- examination can be avoided.

Accordingly Sections 242(2) (3) and 246 (4) be amended.

CHAPTER IX EXAMINATION OF WITNESSES AND RECORD OF THEIR STA'l'!;£l\/IENT S:

SECTIONS 161 AND 162 A t

1. These two sections dealing with oral examination of witnesses by the Police, the record to be made of their statements and the use to which it may put subsequently have been the subject matter of many court decisions, discussions and consideration by various Commissions including the National Police Commission and they have attracted a variety of comments and suggestions.

The Fourteenth Report' of the Law Commission is the earliest one to consider the issues involved. The Commission expressed the view that the discretion allowed to a Police Oﬂicer to record or not to record the statement of witnesses orally examined by him is in such restricted terms that the whole purpose of Section l73 would be defeated by a negligent or dishonest Police Oiﬁcer and. the Commission, therefore. recommended that the Police Ollicer should be obliged by law to reduce in writing to record the statenienttofevery witness against whom the prosecution proposed to examine at the trial. This view was accepted' in the Thirty Seventh Report of the Law 'Co'mmissio.n*. But the recommends-"

tion went further to suggest that statement of every 'witness questioned"by the"

police under Section 161 must be recorded thereby suggesting that the record- ing of statement of witnesses should not be-limited-only to those proposed to be examined at the trial.

any fetter on the discretion of therPolice Officer at the-stage of investigation and better to leave it to him to record only what in. his judgment is worth.

recording and leave the rest to the departmental instructions and supervision.

2. Section 162(1) lays down ﬁrstly, the prohibition that no statement made.' by any person to a Police Officer in the course of investigation, under this chapter shall, if reduced in writing be signed by the person making it. In the Fourteenth Report, the Law Commission recommended that the literate witnesses should be required to sign the statements'. In the Thirty Seventh Report", the Commission, however, did not favour such a change. But, in the Forty First Report, the he has read the statement.

to be controversial. It provides that no statement of witness to the police or any record thereof whether in a police diary or otherwise or any part of such state- ment or record shall be used for any purpose at an enquiry or trial. But, when a witness is called for the prosecution, any part of the statement if duly quoted may be used by the accused and with -the permission of the Court by the prose- cution to contradict such witness in the manner provided by Section 145 of the Evidence Act. But, there had been many complaints tthat the police record of a witness is often inaccurate that a dishonest Police Officer can write any- thing he likes. The Forty First Report' of the Law Commission having con- sidered the various views also observed that the statement under Section 164 would not be a good substitute for the statement before the police. The Com- mission ultimately, however, did not recommend any change. .

3. The National Police Commission in its Fourth Report' considered various views and suggestions and also "the voluminous case law built up on these two sections over several years. The Commission noted that under the present provisions of Section 162, the Police Oﬂicer is precluded from obtaining the signature of a person and the statement recorded from him. It was represent-

ed before the Commission that this provision operates to the greater disadvantage .

of the Police Oﬁicer and induces a general feeling among witnesses that they are not in any way bound by the statement recorded by the police and they could freely deviate at a subsequent stage without attracting any penal notice. The Police Commission also noted that it is imperative that the malpracties should be put down to ensure honesty and integrity of the investigation. The Commis- sion ultimately suggested that a greater measure of credibility could be imparted to the statement of facts as recorded by the Police Officer if it is provided in law that a copy of the statement so recorded shall, if desired by the witness. be handed over to him under acknowledgment, ' Coming, to the use of the 37 _ The Law Commission again in -its For-ty First Reporti- considered these recommendations and suggested that there is no need to place-

Commission, however, recommended that where the person can read the statement so recorded, his signature can be obtained after The second part of Section 162(1) has been found * 38 statements, the Police Commission suggested that there need not be a detailed re- cording of the statement as made by a witness and the Investigating Oﬂicer can make a record of the facts as ascertained by him on examination of witnessess which could be in third person in the language of the Investigating Oiﬁcer himself and that would be adequate to assist the evidentiary value of different witnesses and accordingly cite them in the chargesheet on conclusion of investigation. Ac- cording to the Police Commission, such a statement of facts as ascertained and recorded -by the Investigating Oﬁicer could not be treated as an earlier statement made by the witness himself in his own language, and, therefore, the question of using that statementtfor contradiction or corroboration would not arise. The Police Commission also endorsed the view that no such statement of acts ascertained by a Police Oﬂicer from many persons shall, if reduced to writing be signed by the said person. But, the Commission, however, recommended that a copy of such statement duly authenticated by the Police Oﬂicer recording it shall be delivered under acknowledgment to sthat person on whose examination of such .statement was recorded, if so desire by that person. Based on these suggestions the Police Commission also recommended necessary changes in Section 172 Cr.P.C. dealing with police diary, namely, that the Investigating Officer shall maintain a police diary in which he enters his proceedings. etc, and the statement of the circumstances ascertained and also attach to the diary for each day, copies of statement of facts ascertained and recorded under amended Section 161 Cr.P.C.

4. However, in the Forty First Report' of the Law Commission, a note of dissent regarding the proposed amendments to Sections 161(3) and 162 was made by two Members, Shri R. L. Narasimam and Shri Balakrishnan. It is observed that "the existing provisions of Section 162 Cr.P.C. have been univer- sally condemned by the police, the Bar, the Courts and the litigant public. The need for making substantial changes in the law is accepted by all of us in the Commission. But we, two, regret our inability to agree with the recommenda- tions of the majority regarding the proposed amendments in Section 161(3) and

162....". In the said dissent note, it is also mentioned that the fundamental anomaly in the existing provisions of Section 162 is that though the statute prohibits the use of the statements made to the police during investigation for the purpose of corroboration obviously on the assumption that the police record is not correct, yet permits' their use for contradicting prosecution witnesses and that even for such contradicting obviously, the earlier statements should be pre- sumed to have been correctly recorded and that the record cannot be at the same time to be correct and also incorrect. The two Members having discussed this issue, ultimately recommended amendment of Section 164 Cr.P.C. so as make it mandatory for the Investigating Officer to send to the nearest Magistrate all material witnesses questioned by him during the course of investigation and have the statements recorded on oath by that Magistrate within a day or two. The two Members thus recommended amendments to Sections 161, 162 and 164 and correspondingly 172 and 173 Cr.P.C.

5. In all the workshops the subject has been discussed at great length and there has been unanimity to a large extent that substantial changes are necessary and various but divergent views have been expressed. Many of the advocates appearing for the defence, however, ultimately are of the view that in the absence of arriving at a satisfactory solution it is better to leave the provisions as they are. '

6. Let us at this stage examine the necessity and the purpose of record- ing such statements by the police during investigation.

As we are aware, investigation in a criminal trial assumes important role and it helps the' court to determine the guilt or innocence of the accused. A fair and objective investigation can unearth the crime committed and as well collect the material which can prove the guilt or innocence of the accused, Section 2(b) deﬁnes investigation and lays down that investigation includes all the pro- ceedings under the Code for the collection of evidence conducted by a police offi- cer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. Investigation commences on receipt Of information as provided in Sections 154 or 156 and has to be conducted as per the provisions of Chapter XII of Cr.P.C. Section 160 confers powers on police ofﬁcer to summon any person acquainted with the facts and circumstancesof the case.' ' ' ' 39 Section 161 empowers the Police Officer to record statements of persons. Then comes Section 162. Though Section 2(b) broadly says that investigation includes all proceedings to gather "evidence", the statements recorded by police do not by themselves constitute evidence. They are part of investigation recorded while collecting material mainly for the purpose of preparing a report to be lodged in the court. In such a situation do they attain the status of a previous statement for the purpose of Sections 145 or 157 of the Evidence Act?

There is unanimity that they are not accurate and also not recorded in the manner professed to be. Many a time the thinking or ingenuity of the office: are projected into them. Therefore, they can hardly be called as the previous statements of the persons examined by the police officer.

7. After giving our earnest consideration and in view of the fact that there is unanimity in respect of the need for making substantial changes in the law, we propose that there should be changes on the following lines:

"As recommended by the National Police Commission in its 4th Report, the Investigating Ofﬁcer can make a record of the facts as ascertained by him on examination of witnesses which statements could be in the third person in the language of the Investigating Ofﬁcer 'him- self. This ensures that the material witnesses have been examined at the earliest moment. Such a statement recorded in third person cannot be treated as a previous statement and consequently cannot be used for contradiction or corroboration. To that extent, a change in section 162 Cr.P.C. is necessary. The signature of the witness on the statement thus recorded need not be obtained. But, if the witness so examined desires a copy of such statement so recorded shall be handed over to him under acknowledgment. To reflect the shiﬁt in emphasis, a corresponding amendment to Section 172 should also be made to the effect that the Investigasting Ofﬁcer maintaining the case diary should mention about the statement of the circumstances thus ascertained, and also attach to the diary for each day, copies of the statement of facts thus recorded under Section 161 Cr.P.C. Neither the accused nor his agent shall be entitled to call for such diaries which can be put to a limited use as provided under Section 172 Cr.P.C. Under the existing provisions of the Code, the prepara- tion of the earliest record of the statement of witness is left in the hands of Investigating Officer and as the mode of recording as pro- vided in Section 162 does not ensure the accuracy of the record (It is well known that many good cases are spoiled by insidious incor- rect entries at the instance of the accused and it is also well known that many innocent persons are sent up along with the guilty at the instance of the informant's party),(it is necessary to amend Section 164 Cr.P.C. so as to make it mandatory for the Investigating Officer to get statements of all material witnesses questioned by him during the course of investigation recorded on oath by the Magistrate. The statements thus recorded will be of much evidentiary value and can be used as previous statements. Such recording will prevent the witnesses turning hostile at their free will. Such a change will also help the police to complete the investigation and submit a ﬁnal report on the basis of such statements made on oath and on other facts and circumstances, such as recovery, etc.) On the above mentioned lines, the relevant Sections can be amended as follows:

"l61. (1) Any police oﬂicer making an investigation under this Chapter, or any police officer 110st below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer xtruly all questions relat-

ing to such case put to him by such olﬁcer, other than questions the answers to which would have a tendency to expose hint to a criminal charge or to a penalty or forfeiture.

(3) To be omitted.

(4) The police oﬁicer may reduce into writing -a statement of fact_s ascertained from a person in the course of an examination uncler this section; and if he does so. he shall make a separate and true record of the statement of facts ascertained from each such person".

"I62. No statement of facts ascertained by a police oﬂicer from any person in the course of an investigation under this chapter, shall, if reduced to writing, be signed by the aforeside person; but a copy of such statement duly authenticated by the police officer record- ing it shall be delivered under acknowledgment to the person on whose examination such statement was recorded, it so desired by that person.... No such statement of facts shall be used by the prosecution or the accused either for contradiction or for corroboration under Sections 145 and 157 of the Evidence Act."

(Proviso to be omitted).

164. (1) No change.

l(A) to be added as follows 2 Every Investigating Oﬂicer shall send to the nearest Magistrate all material witnesses during _the course of investigation and the Magistrate on oath record their statements, if such Magistrate is empowered to take cognizance of the case on police report, he shall keep such statements along with the FIR received by him and await the further police report under Section 'I73. If he is not empowered to take such cognizance, he shall send the statements thus recorded; on oath to the Magistrate empowered to 'take cognizance of the case."

No change in remaining sub-sections.

172(1) Every «police officer making an investigation under this chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circums- tances ascertained through his investigation; and also attach to the diary for each day copies of statement of facts, if any, recorded under Section 161 in respect of the person orpersons whose examination was completed that day.

(2) Any criminal Court may send for the police diaries of a case under inquiry or trial in such c-Oturt, and may use such diaries. not as evidence in the case, but to aid it in such inquiry or trial.

(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred (to) by the Court."

Other alternative

8. As discussed above most of the defence counsels while acknowledging the incongruity in the provision i.e. Section 162, however, took the stand that in the absence of having any satisfactory change it would be proper to retain the provision as it is. They are also ﬁrmly of the view that the defence and the court should know what the earliest version given by the witness and that can be the only basis for cross examination. In this context they contended that getting the statements recorded under Section 164 does not solve the problem and there would be considerable delay. Some of them, however, suggested that to ensure the authenticity of the statements some checks may be imposed. One suggestion is that the investigation oﬂicer soon after recording the state- ment should give a copy to the deponent and also send them to the superior officer at the earliest point of time so that any possible interference by the interested person can be avoided to a large extent. In this context. they also suggested that if the separate investigating agency is going to be set up the situation would be different and statements recorded by such officers of better status would be more authentic. Coming to the signing of the statements by the witness it 4] issaid if he-is .a' literate the signature can be obtained so that he may not easily prevarieate. . They also pleaded that mere making a record of the facts ascer- tained as suggested by the Police Commission would be of no use to any body as the same cannot be used for any purpose.

9. We have also carefully considered these views. It is true that if such statements are not recorded under section 164, then the record containing state- ments of the facts ascertained, prepared by the Investigating Otﬁcer cannot be of any use except enabling the court to pursue which may give some aid. We do visualize that there are quite a few practical difficulties in getting the state- ments recorded under Section 164. There is bound to be some delay which may give scope for interference by others trying to inﬂuence the witnesses. Even after making the statement on oath under Section 164, the witness may prevaricate. It cannot also be presumed that all what was stated in such statement under Section 164 is always true; but the redeeming feature is that it is made on oath. As it is, the Magistrates who are overburdened and they may not ﬁnd sutﬁcient time to record such statements. Therefore. more number of Magistrates have

-to be appointed. These are some of the difﬁculties which we have to bear in mind, but they are not insurmountable. If sufficient number of Magistrates. are appointed and if the separate investigating agency is set up promptly. «the delay in recording statement under Section 164 can be avoided.

10. At this stage we shall consider one other suggestion namely tape-re- cording or video recording of such statements. The suggestion is attractive but the question whether it wouldbe workable under our conditions. Firstly, it would be costly and secondly, impracticable, even such recordings cannot be fool proof and are also vulnerable to tampering. In its report the Royal Commis- sion on Criminal Justice considered this suggestion and also opined that it would be costly and impracticable.

1]. Having seriously considered all these aspects we are of the view that the other alternative for the time being that can be thought of is to retain the provision as it is and introduce some safeguards against any error or malprac- tice in recording with a view to make the statement more authentic.

12. If a separate investigating agency consisting of well trained and better personnel accountable only to the superior Officer is set up, they would to a large extent be sincere and honest in recording such statements. However, for the time being it a provision is made that a copy of the statement should be given to the deponent under acknowledgment and also send them to the Magistrate and to the superior oﬂicers that provision would ensure against any error or malprac- tice being committed by the officer Section 162 be, therefore. suitably amended.

13. If the witness is a literate. there is no harm in obtaining his signature. before giving a copy to him.

14. So for as the use of the statement is concerned, no change is neces- sary, it be limited for the purpose of cross examination as provided under Section 145 of the Evidence Act. The absence or presence of material omissions as found in the cross examination would be a factor in appreciating the veracity of the witness and no further corroboration need be sought from the statement recorded by the police particularly when it is not on oath recorded by a court and where its authenticity is not of such high degree.

15. However. in our considered opinion, the ﬁrst course is more salutary. As recommended, if a separate investigating agency manned by officers of high calibre and integrity is established, the statements of facts ascertained by them will be more authentic. Keeping in view that the witnesses may prevaricate and the handicaps the defence may face. it is desirable that the statements should be recorded under Section 164 of the Code, which can be used both for corrobo- ration and contradiction and that would also help in speedy trial. But this in- volves appointment of more number of magistrates because their present strength is wholly inadequate and they are already over-burdened. Likewise setting up 42 and structuring of the separate Investigating Agency is bound to take consider-

able time.

Till such time these requirements are met, we are of the view that the other alternative course as suggested above may be adopted and the existing section 162 may suitably be amended.

Foomores 1 .

. Thirty-Seventh . Forty-first Report of the . Tlu'r,ty-Seventh Report of the Law Fourteenth Report of the Law Cﬂuzmission, paras 47, page 755 (1958).

Report of the Law C0mrm's5'ion'. Paras 437-440 pages 119 to 121 (1967).

Law C0'nmzis;s'ion'. page 70, para 14.9 (1969).

. F0url€€n'II2' Report of the Law ('ommissi0n, page 754. para 46.

Vol. 2 (1958) C0nunissi0n~, pages 119 and 120, para 437(0) (1967). .

. Forty-ﬁrst Report of the Law Comnzission, page 73, para 14.13. Vol.1 (1969).

. Fourth Report Of the National Police C0mmissi0n. paras 27.12- 27.19, pages 4-6 (1980).

. Forty-first Report of fhe Law Commission, page 373, para 1, 1969 (Vol. I).

CHAPTER X PROTECTION AND FACILITIES T0 WITNESSES

1. The absence of witnesses or even their presence in the Courts of non- examination and the absence of a system of day-to--day hearing are some of the main causes for the delays. In many workshops held. it was highlighted that there is a plenty of justification for the reluctance of witnesses to come forward to attend courts promptly in obedience to the summons. It was also highlighted that an important reason for the reluctance of the public to cooperate with_th6 law enforcement agencies and actively associate themselves with proceedings in the course is the fact that their attendance in courts entails a lot of incon- venience and harassment. Added to this, the listing of large number of cases and adjourning them at the fag end of the day is also an important factor which makes the witnesses refrain from coming forward to cooperate with the law enforcement agencies either at the investigation or during the trial. This is despite section 174 IPC and section 350 Cr.P.C. which provide for punishment for non-attendance by witnesses in obedience to the summons issued by the court.

2. It is said that the plight of witnesses appearing on behalf of the state against a criminal is pitiable. While adjourning the case at the fag end of the day after keeping the witness waiting for the whole day and while ﬁxing the next date, their convenience is not at all kept in View and if he fails to turn up on the next date, harsh steps are taken against him. Even if he appears On the adjourned date, the chances are that the case would be adjourned again. After sutfering all these inconveniences even if he appears and evidence is recorded-, he is brow beaten by over zealous defence counsel or declared hostile or unreliable by the prosecutor. Even after undergoing-this agonising experience the poor witness is not compensated for the loss of earnings. of the day. Even his pocket expenses incurred are not reimbursed by anybody. Besides, there are no facilities provided whatsoever for the witness to make their long waiting in the courts bearable. Even basic amenities that are needed are not provided for to this poor lot in the court premises. Thus they have to suffer not only indignities and inconvenience but also have to spend time and money. Added to this, they have to incur the wrath of the accused, particularly hardened criminals which results in their life being at great peril. Because of this traumatic time consuming and humiliating experience, many respectables keep themselves away.

3. The allowances paid to the witnesses are very meagre because the rates of allowances are totally inadequate. Thus, there is an immediate need to enhance the rates and that witnesses summoned to the court should be paid better regardless of whether he is examined or not. Further, the procedure for disbursement of the allowances should not be cumbersome.

4. The Law Commission in its Fourteenth Report' as well as the National Police Commission in its Fourth Reportz had examined these issues in depth and have ﬁrmly recommended substantive measures to alleviate the difﬁculties of the witnesses. In the Conference of Director Generals of Police held in 1974, it was also recommended that the witnesses should be provided suﬂicient protection. It has to be remembered that in the present system a poor witness is caught between the devil and deep sea. If he fails to attend the court, he shall be penally liable and if he attends, he undergoes an agonising experience resulting in great inconvenience and loss. In this situation, all the measures necessary to create good atmosphere, instilling conﬁdence and faith in the system in the minds of the witnesses have to be immediately chalked out and implemented.

5. It is also pertinent to note that all causes of aversion and reluctance on the part of the witnesses should be removed. Such an effort should be there even from the stage of their examination by the police by treating them in friendly manner and giving self-conﬁdence by giving adequate protection for them. .

'7_1 M nff Jr. I/NU/0'7 44

6. We recommend that the allowances payable to the witnesses for their attendance in courts should be ﬁxed on a realistic basis and that payment should be eilccted through a simple procedure which would avoid delay and incon- venience. Section 3l2 of Cr.P.C. and the rules made thereunder will have to be suitably amended. They should be paid allowances for all the days they attend. Adequate facilities should be provided in the court premises for their stay. The treatment afforded to them right from the stage of investi- gation upto the stage of conclusion of the trial should be in a ﬁtting manner giving them due respect and removing all causes which contribute to any anguish on their part. Necessary conﬁdence has to be created in the minds of the witnesses that they would *be protected from the wrath of the accused in any eventuality.

7. Listing of the cases should be done in such a way that the witnesses who are summoned are examined on the day they are summoned and adjourn- mcnts should be avoided meticulously. The lists should be prepared in such a way that a day or two are devoted continuously to all cases of a particular police station and cases should not be proceeded mechanically just according to the chronological order regardless of the fact of the likelihood of their being tried or not. The courts also should proceed with trial on a day-to-day basis and the listing of the cases should be on those lines. The High Courts should isfsue necessary circulars to all the criminal courts giving guidelines for listing 0 cases.

Foomores l. Fourteenth Rep0rt Of the Law C'0mnris.s'i0in1, Paras 3--ll pages 776--780 (1958).

2. Fourth Report of the National' Police C'0n1m*z's'.s'z'0' , para 28.15, page 16 (1980).

CHAPTER X1 EXAMINATION OF ACCUSED UNDER SECTION 313

1. Section 313 empoweres the court to examine the accused at any stage of any inquiry or trial for the purpose of enabling the accused to explain any circumstances in the evidence appearing against him.' lt also makes it_man- datory for the court to question the accused after the examination of evidence of the prosecution and before he enters on his defence.'-' The object of ques-

tioning under section 313 is that the important circumstances which if unex- plaincd would lead to a conviction, should be speciﬁcally pointed out to him to enable him to give an explanation, if any. The rationale of the provision is based on the rules of natural justice, (mdi alteram pnrtelnz.

2.1. The principles of natural jujstice evolved by the Indian judiciary comprise the fundamental rules of fair procedure, namely, that a man's defence must always be fairly heard and an adjudicator must give reasons for his deci- sion. These principles form the bulwark of procedural due process in matters of judicial and quasi-judicial adjudication. In the criminal; justice system the principle of arudi alteram or fair hearing is incorporated in section 313 of the Code of Criminal Procedure which empowers a trial judge to give a reasonable opportunity to an accused to explain incriminating facts and circums- tances in the case.

2.2. Fair procedure pre-supposes that both sides should. be heard. audi alteraim partem, 'hear the other side'. This is the most important prin- ciple of natural justice as it includes almost every aspect of fair procedure. This principle is broader in that it would include the rule against bias since a fair hearing must be an unbiased hearing.

2.3. All the three principles of natural justice form part of a speciﬁc design for ensuring that power is exercised considerately and fairly.

3. The accused in compliance with the provision, can ﬁle written state- ments with the permission of the court. In Tilkeshwwr Sirtgh: v. State of Bihar,"

in a prosecution for murder under section 302 read with section 34 of IPC, the Supreme Court found that written statements were ﬁled by the accused under section 342 of the Code of Criminal Procedure, 1898 and they were found to be very elaborate and furnished answers to all the -points raised in the prose- cution evidence. Though the examination of the accused was not in the question-answer form, the Supreme Court found that by ﬁling of written statements, no prejudice was caused to him. The Supreme Court observed':

It is no doubt true that s. 342 contemplates an examination in court and the practice of ﬁling statements is to be deprecated. But that is not a ground for interference, unless prejudice is established. And it is nothing unusual for the accused to prefer ﬁling statements instead of answering questions under s. 342 lest they should sulfer by inadvertent admissions or by damaging; statements.

This decision lays down that whatever he the form of examination of accused under section 313, no prejudice should result to the accused}

4. The operation of this provision in practice is to have long and elabo- rate stereotype questions -put to the accused to provide answers which many a time are found to be mechanical and meaningless Without understanding the implications of the questions. The provision envisages a meaningful and realistic role of the judges in the examination of the accused putting such rele- vant question to him so that he can explain the circumstances appearing in the evidence against him. Preparation of questions should -be in accordance with the objective enshrined in the provisions. Unwarranted and time-consuming examination causes delay of the trial- But we ﬁnd that many a time the questions are prepared by the Bench Clerk of the court in a mechanical and stereotyped manner.

45 46

5. In the Workshops held at various places the Judges and senior Advocates, while reiterating the need for this provision as a valuable safeguard to the accused in the trial processes, felt that with a view to eliminating delays in trials, the Judges could take the help of prosecutor and defence counsel in preparing relevant questions.

6. We are of the View that the Court can take the assistance of the prosecutor and defence counsel and prepare the questions which arevto be put in a concise form to the accused under section 313. The Court can also permit the tiling of written statements by the accused as sulﬁcient c-Ompliance with section 313.

FOOTNOTES

1. 5. 313(1) (a).

2. 5. 313(1) (b).

3. AIR 1956 SC 238.

4. Id at 241.

. See also Ajnzer Sinug/1 V. State Of Punjab, AIR 1953 SC 76; Veer P1.-rzerjai v. State of Rajatst/uarii, 1990 Cr. LJ. 1692.

CHAPTER XII COMPOUNDING OF OFFENCES: SECTION 320

1. The Code of Criminal Procedure in section 320 contains detailed provisions for compounding of offences. Sub--section (1) of section 320 lists 21 oflences under the Indian Penal Code which may be compounded by the speciﬁed aggrieved party without the permission of the court and sub-section (2) lists 36 other offences under the Indian Penal Code which also may be Com- pounded but only after securing the permission of the court. Under the scheme of section 320, namely sub-section 9, ofiences other than those speciﬁed in sub-section (1) and (2) are not compoundable.

2. The rationale for compounding of offences is that the chastened atti- tude of the accused and the praiseworthy attitude of the complainant in order to restore peace and harmony in society, must be given effect to in the com- position of offences.

3.1. The Law commission in its 41st Report on the Code of Criminal Procedure, 1969 had not agreed to the formulation of a general rule for com- pounding by relating compoundable offences to the punishment provided for the oﬂence. The Commission felt that it was "better to have clear and speciﬁc provisions such as those contained in section 345 (of the old Code) than a general rule which is likely to lead to different interpretations".

3.2. The Commission also did not approve of the abolition of the dis- tinction between offences compoundable with and without the permission of the court. The Commission observed that "the safeguard of the court's permission is to prevent an abuse of the right to compound and to enable the court to take into account the special circumstances of the case which may justify composition. It is not in every case that; such a safeguard is required"?

3.3. The Commission did not approve of adding to the list of offences in sub-section (1) or in sub-section (2) of Section 345 those offences which jeopardize the public peace, order and security e.g. being member of an un- lawful assembly, (s. .143); rioting (s. 147); false claim in _a co-urt of~__jus~tice (s. 209), fraudulently obtaining decrees (S. 210); driving or riding on a public way so rashly or negligently as to endanger human life (s. 279) causing death by rash or negligent act (s. 304A); causing grievous hurt by dangerous weapon (s. 326), 'wrongful conﬁnement for extortion (s. 347)', Theft in a building «(s. 380), lurking house trespass or house breaking by night *(s. 456), the same in order to commit an offence (s. 457), and bigamy with concealment (s. 495)'.

3.4. The Commission's view was that the offence of unlawful compulsory labour punishable under section 374 IPC should not be compoundable and should be ommitted from the list in section 345(1)'.

- 3.5. The Commission opined that "theft where the value_ of property stolen does not exceed 250 rupees" should continue to be in sub-section (2) "of section 345 (old Code).-5 '__. -3.6. The Commission recommended addition to the listpin sub-section (2) the following offences:

(i) Assault or criminal force on women With intent to outrage her modesty (s. 354).

(ii) Receiving or retaining stolen property (s, 411.).

(iii) Assisting in the concealment or disposal of stolen pI'0peI'ty (s. 414)'.

_ _ 3.7. The above recommendations of the Law Commission were incorpo- rated in the Code of Criminal Procedure, 1973. '

4. Of late, various High Courts. have quashed criminal proceedings in respect of non-cognizable offences because of settlement between, the. parties to achieve harmony and peace in the society.' For' instance, criminal proceedings 47 48 in respect of offences under Section 406, IPC, relating to criminalbreach of trust of dowry articles or lslrid/ran and offences under section 498A. IPC. relating to cruelty on woman by husband or relatives of husband were quashed in Arun Kzmzar I/Ultra v. Reetu VuI1ra", Nirfap Sizzgln v. State of 1'mzja*b*'.

In the Workshops convened by the Law Commission at various places, it was felt that as section 498A is not included in the Tables appended to section 320 of the Code, it could not be compounded by the parties. Many instances were cited where though the parties wanted to compound yet in the absence of an enabling provision, they could not do so. This has created hardship even in genuine cases. ln order to meet this situation, it is recommended that section 498A be insented in the Table under sub-section (2) where it can be compounded with the permission of the Court.

5. Though Section 320(3) postulates compoundability of the abetment or attempt to commit such offences mentioned in the Tables appended to section 320, there is no such provision where the accused is constructively liable under sections 34 and 149 IPC. 'If the provision is left as it is, only in respect of substantive offences mentioned in the Tables, compounding is possible, and not in respect of cases of constructive liability for the same offences. This view was highlighted in all the Workshops, Likewise, in respect of offence of rioting resulting in the offences men- tioned in the two Tables there is no provision for compounding. The offences

-punishable under sections 147 and 148 of IPC committed during the same trans- action, the transaction being one and the same, where the guilt is proved, the accu- sed are to be convicted under all those sections. It will be anomalous if one part of the offence is compoundable and other part remain non-compoundable where the convictions are under both. Accordingly sub-section (3) be amended suitably.

6....The Code of Criminal Procedure (Amendment) Bill, 1994, in clause 33, has incorporated the following:

(i) The offence of voluntarily causing hurt by dangerous weapons or means (S. 324) should cease to be_a. compoundabe offence with the permission of the court in sub-section (2) of section 320.

But we are of the view that offences under sections 324, 325 and 335 IPC be shifted to the Table under sub-section (1) from the Table under sub-section (2) of section. 320.

7. We are also of the view owing to -the fall in the value of rupee result- ing from inﬂationary conditions, the limit of Rs. 250/-- in the offences in the list of offences in su-b-section (2), be raised to Rs. 2,000/-, as provided under clause 33 of the Bill.

, 8. With the legalisation of abortion under the Medical Termination of Pregnancy Act, 1971, section 312 of IPC relating to the offence of causing miscarriage of woman, will have to be interpreted in the light of the provisions of the Act. This offence should be made compoundable by the parties with the permission of the Court. Accordingly, we recommend the incorporation of offence under section 312, IPC to the Table under sub~sect1on (2) of section

320. e

9. We recommend that as a matter of policy more offences be brought under the category of offences compoundable by the parties themselves without the intervention of the court. However, offences against the public at large, howsoever small they may be, should not be compoundable.

10. On an examination of the list of offences in the Table to sub-section (2) of section 320 (offences compoundable with the permission of the court), we are of the view that the following offences be deleted from that Table and be included in the Table to sub-section (1) of section 320. In other words, those offences be made compoundable by the parties without the permission of the court:

S-324: Voluntarily causing hurt by dangerous weapons. S. 325: *Voluntarily causing grievous hurt.

S. 335: Voluntarily causing grievous hurt on grave and sudden pr0v0Cati0n. S. 343: Wrongfully conﬁning a person for three days or more.

S. 344: Wrongfully conﬁning for ten or more days.

S. 346: Wrongfully conﬁning a person in secret.

S. 379: Theft, irrespective of the value of property.

5. 403: Dishonest misappropriation of property.

S. 406: Criminal breach of trust, irrespective of the value of property. S.407: Criminal breach of trust by a carrier. wharfinger. etc. irrespective of the value of property.

S.4ll: Dishonestly receiving stolen property. knowing it to be stolen. irres- pective of the value of property.

S,4l4: Assisting in the concealment or dis sal of stolen pr0perty, 1m0wing it to be stolen irrespective of the Va ue of property.

S.4l7: Cheating.

S.4l9: Cheating by personation.

S. 421: Fraudulent removal or concealment of property, etc. to prevent dis- tribution among creditors.

5.422: Fraudulently preventing from being made available for his creditors a debt or demand due to the offender.

S. 423: Fraudulent execution of deed of transfer containing false statement Of consideration.

S. 424: Fraudulent removal of concealment of property.

S. 428: Mischief by killing or maiming animal of the value of ten rupees Or upwards.

S. 429: Mischief by killing or maiming cattle, etc, of any value or any other animal irrespective of its value.

S. 430: Mischief -by injury to work of irrigation wrongfully diverting water when the only loss of damage caused is loss or damage to a private person.

S. 451: House-trespass to commit an offence (other than theft) punishable with imprisonment.

S. 482: Using a false trade or property mark.

S. 483: Counterfeiting a trade or property mark used by another.

S. 486: Knowingly selling, or exposing or possessing for sale or for manu- facturing purpose. goods marked with a counterfeit property mark.

11. It was also suggested by senior police ofﬁcers at the variotts work- shops that the Code of Criminal Procedure should empower the investigating oﬂicer to compound oﬂ'ences, which are compoundable, at the investigation stage and make a report to the magistrate who will give effect -to the composition of such offences. This step will reduce the number of cases proceeding for trial at the threshold stage itself and relieve the court docket to a great extent. In fact the National Police Commission in its Fourth Report had suggested that it would help quicker disposal of cases in the compoundable category if the procedure is amended to empower the police oﬂicers to take n0te of the desire of the parties for the compounding of offences from the stage of investigation and thereupon close cases and report the matter to the court which will have the authority to pass initial order from the police report as in every other case in which the police submit their report.

12. It may be pointed out that clause 20 of 1994 Bill has inserted the following new sub--section (3A) to Section 173 to give effect to the recommen- dations of the National Police Commission:

"(3A) If, however, in respect of ollcnces enumerated in the Table in Section 320, in the coatrse ol' investigation, the person by whom the offence may be compounded under the said section gives a report in writing to the otﬁcer in charge 01' the police station expressing his desires to compound the oiience as provided for in the Said section, the oﬂicer shall mention this fact in the police report prescribed in sub-section 2(1) and forward the compounding report from the person concerned to the Magistrate who shall thereupon deal with the case under section 320 as though the prosecution for the olfence concerned had been launched belore the Magistrate."

We are of the view that such a provision will have a salutary effect and to ensure that there is no coercion or abuse by the police staff, the report of the investigating police ofﬁcer incorporating the desire of the disputants to com- promise can be got attested by a member of the District Legal Services Autho- rity or a member of the village Panchayat.

FOOTNOTES

1. Law Commission, 41st report, para 24.66, page 213 (1969). . Id' at para 24.67, pages 213-214.

. Id at para 24.69, page 214.

. Id at para 24.72, page 215.

(ll-hU.)l\) . Id at para 24.71, p-age 214. The offence of petty theft (to the limited extent) was made compoundable in 1955.

. Id at para 24.70. page 214.

1995 1 All India Criminal Law Reporter 3].

-1993 (2) All India Criminal Law Reporter 800.

99°90 Fourth Report of the National Police Commission,' para 28.8, pages _ 13-14 (1980).

CHAPTER Xlll PLEA BARGAINING

1. The arreares of criminal cases awaiting trail are assuming menacing proportions. Grievances have been vented in p-ublic that the disposal of cri- minal trials in the courts takes considerable time and that in many cases trials do not commence for as long as a period as three to four years after' the accused was remitted to judicial custody. Large number of persons accused of criminal offences have not been able to secure bail for one reason of the other and have to languish in jails as under trail prisoners for years. It is also a matter of common knowledge that majority of the cases ultimately end in acquittal. The accused have to undergo mental torture and also have to spend considerable amount by way of legal expenses and the public exchequer has to bear the re- sultant economic burden. During the course of detention as under-trial pri- soners thc accused persons are exposed to the inﬂuence of hard-core criminals. Quite apart from this. the accused have to remain in a state of uncertainty and are unable to settle down in life for a number of years awaiting the completion of trial. Huge arrears of criminal cases is a common feature in almost all the criminal courts. it is in this background. the Law Commission felt that some remedial legislative measures to reduce the delays in the disposal of criminal trials and appeals and also to alleviate the suffering of under-trial prisoners. The Law Commission in its l42nd Report on Concessional Treatment of Offen- ders who on their own Initiative Choose to Plead guilty without any Bargain- ing (l99l) considered the question of introduction of the concept of concessional treatment for those who choose to plead guilty by way of plea-bargaining.

2. The justiﬁcation for introducing plea-bargaining cannot be expressed any better than what the Twelfth Law Commission in its l42nd Report had already done as below :

(l) It is not just and fair that an accused who feels contrite and wants to make amends or an accused who is honest and candid enough to plead guilty in the hope that the community will enable him to pay the penalty for the crime with a degree of compassion and con-

sideration should be treated on par with an accused who claims to be tried at considerable time-cost and money-cost to the community.

(2) It is desirable to infuse life in the reformative 'provisions embodied in section 360 of the Criminal Procedure Code and in the Probation of Offenders Act which remain practically unutilized as of now.

(3) It will help the accused who have to remain as under-trial prisoners awaiting the trial as also other accused on whom the sword of do- mocles of an impending trial remains hanging for years to obtain speedy trial wi.th attendant beneﬁts such as----

(a) end of uncertainty.

lb) saving in litigatilonecost.

id) being able to know his or her fate and to start of fresh life With- out fear of having to undergo a possible prison sentence at a future date disrupting his life or career.

(e) saving avoidable visits to lawyer's office and to court on every date or adjournment.

(4) It will. without detriment to public interest. reduce the back-breaking burden of the court cases which have already assumed menacing proportions.

(5) It will reduce congestion in jails.

(6) In the USA nearly 75% of the total convictions are secured as a result of plea-bargaining.

(7) Under the present system 75% to 909:; of the criminal cases if not more, result in acquittals.

51 52

3. The concept of plea bargaining has not been recognized so for by the criminal jurisprudence of India. However, plea bargaining is consi- dered to be one of the alteratives to deal with the huge arrears of criminal cases. Plea-bargaining in its most traditional and general sense refers to pre--tr1al negotiations between the accused, usually conducted by the counsel and the prosecution during which the accused agrees to plead - guilty in exchange for certain concessions by the prosecutor. It has two facets. One is "charge bar-V gaining" which refers to a promise by the presecutor to reduce or dismiss some of the charges brought against the accused in exchange for guilty plea. The second one is "sentence bargaining" which refers to a promise by the prose- cutor to recommend a specific sentence or to refrain from making any sentence recommendation in exchange for a guilty plea.

4. The practice of plea bargaining in USA dates back to a century or more. The Prosecuting Agency has a leading role in this process in that it has the discretion to reduce or dismiss some of the charges against the accused and also to make recommendations to the Court about the sentences in ex- change for a guilty plea. The Supreme Court of USA in Brady v. United States' and Smzmbello v. New York" upheld the constitutional validity and the signiﬁcant role the concept of the plea bargaining plays in the disposal of criminal cases. It has approved this practice mainly on the premise that the accused who are convicted on the basis of negotiated pleas of guilt would' ordinarily have been convicted had they been subjected to trial process»es. One of the main argu- ments advanced in favour of plea bargaining is that it helps the disposal of ac- cumulated cases and will expedite delivery of criminal justice.

5. The Supreme Court of India has examined the concept of plea bar- gaining in lMlirlidI7UY Meghraj I.0ya V. State of Matlzzsms/ztrcr' and K(i.m.'mb~hai v. State of Gujarat'. The Court did not approve of the procedure of plea bargain- ing on the basis of informal inducement. In Ka'sambhai's case the Court squarely observed that conviction based on the plea of guilty entered by the accusd as a result of plea bargaining could not be sustained and that it was opposed to public policy to convict the accused by inducing him to confess to a plea of guilty "on allurement being held out to him; that if he enters a plea of guilty 'he will be let off very lightly".

6. The Law Commission in its 142nd Report, having considered the con- cept as is being practised in other countries, recommended that the scheme for concessional treatment to offenders who plead guilty on their own volition in lieu'of a promise to reduce the charge, to drop some of the charges or getting lesser punishment be statutorily introduced by adding a Chapter in the Code of Criminal Procedure. In making such a recommendation, however, the Law Commission considered the views in favour of the concept as well as against it.

' 7. We have examined the cases decided in USA as well as by the Sup- reme Court of India in respect of this concept and the 142nd Report of the Law Commission." We are of the view that plea bargaining can be made an essential component of administration of criminal justice provided it is properly admnistered. For that purpose, certain guidelines and procedure have to be incorporated in the Code of Criminal Procedure.

8. Having given our earnest consideration, we recommend that this concept may be made applicable as an experimental measure, to offences which are liable for punishment with imprisonment of less than seven years and/or ﬁne including the offences covered by section 320 of the Criminal Procedure Code. Plea bar- gaining can also be in respect of the nature and gravity of oifences and the quantum of punishment.

, 9. However, plea bargaining should not be available to habitual offen- ders those who are accused of socio-economic offences of a grave nature and offences against women and Ci'll.l(lI'€l1.

9.1. The process of plea bargaining shall be set in motion after issue of process and when the accused appears, either on a written application by the acsusecl to the Court or suo man: by the Court to ascertain the willingness of the accused. On ascertainment of the willingness of the ~aecusecl,'=the:Court shall require him to make any application accordingly. ,. ;__; _ : ,_~,-I, --,-,;;

:33 9.2. On the date so fixed for the hearing the court shall ascertain from the iaccuscd whether the applicttticn was made by him voluntaril.y without any in-

ducement or pressure from any quartets, partizrulariy from Public Prosecutors or Police. The Court shall ensure that neither the public prosecutor nor police is present at the time of making the preliminary examination of the accused, 9.3 Once the Court is satisfied about the voluntary nature of the applica- tion. the Court shall fix a date [or hearing the public prosecutor and the aggrieved party and the accused applicant for tinal hcai'ing and passing of linal order. ll' the Court tinds that the application has been made under duress or _pres~:~.urc. or that the applicant after realising the consequences is not prepared to proceed with the application. the Court may l'C_l€tI[ the application.

9.4 Such an application may be i'eject.e(l either at the initial stage or after li-caring the public prosecrutor and the z ggrievetl party. lf the Court ﬁnds that, having regard to the gravity of the oi'l'cncc or any of the circumstances which may be brought to its notice by the public prosecutor or the aggrieved party. the case is not it tit one for exercise of its powers on plea-bargaining. the Court may reject the application supported by reasons therefor.

9.5 The order passed by the Court on the application of the accused applicant shall be conﬁdential and will be given only to the accused if he so desires. The making of such application by the accused shall not create any prejudice against the accused at the ensuing trial.

9.6 We are of the View that such a plea bargaining can be availed oi' by the accused in the categories of offences mentioned above before the Court at any stage after the charge sheet is ﬁled by the investigating agency in police cases and in respect of private complaints at any stage after the cognizance is taken. An order passed by the court on such a plea shall be ﬁnal and no appeal shall lie against such an order passed by the Court accepting the plea.

9.7 In cases where the provisions of Probation of Otl°cnders Act, i958 and/or section 360 of Cr. P.C. are applicable to an accused applicant, he would be entitled to make an application that he is desirous of pleading guilty along with a prayer for availing of the beneﬁt under the legislative provisions referred to above. In such cases, the Court after hearing the public prosecutor and the aggrieved party, may pass appropriate order conferring the benefit of those legis- lative provisions. The Court may be empowered to dispense with the necessity of getting a report from the probation otﬁcer in appropriate cases. The provi- sion regarding conﬁdentiality of the making of application and the consequence of rejection outlined in paragraph 9.5 will be applicable if the application is rejected by the Court.

9.8 If an accused enters a plea of guilty in respect of an offence for which minimum sentence is provided for, the Court may, instead of rejecting the application in lirnine, after hearing the public prosecutor and the aggrieved party, accept the plea of guilty and pass an order of conviction and sentence to the tune of one-half. of the minimum 'sentence provided.

9.9 The Court shall on such a plea of guilty being taken. explain to the accused that it may record a conviction for such an offence and it may after hearing the accused proceed to hear the Public Prosecutor or the aggrieved per- son as the case may be:

(i) impose a suspended sentence and release him on probation.

(ii) order him to pay compensation to the aggrived party. or

(iii) impose a sentence. which commensurate with the plea l>argaiitiiig;

(iv) convict him for an offence of lesser gravity than that for which the- accused has been charged if permissible in the facts and circum- stances of the case.

9.10 We recommend that a separate Chapter XXIA on Plea Bargaining be incorporated in the Code of Criminal Procedure on the lines indicated above.

Foomorns

1. 2 297 US 742-25 I-.Ed. 2d 747.

. 404 US 257 (1971); Hutlo v. R053 50 L.Ed. 2d 876: Chﬂffin v.

Stync/zcombe, 412 US I7 (I973); Blaz-kledfge v. Allison. 52 L.Ed. 2d I 36: Wear/zerford v. Bursey. 429 US 545 (I977).

AIR 1976 SC 1929.

AIR 1980 SC 854.

. Law Commission, One Hundred Forty Second Report, Chapter IX.

paras 9.1--9.40 pp 24~--34 (1991).

CHAPTER XIV NYAYA PANCHAYATS

1. In India many of the existing state legislation on panchayat raj pro- vide for some form of adjudicatory bodies by whatever name they may be des- cribed. These fora for resolution of disputes with peoples participation in the administration of justice is the constitutional goal mandated by Article 39A of the Constitution. Article 39A directs the State to secure that the operation of the legal system promotes justice. on the basis of equal opportunity, and shall. in particular, provide free legal aid, by suitable legislation or schemes or in any other way. to ensure that opportunities for securing justice are not denied to any citizen on the ground of economic or other disabilities. The Constitution now mandates us to remove impediments to access to justice in a systematic manner. Articles 40 and 243 have to be interpreted afresh in the light of the mandate in Article 39A.

2. In the past. in the organisation of nyaya panchayats, ithe predomi- nant consideration had been to reduce the burden on the State Court system and not so much as to prevent denial of justice because of economic and other disabilities. The "other disabilities" referred to in Article 39A as distinct from the economic disabilities are those which arise from the profiles of the Indian legal system because of absence of suitable local grassroots organs for hand- ling disputes and emphasis on professionalised justice. Professionalised justice with lawyers dominating the process of the justice-delivery S) stem. cannot be extended to the bulk of the people in the rural areas because most of the lawyers are concentrated in urban areas. Moreover. in View ('if the voluntary nature of the profession. they cannot be dispersed adequately and equitably to serve the needs of the masses.

3. Merely procedural alterations are envisaged in Article 39A to ensure a new legal system and procedure which is operationally geared to social justice and elimination of all disabilities of the masses in getting real, remedial justice. Self--government envisaged by the Constitution must include judicial powers too and that is the rationale for nyaya panchayats which implies judicial decentrali- sation at the people's level.' Effective access to justice is the most basic require- ment and the most basic human right of a system which purports to guarantee legal. rights?

4. These judicial institutions represent the secular, egalitarian, moder- nistic legal ideology for assisting the desired social change. The Law Com- mission in its Fourteenth Report stresses the "educative value of nyaya pan- chayats"; just as the village panchayats would educate the villager in the art of self-government. "so would nyaya panchayats" train him in the art of doing justice between fellow citizens and instil in him a growing sense of fairness and responsibility". In this respect, nyaya panchayats constitute an aspect of over. all development.' 5.1. The working of nyaya panchayats has been examined in detail by the Law Commission in their 114th Report on Gram Nyayalayas. The Law Commission has recommended setting up of Gram Nyayalayas with the follow- ing broad features:' 5.2. A munsif or civil judge should preside over the nyaya panchayats. They would be subject to the jurisdiction of High Courts.

5.3. To provide effective people's participation in the administration of justice. the district magistrate and the district and sessions judge for each dis- trict should draw up a panel-of lay persons from respectable residents in the villages having educational attainments, preferably upto a university degree or at least a higher secondary school. In order to ensure that marginal farmers. farm workers etc. get their due share in the panel. if need arises, educational qualiﬁcations may be relaxed in their case. Depending upon the size of each taluka. the list of panelists may vary from 10 to 20. The list should be ap- proved by the High Court.

55 56

5.4. Whenever a dispute is brought to the panchayat judge having his lle€l(lt]ll£ll'lCl"S at the taluka level. he would proceed to select two from the panel of lay persons. keeping in view the fact that they must be as far as possible. from the geographical location of the dispute. The panchayat judge and the two members of the panel will constitute a nyaya panchayat for the dispute. Such a composition would ensure legal expertise and peoples' participation and would avoid caste. communal and political contamination.

5.5. The Commission was of the View that the Grain Nyayalayaii._1ust hate jurisdiction to try all otlences which can be tried under the Code of Criminal Proccdiirc. I973 by the Judicial Magistrate. First Class.

6. We are of the view that the recoinmeiidation of the Law (foiiiiiiissioii in its 114th Report on the presiding oﬂicers of Gram Nyayalaya rnuy not be feasible because serving Muiisifs,/Civil Judges will not be able to shoulder the additional burden of presiding over Gram Nyayalayas in the rural areas. As it is, there is docket explosion in the civil courts and the civil justice delivering system is adversely affected by the phenomenon of huge backlog of cases leading to long delays in disposals. Restricting to serving judicial Oﬁicers Only prevents the consideration of retired judicial officers and other personnel who have served in the government in various capacities. We are also not in favour of engaging lawyers by the parties to appear before the Nyziya Panchayats for it would introduce technical legal formalities into the system leading to delays in the disposal of cases. lndeed it would frustrate the very purpose for which the Gram Nyayalayas are being introduced.

7. We are of the View that the State have to enact legislation on Nyaya Panchayats to suit their local. needs and sonditions. The Andhra Pradesh Nil.-.llLldlLL .\j.iya Faiichayats Bill, 1995 may be adopted as a model on the composition, powers and jurisdiction of the Nyaya Panchayats. (See Annexure-V).

Voo'rNo1'i2s I. Justice V.R. Krishna Iyer, Our (,'0urt_s on T.ria'I (l'987). . Cappelletti. Mauro and Garth. Bryant (ed) A('(:z'.S;s' to justice 4 volumes (1978-79).

3. The Law Commission of India, Fourteenth report on: Reform of Jiidicizil Adniinistration (1958); see also Government Of India, Report 0] the stmly Tewm of Nyaya Pam:/iayatts (l9'62).

4. Upeiiclra Baxi, Access Development and Distributive Justice, Access Problems of the "Rural" Population. 18 Journat Of the Indian Law Irrts'titi.4't'e 375 (1976).

5. Law Commission of India. One Hundred and Fourteenth Report on Gram Nyayalayas (1980).

B.) CHAPTER XV VICTIMOLOGY I. Increasingly the attention of criminologists, penologists and reformers of criminal justice system has been directed to victimology, control of victimi- szttion and protection of victims of crimes'. Crimes often entail substantive harm to people and not merely symbolic harm to the social order. Consequently, the needs and rights of victims of crime should receive priority attention in the total response to crime. One recognized method of protection of victims is compensation to victims of crime. The needs of victims and their family are extensive and varied.

2. One school of thought justiﬁes compensation in the criminal process in terms of the aims of sentencing. The Widgery Committee in Britain has listed several views about the rationale of the concept of compensation. namely, "beneﬁt to the victims, possible deterrent eﬂect on the offender or on the public, the possible educative or preventive effect on public morality, the possible re- formative effective on oifender, its effect in depriving the offender of ill gotten gains and the view that compensation has an 'intrinsic moral value of its own""' The Law Reform Commission of Canada also was of the same view holding that compensation was consistent with the 'Core values' of the community".

3. The proponents of state compensation justify it as (i) another form of public assistance for the disadvantaged and (ii) a medium of fulﬁlment of neg- lected state obligation to its citizens. The state has a humanitarian responsi- bility to assist crime victims. The assistance is provided because of the social conscience of the citizens and as a symbolic act of compassion. The state is responsible to maintain law and order, ensure peace, harmony and tranquility in society, to use force to suppress crime and punish offenders, to protect people and their property. If the law and order machinery of the state, police is negli- gent or unable to prevent crime. the state is responsible to make preparation to the victims. In addition, state compensation is also considered as a matter of social justice to crieme victims, as the state system namely, its political. econo- mic and social institutions, generate crime by poverty. discrimination. unemploy- ment and insecurity.

4.1. Historically, the ancient Babylonian Code of Hammurabi (about 1775 BC) makes the earliest reference to governmental compensation for crime vic- tims. The Code mandated territorial governors to replace a robbery victim's lost property if the criminal was not captured. In the case of a murder, the governor was to pay the heirs a speciﬁc sum in silver from the treasury. In the succeeding centuries, restitution to the victim by the otfender rep'aced com- pensation of the victim by the state. But that too disappeared during the Middle ages. The victim of crime was left with no remedy except to sue for damages in civil court.

4.2. When movement for prison reform began in Europe during l80()s focussing attention on the plight of convicts interest in compensation surfaced again, calling attention to the plight of crime victims. Jeremy Bentham conten- ded that crime victims should be protected by the society to which they had contributed. ' 4.3.1. In the Anglo-Saxon legal system it was Margery Fry, an English magistrate who advocated. state compensation for crime victims in the late 19505. Thanks to her eﬁorts, Britain set up its programme in 1964.

4.3.2. The scheme was brought into force through the exercise of the Royal Prerogative and the payments were made ex-gratia in the sense that there was no statutory authority for the scheme. The necessary funds, however. were voted by Parliament annually. Compensation was given in the shape of a lump- sum arrived at in the same manner as a civil award of damages for personal injury based on tort, subject to an upper limit on the amount attributable to loss of earnings. The scheme was administered by the Criminal 'lniuries Com- pensation Board, consisting of a Chairman and a panel of Queen's Counsel and solicitors. ' 57 58 4.3.3. With a view to giving statutory form to the scheme. the British Government. acting on the recommendations of an lnter-departmental Working Party, incorporated Part Vii to the Criminal Justice Act. 1988 (S60- tions lO8 to H7 together with Schedisles 6 and 7). According to these provi- sions the schemc would be administered by a statutory board. appointed by the Secretary of State subject to certain exceptions and limitations. claims for compensation were to be determined and the amounts payable to be assessed on the basis of principles of tortious liability. There would be a right of appeal from the Board's determination to the High Court or the Court of Session. as the case may be. The statutory scheme was not brought into force.

4.3.4. In the interim coiiseqticnt on a policy change reﬂectecl in a White Paper "Compensating Victims of Violent Crime: Changes to the Criminal in- juries Compensation Scheme" presented to Parliament in l993, the existing scheme was replaced with a new tariff scheme in 1994 by a government order. The tariff scheme broke the link with common law damages. The system is based on a tariff or scale of awards under which injuries of comparable severity will be combined together for which a ﬁxed payment is made. A lump sum award related to the severity of the injury will be paid.

4.3.5. The method of introduction of the new tariff scheme was held un- lawful by the Judicial Committee of the House of Lords in Regina v. .S'e(-rerary of State for the Home Department, ex parte Fire Brigades Um'(m". Consequently. the tariff scheme was withdrawn and the former scheme reinstated. Since the House of Lords' decision related only to the method of introduction of the tariff scheme and not its merits. the government enacted the Criminal injuries Compensation Act. 1905 which incorporates the tariff based scheme with cer- tain improvements. The scheme provides that the tariff would be increased in appropriate cases by payment for loss of earnings, snecial care and depen- dency. In cases where the victim has lost his life. not only will family members receive a ﬁxed tariff payment but also in cases where they are ﬁnancially de- pendant on the victim. they will receive payment for the loss of dependency and support (s. 2).

4.3.6. The Act repealed the provisions of the Criminal Justice Act. 1988 relating to the Criminal Injury Compensation scheme (s. l2).

4.3.7. The scheme will be administered by Scheme Managers. The Act provides for internal review of the case for compensation by a person other than the one who made the decision -(s.4.). It also provides for appeal against decision taken on review to a panel of adjudicators. The panel of adjudicalors will come under the supervision of the Council on Tribunals. Apart from hearing appeals. the pane' of adjudicators has an advice giving role to the Secretary of State s5).

5.1. The movement in Britain caught on in the United States of America. In the United States California was the ﬁrst State to legislate on victim com- pensation in 1965. Since then many more States set up boards and courts to administer ﬁnancial aid to victims. In 1984, after a-sustained campaign of nearly twenty years the Congress enacted the Victims of Crime Act. l984"' to provide compensation to crime victims. The Act established a fund described as Crime Victims Fund within the U.S. Treasury. collected from ﬁnes. penal- ties and forfeitures. Attorney-General administers the fund. half of v;v'':'--li' 6-. earmarked annually for state compensation programmes: the balance goes to help pay for victim assistance programmes and services and victims of federal crimes".

5.2. Most of the states in USA have victim compensation programmes administered by compensation boards. Compensation is given only to innocent victims. If the boards ﬁnd evidence to prove victim's complicity in the crime. compensaiton is reduced in amount or disallowed entirely. A common feature is that compensation programme deals only with the most serious crimes. those which result in injury or death. Payments include medical expenses and for earnings lost because of missed work. In case of death of victims. their families are eligible for assistance, reasonable funeral costs and sometimes a death bene- fit or pension for surviving dependants. All state programmes prohibit double recoveries, namely any money received from insurance policy or other govern- ment' agencies is deducted from the board's ﬁnancial determination.

5') 6.1. The near! for C0l'[ll7L'I'i.\£ill'll1.g victims of crime was reiterated by UN Agencies also. The General Assembly of the United Nations in its 96th plenary meeting on 29th November, 1985. made a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, recognising that millions ot people throughout the world suffer harm as a result of crime and the abuse oi' power and that the rights of tlirsc virstims have rot been adequately recognised and also that frequently their families. witnesses and other who aid them. are unjustly subjected to loss_. damage or injury. The Assembly aﬂirmed the neces- sity of adopting national and international norms in order to secure universal and effective recognition of and respect for, the rights of victims of crimes and abuse of power. It was also declared that offenders or third parties responsi- ble for their behaviour should. where appropriate. make fair restitution to victims, their families or dependants. This Deciaratic-n has been tle.~.cri"o.tl :2:

"a kind of Magna Carta of the Rights of the Victims" worldwide.' 6.2. The Declaration defines victims as "persons who. individually or collectively, have suffered harm, including physical or mental injury, emotional suﬂ'ering, economic loss or substantial impairment of their fundamental rights. through acts or omissions that are in violation of criminal laws operative with- in Member States. including thosc laws prescribing criminal abuse of power."

6.3. The Declaration states:

"I2. When compensation is not fully available from the offender or other sources. States should endeavour to provide ﬁnancial compensation to:

(a) Victims who have sustained bodily injury or impairment of physi-

cal or mental health as a result of serious crimes;

(b) The family in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization."

6.4. "[3. The establishment strengthening. and expansion of national funds for compensation to victims should be encouraged. Where appropriate. other funds may also be established for the purpose, including those Cases where the state of which the victim is a national is not in a position to compensate the victim for the harm."

As regards assistance to victims the Declaration states:

"I4. Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community based and indigenous means."

6.5. The Declaration also refers to the necessity of establishing and strengthenling "judicial and administrative mechanisms to enable victims to obtain redress through formal or informal procedure that are expeditious, fair. inexpensive and accessible."

7. Article l5B of the State of the Council of Europe also highlights the ideology of victimology. The Committee of Ministers of the Council of Europe adopted a recommendation on crime victims in the framework of criminal laws and procedure in accordance with this Article. The preamble of the Statute of Council of Europe highlights the principles of victimology as laid down below?

"Considering that the objectives of the criminal justice system have tradi- tionally been expressed in terms which primarily concern the rela- tionship between the state and the offender;

Considering that consequently the operation of this system has sometimes tended to add to rather than to diminish the problems of the victim:

Considering that it must be a fundamental function of criminal justice to meet the needs and to safeguard the interests of the victim; 9*] M of L & J/ND,/97 60 Considering that it is also important to enhance the conﬁdence of the victim in criminal justice and to encourage his co-operation, espe- cially in his capacity as a witness;

Considering that, to this end, it is necessary to have more regard in the criminal justice system to the physical, psychological, material and social harm suffered by the victims and to consider What steps are desirable to satisfy his lie-eds in these rarspects:

Considering that measures to this end need not necessarily conflict with other objectives of criminal law and procedure, such as the reinforce- ment of social norms and the i*eliab-ilitafion of offenders, but may in fact assist in their achievement and in an eventual reconciliation between the victim and the oﬂender:

Considering that the needs and interests of the victim should be taken into account to a greater degree, throughout all stages of the criminal jus-

tice process."

The recommendations cover action at the police ievel and the state:

"I. Police officers should be trained to deal with victims in a sympathetic constructive and reassuring manner;

2. The police should inform the victim about the possibilities of obtaining assistance, practical and legal advice. comp-cnsat'ion from the offender and state compensation;

3. The victim shou'd be able to obtain information on the outcome of the police investigation:

4. In any report of the prosecuting authorities. the police should give as clear and complete a statement as possible on the injuries and losses suffered by the victim;

In respect of Prosecution:

5. A discretionary decision whether to prosecute the offender should not be taken without due considerat.ion of the question of compensation of the victim, including any serious eifort made to that end by the offender: ' " ii'

6. The victim should be informed of the ﬁnal decision concerning prose-

cution, unless he indicates that he does not want this information:

7. The victim should have the right to ask for review by a competent authority of a decision not to prosecute. or the right to institute pri-

vate proceedingsz"

Questioning of the Victim At all stages of the procedure. the victim should be questioned in a manner giving due consideration to his personal situation. his rights and his dignity. Whenever possible and aopron-riate. children and the mentally ill or handicapped should be questioned in the presence of their parents or guarrlians or other persons qualiﬁed to assist them.

8. The movement for compensation for victims of crime has, aslwe have examined above, gained momentum globally and in countries of Anglo-Saxon 'egal systems as in UK... Canada. New Zealand. Australia and USA. Statutory mechanisms are in place for providing succour to crime victims through com-I pensation.

9.1. The principles of victimology has foundatioris in lndian constitu- tional jurisprudence. The provision on Fundamental Rights (Part Ill) and Dir- ective. Principles of State Policy (Part TVl form the bulwork for a new social order in' which social and economic justice would blossom in the national life of the country (Article 38). Article 41 mandates, infer r1'Iz'.a, that the State shall make effective provisions for "securing the right to public assistance in cases of disablement and in other cases of undeserved want." So also Article 51-A makes it a fundamental duty of every Indian citizen, inter alia 'to have compassion for__ Gl living creatures' and 'to develop humanism'. if eniphatically interpreted and imaginatively expanded these provisions can form the constitutional underpinn- ings tor victimology.

9.2. However, in lndia the crin'1inal iziw Provides compensation to the victims and their dependants only in a limited manner. Section 357 of the Code of Criminal Procedure incorporates this concept to an extent and empowers the (friminal Courts to grant compensation to the victims.

9.3. Under Section 357 compensation cant be given in diilerent ways and that too only when the offender is convicted and sentenced. Under Section 357 tl)tb) if the sentence is of line, it can be applied in the payment of compen- sation, but limits the payment to cases when compensation is, in the opinion of the court. recoverable by the victim in a civi. court. Similarly, compensation may be paid at the sentencing stage to persons who are under the Fatal Acci- dents Act. l855 entitled to recover duntages l'roi'n the convict (s. 357 (l)ti:)). So also in cases of theft, misappropriation. cheating and the like, the bonaiide purchaser of property from the convict may also be compensated, the victim of the theft or cheating being also entitled to return of the property (S. 357 (l)-tdjifr. Under section 357(3) if the sentence is not fine, the court may order the EliiZL'ltS'2tl to pay speciﬁed amount of compensation to the victim.

9.4. The code of Criminal Procedure, 1973 made an improvement over the old Code of 1898 in that under sub-section (3) of section 357. it aei;ogn.isctl ' the principle of compensating the victims even when no sentence of fine is imposed.

Under the old Code, no compensation could be awarded unless a substantive sentence of ﬁne was imposed and the amount of compensation too was limited ony to the extent of ﬁne actually realised. But order of compensation under section 357(3), will be futiie against an accnnecl without property or other finan- cial resources or if he dies.

9.5. Under Section 5 of the Probation of Cttlenders Act, 1958. while releasing an accused on probation or with admonition, the court may order the .4 offender to pay compensation as well as cost to the victim.

10. The aspect of compensatory justice in criminal law has been elabo- rately dealt with by the Supreme Court in the leading case of Huri Singh v. Suklrbir Sirigh". The Court pertincntly observed:

"[S. 357(3)] .... ..is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgement of conviction. In addition to conviction, the court may order the accu- sed to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is an addition thereto. This power was intended to do some- thing to reassure the victim that he or she is not forgotten in the cri- minal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim. with the offender. It is. to some extent, a constructive approach to crimes. it is indeed a step forward in our criminal justice system. We therefore, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way.

The payment by way of compensation must, however, be reasonabe. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. Reasonable period for payment of compensation, if necessary by instalments, may also be given. The court may enforce the order by imposing sentence in default."

11. In India the principles of comppensation to crime victims need to 'iv reviewed and expanded to cover all cases. The compensation should 'not 33* limited only to ﬁnes, penalties and forfeitures realised. The State should«zi.x-:-_:;.~.«, 62 the principle of providing assistance to victims out of its own funds. (i) in cases of acquittals, or (ii) or where the ollender is not traceable but the victim is identiﬁed. or (iii) and also in cases when the offence is proved.

12. The Law Commission of lndia in its l52nd Report on Custodial Crimes has recommended insertion of a new Section 357A in the Code of Cri- minal Procedure regarding compensation to the victims of custodial crimes which is as follows:

"(l) Notwithstanding the provisions of Section 357, where the court convicts a public servant of an offence resulting in death or bodily injury. being an offence constituted by an act of such public ser-

vant against. a person in his custody. the provisions of this section shall apply.

(2) The court, when passing judgment in any case to which this Section applies, shall order that the Government in connection with the aﬂairs of which such public servant was employed at the time when such act was committed. shall be liab.e jointly and severally with such public servant to pay, by way of compensation such amount as may be specified in the order.

(3) An order for payment of compensation under this section may also be made by an appellate court or by the High Court or Court of Session when exercising its powers of revision.

(4) While awarding compensation in any subsequent suit relating to the same matter, the civil court shall take into account any sum paid or recovered as compensation under this section.

(5) The amount awarded under this section shall not be less than:

(a) Rupees twenty five thousand in case of bodify injury. not resul-

ting in death;

(lb) Rupecs one lakh, in case of. death:

(c) In ﬁxing the amount of compensation under this section, the court shall, subject to the provisions of sub-section (5). take into account all relevant circumstances. including but not necessarily limited to the following:

(i) the type and serverity of the injury suffered by the victim:

(ii) the mental anguish suffered by the victim:

(iii) the expenditure incurred or likely to be incurred on the treatment and rehabilitation of the victim:

(iv) the actual and projected earning capacity of the victim and the impact of its loss on the person entitled to compen-

sation and other members of the family;

(v) the extent, if any. to which the victim himself con:tributed to the injury;

(vi) the expenses incurred in the prosecution of the case. (6) Tn case of death or permanent disablement of the victim. the court may take into account the estimated annual income of the victim as multip'ied by the number of years of his estimated 'span of life;

(7) Pending ﬁnal determination of . the proceeding, the court may award.-

by way of interim relief, such compensation as it may think proper .in the circumstances of the case at any stage of the case, even before judgment of conviction is passed.

(8) The Government may recover any amount paid by it as compgnsa. tion under this section wholly or partly as it may think proper. from the delinquent public servant."

The above recommendations of the Law Commission though conﬁning to victims of custodial crimes, have not been given effect to.

13. In view of the weaknesses of the existing provisions for compensa- tion to crime victims in the criminal law. we are of the view that it is necessary to incorporate it new Section 357-/X in the Code to provide for a comprehen- sive scheme of payment of compensation for all victims fairly and adequately by the courts. Heads or compensation are for (i) for injury, (ii) for any loss or damage to the property or the claimant which occurred in the course of 'his/her sustaining the injury and (iii) in case of death from injury resulting in loss of support to dependants. ' In the State of Tamil Nadu. a Fund called "Victim Assistance Fund"

has been created and Rupees one crore has been allocated to the scheme during 1995-96. The scheme provides for ﬁnancial assistance to the victim Of murder. serious injuries, rape and particularly to help women. children and bread win- ners in distress. The amount is placed at the disposal of the Director-General of Police who will sub-allocate the amount. to the Commissioners of Police of Madras. Madurai and Coimbatore and Superintendents of Police of other dis- tricts with reference to requirements «and the cash relief would be sanctioned to -the victims or legal heir in case of murder on the following scales:

No. Particulars Amount of cash To whom it should (Rs. ten thousand be paid only) I . Murder RS. l0.000 -- To thclcgal hcir (-Rs. ten 'thousand only) 2- Grievous injury Rs. 50005 (Rs. ﬁve To the victim thou sand only) 3- Rape Rs. 5000/- (Rs. live To the victim thousand only) The said Scheme provides for setting up District Vicitims' Assistance Committee in each district comprising the following oﬂicials with the District Superintendent of Police/ Deputy Commissioner of Police '(-Hea-dquarters) acting as Member Secretary:

Name of the Committee Chairman Member

(a) District Victims Assistance Committee District Collector (9) District Superintendent of Police (bi) "City Victims Assistance Committee at Commissioner of 3) Deputy Commi-

Madras, Madurai, Coimbatore Pot-ice ssioner of Police (Head quarters) ii-) 'City Public Prosecutor.

The application received from the victims seeking ﬁnancial assistance 'from the fund in District Superintendent of Police Ofﬁce/Commissioner of Police Oﬂice under the scheme is required to be placed before the Committee for consideration and decision.

The assistance from the "Victim Assistance' Fund" will not be given to 'those victims or to legal heirs, if the victim is involved in any cognilablg offence.

The Tamil Nadu Scheme which is limited only to a certain class of victims is being referred to -as a model to be adopted in a Comprehensive man.

'ner «covering all 'victims.

631

14. In' order to ensure -that opportunities for sectiriiig justice are not denied' to any citizen by raising oi" economic or other disabilities as per the mandate under Article 39 A of the Constitution. the Legal Servlces Authorities Act. 1987 was enacted by the Parliament. it seeks to provide for the constitu- tion of the National Legal Services Authority consisting of the Chief Justice of lndia and some other members. Likewise, the Act provides for constitution of the State Legal Services Authority consisting of the Chief Justice of the High Court or any other scrving or retired jrdge of the High Court to act as its ('hairmtm and such other members possessing the requisite experience and qualiﬁcations. The State Authority performs functions, namely to (a) give legal st .ic,. tr 'TC '-"""'lF m":~. si'ti't'_\. tit? criteria laid down under this Act: (b) conduct 'Lok Adalats: '(c)i undertake preventive and strategic legal aid programmes; and id) perform such other functions as the State Authority may. in consultation with the ('entral (iovernment. fix by regulations.

lhe Act further provides for the constitution of Legal Services Autho-

rity for every district in the State consisting of district Judge, who shall be its Chairman and such other members possessing such qualiﬁcations and experi- ence as may be prescribed and nominated by the Government. The District Authority performs the tunctions of coordinating the activities of legal services in the district; organizing Lok Adalats within the district and such other task as the State Authority may. in consultation with the State G0vernment, ﬁx by regulations.

15. State and District Services Authorities may be vested with thc power to award the compensation in the appropriate manner by making a provision under' Section 357A.

16. While awarding compensation the District Legal Services Authority or the State Legal Services Authority, as the case may be, should make a special consideration in cases of (i) victims of custodial crimes, (ii) rape victims, (iii) victims of child abuse, and (iv) physically and mentally disabled victims.

17. Accordingly, a new Section S. 357A may be incorporated in the Code on the following lines:

Section 357A~-«Victim Compensation Sclieme~~ tl) Every State Government in co-ordination with the Central Govern-

mcnt shall prepare a Scheme for providing funds for the purpose of compensating the victim or his dependents who have suffered loss or injury as a result of the crime and. who require rehabilitation.

(2) Under the Scheme the District Legal Services Authority at the district level and the State Legal Services Authority at the State level shall decide the quantum of compensation to be awarded whenever a re- commendation is made by the trial court to that effect.

(3) if the trial court, at the conclusion of the trial, is satisﬁed, that the compensation awarded under Section 357(3) is not adequate for such rehabilitation, or where the cases end in_ acquittal or discharge and the victim has to be rehabilitated, it may recommend to the District Legal Services Authority if the compensation in its view is less than Rs. 30,000. or to the State Legal Service Authority if the compensa- tion is more than Rs. 30,000.

(4) Where the otfender is not traced or identiﬁed, but the victim is identi- ﬁed, and where no trial takes place it is open to the victim or his dependents to make an application under sub-section (2) to the Dis- trict Legal Services Authority at the district level and the State Le- gal Services Authority at the State level for award of compensation.

' (5) Orrreceipt of such recommendations or on the application under sub- section (4). as the case may be, the District Legal Services Authority (96) The District Legal Services Authority or the 65 or the State l.e,gal Services Authority. as the case may he. shall aftt'-1' due enquiry award adequate compensation by completing the en- quiry within two months.

State Legal Services Authority. as the case may be. to alleviate the sulfering of the victim may order immediate lirst aid facility or for medical beneﬁts to be made available free of cost on the Certiﬁcate of the police Officer not below the rank of the Oﬂicer--in-Charge of the police station or 3 l\/iagistrate of the area concerned or any Other interim relief as the appropriate authority deems tit.

Foorsa mas l .

Ex) . Advisory Council See generally Justice V. R. Krishna lyer. Human Rigl1t.r------A Judge's Mis'¢'ellz1n_v (1995); V. N. Rajan Vi(.'timol0gy in India (1995); R. l. Mawby and S. Walklate, Criricail Va"('Ii1n0'I0gy' (I994); Essat A Fallah (ed), The Plight of Cri'me'Victims in Modern Society (I989): Andrew Carmen. Crime Victims: An lrttroductitm to Victimology (2nd ed. I989); Chokkalingam Jed) Re-tidings in Viclimolﬂgy :' l/iczizn Perspective in: C'riI11ir10l0tg\' (1985); Emilo C Viano, Victims mm' S(>t'.iety (1976).

on the Penal system (1970) Reparaiirm by the Oﬁerider (London HMSO) (Widgery Report).

Law Reform Commission of Canada (1974) Reszitmiun um] Compen- .saIi(m:,- Working Paper No. 5. -

. 'I995 2 All 'E.R. 244.

5. 42 USC 10601. S. 1402.

. K. Peak, "Crime Victim Reparation: Legislative Revival of the Otfended Ones", Federal Probation, September, pp, 36-4! (1986) quoted in Andrew Karmen Crime Victims: An Introduction to Victimology 307 (2nd ed. 1989). W See Essat A Fattah (ed.), The Plight of Crinze Vir'l'irn.s~ in Modern ' S0613: ty (1989).

«See Justice V, R. Krishna lyer_ "A Burgeoning Global Jurispru- dence of Victimology" in Hmmm Rights----A Judge': Mis(e"IIan)' I58- 2l5 (1995).

(1988) 4 SCC 55]; see also Dr. Jawb George v. State of Kerulu (1994) 3 SCC 430 (Fine imposed for offence under Section 314 of Indian Penal Code in addition to sentence of imprisonment. Supreme Court enhanced the ﬁne from Rs. 5000 as awarded by the High Court to Rs. l.00,0«()0 to be pilid as compensation for the upkeep of the deceased's child); Baldev Singli V. State of Punjab (1995) 6 SCC 593 (appellants were directed under section 357(3) to pay com. pcnsation to the tune of Rs. 35,000 each to the widow of the victim andiher children); Balraj v. Stzwle of U.P., AIR 1995 SC. l935 (appellants directed to pay by way of compensation a sum of Rs. W000 to the victim'siv:idow under section 357(3).

Towrrn/s (.'_ CHAPTER XVI ENQUIRY AND TRIAL OF PERSONS OF UNSOUND MIND I. It has been recognized that the primary objective of the law of cri- minal procedure is to ensure that accused persons are granted a fair trial. The right to be informed of the accusation and an opportunity to prefer defence is granted to the accused by the Code of Criminal Procedure (Cr. P.C.): whilst the right to consult counsel is conferred by the Constitution.

2. An accused who is of unsound mind at the time of the inquiry or trial may not comprehend the charges levelled against him and may be unable to explain the alleged criminal conduct. The accused being the alleged doer of the act possesses the best knowledge of his own activities in relation to the incriminating circumstances. If. due to unsoundness of mind he is unable to provide this vital information to his counsel. his defence cannot be conducted to his best advantage. If the inquiry or trial is proceeded with in his absence. the accused cannot impart instructions for cross-examination nor in the course of his examination under section 342 of the Code explain the circumstances appearing against him. Due to these dysfunctional consequences provisions have been incorporated in the Cr. P. C. which lay down that the inquiry proceedings or trial of a person. who is incapable of defending himself due to unsoundness of mind, may be postponed. The motivation for including these provisions in the Cr. P.C. is to ensure that an accused incapaci- tated due to unsoundness of mind is not denied his basic human right to a fair trial.

I. This principle is embodied in Section 328 which is as follows:

5. 328(1): When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is_ being held is of un-

sound mind and consequently incapable of making his defence. the Magistrate shall enquire into the fact of such unsoundness of mind. and shall cause such person to be examined by the Civil Surgeon of the District or such other medical officer as the State Government may direct, and. therefore, shall examine such surgeon or other 0fli- cer as a witness and shall reduce the examination to writing.

(2) .......

(3) if such Magistrate is of opinion that the person referred to in sub- section (I) is of unsound mind and consequently incapable of mak- ing his defence, he shall record a ﬁnding to that effect and shall postpone further proceedings in the case.

4. Section 329 deals with the procedure of trial of ~':'crson of unsound mind by Magistrate or Court of Session. It runs as:

Section 329(1): If at the trial of any person before a Magistrate or a Court of Session. it appears to the Magistrate or Court that Such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall. in the ﬁrst instance, try the fact of such unsoundness and incapacity and, if the Magistrate or Court. after considering such medical or other evidence as may be produced before him or it, is satisﬁed of the fact. he or it shall record a ﬁnding to that effect and shall postpone further proceedings in the case. A (2) The trial of the fact of the unsoundness of mind incapacity of the accused shall be deemed to be part of his trial before the Magistrate or Court.

5. Once an undertrail is found incapable of standing trail due to un- soundness of mind the trial has to be postponed. 'During the interregnum of the postponement and resumption of the trial, the undertrial can be released on surety of safe conduct. However, if the case is not ﬁt for the grant of bail 66 67 or if 'no surety for 'there-iease'ol' theaecused is offered," the accused can be de- ztaincd in safe custody. The safe custody can be that of a jall or a mental liospital. '

6. The law grants no entitlement of treatment to the insane undertrial. A guarantee ol"safe conduct and not treatment is sought from surety seeking release of the undertrial. Without a right to treatment, detention in jail will only be custodial guarding against the alleged dangerous propensities of the accused but providing no facilities for alleviating the incapacltating condition of the accused.

'7. -The Code provides no time-limit for which the postponement will subsist and' the' only safeguard against indeﬁnite conﬁnement is the obligation to send six monthly medical reports on the mental condition of the accused to the state government. This safeguard in no way protects the accused against need-less. it" not lifelong. incarceration has been demonstrated by Vcenai Seth.' v, State of Bi/mr.' Veena Sethi unearths from the jails of Bihar cases of individuals whose trials' were postponed because they were incapable of defending them- selves. Subsequent to postponement of their trials they were l0dged in Hazari Bagh Central Jail wherein they were detained for periods ranging from 19 to 37 years.' This detention continued 'even after the accused tegained sanity.

, 8. The conﬁnement if insane undertrials in jail even after -they have regained sanity has been held to be an infringement' of their constitutional rights under Article 2|. Section 428 of the Cr. P. C. provides that time spent by the accused as an underlrial should be set off with the sentence ordered on conviction. This section can be invoked only after the trial is concluded. In Veemr SeIhi'.s' case when insane undertrial had spent periods in jail longer than the maximum period of sentence that Could be ordered against them, the Supreme Court ordered their release invoking thissection.

9. Article 14 of the Indian Constitution prohibits both different treat- ment of similar groups and similar treatment of different' groups. Sections 328 and 329 authorise the postponement of the criminal trial of 'all persons of un»- sound mind'who are incapable of defending themselves. ' This postponement whilst beneﬁting persons of unsound mind who are suffering from a treatable condition; could lead to lifelong incarceration of the incurable mentally' ill and mentall.y reta'rd*ed. Both groups are incapable of regaining capacity,' hence postponement does not promote fair trial" for them, rather it operates as a:

punitive device. This. similar treatment of the incurables and the curablesg vio-' latest 'the- equality * provision.

10. Section 330 provides for release of persons of unsound mind pending inquiry or trial. It reads as:

Section 330(1): ~Whenever a person is found, "under section 328. or"

. section 329, to be of unsound mind'and' incapable of making-his defence. the Magistrate or Court, as the case may 'be, whether the case is one in which bail may 'be taken or not, may release him on sullicient securityibeingvgiven that he 'shall be properlyitaken care oI' and s-hall be prevented from doing injury-to himself or to any other person. and for his appearance when required before the » l\/Iagistrateeor Court. or such 0'ﬂlC6l' as the Magistrate or Court» appoints in this behalf. .-

(2)' ll'. the case is one in which,' in the opinion of the Magistrate or Court, hail 'should not be taken. orif sulﬁcient _'security is not given, , the Magistrate or Court. as the case may he. shall order the accusedto be detained in sale custody in such place and manner as he or it ._ H may think tit. and shall report. the action taken to the State.Govern-

' ment. .

Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the lndian Lunacy Act, l9l2 (4 of l9l2).

'' _; 11-. Recognition to' -the therapeutic rights ;of insane undcrtrails is also i_n_andate/dsbv the rightef speedy; trial guaranteed-under Article 21.' The provisions 19-1 M ofL & J/ND'97 68 in the Code which accord recognition to the right. of speedy trial_ do not apply to the insane undertrial. Since an insane undertrial is treated differently from a sane undertrial. it can be logically contended that the manner of their disposition should be suited to their varied needs. A sane undertrial "vho is to be released on bail is kept in jail in order to prevent him from ﬂeeing or tampering with the investigation procedure. An insane undertrial not released on surety can also -be conﬁned in jail. Conﬁnement in jail can be only protec- tive custody, and protective custody is not what the insane detenu needs for early resumption of trial. The right of speedy trial. as extended to the insane undertrial requires that the detenu should be conﬁned in conditions which would alleviate the incapacity and aid early -resumption of trial. The speedy trial rights of insane undertrials are infringed not only by their conﬁnement in jails but also because no time limit is provided for keeping the trial in abeyance and the accused in detention. In HuA'sain'aI'a K/Maroon? the Supreme Court whilst enunciating the right to speedy trial ordered the release of those undertrials whose trial had not commenced even after the period speciﬁed for such com- mencement in the Code has expired. The rationale of specifying a time limit within which a trial should begin is to save the accused from the disadvantages occasioned by stale or tampered evidence and frail memory of witnesses.

12. The trial of a person of unsound mind who is incapable of defending himself is postponed to promote fair trial. If this postponement operates for periods as long as 10 years then even when the accused regains sanity he may still be incapable of defending himself not due to unsoundness of mind but because the evidence has gone stale or witnesses are lost. The right of speedy trial as extended to the insane undertrial mandates that a time limit should be ﬁxed for the period of postponement of trial. Indeﬁnite postponement is an infringe- ment of the personal liberty and rights of insane undertrials.

13. It is the standard of treatability that should provide justification for postponement of enquiry or trial; hence treatability and not dangerousness should be the guiding force of sections 328 and 329. It is the «prospect of recovery alone which explains the postponement of enquiry or trial of persons of unsound mind and the continuance of the proceedings for persons for who are not of un- sound mind. The criterion of treatability should be accorded recognition at each stage of the enquiry or trial. At the stage of observation, medical opinion should be sought not only on whether the accused was of unsound mind and incapable of defending himself but also whether the mental condition was amen- able to treatment. For the accused whose mental condition is diagnosed as incurable at this stage, a procedure different from postponement needs to be devised. For those categorized as treatable the time required to regain ﬁtness needs to be inquired. The time needed for treatment should be accorded due cognizance in ﬁxing the period of postponement.

14. All accused categorized as treatable may not respond to treatment. In order that personal liberty is not arbitrarily deprived in the name of therapy. it is essential that the period for which the enquiry or trial can be postponed. should be subject to limitation.

15. For the accused whose condition is treatable and who can be better equipped to defend themselves. postponement of trial furthers fair trial. For incurables. postponement is of little utility and only operates as a mechanism for punishing without trial. It, therefore, seems appropriate that they should be discharged of the charged offence. If their mental condition makes them a danger to themselves or others i.e. they are incapable of looking after themselves and nobody is available who is willing to look after them, then the procedure for involuntary civil commitment should be initiated to institutionalize these persons.

16. We accordingly suggest the following amendments to sections 328. 329 and 330 in respect of the pre-inquiry and pre-trial proceedings.

16.1 After section 328 (l) a new sub-section (IA) may be inserted on the following lines.

S.328(l.A): "That if the civil surgeon finds the accused is of unsound mind, the accused shall be referred to a psychiatrist or clinical psycho- logist for care, treatment and for prognosis of the condition. The 69 psychiatrist. or clinical psychologist shall also inform the Magistrate xxshether the accused is suffering from unsoundness of mind or mental retardation."

l6.2. Further, for the existing sub-section (3) of Section 328 the follow- ing sub-section (3) be substituted :

S.328(3) : If such magistrate is informed that the person referred in sub- section (IA) is a person of unsound mind, the magistrate shall further detemiine whether the unsoundness of mind renders the accused incapable of entering defence and if the accused is found so in- capable, the magistrate shall. record a ﬁnding to that etfect. On 1-.'.lt.i't u linding of unsoundness of mind of the accused arriv- ed by the Magistrate. he shall examine the record of evidence pro- duced by the prosecution and after hearing the lawyer of the accused but without questioning the accused, if he ﬁnds that no prima facie case is made out against the accused. he shall, instead of postponing the enquiry, discharge the accused and deal with the accused in the manner provided under the proposed section 330(3):

Provided that if the Magistrate ﬁnds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrivedat, he shall postpone the proceeding for such period. as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused and order the accused to be dealt with as provided under the proposed section 330(3).

16.3. A new sub-section (4) to Section 328 be inserted as follows :

If such magistrate is informed that the person referred to in sub-section (IA) is a person with mental retardation. the magistrate shall further determine whether the mental retardation renders the accused incap-

able of entering defence and if the accused is -found so incapable, the magistrate shall order closure of the inquiry and deal with the accused in the manner provided under the proposed Section 330(3).

1.6.4. Section 329(1) shall be amended as follows:

S. 329(1) : if at the trial of any person before a Magistrate or Court of Session. it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall refer such person to a psychiatrist or clinical psychologist for care, treatment and for prognosis of the condition. The psychiatrist or clinical psychologist shall also inform the Magis- trate or Court whether the accused is suffering from unsoundness of mind or mental retardation.

16.5. In place of existing sub-section (2) of section 329, the following sub-

section (2) shall be inserted:

S. 329(2). If such Magistrate or Court is informed that the person referred to in sub-section (1) is a person of unsound mind, the Magistrate or Court shall further determine whether unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a ﬁnding to that effect. On such a ﬁnding of unsoundness of mind of the accused arrived at by the Magistrate or Court, he or it shall examine the record of evidence produced by the prosecution and after hearing the lawyer of the accused but without questioning the accused, if he or it ﬁnds that no pnima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with the accused in the manner provided under the proposed section 330(3) :

Provided that if the Magistrate or Court ﬁnds that a prima facie case is made out against the accused in respect of whom a ﬁnding of unsoundness of mind is arrived at, he or it shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist. is required for the treatment of the accused.

A new sub-section (3) of- Section 329 shall be inserted in the following manner: "':. » S. 329(3): If the Magistrate or the Court finds that a prima fade case is made out against the accused and he is incapable of entering de- fence by reason of mental retardation. he or it shall not holdthe -triial. and order the accused to be dealt with in accordance with the proposed section 330(3). - ' 16.6. The existing Section 33()(l) shall be amended as follows:

Section 330(1): Whenever a person is found under section 328 or section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the magistrate or court. as the case may be, whether the case is one in which bail may be taken or not. order release on bail provided the accused is suffering from unsoundness of mind or mental retardation which does not manclateinpatient. treat-

ment and a friend or relative undertakes to obtain regular out-patient

- psychiatric treatment from the nearest medical facility and to prevent from doing injury to himself or to any other person.

16.7. The existing Section 33()(2) shall be amended as follows : __ S. 330(2): If the case is one in which. in the opinion of the magistateiors court. as the case may be. bail shall not be granted or if an appropriate' undertaking is not given, he or it shall order the accused to be kept:

in such a place where regular psychiatric treatment can be provided. and shall report the action taken to the State Government.

16.8. A new sub-section (3), be inserted in Section 330:

S. 330(3): Whenever a person is found under Section'328 or Section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation. the Magistrate or Court, as the case may be, shall keeping in view the nature of act committed and the extent of unsoundness of mind or retardation further determine if the release of the accused can be ordered.

(i) If on the basis of medical and other specialist opinion the Magis- trate or Court, as the case may be, decide to order discharge of thevaccused. as provided under sections 328 (3) and (4) and 329 (2) and (3), such release may be ordered if sufficient security is given that the accused shall be prevented fromdoing injury to himself or to any other person. i ,

(ii) If the Magistrate or Court is of opinion that discharge of the accused cannot be ordered, the transfer of the accused to a resi- dential facility for persons of unsound mind or mental retardation may be ordered wherein the accused may be provided care and appropriate education and training. . .. . \,_

17. Coming to the proceedings after the person concerned has ceased to be of unsound mind and on the consequent resumption of inquiry or trial. the relevant section to be noted are sections 331 to 339 of the Code.

18. Acceptance of the defence of insanity results in acquittal but not discharge. A court acquitting on the ground of insanity is requiredto make an express ﬁnding whether the accused had committed the act. If the accused had committed the alleged act, the Magistrate or Court is required to either make an order for the accused to be detained in a place of safe custody or to be discharged on surety of safe conduct to a relative or friend. The place of safe custody can either to a jail on a mental hospital, Commitment to a mental hospital is to be ordered according to rules made under the Lunacy Act. From first of April 1993 the rules made under the Mental Health Act. 1987 would be applicable because the Lunacy Act. 1912 has been repealed by the Mental Health Act. l987. No order for delivery of the accused to relative or friend can be. made. except on the application of such relative giving security to the satisfaction .5:

the courtthat the accused shall be prevented from causing injury to dthers.or.to0} himself.' ' . . ) 71

19. Sections 335 to 339 deal with the accused acquitted after the comple- tion of the trail held in accordance with sections 33] to 334. These sections may suitably be modilied to provide better treatment and rehabilitation of such persons on the lines indicated in the proposed section 330(3) and the provisions of the Mentall-lealth Act, I987. All references to the Indian Lunac_v Act, l9l2 in the Code shall be deleted.

FoorNoTL's : t ,

1. AIR 1983 SC 339. see also "Acquitted after 32 Years." 'in Indi'a/51 i:.\'p7'e.s.s' (Delhi ed) May I. 1996 (Sixty live year old A.N. Ghosh. was arrested in 1964 on charges of murdering his brother. A city 'court in Calcutta found him to be insane and asked the jail authorities to keep him for treatment. Though Ghosh regained his mental balance after some time. he continued to languish behind the bars awaiting trial. He was released from the Presidency jail in Calcutta after his case was taken by at local NGO, Antara.)

2. flrlssrlitzttrrl Klzalmm. Re (1980,) 1 SCC 91.

3. /thrml Lmif v. mm» 0; Assam, I98! Cri. LJ. 1205.

CHAPTER XVII PROCEDLHIE FOR MAINTENANCE OF WIVES. CHILDREN AND PARENTS

1. Sections l25----l28 in Chapter IX of the Code of Criminal Procedure lay down a self-contained speedy procedure for provision of maintenance to wife. including t'Iii.=n:'ee(l wires. children and parents. The provisions are aimed at ensuring that the neglected wives, children and parents are not left destitute on the scrap-heap of society and consequently driven to a life of vagrancy. immora- lity and crime for their sustenance'.

2. These provisions are applicable to all persons. irrespective of the reli- gions they profess. and thus have no re|atiqnsli,ip with the personal law of the parties.'

3. Since the comprehensive review of the Code in 1973, many problems have arisen in the working of these provisions. Though it is supposed to be a summary remedy to help wives, children and parents in distress, several factors leading to hardships and injustice have been visible in the operation of these provisions. As a consequence, the Law Commission undertook an exercise suo mom and rendered a comprehensive report in 1989. One Hundred Thirty-Second Report entitled "Need for Amendment of the Provisions of Chapter IX of the Code of Criminal Procedure, 1973 in order to ameliorate the Hardships and Miti~ gate the Distrcs: of Neglected Women, Children and Parents". The Report con- tains several valuable recommendations to alleviate the hardships to women (wives), children and parents. However, the Code of Criminal Procedure (Amend- ment) Bill, 1994 has not incorporated any of those recommendations. The only amendment made in the Bill is the one relating to the quantum of maintenance, an increase in statutory ceiling from Rs. 500 to Rs. 1500 I -. At the several work~ shops held under the auspices of the Law Commission of India. it was unani- gnously recommended that section 125 needs to be amended on the lines indicated elow :

4. We may examine the following issues arising from the scope of section 125 creating hardsliip to awardees.

5. Ceiling.--The ﬁxation of the ceiling of Rs. 500/ - made in 1955 and which continued in N73. is a source of hardship and injustice to the claimants after a passage of more than 41 years.

The Law Commission in its 132nd Report strongly felt that the ceiling on the quantum of maintenance be dropped altogether. The Commission observed 2 It cannot be overlooked that if a ceiling is retained, it would require to be revised from time to time taking into account the inﬂation ahtl rise in cost of living. lt would be extremely diﬂicult to amend the provision periodically, time and again, for it would result in invest- ment of legislative time unnecessarily. The present experience rein- forces this apprehension in as much as the ceiling of Rs. 500/ - has remained unrevised for 30 years without anyone (including women's activist groups) even becoming aware of the resultant anomaly and injustice.

Accordingly, it recommended that the ceiling limit in sub-section (1) of section 125 and in the ﬁrst proviso to sub-section (1) of section 127 be deleted.

We are of the view that the increase in ceiling from Rs. 500/- to Rs. 1500/ -- suggested in the 1994 Bill would not serve the purpose owing to spiralling inﬂa- tionary conditions. We are also not in favour of dropping altogether the ceiling limit provided under the Code. We feel that justice would be done to awardees if the ceiling is raised to Rs. 5000/-. This view has found unanimous support in the various Workshops conducted by the Law Commission. C 72 73 6.1. Date from which order for monthly naynient of maintenance he made.

Section I25 (2). as it stands. provides that monthly allowance _shall 'be payable from the date of the order or from the date of the application tor inani- tenance. if so ordered. by the magistrate. It is left to the discretion of the magis- trate to order payment from the date of application for maintenance. ln v1ew_of the fact that right to claim maintenance existed on the date on which the petition was instituted and also because of the time--lag in the disposal of the proceeding in the courts of first instance. it would be fair and just that the amount of main- tenance be payable from the date of the making of the application by the clai- mant. Section 125(2) needs to be amended accordingly.' 6.2. Should be concept of 'potentiality to cam' be included as a factor in the interpretation of the phrase "unable to maintain herself" in section 125 (1)(a)?

In section 488 of the Code of Criminal Procedure. 1898 the pie-condition "unable to maintain itself" existed in relation only to the child. But in section 125 of the Code of 1973 this condition has been expressly made applicable to the case of wife. This phrase was introduced in 1973 for the first time in case of wives presumably in the light of conflict of decisions among some High Courts on the question whether separate income of the wife can be taken into account in determining the amount of maintenance payable under section 488 of the Code of I898. The Delhi High Court in Nanak Chant!' v. Chander Kish0re"' and the Punjab High Court in Major Jogintder Singh v. Bibi Raj Moth-inder Kain' had held that the separate income of the wife could not be taken into account. But the Kerala High Court had ruled to the contrary in P.T. Ramankutty Achan v. Kalyanikurty'. This controversy was ultimately settled by the Supreme Court in Bhaewnn Dutt's case in 1975 by overruling the Delhi and Punjab High Court decisions and upholding the Kerala High Court view. Since the law had not been settled by the time the Code of l973 was formulated, the phrase "unable to maintain herself" was introduced.

6.3. The Bombay High Court has also held in Vimalﬂrs case that while construing the expression "unable to maintain herself", the concept of the able bodied. pcrson's ability to earn cannot be presume. However. the Kerala and Karnataka High Courts have held to the contrary°a.

6.4. The Law Commission in its l32nd Report had recommended that there was no warrant to inject the concept of "potentiality to earn" in the expression "unable to maintain herself" in section l25 (l)(a). The only condi- tion is that the wife has no adequate income of her own for her maintenance on the date of the institution of the petition. Consequently. it was recommend- ed that "an Explanation should be added to S. 125(1) that the phrase "unable to maintain herself" concerns itself with the actual separate income. if any, of the wife and not with the possibility or potentiality of the wife being able to cam for herself by securing employment or by exerting herself"°. We endorse the above view. '

7. Need for criteria for detenninhg the quantum of maintenance.

An analysis of judicial decisions of High Courts" on the amount of main- tenance awarded reveals that the amount has invariably been determined with reference to the monthly income of the husband and not the assets. movable and immovable. of the husband on the date of the institution of the petition. The Law Commission in its l32nd Report suggested that for a fair and just determination of the amount, the provision may be amended to lay down that not only the monthly income of the husband but also all his other resources existing on the date of the institution of the petition. may be taken into account.

We reiterate the aforesaid recommendation.

8.]. Recovery of Monthly Allowance: Problems.

The awardee is required to approach the court for enforcement of the order of maintenance every month if a recalcitrant person defaults or neglects to make payment regularly. This would involve considerable effort. costs for engaging legal counsel. etc. It is unlike the problem of a decree-holder in a civil matter wherehe has to file an execution application in one proceeding. In the present 74 case.'\\'h'enevcr there is' adefzmlt. the aggrieved person has' to go to "Court. To anieliorate the distress of the awardees. the l32nd Report had recommended the following" :

The Magistrate passing the order for monthly allowance should be em- powered to direct the person held liable to pay the allowance to deposit in advance six months' allowance at the rate determined by him and keep it deposited till the order of maintenance holds the tield unless, for reasons to be recorded in writing. he considers it unjust to do so in the circuinstances of the case... The magistrate must also be empowered to direct the employer. if any. of the person held responsible to make a deduction of the amount of monthly allowance from the salary of the person held liable to pay it to the awardee 'in the manner specified by the learned magistrate. lt should also be provided that wilful default in making the deduction will constitute contempt of court.

8.2. First proviso to section 125(3) precludes the awardee from going to,the court for issuance_ of a warrant for recovery after the lapse of one year front the (late on which it fell due. The Law Commission. in. its l32nd Report felt that the period of one year limitation was unjust and oppressive to the claimants and no prejudice would be caused to the person held liable if no period, of limitation exists. Accordingly the Commission recommended the. dele-

tion of the ﬁrst proviso to section l25(3). We are in agreementjwith this view, _8.3. The second proviso to section l25(3) allows reopening the contro- versy. at the stagejof recovery whether or not wife is entitled to refuse to live with the husband. This question would have been examined at the stage of determi- nation ot' the right to maintenance on merits. .

The Law Commission in its l32nd Report recomrnended the deletion of the proviso along with the explanation on the ground that "the existence of the provision serves no better purpose than.providing.a weapon of harassment to the errant husband, in as much as a husband can always make an' application just in order to tire out the wronged wife who has won a decision in her favour, after a prolonged, costly and unequal battle"". We are in favour of the deletion as .suggested above. _ _ ,. . _ . .

§.1..f..Right o£»Appeai~ , ﬂ ' Under the existinglaw. there is no right to appeal against an order passed by.the magistrate under Section l25. Only a revision. is possible. There is need to amend the law providing right to appeal in the following manner. . ' '9.2'. Withfthe passing of the 'Family Courts Act, l9_84.'th'e ljurisdiciltion to hear proceedings for maintenance is now vested in the family_court jlﬂdel' sections 7(1) and 7(2)(a). Consequently, wherever family courts have been set up, pending proceedings stood transferred to them. Under section I9 of the Family Courts Act an appeal" is provided' against every final' decision ot the' family court, In the very same state._there will be discrimination against two setsgof litigants, A One set under the jurisdiction, of family courts will enjoy the right of appeal and. the other set under the jurisdiction of the magistrateunider section l25.will be deprived of the right of appeal. This is patently discriminatory. Under the c.ircums_tances.'.in order to bring. uniformity and to avoid' discrimi- nation,_ Section 125. may be amended to. provide for a right of appeal against an order passed'b.y§a magistrate, however, if the person liableto pay maintenance prefers an appeal. the appeal shall be rnaintainable. only. when it is supported by an aﬂidavit of the appellant to the effect that he has deposited or paidiall arrears of maintenance and shall make future payments regularly. The appel- lpte court may be empowered to relax this rule in case of genuine hardship to l.lC appellant and may extend the time for makingthe deposit or exempt him from_ making deposit of only portion of arrears." It is apposite that similar conditionsbe also imposed under the Family Courts Act.

. «. 9.3. Since section 125' procedure is summary for expeditious justice. it needs to be I further .s_t:reamlined for achieving' the -objective. One way. is. to empower the magistrate-to decide thematter on atﬁdavits with opportunity to the other party to cross examine the deponents of the aﬂidavits". The procedure 75 under section 126 in this regard should be summary for expeditious justice and as such we are recommending the deletion of summons procedure under the Code. Summary trial procedure for recording evidence etc. be adopted and the evidence by way of aﬂidavits also be made admissible. Accordingly section 126(2) be amended.

9.4. At the stage of execution of the magistrate's order. the awardees are. put to great hardship. If. the order is ﬂouted with impunity what. remedy". will the awardees have? his necessary to empower the magistratevtoi. attacks':

the.Apr.oper-t_v of the person liabie and sell in order to recover the amount: If thehushand is employed. the magistrate shall have power to direct the employer to.-deduct the amount of maintenance and arrange the payment. To «give effectv:

to the suggestion, section 128 hastto be amended suitably.» The magistrate:.' may also pass orders for detaining such person in jail for a limited period. The magistrate may transmit the orderfor attachment and sale of the property to a civil Court with a request to enforce the order inatheisame manner». inn whioh.».»._ a decree -papsed by a civil count may beVexecuted.' The civil court can enforce .. the order as if.it was execuiting an order under rule 2A of Order XXXlX=of... the Code -of Civil Procedure 1908".

Foor NOTES:

l. 'Bhugwan Din av. Kamala Devi (1975) 2 SCC?386.r ..Nana-k. Chum] v. ('hand Kislmre Ag-garwal (1969) 3 SCC 802. '--See'Law Commission o-f lndia. l32nd Repotrtapara 34. 'page 5 (1989')'."i ' IQ

-3*?' . =ldl atnparai 3.5, page 6; see: also «Pnenz~lluta.'Salzaz' :v.- Ram A/iranjan Sarhdim 1989>Supp (29 SCC~73«l~ wherein the'Supreme C0l1I13'he1d':ﬁi1[lt reductionrn of amount 'of maintenance and makingzthesame payable fromwdatetofrzt ' order instead of the date of applicationmwas. improper.' The order of:-I theismagistrate was restored. i AJR 1959 Del. 235.

--Al"R' -1960» Punj. 2492 ~ AIR 1971 Ker. 22.,'

-1981* Cri. LJ. 210 (Bom).

8a.v See Saraswati v. Mad/zavan 2196] (2) Cri. Lt]. -642 (Ker): Abdul .Manf%I v.-Smima 1974 Cri. LJ. 172 (Kant).

9. 132ml Report,' supra note 3, para 3.6, page'9. ' LII .°°.\'.°*

10."ld at para 3.7."page 10.

11. Id at para 3.10, page 12.

12'. Id at para 3.12. page-212:

13. Id at paras 3.13, 3.14. page 13.

I4. l32n(Iv Réirﬂrtv supra note 3 at para 4.4, page.'

15. Id at para 4.7. page 16.

11-1 M or 1. Sc .1/ND'{97' CHAPTER XVIII .'5l'ECIAL PROTECT [ON IN RESPlEC'l' OF WOMEN The Criminal Law (Amendment) Act. 1983 incorporated important amend- ments to the Indian Penal Code, 1860 on the law of rape introducing the con- cept of custodial rape and minimum sentence therefor, to the Indian Evidence Act, 1872 setting up a presumption as to absence of consent in custodial rapes and to the Code of Criminal Procedure mandating enquiry into and trial of rape in camera and prohibiting publication of the proceedings of such inquiry or trial without the permission of the Court.

2. The amendments were a sequel to the 84th Report of the Law Com- mission "Rape and Allied Oﬁences---Some Questions of Substantive Law, Pro- cedure and Evidence" in 1980. The Report had incorporated the major de- mands of the campaign o-n rape law reform by women's organisations triggered oil' by the Supreme Court decision in the /\/larlmra case'. The Commission had, inter alia recommended certain pre-trial procedures. namely. women should not be arrested at night. a policeman should not touch the body of a woman while arresting her, and the statements of women should be recorded in the presence of a relative, friend or social worker. It also recommended that a pofice offi- cer's refusal to register a complaint of rape should be treated as an offence. How- ever. the Bill introduced by the Government in 1980 did not incorporate the above recommendations of the Commission regulating powers of the police. The Bill had sought to make publication of proceedings of rape trial a non-bailable offence which was rather harsh in that it blocked out media publicity which would help in the articulation of public protests against heinous offence like rape. In the face of public criticism, the Bill was referred to a Joint Committee of Parliament for further discussion. In so far as relevant to the Code of Criminal Procedure, the publication of reports of rape trials was made into a bailable offence.

3. In the decade following the 1983 amendments to the Code, a signiﬁ- cant development took place. The National Commission for Women was set- up under the National Commission for Women Act. l990. The Commission had organised a seminar on Child Rape which made recommendations for amending the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act. Pursuant to the Seminar, a Bill to give effect to its recommenda- tions was ﬁormu'.ated. The Bill was examined by the Commission's Expert Committee on Law and Judiciary which gave its opinion and the Bill then was approved by the Commission. For the purpose of identiﬁcation. the Bill as ap- proved by the Naltional Commission for Women is hereinafter referred to as Bill (NCW). v

4.]. The Bill (NCW) has made the following recommendations for the amendment of Code of Criminal Procedure.

4.2. S. 26. speciﬁes the different courts by which offences under the Indian Penal Code and other laws are triable.

The Bi'l (NCW) has recommended the incorporation of a proviso to clause (a), namely.

"Provided that an offence under section 376 of the Indian Penal Code [rape] shall be tried only by any such court presided over by a woman."

However. the Code of Criminal Procedure Amendment Bill, 1994 does not contain the above amendment.

We are of the view that an abso'ute condition provided in proviso to clause (a) of the Bill formulated by National Commission for Women. namely, that an offence under section 376 of the Indian Penal Code [rape] shall be tried only by any such court presided over by a woman may not be feasible 76 77 in practice always. As the aim is to have speedy trial, emphasis should be on speedy investigation and commencement of rape trials. _So we suggest that the word "only" be substituted by "as far as practicable" in the above proviso.

4.3.1. S. 54 provides for examination of arrested person by medical prac- titioner at the request of the arrested person. ~ 4.3.2. The Law Commission in its 135111 Report on "Women in Custody"

had recommended that where a female accused desires a medical examination in order to prove her innocence. she could insistant such an examination be done by a female registered medical practitioner and with regard to decency". The National Commission for Women had endorsed the Law Commissions recom- mendation. ' 4.3.3. The Bill (NCW_) has recomnicnded the insertion of the following proviso to section 54, namely:

"Provided that where the arrested person is a female, the examination of the body of such person shall be made only by or under the supervi~ sion of a female registered medical practitioner."

In essence this amendment reflects the principle underlying sub-section'(2) of section 53 which deals with examination of women accused by women doctors at the request of police oﬂieers.

4.3.4. The 1994 Bill does not contain a provision to this eifect.

4.3.5. We, however, are of the View that the proviso referred to above is a salutary provision and section 54 be amended to that elfect.

5.1. Section 157 deals with the procedure for investigation of offences by the police.

5.2. The Bill (NCW) has proposed the insertion of the following proviso to section 157, namely:

"(a) Provided further that in relation to an offence of rape, the investiga-

tion under this sub-section shall be conducted only at her residence by a woman police oﬂ"1cer and the person on whom such otfence is alleged -to have been committed is a woman under fifteen years of age, she should be questioned only in the presence of her parents. or social workers appointed for the locality and the questioning should be as brief as possible".

(b) in sub-section (2), for the word "proviso". the word "the first proviso"

shall be substituted.

5.3. The 1994 Bill does not contain this provision.

5.4. We are in agreement with the amendment as approved by the National Commission for Women. However, we feel that the age of the woman to be questioned only in the presence of her parents etc. should be eighteen and not ﬁfteen. The U.N. Convention on the Rights of the Child, 1989 to which India is a party, deﬁnes 'child' as:

"For the purposes of the present Convention 21 child means every human. being below the age of eighteen years, unless, under the law applicable to the child, majority is attained earlier."

Consequently, in accordance with the Convention. it is desirable to raise the age to eighteen in the above provision.

6.1. Section 160(1) deals with police oﬁicer's power to require attendance of witnesses. Under this provision, the investigating police oﬂicer can, by a written order, require the attendance of any person who is acquainted with the facts and circumstances of the case and is within the limits of his police station or of any adjoining police station. The proviso to subsection (1) exempts, a person below ﬁfteen years of age or a woman from attending any place 'otTficr 78 than their -place -of residence. »The provision is intended to afford special protec- ntionr to children and woman against exploitation and harassment res'u'lting"fron1 the abuse of powers by the police.

6.2. Thisuantenclnientlias" been -effected as a sequel. to'-the Law Commis- sion Reports on "Rape and Allied -Oﬂciices" and \"--Wiomen-in Custody".

. 6.3.'But the Billi(NCW) has suggested that in sub-section-(1); -for the pro- : vtiso; the following--provisorsliallc-be -substituted.» namely: « ' "Provided that no male person under the age of eighteen ..years or a woman should betrequired :.to attendwat. any;»place_«-ptlicn tthan tithe place in which such male person or woman resides."

.6.4.. We approve of this recommendation as eminently desirable; as a pro- tcction to children (both male and female) and women. 'By;specifying~~t.l1e page of eighteen years only to male persons, the provision extends to all women irres-

= pective *of« their age.

6.5. The Bill (NCW) has also suggested the incorporation of the follow- . ing provisions after sub-section (2) of section 160 in the Code of Criminal Proce- dure:

"(3) Where under this Chapter, the statement of a personrunder the "age of twelve years is to be recorded either as first information of an 'offence or in-the course of investigation into an offence, or the w_oman is a person against whom an offence under sections 354 or 376B of 'the Indian .Penal Code is alleged to have been committed or attempt-

ed, the statement shall be recorded either by a female police 'oﬂicer or by a person authorised by such organisation interested in the wel-

"fare ofvwomen or children tandirecognised in this" behalf by the State Government by notiﬁcation in the Official Gazette. ' »'(4)'Where the caseis one to which the'-provisions» of sub-section (3) apply and a female police officer is not availablet the mﬂicer incharge * of the police station shall, in order to facilitate the recording of the statement, forward to the person referred to in' that sub-section, a written request' setting out the points on which information is re- quired to be elicited from the woman.

» (S). The personto whom such a written request is forwarded shall. after recording the statement-ofqthe woman, transmit the record to the officer incharge of the police station.

(6) Where the statement recoriled by .suCh person...-as forwarded under sub-section (5), appears in any respect. ttowrequire clariﬁcation or am-

pliﬁcation on specified matters and such person shall thereupon re- cord the furtherestatement-of the-womannin conformity with the re- quest and return the papers to the officer incharge of the police station.

' (7)' The statement of -the woman recorded and forwarded *uirder"-'§Eib-sec- tions (3) to (6) shall, for the purpose of'the law relating to the admis- sibility in evidence of the statement-made by any person, be'deem- ed to be a statement recorded by a police officer."

3 6.6.» The origin ()'f.lﬂ1iS suggestionnin its embryonicform can be traced to the Law Commissi0n's' Reports on "Rape and »A>1lJCd Oﬂ'ences"3- and "Women in Custody".' ' 6.7. The Bill (NCW) has gone beyond the Law Commission's earlier re- commendations in that. insisting on. the presence of a female police oﬂicer. Though the presence of such female oﬂicer is useful and necessary, their. absence should not lead to delay in the investigation of the offences. ' Sub-sections ' '(4). '(5), '(6) and (7) referred to above obligates the oﬂicer incharge of the police'sta- tion to forward the person to a representative of, a government, ~recpg~nised women': organisation and'the'statemen-t recorded by such» person -shall be' deem-

ed to be a statement recorded' by the police' oﬂicer.

' 6.8:

'79 It may be pointed out that IllC.l994:"Blll does not .incorpor'ate*'the above amendment.

6.9. t We_ are of' the opinion..that section' I60 be amended on"the lines suggested above subject to certain modilicatixons. 'Themecommendation 'made in s'ub-section (4) of NCW"Bill is not practicable having regard to the 'present condition and dearth of female police oflicers.

It may also not be practicable

-for' the 'victim or any» person interested in» her tonapproachi the persomnientioned vin subsection (-3). '-lnstead.~we~-suggest that sub-section (4/Inmay .beuamenrled' to "-the 'effect thatrwhere a female police ioﬁicer .is. not. availtible-'-and to-'nontacllithe

-'vperson-"mentioned in subsection i(3).is. ditﬁeult. the -oﬂicer. in~Charge«.ol' uthe:-police '-'station, for-reasons to berecorded in writing.'shall proceed' wi~t.l1.the recording of the statement of the victim in the presence of a relative of the victim.

i Further, the age of "twelve -years"- be raised» to Cfeighteen .years"-.:ir1.i,eor1- «.formity'with. the Convention on the~Rights of the Child. ' 7.1.

Clause l9 of the 1994.rBill seeks to insert new section:vl64Al.:in..the . Code to provide for a medical examination of the victim of rape by a registererl imodical practitioner of» a government hospital or in. hissabsence, by. any « other » registered: medical practitioner and also for an early despatch of thegmedical '.'I'Cp0l't to the investigating oﬁiceri who shall forward it to the concerned magis-

H trate.

"l64A (1) Where, during the stage when an offence of committing rape

-ed to-have been committed or attempted, examined by a or attempt*- to commit rap-e isruncler investigation,' it is proposed to get the person of the woman with whom rape is -allegedioritattempb medical expert,» such examination. shall be conducted by atregistered medical practitioner employed in a hospital run by the Government or a .local authority and in the absence of such a practitioner. by any other registered medical practitioner, with the consent of such ~-womanor of a person competent to give such consent on her be-

;.(2) half and vsuchuwoman shallxbe forwarded to such registered medical practitioner without delay.

:'1§he«regjstered:«n1edical- practition:r.=»to~ whom such woman is for-

warded .shall-~without:.:delay,~ examine hen.person.s:and,:.prepare.. a. re-

: (3):

(4)

-or .of.the_ person .cor_npetentto give such consent on her behalf 'port 'of her examination giving-' the»follow'u;1g .par.ticulars..name1y:

A (i)the namezand. address of the woman and of the, person by "whom .sheuwas brought; ' '(ii)"the 'age =of"-the woman:

(iii) whether the woman was, previouslynised tohsexual intercourse;

(iv) marks of injury, if any, on the person of the woman;

-(V) general mental condition oflthe woman: and

(vi) other material particulars inaneasonable detail.

Tcllie .trepont+ i shall states:-rpreeiselyl -the r:-rear'sons.~ .'f0I: each ,eoi1akasio.ri,,.aniv- e zza .

The report shall speciﬁcally record that the consent of theiwoman to .~ .such examination had beenfobtainevd.

('5) ~~(6) (7.1 The exact time of commencement and completion of !the examina-

.tion shall. also be noted in the report.

The .-registered medical practitioner.slt'all.' withoutdelay forward the report tothe investigating oﬂicer whoshall forward it to the Magis- trate referred to in section l73 as part of thedocuments referred to in clause (a) of sub-section (5) of that section.

.Nothi_ng.in this sectionfshallrbe construed. as rendcring*~lawt"ul any exar'nin'a=t:iton 'without"'the consent 'o't"the<' woman or-

_ .0fv'a;ny person competent to give such consent on her behalf. - » 80 Explamztz'0n.~--For the purposes of this section. "examination" and "registered medical practitioner" shall ha\'c the same rneanmg as in section 53.

7.2. The recommendation of new section I64/\ was made by the Law Commission as early as 1980 in its 84111 Report on Rape and Allied Ollences. However. it was not incorporated in the 1983 Ciriminal Law (Amendment) Bill.

7.3. We are of thc view that the insertion of section 164A is eminently desi- rable subject to the modiﬁcation that medical examination he made preferably by a female medical practitioner. A speedy and detailed medical examination of rape vicnnis by doctors 15 essential for eifectivc trial of rape offences. Like- wise. speedy despatch of the report to the investigating officer is also necessary.

8.]. Under section 167 when a person is arrested or detained in custody and it appears that investigation cannot be comp eted within the period of 24 hours as tixed under section 57 and there are grounds for believing that the ac- cusation is well founded the oﬂicer incharge of the police station or the investi- gating police oﬂlcer (snot below the rank of sub-inspector) shall forthwith send a copy of the entries in the case diary to the nearest Judicial Magistrate and shall also at the same time forward the accused to such magistrate. lf Judicial Magistrate is not available, the copies of the entries in the case diary as well as the accused person may be sent to the nearest Executive Magistrate on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred.

8.2. The Bill (NCW) has suggested the following amendment to sub-sec- tion (2) of section 167:

"l'rovidcd that where the accused person is a woman who is under eighteen years of age, the detention of such accused shall be authoris- ed to be in the custody of a remand home or recognised social insti- tution."

8.3. This provision is to safeguard the female child accused from being sent to prison. We endorse the above recommendation.

9.1. Section I73 (1) mandates that every investigation of offence shall be completed without unnecessary delay. With a view to completing investigation of child rape offence speedily, the Bill (NCW) has suggested the addition of the following clause in sub-section (1) of section 173 at the end, namely:

"and where the offence is under [proposed by the National Commission for Women] sub-section (3) of section 376 of the Indian Penal Code, it shall be completed within three months from the date on which the information relating to the commission of offence was ﬁrst record- ed by the oﬂicer incharge of the police station."

On the completion of investigation, the officer-in-charge of the police sta- tion is required to send a report of the concerned magistrate stating the names of the parties. the nature of the information. the names of persons who appear to be acquainted with the circumstances of the case, whether any otfence has been committed and if so, by whom, whether accused has been arrested, whether he has been released on his bond, and, if so, whether with or without sureties and V whether he has been forwarded to custody of the magistrate under section 170.

9.2. The Bill (NCW) has suggested another amendment. In sub-section ( 2) of section 173 in clause -(ii) after sub-clause (8) the following sub-clause shall be inserted:

"(h) Whether the report of the medical examination of the woman con-

cerned has been attached where the investigation relates to an offence under section 376. 376A, 376B, 376C or section 376D of the Indian Penal Code."

9.3. This amendment aims at ensuring that the police report in cases of rape and custodial rape includes the report of the medical examination. This a is asalutary provision. We are of the opinions that the aforesaid amendments in section l73 be made.

10.1. Section I98 deals with prosceiitioii of offences against marriage. Sub-section (6) of section I98. prohibits the court from taking cognizance of the offence of marital rape when the wife is under ﬁfteen years of age. if more than one year has elapsed from the date ol the commission of the otfeizce.

10.2. The Bill (NCW) has increased the age-limit of wife from "Iilteen years" to "seventeen years".

10.3. We endorse this amendment subject to the modiﬁcation that the age-limit be raised to "eighteen years'. .

11.1. Section 309 mandates the court to_conduct inquiry and trial expedi- tiously; it also empowers the court to grant adjournments after recording reasons ilierefoi'.

11.2. In order to prevent trials in rape cases including child rape from being unduly delayed. the Bill (NCW) has sought to prescribe a time--limit of two months from the date of commencement of the examination of witnesses. for completion of trial.

In sub-section (I) of section 309 of the Code, the following proviso shall be added, namely:

"Provided that when the inquiry or trial related to an olfeiice under section 376 to 376E [proposed by the both inclusive] of the Indian Penal Code. judgment shall. as far as possible. be delivered within a period of two months from the date of commencement of the exami- nation of witnesses."

12.1. Consequeiit on the recommendations of the Law Commission in its 84th report of Rape and Allied Offences. the Code of Criminal Procedure was amended by Criminal Law (Amendment) Act, 1983. Section 4 of the Amending Act incorporated new subsections (2) and (3) to section 327 intro- ducing the concept of trial in camera for trial of the offences of rape including custodial rapes and also preventing the 'printing or publication of the trial proceedings except with the permission of the Court. respectively.

12.2. The Bill (NCW) seeks to amend sub-section (2) and (3) in the (fol- lowing manner:

"In sub-section (2), for the words "shall be conducted in camera" the words "shall be conducted only by a woman judge or magistrate in camera"

shall be substituted.

(b) For sub-section (3) the following sub-section shall be substituted, namely: "Where any proceedings are held under sub-section (2) it shall be lawful for any person to print or publish any matter in re- lation to such proceedings. except with the previous permission of the court but the names and addresses of the parties to such proceedings 1 shall not. in any case, be included in such matters."

I 12.3. While we agree with the spirit of the amendment in sub-section (2) that trial of rape cases including custodial rape offences be tried by woman judges or magistrates. to limit such trials only by woman judges or magistrates as a mandatory condition could. in our opinion, unduly delay trials resulting in loss of relevant evidence and trial memory of witnesses etc. Expeditious completion of trial whether by judges and magistrates of either sex should be the aim. Therefore, we recommend that the word "only" be substituted by the words "as far as practicable" in sub-section (2).

' _ 12.4, We approve of the amendment in sub-section (3) lifting the ban on printing or publication of rape trial proceedings. but maintaining conﬁdentiality of the names and addresses of the parties.

13.1. Under section 416 if a woman sentenced to death is found to be pregnant. the High Court shall order the execution of the sentence to b_e'_post- poned and may if it thinks ﬁt, commute the sentence to imprisonment for life;

13.2. The Law Commission in its 135th Report on "Women_in _Custody"

had recommended that commutation of death sentence to one of life nnprtsonj. ment be. made mandatory in case of convicted pregnant woman. Accordingly; . the' Commission suggested the amendment of section 416' on the following lines?

''5. 416. lf a woman. sentenced to death is found to be pregnant. the High Court. shall commute the sentence to one of imprisonmentnfor life."

13.3. We approve of this amendment which makes it mandatory for the» High Court to commute the sentence of death to one of life imprisonment.

l'4.1.'Se'ction 437 deals'with' the grant ofrbail in ' caseswof non-bailable"

olfences. First proviso to sub-section (1) ofsection 437 confers discretion on-'the *- Court. to release on bail persons committing grave offences with previous con- victions. ifthey are under the age of sixteen years or woman or sick.

14.2. The Bifl (NCW) seeks to amend the first proviso referred to. above "

in the following manner:

"ln sub-section (l) of section (1) of section 437 of the Code,.for the first proviso. the following proviso shall be subtituted." namely:

"Provided that where: such person :is a female; she shall ordinarily be released on bail. un'ess the court considers it otherwise for special reasons to' berecorded by itlin writing."

14.3. We approve of this amendment. But it shall be second proviso. In« the first provisothe age. of ="sixteen .ye_ars" be'»raised to. "eighteen. .yc_ars'='.. .

The./existing seoond pnoviso shall. be third proviso and ...the existing; third proviso shall be .fourth .pro.viso..

15.]. Section .432. empowers the "appropriate government' to: suspend to:

execution of sentence or remit the whole or any part of the punishment to which an acousedis sentenced. In. criminal jurisprudence -sentencing is a judi- cial function. Suspension or remission of sentence by the government does. not». interfere with the order of conviction passed by the court: it only affects the execution 'of uthe-..sentence.t .

15.2. Section 433 empowers the appropriate government' to? commute di1Ie-

rent types of sentences as laid down therein.

15.3. In 1978. the Code of Criminal Procedure :(Amendment) Act added a new section 433-Anwhich 'is.as follows:

"S.'433i-As" Notwithstanding . anything contained in 'S. 432,.where a sim- tence of imprisonment for life is imposed on conviction of a person for an -offence for which death is one of the punishments provided by law.' or where a sentence of deathimposed' ' on a person has" been commuted' under 8. 433"? in to~one=of imprisonment'for 1iﬁ9fi*such'P¢'!I0ﬂ'*"

shall not be releasedrfrom prison unless he had served' ateleast fo"u1W teen years of imprisonment. ' 15.4. The purport of this section is that "lifers" convicted ofucapit-al._ offe"t'1-.;.- cesshould undergo actual imprisonment for at least-fourteen years. The objeck:

tivc of enacting this section seems to be to place restrictions on the government's power of remission of sentences under section 432. The experience of the work» ing.._of~section 432»in many States revealed' that "lifers" of capital offences are granted remission under the relevant rules leading totheir release in"a few years." "

15.5. The constitutionality of this section was challenged but upheld by the Supreme Court in Mam Rdjm v. Union of India' and Aslldk 'Khmer v. Union; of 'India-'.:'..*.

l5.6. The question whether women should not be exempted from the bar imposed by section 433-A was examined by the Law Commission in its l35th Report on "Women in Custody". The Commission posed the issue thus":

"in the case of a woman prisoner, sentenced to imprisonment for life (and therefore subjected to the stringent provisions of section 433-A of the Code of Criminal Procedure. 1973). is it proper that the Law should insist on the prisoner's undergoing minimum 14 years of imprison- ment mandatorily laid down in section 433-A?"

The Commission was of the view that rigorous application of this section to women prisoners would cause grave hardship. Therefore, the Commission recommended the removal of bar in case of women prisoners. Such removal would not mean that women 'lifers' would not have to undergo 14 years of imprison- ment but it would only mean that the appropriate government could grant re- mission of sentence on the merits of each case under section 432. Section 433-A has been held not to apply to juveniles convicted under the Borstal schools Act applicable in Andhra Pradesh." Consequently, the Commission had recom- mended that a similar approach should be adopted in regard to women priso- ners. particularly because long and continuous imprisonment of women priso- ners might prejudicially allect the welfare and well-being of other members of their families.

15.7. We are also of the View that women prisoners be exempted from rigour of section 433-A for the reasons set out above.

16. Special provisions on the law of arrest for protection of women are dealt with in Chapter IV. ' Foor Nornsz l. Tulkram v. State of Mavlim-axhtra. AIR 1979 'SC l85. . See paras 2.5---2.6 (I989).

. See paras 3.24 and 3.25. page l8. (1980).

. See para 2.11, (1989).

See para 2.l3. H989}.

See Mam Ram V. Union of India (1981) 1 SCC 107.

lbid.

. (I991) 3 SCC 498.

. See paras 2.17, 2.18. 2.19 (1989).

10. See Sta'e of AP. v. Vallabhapuram Ravi (1984) 4 SCC' 4l0.

~COC.\l'C7':~/I-5'aJt\.) 12 - 1 M of]. & ms/97 ('HAl'TER XIX PUNISHMENT OF IMPRISONMENT FOR LIFE, SENTENCING AND SET-OFF Section 53 of Indian Penal Code, 1860 as in stood prior to amendment in l955 sets out six different punishments, the second one being "transporta- tion". Under section 55 l<PC in every case in which sentence "transportation" was passed. the Provincial Government could commute the punishment to imprisonment of either description for a term not exceeding fourteen years.

In section 53, the punishment, namely, "transportation for life" was substituted by the words "imprisonment for life" by Act 26 of 1955. Section 53A which has been added by Act 26 of 1955 states that in every case in which a sentence of transportation for a term has been passed the offender shall be dealt with in the same manner as if sentenced to rigorous imprisonment for the same term. Questions often arose before the courts whether the punishment of "imprisonment for life" means "rigorous imprisonment for life". In Gopal Vinayak Godse v. State of Maharashtra the Constitution Bench held that a sentence for "imprisonment for life" prima facie means imprisonment for whole of remaining period of the convicted person's natural life unless the said sentence is commuted or remitted by the appropriate autho- rity under the provisions of l.Pi.C. or Cr.P.C. The Law Commission of India in its 39th Report noted that there is no clear provision as to how the person sentenced imprisonment for life should be dealt with under the law as it now stands, namely, whether it should -be treated same as sentence of rigorous imprisonment for life or simple imprisonment for life and whether it is a punishment different in quality despite being different in duration from the sentence of imprisonment of either description or for a speciﬁed term and whether it is legally permissible for a court passing a sentence to lay down that the imprisonment for life shall be rigorous or simple. In Godse's case (supra) the Supreme Court, while referring to the Section 53A. observed that under that Section a person transported for life or any other term before the enactment of that section would be treated as a person sentenced to rigorous imprisonment for life or for a said term. The question again came up in Naib Singh case". The Bench after referring to the earlier cases aﬁirmed the view by adding that by necessary implication the sentence for transportation for life which is now substituted by "imprisonment for life" by section 53 awarded for serious offen- ces must mean rigorous imprisonment for life. The Supreme Court also over- ruled the decision of the Kerala High Court in Mathammal Saraswathi v. State of Kerala'. The Bench also referred to the Law Commissioifs 39th Report in which the amendment was su. gested. namely, that a new section 56 be inserted to the effect "imprisonment or life shall be rigorous", with a view to resolve the doubts regarding the nature of punishment of imprisonment for life. Accordingly we recommend insertion of new section 56 in the Indian Penal Code to that effect.

2. A perusal of several sections of the Indian Penal Code, 1860. as well as the Code of Criminal Procedure, 1973 shows that both the Codes appear to make a distinction between "imprisonment for life" and "imprisonment for a term". Section 53 of the Indian Penal Code mentions the nature of punish- ments which can be awarded. "Imprisonment ﬁor life" and "imprisonment of. either description, namely, rigorous or simple" are two types of punish- ments prescribed therein. 'So far as sentence of imprisonment for life is con- cerned, its nature, namely, whether it should be rigorous or simple, is not speciﬁed therein. Section 55 provides for commutation of sentence of impri- sonment for life which could be imprisonment of either description for a term not exceeding fourteen years. Section 57 lays down that in calculating frac- tions of terms of punishment, imprisonment for life shall -be reckoned as equi- valent to imprisonment for twenty years. A combined reading of these sections would go to show the imprisonment for life could be for a term, namely, for twenty years or, if commuted, for a term of fourteen years. Chapter XXXII of the Code of Criminal Procedure, 1973 deals with execution, sus nsion, remission and commutation of sentences. Sections 432 to 435 speciﬁcs ly deal 84 85 with suspension, remission and commutation of sentences, Section 4330)) provides that a sentence of imprisonment for life can be commuted by the appropriate government for imprisonment for a term not exceeding fourteen years or for ﬁne. However. section 433A which was introduced in l978 by Act No. 45 of 1978. section 32 places a restriction on powers of remission or commutation in certain cases and lays down that notwithstanding anything con- tained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an ollence for which death is One of the punish- ments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life. Such person shall not be released from prison unless he has served at least fourteen years of imprisonment. Even though this provision has a nexus with section 55 of the Indian Penal Code but imposes a restriction that a convicted vcfson who is sentenced to imprisonment for life. shall not be released unless he has served for at least fourteen years of imprisonment.

A question arose whether the benefit Of the set--0ff contemplated by section 428 of the Code of Criminal Procedure should 'be available to life convicts and whether the sentence of imprisonment for life can be equated as a sentence for a term. in Kcrrrur Sinzgh v. State of Havyania' a Bench of three judges held that a clear distinction between imprisonment for life and an im- prisonment for a term is maintained in both the Codes and that Section 428 would apply only to cases where the sentence of imprisonment is for a term and not in cases where the sentence imposed is imprisonment for life. In arriving at this conclusion, the Bench referred to G0a"se'.s*' case and Mam Ram': case' wherein it was held that imprisonment for life means imprisonment for the whole of the remaining period of the convicted persoxfs natural life. However. the same question came it for consideration a in before a Constitution Beach in B/zagirarlﬁr case? T e Constitution Benn , having noted that the expres- sions "imprisonment for life" and "imprisonment for a term" are used in the Indian Penal Code and the Code of Criminal Procedure, however, -ruled that a person sentenced to imprisonment for life should be held to have been sen,

-tennced to a term, namely, the term of his life. The Constitution Bench also observed that the assumption that the word "term" used in section 428 implies a concept of ascertainabilivty runs contrary to the letter of the law as found in that section which is a benevolent provision. In that view of the matter, the Constitution Bench overruled Kartar Sittgh',s' case (supra). It is clear from the aforesaid decision that the Constitution Bench based its ﬁnding more on- equity, justice and fair play.

We feel that in order to make the provision explicit so as to give benefit of set-oﬁ' to the life convicts Section 428 can be amended by adding the words "or imprisonment for life" after the words "sentenced to imprisonment for a term".

FOOTNOTES

1. A.I.R. 1961 SC 600.

. 1983 (2) 'SCC 454.

. A.I.R. l9'57 Ker 102.

A.I.R. 1982 SC l439.

A.I.-R. 1961 :SC 600.

A.l.R. 1980 SC 2147.

AIR. 1985 SC' 1050.

249'?!-Ptaw CHAPTER XX CODE OF CRIMINAL (AMENDMENT) BILL, 1994 PROPOSED CHANGES I. The Bill was introduced in Rajya Sabha for carrying out a number of changes in the Code. While the Bill is at present pending before the Parlia-- me-ntary Standing Committee on Home Affairs. the Government in February I995 had made the reference to the Law Commission of lndia to undertake 8 comprehensive revision of the Code of I973 and make necessary recommenda- tions particularly from the point of view to have speedy trials. The Statement of Objects and Reasons for introducing the Bill shows that the recommendations already made by the Law Commission. Police Commission and the suggestions received from the State Governments and others in this regard have been taken into account.

2. The Law Commission has undertaken the study ol the comprehensive revision of the Code so as to remove the germane problems relating to delays in the disposal of criminal case.

3. There are altogether forty nine clauses in the Bill (Annexure). A detailed Questionnaire was issued and views of several authorities concerned with criminal justice delivery system were obtained. As mentioned already several Workshops were also held at several places and views of cross sections were gathered. Apart from the areas covered by the Bill. the Commission. in the background of the discussions held and the responses to the Questionnaire, has made an indepth study of various other aspects and has made several recommendations which are incorporated in the earlier chapters and they have a bearing on some of the clauses of the Bill. We, therefore, feel that some of the clauses require to be considered and we propose to deal with them in this chapter.

4. Clauses 2. 3, 6,. 9. ll to l6. 23 to 27, 30. 31. 34 .35, 45 to 48 of the Bill ,deal with minor changes which may be retained.

5.]. Clause 18: 'After section 144 a new section 144A is to be inserted in the Code to enable the District Magistrate to prohibit mass drill (or training) with the arms fin public places. We are also of the view that in order to curb the militant activities of certain communal organisations there is a need to strengthen the hands of the State authority. For effectively checking commu- nal tension. such a provision is necessary.

5-.2. Clause 2]: Under this clause section 176 is being amended to provide that in the case of death or disappearance of a person or a rape of a woman while in the custody of police, there shall -be a mandatory judicial inquiry and in case of death, examination of the dead body shall 'be conducted within twenty-four hours of death. In view of the increase in the incidence of custodial crimes, such an amendment is a welcome measure.

5.3. Clause 22: This clause seeks to insert a proviso to sub-section (l) of section 190 of the Code to empower a magistrate to authorise further deten- tion in custody of an accused person for a period no-t exceeding a week, after recording; reasons, during the interim period of submission of the police report and before taking cognizance of the offence disclosed by the police report. Such a provision is necessary to enable the Magistrate to pass an order of remand where it is not possible for himlto take cognizance of an Offence under clause (b) of Section 190.

5.4. Clause 29: Under this clause a new section 291A is sought to be inserted with a view to making a memorandum of identiﬁcation prepared by the Magistrate admissible in evidence without formal proof of facts stated there- in where they are not in dispute. But in case the court on an application deems lit to examine such Magistrate, it can do so. We also feel that dispens- ing with the examinate of the Magistrate would save time.

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5.5. Clause 32: It is in respect of obtaining specimen signatures or handwriting of any person including accused. Section 3llA is Sought to be introduced pursuant to the observations made by the Supreme Court in State of L/.1'. V. Ram Balm' when the Magistrate is entrusted with such power. other proceedings would be more etlective.

5.6. Clause 38: This clause adds two provisos to sub-section (1) ol' section 389 of the Code to the effect that the Appellate Court would give notice to the prosecution before releasing a convicted person on bail. _if he was con- victed of an ollence punishable with death. imprisonment for life or im'pr.isonr nicnt tor a term of not less than ten years. lt also enables the prosecution to move an application for cancellation of such bai' granted by the Appellate Court. Having regard to the fact that the convictm! person after being released on bail by the Appellate Court continues to indulge in committing crimes, such a provision is necessary.

5.7. Clause 39: This clause adds a proviso to Section 428 providing for a set oil' of the period of detention during investigation and trial against period of I4 years of actual imprisonment. This amendment is necessary so that the convicted accused can get a beneﬁt of the period suffered by him as detention during the trial and investigation being set off against period of 14 years mentioned in section 433A.

5.8. Clause 40: In respect of bailable offences. there are instances where the person has to remain in jail for his inability to furnisli bail. till the case is disposed of. The amendment of section 436(1) to make mandatory provision to release such indigent person on an execution of a bond without sureties, is a salutary provision.' 5.9. Clause 43: Under this clause Section 438 providing for anticipa- tory bail is sought to be amended by adding some tnore clauses regarding giving notice to the Public Prosecutor etc. We have already dealt with this aspect in Chapter V (Bail and Anticipatory Bail) and, therefore. some amendments on those lines are necessary.

5.10. Clause 44: Some of the persons have taken it as a prolessoin to stand sureties for any number of accused which is a highly pernicious prac- tice. This clause seeks to include section 441A which provides that a person standing surety for an accused person shall disclose as to in how many cases he has already stood surety for accused persons. Such an information may entail the rejection of the surety.

5.11. Clause 49: This clause provides for the addition of new sections l53AA, 174A and 229A to the Penal Code. Since the Bill for amendment of the Indian Penal Code is also likely to come up before the Parliament, relevant clauses in this context inserting these three new sections can be added. We shall 'give our recommendations of amendment to IPC in this regard.

6. Then we are left with the remaining clauses Nos. 4, 5, 7, 8. 10. 17, I9, 20. 28. 33, 36, 37, 41, 42.

6.1. Clause 4: This clause seeks insertion of a new section 25A empowering the State Government to establish the Directorate of Prosecution. We have already discussed this topic and have recorded our recommendations giving approval to this clause in chapter III. However, we have indicated that the Government while appointing the Public Prosecutor and Additional Public Prosecutor shall, as far as practicable, appoint sufficient number of ' women Public Prosecutors so that they can etfectively deal with the cases in respect of offences against women.

6.2. Clause 5: This clause seeks to amend section 29 of the Code to enhance the sentencing power of the Magistrate of the First Class to impose tine from ﬁve thousand rupees upto twenty ﬁve thousand rupees and Magistrate of the Second Class lrom one thousand rupees upto ﬁve thousand rupees. This proposal is made keeping in view the depreciation of the value of the rupee. Further, in the Questionnaire issued the opinions of the cross sections were sought and there was unanimous approval to enhance the sentencing power of' the Magistrate.

6.5. Clause '7: This clause seeks to amend section 46 to empower the police ollieer concerned to use all means necessary to effect the arrest in- cluding causing death in the case of proclaimed ollender under sub-section (4) of section 82. The new sub-section (4) is being added to section 46 to prohibit arrest of a woman after sunset and before sunrise except in unavoidable cir~ cumstances. We have considered the issue of arrest in detail in Chapter III. We have opined that the Law Commission of India in its l35th Report on "Women in Custody" made such a recommendation and on that basis a new sub--section is being added to section 46 and we have approved the same. However, we recommend a proviso to section 46(1) regarding the arrest of a woman proiriding that where the woman is to be arrested and submission to custody on an oral intimation the arrest shall be presumed. However, we suggested that existing sub-section (2) will be numbered as sub-section (3) and sub-section (3) as subsection (4).

6.4. Clause 8: Under this clause a new section 50/\ is sought to be inserted requiring the police to give information about the arrest of the person as well as the place where he is being held to any one who may be nominated by him for communicating information. In our discussion in Chapter III. we have referred to the recommendation of the Law Commission of India in its l52nd Report on "Custodial Crime" which recommended insertion of a 'on 50A is sought to be included on the same lines. But similar section. Secti the section as recommended in the 152nd Report is more elaborate and section 50/\ sought to be inserted may be framed on those lines, 6.5. Clause 10: Under this clause a new section 53A is sought to be inserted providing for an "examination of the person accused of rape by a registered medical practitioner. With a view to obtaining valuable evidence at the earliest such a provision will be an eminently desirable one.

6.6. Clause 17: On the recommendations made in the Chief Justice' Conference and in view of the depreciation of the value of money it is proposed to amend section 125 of the Code to enhance the payment of maintenance. On this subject our recommendations are in Chapter XIII wherein we have recommended that the upper limit may be raised to Rs. 5,000/-, taking into consideration the unanimity expressed in the several workshops. and this change may be incorporated under clause 17.

6.7. Clause 19': This clause seeks to insert new section 164A in the Code to provide for a medical examination of the victim of rape by a registered medical practitioner. We have adverted to this clause in Chapter XIV on "Special Provisions in respect of Women". We have pointed out that the recommendation for insertion of new section 164A was made by the Law Com- mission of India in 1980 itself and therefore we have observed that insertion of this section is very much required.

6.8. Clause 20: A new sub-section (3A) is sought to be added to section l73 to enable the -police to tak.e note of the desire of the parties to compound offences even at the stage of investigation In our Questionnaire we have mentioned about this clause and have also discussed in 'Chapter IX. There has been unanimity that such a provision is salutary one.

6.9. Clause 28: Under this clause it is proposed to amend section 260 to make summary trial of offences speciﬁed therein. mandatory. We have considered the three procedures, namely summon cases, warrant cases and summary trial, in detail in Chapter VII. We have recommended the deletion ' of summons procedure and instead suggested summary trial of all cases punish-

able upto three years. The amendment sought to be made under this clause has to be modified on the lines of the recommendations made in this regard.

6.10. Clause 33: Under this clause amendment to the Table appended to sub-section (2) of section 320 of the Code is sought to be inserted. In Chapter IX we have dealt with amending of section 320 comprehensively and have made several recommendations and this clause may be redraftcd in accor-

dance with those recommendations.

6..l1. Chute 36: Section 377 is sought to be amended to permit the ﬁling of an appeal in the Court of Session instead of the High Court on ma S9 ground of inadequacy of sentence passed by a Magistrate. The amendment sought is a salutary one.

6.12. Clause 37: In order to guard against the arbitrary exercise ol power and to reduce reckless acquittals, section 378 is sought to be amended providing an appeal against an order of acquittal passed byga Magistrate in respect of cognizable and non-bailable offence ﬁled on a police report to the Court of Session as directed by the District Magistrate. In respect of 'all other cases ﬁled on a police report, an appeal shall lie to the High Court against an order of acquittal passed by any other court other than the High Court. '<18 directed by the State Government. The power to recommend appeal in the first category is sought to be vested in the District Magistrate and the power in respect of second category would continue with the State Government. _[n our Workshops we have highlighted this issue and there was near unanimity in favour of incorporating such a provision.

6.13. However. the next question is whether an appeal or revision would lie against an order passed by the Sessions Court in such appeal against acquit- tal or in an appeal for enhancement. The Bill is silent on this aspect. Section 376(1)) lays down that where Sessions Court passes a sentence of 3 months no appeal would lie. but this would a ply to a trial before that court. But a similar limitation can be made app icable to the orders passed by Sessions Court in the appeals ﬁled under the proposed amendment of sections 377 and

378. Consequently. we suggest a further amendment by way of a proviso to clauses (a) and (c) of Section 386 to the effect that where the sentence passed by Sessions Court does not exceed six months no appeal would lie.

6.14. Clause 41: A new Section 436A. be inserted in the Code providing for release of undertrial prisoners who are in jail for :1 100g period. We have discussed this aspect in great details in Chapter V dealing with bail and anticipatory bail. After an indepth study dealing with bail we have recommended certain changes in section 437 etc, Regarding the inclusion of sec- tion 436A, we recommended certain changes in para 10.5 of that chapter and the new section proposed under this clause may accordingly be modiﬁed.

6.15. Clause 42: This clause seeks to amend section 437 and in the chapter dealing with the bail we have adverted to this aspect and in para 11.1.5 we have made some recommendations. Varagraphs 11.1.3 to 11.1.5 may be referred to and the changes may accordingly be incorporated in this clause.

6.16. Pursuant to the changes suggested above. we are of the View that the relevant clauses be modiﬁed accordingly.

6.17. In the earlier chapters, we have dealt with some more aspects and have made recommendations for incorporating certain new provisions which may also be included in the Bill in a comprehensive manner before the same comes up before the Parliament.

F()OTNOTES:

1. AIR 1980 SC 791.

CHAPTER XXI SPEEDY JUSTICE l. Speedy justice is sine qua non of criminal jurisprudence.' It is not only an important safeguard to prevent undue and oppressive incarceration. to minimise anxiety and concern accompanying the accusation but also to limit the possibility of impairing the ability of an accused to defend himself. lndeed there is a societal interest in providing a speedy justice. This right has been actuated in the recent past and the courts in a series of decisions opened new vistas of fundamental rights.

The concept of speedy trial has been incorporated into the Virginia De- claration of Rights of I776 and from there into the Sixth Amendment of the Constitution of United States of America which reads. "in all criminal prosecu-- tions. the accused shall enjoy -the right to a speedy and public trial". It may be pointed out. in this connection. that there is a Federal Act of l974 called 'Speedy Trial Act. establishing a set of time-limits for carrying out the major events. e.g.. information, indictment. arraignment. in the prosecution of criminal cases and similar provisions exist in Canada.

The right to speedy trial is recognised as a common law right ﬂowing from the Magna Carta. This is the view in U.K.. U.S.A. Canada and New Zealand. However, this view is not accepted in Australia. The right whether under common law or otherwise is not absolute relief is to be given based on various well settled guidelines evolved in the judicial decisions.

Under Article l4 of the International Convention Civil and Political Rights. l966. the right to a speedy trial is provided. Similarly Article 3 of the European Convention of Human Rights and the Sixth Amendment to the US Constitution refers it as a basic right.

2. The right to speedy trial is an integral and essential part of funda- mental right to life and liberty enshrined in Article 21 of the Constitutionol' India.

3. The Supreme Court is Hussainara Khaform (I) v. Home Secretary. Slate of Bihar9 while dealing with Article 2l of the Constitution of India has observed thus:

"No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 2l. There can. therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 2]. The Question which would, however. arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 2l." .

4. The Supreme Court, while delivering its constitutional bench judgment in the ease of Abdul Rehman Antulav v. R. S. Naymk-3 declared that right to speedy trial is implicit in Article 21 of Constitution and thus constitutes a funda- mental right of every persons accused 'of a crime. is one among them. The Court referred to the following observations made in Mtmeka Gandlii v. Union of India' regarding integral connection between Articles 14 and 21 of the Constitution.

"The procedure contemplated by Article 2l must answer the test of reason- ableness in order to be in conformity with Article 14. It must be 'right and just and fair' and not arbitrary, fanciful or oppressive:

otherwise it would be no procedure at all and the requirement of Article 21 would not be satisﬁed."

9] The Supreme Court in /\.R. /\ntulc_v's case (Supra) held that the aforesaid observations establish in unmistakable terms that the law and procedure con- templated by Article 21 must answer the test of reasonableness in order to be in conformity with Articles I9 and 14. It establishes that the procedure pres- cribed by law within the meaning of Article 2] must be right and just and fair and not arbitrary. fanciful or oppressive. lt emphasised that it is this principle of fairness and reasonableness which was construed as taking within its purview the right to speedy trial. ln the Hussainara Khatoon(l)" Bhagwati J. had observed :

"Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can. therefore. be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Ariticle 2l."

While quoting the aforesaid observations. the Supreme Court in Antulayls case (Supra) posed the questions "what is the, consequence of denial of this right'? Does it necessarily entail the consequence of quashing of charges/ trial? These questions were not answered by Bhagawati J. in Maznckn Gand]]i'_g' case,"

However. the Supreme Court in A. R. Anrulay's case (Supra) has dealt with that question and approved the ratio of the Mairicka G'mi(lIii's' case laying down the following propositions :

l. Right to speedy trial is implicit in the broad sweep and content of Article 21.

That unless the procedure prescribed by law ensures a speedy trial, it cannot be said to be reasonable, fair or just. Expeditious trial and freedom from detention are part of human rights and basic freedoms and that a judicial system which allow incarceration of men and women for long periods oﬂ time without trial must be held to be denying human rights to such undertrials.

2.4. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages. namely. the stage oi investigation. inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a ﬁnality. can be averted.

In this context. it may be noted that the constitutional guarantee of speedy trial A is properly reflected in Section 309 of the Code of Criminal Procedure.

The Supreme Court laid down in A. R. Antulay's case"

the following propositions meant to serve as guidelines.

These propositions are 2 (1) Fair just and reasonable procedure implicit in Article 21 of the Con-

stitution creates a right in the accused to be :tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also. does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.

Right to speedy trial ﬂowing from Article 21 encompasses all the stages. namely the stage of investigation. inquiry. trial. 'appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.

(3) The concerns underlying the right to speedy trial from the point of view of the accused are:

(a) the period of remand and pre-conviction detention should be as short as possible. ln other words, the accused should not be subjected to unnecessary or unduly long incarceration «prior to his V conviction; . --

13 -1 M of l. & J/ND/97 (4) (5) (6) 92

(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation. inquiry or trial should be minimal; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself. whether on account of death. dis- appearance or non-availability of witnesses or otherwise.

At the same time. one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejujdices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. The prosecution for whatever reason, also delays the proceedings. Therefore in every case. where the right to speedy trail is alleged to have been infringed. the first question to be put and answered is ---- who is responsible for a delay? Proceedings taken by either party in good faith. to vindicate their rights and interest. as time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceed- ings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an appli- cation/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex pcrrle representation.

While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence. number of accused and witness, the workload of the court concerned, prevailing local conditions and so on ---- what is called. the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of pendantic one.

Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by White. J. in US. v. Ewell" in the following words:

'... the Sixth Amendment right to a speedy 'trail is necessarilyrelative. is consistent with delays and has orderly expedition, rather than mere speed, as its essential ingredients: and whether delay in completing a prosecution amounts to an unconstitutional depri- vation of rights depends upon all the circumstances.' However, inordinately long delay may be taken as presumptive proof of (7) prejudice. In this context. the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become per- secution, again depends upon the facts of a given case.

We cannot recognize or give effect to. what is called the 'demand' rule. An accused cannot try himself: he is tried by the court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case. he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non asking for a speedy trail cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.

(8) 'Ultimately, the court has to balance and weigh the several relevant factors ---- 'balancing test' or 'balancing process' ----- and determine 93 in each case whether the right. to speedy trial has been denied in a given case.

(9) Ordinarily speaking. where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction. as the case may be. shall be quashed. But this is not the only course open. The nature of the offence and other cir-

cumstances in a given case may be such that quashing of proceedings may not be in the irterest of justice. ln such a case. it is open to the court to make such other appropriate order--~iucluding an order to conclude the trial within a ﬁxed time where the trial has concluded as may be deemed just and equitable in the circumstances of the case.

(10) lt is neither advisable nor practicable to liix any time-limit for trial of offences. Any such rule is bound to be qualiﬁed one. Such rule cannot also be evolved merely to shift the burden of proving justiﬁ- cation on to the shoulders of the prosecution. .In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we -think that non--ﬁxing of any such outer limit infatuates the guarantee of right to speedy trial.

(11) An objection based on denial of right to speedy trial and for relief on that account, should ﬁrst be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature Such proceedings in High Court must, however. be disposed of on a priority basis. However, these propositions were held by the court to be not exhaustive. According to the Court, "it is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules."

p 5.~In Sheela Barse v. Union of Indicr" 'where a petition was ﬁled for the release of all children. below the age of 16 years detained in various jails in different states, and seeking detailed information in respect of them, -the Court observed that the problem of children under detention would more easily be solved if the investigation and trial in respect of the charges against them could be expedited. The Court directed the state governments to take steps for com- pleting the investigation within three mo-nths in cases lodged against children below the age of sixteen and to establish adequate number of courts to expedite trial of such cases.

6. The Supreme Court in Supreme Court Legal Aid Committee v. Union of India? while dealing with NDPS Act and section 309 Cr. P.C. Supreme Court has given a number of directions. With respect to pending cases it directed as under: -

"(it Where the undcrtrial is accused of an offencetsl under the Act prescri- bing a punishment of imprisonment of ﬁve years or less and ﬁne, such an undcrtrial shall be released on bail if he has been in Jail for a period which is not less than half the punishment provided -'for the olfence with which he is charged and where he is charged with more than one offence, the oﬂence providing the highest punishment. If the offence he is charged with prescribes the maximum ﬁne. the bail amount shall be 50% of the said amount with two sureties for like amount. If -the maximum ﬁne is not prmcribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount. .--

(ii) Where the undcrtrial accused is charged with an offence(s) under the Act providing for punishment exceeding ﬁve years and ﬁne, such an undcrtrial shall be released on bail on the term set out in (i) above.

provided that his bail amount shall in no case be less than Rs. 5.0,()Q(l with two sureties for like amount. , A 94

(iii) Where the undertrial accused is charged with an offencets) under the Act punishable with minimum imprisonment of ten years and a mini- mum ﬁne of Rupees one lakh. such an undertrial shall be released on bail if he has been in jail for not less than ﬁve years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.

(iv) Where a undertrial accused is charged with the commission of an oﬂ'ence punishable under sections 31 and 31-A of the Act. such an undertrial shall not be entitled to be released on bail by virtue of this order.

The directives in clause (i). (ii). and (iii) above shall be subject to the following general conditions:

(i) The undertrial accused entitled to be released on bail shall deposit his passport with the learned judge of the Special Court concerned and if he does not hold a passport he shall ﬁle an afﬁdavit to that effect in the form that may be prescribed by the lear_ned Special Judge.

ln the latter case the learned Special Judge will. if he has reason to doubt -the accuracy of the statement. write to the Passport Ofﬁcer con- cerned to verify the statement and the Passport Ofﬁcer shall verify his record and send a reply within three weeks. If he fails to reply within the said time. the learned Special Judge will be entitled to act on the statement of the undertrial accused:

(ii) the undertrial accused shall on being released on bail present himself at the police station which has prosecuted him at least once in a month in the case of those covered under clause (i), once in a fortnight in the case of those covered under clause (ii) and once in a week in the case of those covered by clause (iii), unless leave of absence is obtained in advance from the Special Judge concerned;

(iii) the beneﬁt of the direction in clause (ii) and (iii) shall not be avail-

able to those accused persons who are. in the opinion of the learned Special Judge, for reasons to be stated in wri-ting, likely to tamper with evidence or inﬂuence the prosecution witnesses:

(iv) in the case of undertrial accused who are foreigners. the Special' Judge shall. besides impounding their passports, insist on a certificate of assurance from the Embassy /High Commission of the country and shall appear before the special Court as and when required';

(v) the undertrial accused shall not leave the area in relation to which the Special Court is constituted except with the permission of the learned Special Judge: '

(vi) the undertrial accused may furnish bail by depositing cash equalto the bail amount;

(vii) the Special Judge will be at liberty to cancel bail if any of the above conditions is violated or a case for cancellation of bail is otherwise made out; and

(viii) after the release of the undertrial accused pursuant to this order, the cases of those undertrial who have not been released and are in jail will be accorded priority and the Special Court will proceed with them as provided in section 309 of the code.

The above directions are intended to operate as one-time directions for cases in which the accused persons are in jail and their trials are delayed. They are not intended to intefere with the Special Courts power to grant bail under Section 37 of the Act. The Special Court will be free to exercise that power keeping in view the complaint of inordinate delay in the disposal of the pending cases. The Special Court will, notwithstanding the directions, be free to cancel bail if the accused is found -to be misusing it and grounds for cancellation of bail exist. Lastly. we grant liberty to apply in case of any difﬁculty in the implementation of this order."

7. Lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay stating that the Invocation ot this right even need not wait formal indictment or charge."

8. A survey of the aforesaid cases reveals that Supreme ('curt in a series of judicial pronouncements has emphasised and re--emphasised that speedy trial is one of the facts of the fundamental right to life and liberty enshrinecl in Article 2l and the law must ensure reasonable. just and lair procedure which has :1 creative connotation after the decision of this Court in Mzmcku Gum!/Ii.' We now propose to refer to the recommendations made by various ('om- mittees and Commissions to achieve speedy justice.

9.! Rankin ('mnmittcc To deal with the question of delay in the disposal of civil cases both in the High Courts and in the subordinate courts. a Committee was appointed in I924 under the Chairmanship of Mr. Justice Rankin of the Calcutta High Court. The task of the Committee was "to enquire into the operation and effects of the substantive and adjective law, whether enacted or otherwise. fol- lowed by the courts in India in the disposal of civil suits, appeals. applications for revision and other civil litiga-tion (including the execution of decrees and orders). with a view to ascertaining and reporting whether any and what changes and improvements should be made so as to provide for the more speedy, econo- mical and satisfactory despatch of the business transacted in the courts and for the more speedy, economical and satisfactory execution of the process issued by the Courts". The Committee. after a thorough and careful enquiry into the various aspects, forwarded an exhaustive report in I925.

9.2 Arrears Committee of 1949 In 1949, a High Courts Arrears Committee was set up by the Govern- ment of India under the Chairmanship of Mr. Justice S. R. Das, for enquiring and reporting as to the advisability of curtailing the right of appeal and revi- sion, the extent of such curtailment, the method by which such curtailment should be effected, and other measures. if any. which should be adopted to reduce the accumulation of arrears. A number of recommendations were then made by the Committee.

9.3. Review Committee appointed by the Government of India In 1967, the Government of India, greatly concerned at the problem of accumulation of arrears in various High Courts, conducted a review of the state of work in each High Court and found that inadequacy of judges was the main cause of the accumulation of arrears. Government increased the strength of judges in some of the High Courts, taking into account the arrears of cases then pending, fresh institutions and disposals. Though this had some effect. no appreciable result was produced. ~ "

At the end of the year 1969. the Government of India constituted a Com- mittee presided over by Mr. Justice Hidayatullah, the then Chief J ustice of India. to suggest ways and means for reducing arrears of cases pending in the I"--I'i-gh Courts. Upon the retirement of Mr. Justice Hidayatutlvlah, Mr. Justice Shah was appointed the Chairman of the Committee. When Mr. Justice Shah retired as the Chief Justice of India, Government requested him to continue as Chairman of the Committee. The Report of the Committee will be referred to in due course.

9.4 Committees appointed in various States Apart from the above three Committees which worked at all India level, some Committee were appointed in diﬂ'erent States to look into the problem of delay and other matters concerning judicial administration.

One such Committee was in West Bengal. The Committee was constitu- ted in 1949 under the Chairmanship of Sir Tervor Harries, the then Chief J usticc 96 of the Calcutta High Court. Another Committee was constituted in 1950 in llttar Pradesh under the Chairinansliip of Mr. .lu;~iticc K. N. Wanclioo.

l0. Law Commission of India l0.l. The Law Commission made various recommendations in the past in its Thirty Second Report on Section 9 of the Code of Criminal Procedure (1967); Thirty Third Report on Section 44 of the Code of Criminal Procedure (1967): Thirty Fifth Report on capital Punishment (1967); Thirty Seventh Report on Sections 1 to 176 of the Code of Criminal Procedure (1967) and Forty ﬁrst Re-

port on the Code of Criminal Procedure (1969) to remove anomalies, ambiguity of the Criminal Justice Process and to suggest ways and means of speedy trials and avoiding delays. ' In view of the recommendations made by the Law Commission, the new Code of Criminal Procedure 1973 has been enacted taking into consideration the need for speeding up disposal of criminal cases on the following aspects:

(i) The preliminary inquiry otherwise known as committal proceedings is abolished, since it causes delay;

(ii) the jury trial is abolished;

(iii) a provision is made for the summons procedure for trial of offences punishable with imprisonment upto two years;

(iv) a provision is made for the summons procedure for all summary trials for offences punishable with imprisonment upto two years;

(V) the powers of revision against interlocutory orders are taken away;

(vi) the compulsory stoppage of proceedings by a subordinate court on mere intimation from a party of his intention to move a higher court for transfer of the case is omitted; '

(vii) a provision is made for payment of costs by the party at whose in-

stance adjournments are granted. ' '

(viii) a provision is made for service of summons by registered post in cer- tain cases; i

(ix) in petty cases, the accused is enabled to plead guilty by post and re- mit the ﬁne speciﬁed in summons;

(x) a re-trial need not necessarily be ordered in case a court of appeal or revision discover any error, omissions or irregularity in the charge leading to failure of ]llStlC62 and

(iii) continuation of part-heard cases by the successors in oﬂice' in respect of courts of magistrate is extended to courts of sessions. I Section 167. 309 and 468 of the new Code synthesis the above mentioned changes particularly relating «to speedy trial, elimination of delaysgin investigat- ing and trial proceedings. "'A 10.2. Earlier the Law Commission of India presided over by Mr. M. C. Setalvad. in its Fourteenth Report made in 1958, went into all aspects relating to Reform of Judicial Administration, including the question of delay in the disposal of cases in different courts and exhaustively dealt with the' matter.5 Sue-' eessive Law Commissions have, after that also, when making their recommenda- tions fo-r revision of the procedural Codes, addressed themselves, inter alia, to the need for reducing delay at various stages of the trial, both in civil and in criminal cases. Reference may be made, in particular, to the 27th and 54th Reports of the Law Commission dealing with the Code of Civil . Procedure and the 41st Report dealing with the Code of Criminal Procedure.

When the Law Commis~sio_n reviewed the structure and "jurisdiction of the higher judiciary (58th Report), it took note of the irnpera-tive need to reduce arrears in the higher courts.

While dealing with the question of delay and arrears in Trial Courts in criminal cases. the Law Commission ot India in its 77t.h Report on Delay and Arrears in Trial Courts' made the following recommendations:

"in criminal cases. it is particularly necessary that dealy be eliminated.

since the decision upon oral rather than documentary evidence, and with the passage of time. the memory of witness fades.' Every criminal court should keep a register showing the number of wit- nesses summoned for a date, the number examined, the number sent back and reasons for sending them back without examination. The tendency of some criminal courts of sending back witnesses without examining them must be deprecated.

The law should be amended to enable a Session Judge to act on evidence partly or wholly recorded by his predecessor.

At least two police officials at every police station should be getting service of summons effected upon witnesses for cases relating to that police station and for ensuring their presence on the date of hearing.

The police quite often deliberately refrain from producing all material witnesses on one date, the object being to clear up the lacunae in the prosecution evidence after the defence case becomes manifest by cross-examination. This practice is unfair and not warranted by the Criminal Procedure Code. and results in prolongation of the trial.

In one metropolitan city, in the courts of Magistrates. there was a huge pending ﬁle relating to traffic and municipal offences to be tried summarily, some of which were more than one or two years old. Delay in disposal was att-ributed to the fact that the police had not been able to get service effected upon the accused.

Oﬂicials at the police station who are concerned with investigation should concentrate on investigation. As far as possible, they should not be deputed for other purposes.

Desirability of separating the investigating agency of the police from that dealing with law and order may have to be considered. The ques- tion whether the investigating agency shou'd not be susceptible to executive interference and. for that purpose. be independent of exe- cutive control may also need consideration.

The Motor Vehicles Act, 1939, section 130(1) provides for a special pro- cedure for certain itraﬂic offences whereunder the accused can plead guilty to the charge by post and remit the speciﬁed ﬁne. In the case ofpersons other than professional drivers for some speciﬁed offen- ces of a minor nature, the ticket issued by the policeman should also contain separately the amounts of ﬁne for various categories of tra- ffic offences in respect of different types of vehicles, so that if the person committing the infraction of law is so inclined. he can plead guilty and also remit the amount of ﬁne to the court concerned before the date of hearing.

Disposal of cases in which there is a large number of accused. gets delay- ed because one of the accused absents himself on the date of hearing. The trial court in such contingencies should consider the advisability of directing representation of the accused by counsel.

Having regard to the importance attached to the framing of the charge. the trial magistrates should not leave it to the prosecutor to frame a charge.

In recording statements of the accused under section 313, Cr. P.C. the magistrates should ensure that all gincriminating pieces of evidence are put to the accused. ' i * ~ ---

')8 (fotnplziints lt£t\'C hccn licartl that tlicrc are not enough |lllI1Il'tL'l' nl' prosc- cutors. pnrtir-ularl_\, in cases timlcr the Prevention of Poor] Adultera- tion Act and those ll1\'CStl{;i"'»C(l by the central Bureau of Investiga- tion, Stcps should be taken to ensure that there are as many prosecu- tors as there are Criminal Courts.

Where the same Judicial Oﬁicer exercises both civil and criminal powers. normally he should not ﬁx both types of cases on the same day. ll' such a course cannot be avoided. he should set apart separate time for civil and criminal cases.

Cases in which there is possibility of death sentence should receive prio- rity over all other cases.

ll. Causes for Accumulation of Arrears The Satish Chandra Committee as also the Arrears' Committee, 1990 headed by Justice V. S._Ma]1math has also identiﬁed various causes for accu- mulation of arrears in High Courts which, inter alia include:

l. Litigation explosion.

Iv . Radical change in the pattern of litigation.

DJ . Increase in Legislative activity.

Additional burden on account of Election Petitions. . Accumulation of First Appeals.

out,-P . Continuance of the ordinary original civil jurisdiction in some High Courts.

\l . inadequacy of judge strength.

8. Delays in ﬁlling up vacancies in the High Courts.

. Unsatisfactory appointment of judges.

l0. I-nadequacy of staff attached to the High Courts.

ll. lnadequacy of accommodation.

.. Failure to provide adequate forums of appeal against quasi judicial orders.

. lnordinate concentration of work in the hands of some members of the Bar.

14. Lack of punctuality amongst judges.

15. Civil Revisions~»l.ndiscriminate exercise of jurisdiction.

. 'Second Appeals--ignoring the limitations on exercise of jurisdiction. l7. Long arguments and pprolix judgements.

l8. Lack of priority for disposal of old cases.

. Failure to utilise grouping of cases and those covered by rulings.

20. Granting of unnecessary adjournments.

2]. Unsatisfactory selection of Government Counsel.

22. 'Lawyers not appearing in courts due to strikes, etc.

23. Population explosion.

24. Hasty and imperfect legislation.

25. Plurality of appeals and hearing by Division Benches.

. inordinate delay in the supply of certiﬁed copies of judgements/orders.

27. indiscriminate resort to writ jurisdiction.

28. Letters Patent Appeals.

I2.

. inadequacy in classiﬁcation and grouping of cases.

')9 . Constitution of Benches and their frequent changes.

. indiscriminate closure of courts.

. Appointment of sitting Judges as Commissions of Inquiry.

Printing of Paper Book;

Report.) in Criminal matters. 0! the (pp. H8-I'?

Arrears' Committee A The Arrears' Committee (Supra) recommended various remedial measures for arrears on criminal side as follows:

"36

37.

40.

4|.

45.

46.

47. I3.

criminal justice system could be effected by . State Governments may set up proper machinery to carefully . The statutory rules or provisions . Adequate number of police constables should be attached to . Criminal appeals involving sentence of death or imprisonment for life and appeals against acquittals in cases which are likely to result in the imposition of the sentence of death or imprisonment for life should alone be heard by a Bench of two Judges. The relevant rules or statutory provisions applicable to different High Courts should be suitably amended.

The Court of Session should have exclusive power of revision against orders of criminal courts subordinate thereto. High-Court should have power of revision only against the orders of the Court of Session/Special Courts other than those passed in exercise of their revisional jurisdiction. Section 397 of the Code of Criminal Procedure be suitably amended.

. Power of granting anticipatory bail under section 438 of the Code of Criminal Procedure should be restricted to the Court of Session by effecting suitable amendment.

and objectively scrutinise proposals for preferring appeals against orders] judgments of acquittals to prevent frivolous appeals being ﬁled by the State against such decisions.

State Governments should appoint not less than two Additional Public Prosecutors for each Criminal Courts. Adequate attention must be paid to appoint competent lawyers as Public Prosecutors.

No paper bo0l«.'s need be prepared in criminal appeals which are required to be heard by a single Judge.

which require printing of paper books] record in criminal cases involving sentence of death he suita- bly modiﬁed providing for typed or cyclostyled paper books.

. Every criminal court should be provided with at least one photo-

copying machine to speed up preparation of paper books andfurni. shing of copies under section 207 of the Code of Criminal Procedure.

each police station excfusively to attend to the work of each court as per its direction.

Appropriate provision should be made for effecting services on medi- cal officers, expert witnesses and even investigating officers through their respective Heads of Departments. A Respective State Governments should take imnietliate steps for pro- viding presiding otﬁcers to man all the criminal courts.

All States Governments should promptly provide adequate statl, funds and stationery for all the criminal courts within their respective States."

The National Police Commission felt that substantial improvement in reducing the institution of fresh cases, withdrawing old cases from courts according to some accepted norms and expediting 14-1 M of L 8: J/ND/97 the disposal of pending cases by simplifying the procedure. (Para 28.5.

lO0 Ch. XXVHI. l5(>L;=t.-"'.v Report of 'i1<' Nati:.>n:.il Police (7o=i1:nisr~;ion) V.'CI1U§1<'P3l Rao in "Criminal Justice----Problems and Perspectives in India" at p. 195 while endorsing the recommendations of the National Police Commission and recom- mendations of Arrears Committee observed:

"It would a good proposition to devise some guidelines regarding the disposal of old cases and ﬁx priorities for the disposal of new ones.

If this strategy is properly planned and more time is provided for the disposal of new cases in preference to the old. the system can im- prove. At the same time as suggested by the l\.'a:'i«'m:tl Police Com- mission, a periodical review of the old pending cases can be under- taken with a View to striking them out from the court calendars. It may appear contrary to the principles of natural justice. but What is happening in the present situation is not only a gross violation of the Directive Principles of the Constitution but a virtual denial of justice. lt is a question of choice of the better of two bad options."

14. All the aforesaid reports demonstrate the frightful urgency for com- bating the problems of over-loading and arrears. Indeed, the problem of delay in,trial of criminal cases has. of late. assumed gigantic proportions. It has shalceii the conﬁdence of the orztrple in the criminal iustice system. While the reforms that emerge from the recommendations of various Committees and commissions as mentioned above, if fully implemented might meet the long term requirements of the current situation of judicial stagnation.

We. however. feel that there is still ample scope for additional measures mentioned below which might relieve the present stagnation and help the judicial machinery to start rolling smoothly for dispensation of justice. The reforms which we have suggested in are intended to avoid delay in disposal of criminal cases and expedite the disposal of pending cases as well as discharge of the accused in certain old and long pending cases involving minor offences.

15. There should be a separate cadre of investigation agency in every district subject to supervision by the higher authorities. In this regard an oflicer of such agency should be the in charge of the case throughout till the conclusion of the trial. He should be enjoined the responsibility of production of witnesses, production of accused and for assisting the prosecuting agency. Such a mea- sure will have a deﬁnite impact of speeding up the trial in as much as the oili- cer in charge of the investigation will be accountable and responsible for expedi- tious prosecution of the case. (Ch, ll, para 7)

16. With the advent of the modern scientiﬁc gadgets and technology. ac- cused are often using modern scientific techniques to commit crime as well as to avoid tracing out their involvement. In such a situation, outdated methods of investigation do not match the modern techniques of committing the crime. Con- sequently, new technology such as computers, photography/videography, new methods of interrogation technology, new observation gadgets and highly sophis- ticated search equipments, etc. are essential for effective investigation of tradi- tional and new types of organised crimes. (Ch. ll. para 8) l7. Much delay in trial of cases has been caused due to lack of coordina- tion between investigating agency and the prosecuting agency. In order to mini- mise delay on this ground, there should be coordination between investigating agency, namely police and prosecuting agency for the eﬂicient prosecution of cases at the stage. (Ch. Ill. paras 8, 9 & l0) _ 18. A Directorate of Prosecution be established as provided in clause 4 of th'e'Code of Criminal Procedure (Amendment) Bill, 1994 and a new section 25A be inserted on those lines. However, sub-section 4 of the proposed section 25A whereby public prosecutor appointed for the High Court has been placed subordi- pates to the Directorate of Prosecution be deleted as the public prosecutor appoin- ted to conduct cases on the appellate side in the High Court should be separate fromgthose public prosecutors appointed to conduct cases in the lower (courts, (Chi .111; Palm! 12) - " ' ' l .

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19. The Government while appointing public prosecutors and assistant public prosecutors under section 24- and 25 shall, as far as practicable, appoint sutlicient number of Vvomen Public Proseciitors and Asstt. Public Prosecutors to ef't'cctivcly deal with cases involving women, (Ch. lll. (para 14)

20. A provision should be made in the Code for obtaining a fresh police custody of accused it sought by CB! during investigation but it should not exceed 15 days on the. whole. Accordingly, Section 167(2) be amended. (Ch. V, para 2).

2i. In order to avoid delay in disposal of appeals against acquittal and for enhancement and to secure presence of the acquitted accused, a new section 437A be inserted in the Code, empowering all the criminal courts (including the First Appellate Court) to take bail and bail bond before the conclusion of the trial or disposal of the appeal requiring the accused to bind themselves to appear before the next appellate court in case an appeal against acquittal or for enhance- ment of sentence is ﬁled in the higher court. Such a bond shall be in force for a period of 12 months from the date of the judgment disposing of the cases either by the trial court or by the First Appellate Court as the case may be. subject to order by the higher Appellate Court. if any for furnishing fresh bail bond. (Ch. VII, para 2)

22. In order to reduce the pendency in the High Courts, we suggest amendments to Section 377 and 378 of the Code permitting of ﬁling of appeals in the Sessions Court against the orders of the Magistrate in respect of enhance- merit or against the order of acquittal. (Ch. VII, Para 3) - .'

23. In order to avoid multiplicity of procedure which is resulting in delay of trials, summons procedure can be dispensed with. We feel that all suimnons cases should be. tried summarily except those which by virtue of their nature or circumstances of the offences or accused warrant a regular full trial when the court finds that the summary procedure is not salutary.) However, when 'a magis- trate wants to have recourse to such a procedure, he should give valid reasons for dispensing with the summary procedure in that particular case. vThis will act as a check in exercising the discretion indiscreetly: Since the summons pro-' cedure is being dispensed with. a suitable amendment to section 260 to cover such situations is also recommended. Further section 2(x) deﬁning "warrant cases" be amended to the effect that warrant case means a case relating totan "offence punishable with death, or imprisonment for term exceeding three years. Likewise Section 2(w) should be amended to the effect that summons case means relating to an offence and not being a warrant case summarily triable under Chapter XXI thereby laying down that all offences, which do not fall under the deliiiition of warrant case, fall under the category of summons cases sum- marily triable. (Ch. VIII, Paras 12 and 14)

24. In order to curtail the delay in trial of cases we recommend that in cases arising out of a police report, _all statements having been recorded during investigation should be supplied in advance and the cross examination should. proceed continuously. In cases other than on police report also, evidence already recorded before issuing process would be available furnishing sufficient material for cross examination. and thus many adjournments granted by the court just for the purpose of carrying on further cross-examination can be avoided. Accor- dingly, Sections 242(2), (3) and 246(4) of the Code be amended on the aforesaid lines. (Ch. VIII, para 17)

25. We feel that some changes are necessary with regard to the examina'-' tion of witnesses by -police and recording of their statements under sections I61 and 162 to make the police statements more authentic so that they can properly be used while examining the witnesses during -the trial for corroboration or con- tradiction. In view of the inaccuracies that may creep in the recording of the statement by the police, we recommend that statements of material witnesses should be recorded under section 164 which should be more authentic and also prevent the witnesses from turning hostile. We also feel that sections 161, 162, 164 and 172 be aslo amended on the lines suggested in Chapter IX. para 7. This course is more salutary and can be very effective in rendering criminal justice in' a speedy manner. However, the changes contemplated, namely, setting up and- separating the investigating agency, and structuring the same and appoint-'= merit of large number of magistrates will take some time. We, in the alternat'iw;:

102

recommend to retain the provisions of sections 161. 162 and 172 as they are but with some checks in the direction of improving the authenticity of such state- ments, recorded by the police and also obtaining signatures of the persons exa- mined, if they are literate. Further, a copy of the statement should be given to the deponent under acknowledgement and also send them to the Magistrate and to the superior oiﬁcers. That provision would ensure against any error or mal- practice being committed by the oﬂicer. Accordingly. section I62 be suitably amended, (Chapter IX paras 7, 8. ll. I2. 13 & I5).

26. In order to avoid delay in trials the listing of cases should be done in such a way that the witnesses who are summoned. are examined on the day they are summoned. for and adjournment should be avoided meticulously. The list should be prepared in such a way that a day or two are devoted continuously to all cases of a particular police s'.ation and cases should not he proceeded mechanically just according to the chronological order regardless of the fact of their likelihood of their being tried or not. The courts should also proceed with trial on a day to day basis and the listing of the cases should be on those lines (Chapter X para 7).

27. The plight of witnesses appearing on behalf of the State expenses is pitiable. The allowances paid to them are very meagre. That apart, they are kept waiting for the whole day without being examined and the cases are ad-

journed in the last moment. Therefore. necessary steps have to be taken in the matter of paying allowances on realistic basis for all the days they attend. They should also be provided with adequate facilities for their stay in the Court pre- mises and they should be given necessary protection and instil conﬁdence and faith in their minds so that they can dutifully attend the Courts.

(Chapter X, para 2).

28. In order to reduce the docket explosion in the Courts, State should enact legislation on Nyaya Panchayats to suit their local needs and conditions. The Andhra Pradesh Mandala Nyaya Panchayats Bill, 1995 may be adopted as a model on the composition, powers and jurisdiction of the Nyaya Panchayats.

However, we feel that the recommendations of the Law Commission in its 114th Report on the presiding oﬂicers of Gram Nyayalayas may not be feasible because serving Munsifs/Civil Judges will not be able to shoulder the additiona' burden of presiding over Gram Nyayalayas in the rural areas. We are also not in favour of engaging lawyers by the parties to appear before the Nyaya Pancha- yats for it would in-troduce technical legal formalities into the system leading to delays in the disposal of cases. Indeed it would frustrate the very purpose for which the the Gram Nyayalayas are being introduced.

(Chapter XIV, para 6)

29. To minimise the delay in trial we recommend that the court can take the assistance of the prosecutor and defence counsel and prepare the questions which are to be put in a concise form to the accused under section 313 of the Code. The court can also permit the ﬁling of written statements by the accused as sutﬁcient compliance with section 313 of the Code.

(Chapter XI, para 6)

30. As a measure of rendering speedy justice to the accused at an early stage we are of the view that there is need to properly avail the scope of stages provided under sections 227, 239, 245 of the Code of Criminal Procedure.

Section 226 of the Code obliges the prosecution to describes the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. Under Section 227 of the Code, if upon consideration of the record of the case and the documents submitted therewith and after hearing the prosecution and the accused. the Judge comes to the conclusion that no suﬂicient ground exists to proceed against the accused he shall discharge him. However. he'has to record the reasons in writing therefor. Similarly under Section 239 of the Code (which deals with trial of warrant cases) on prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. .

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Section 245 contemplates when accused shall be discharged in cases instituted otherwise than on police report. lt envisages that if upon taking all the evidence referred to in section 244. the Magistrate considers that no case against has been made out shall. it" rebutted would warrant his conviction. the Magistrate shall discharge him. However he has to record reasons in writing therefor.

In the aforesaid provisions the common question arises whether the accused shall be discharged or whether there is suﬂicient ground to procccd against the accused. ln so deciding the Judge under section 226 has to consider

(i) the record of the case and (ii) the documents produced therewith. Under section 239 the Magistrate has to consider the police report and the documents sent with it under Section I73 and making such examination, if any. of the accused as the Magistrate thinks necessary. Under section 245(1) the Magis- trate has to consider all the evidences referred to in section 244. Furtlier an incidental question arises as to what would be the scope of hearing the submis- sions of the practice. Should it be confined. to hearing oral arguments alone. We feel that it' the accused succeeds in producing any relevant material at that stage which might fatally affect even the very sustainability of the case. it would be too harsh in the interest of the accused to suggest that no such material shall be looked into by the Court at that stage.

It' the case ends at that stage itself. it will save a lot of time of the Court. avoid human efforts. cost and harassment to various parties. The underlying tact is that if the materials produced by the accused even at that early stage can clinch the issue. there is no reason as to why the Court should shut it out only on the ground that such material would be looked. into only during the trial despite the fact that the Court feels certain that there is no prospect of the case ending in conviction. The heavy pressure of work load on the Courts is undeni- able.

In a recent case of Satish Mehra v. Delhi Administration" the Supreme Court also laid down under paragraphs l3, l4. 15 as follows:

"Similar situation arises under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magis- trate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the docu- ments sent therewith. At these two stages the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in pro- ducing any reliable material at that stage which might fatally affect even the very sustainability of the case. it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufﬁciency of evidence to prove charge.

The stage of providing such an opportunity as is envisaged in Section 227 of the Code is to 'enable to Court to decide whether it is neces- sary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human effort and cost. If the materials. produced by the accused even at that early stage would clinch the issue, why should be Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence. we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code.

But when thet Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally coin- pleting the procedure to pronounce the conclusion on a future date. We are mindful that most of the sessions courts in lndia are under heavy pressure of work-load. If the' Sessions Judge is almost certain jl04 that the trial would only be an ejicrcise in futility or 21 sheer waste of time it is advisable to truncate or snip the pt'oceedings at the stage of Section 227 of' the Code itself."

In order to make the scope of such stage effective. as suggested by the

-Supreme Court. any materials produced by the accused even at that early stage which would clinch the issue, the Court shall take them into consideration at that stage itself instead of putting them off for consideration at a later stage so that delay can be avoided. This aspect has to be borne in mind by the Criminal L'ourts at the stage contemplated under Sections 227. 239 and 245 as well as in the preliminary stages of the summary trials.

3!. On the aspect of compounding of offences under subsection (2) of section 320 (offences compoundable with the permission of the court) we recom- mend that sections 324. 325. 335. 343. 344, 346, 379. 403, 406. 407. 411. 414. 417, 419, 42l. 422. 423, 424, 428, 429. 430, 45]. 482. 483 and 486 should be deleted from the Table laid down under sub-section and be included in the Table to sub-section (ll of section 320. (Chapter Xll. para '10) Further. Section 498A be inserted in table under sub-Section (2) of Section 320 whereby it can be compounded with the permission of the Court in order to avoid hardship in cases. wherein though the parties wanted to compound yet in the absence of enabling provision, they could not do so. The parties, therefore, have to resort to proceedings under Section 482 of the Code to get quashed the proceedings pending against the accused. (Chapter XII. para 4) There is no provision mentioned in the tables appended to the Section 320 regarding compoundability where the accused is constructively liable under Sections 34 and 149, IPC. If the provision is left as it is, then only in respect of substantive offences mentioned in the tables. compounding is possible and not in respect of cases of constructive liability for the same offence. Likewise, in .respect of offence of rioting resulting in the offence mentioned in the two Tables. there is no provision for compounding. The offences punishable under Sections l47 and 148 of IPC committed during the same transaction. the tran- saction being onc of the same, where the guilt is proved, the accused are to be convicted under all those sections. It will be anomalous if one part of" the offence is compoundable and other part remains non-compoundable where the convic- tions are capable of being made under both the provisions. Accordingly. sub- section 3 be amended suitably. (Ch. XII)

32. In order to reduce the arrears of cases pending before the trial courts or appellate courts, we feel that in case of offences compoundable with the 'per- mission of the court under section 320, if the accused pleads guilty. the court may pass an order of conviction and suspend the sentence if the accused agrees to pay the aggrieved party compensation. If the accused, however. fails to pay compensation to the aggrieved party, he will be required to undergo imprison- ment for default in payment. In cases of offences compoundable by the agree- ment of the parties. the proceedings may be terminated by recording the com- promise and the accused may be acquitted by the court. (Chapter XII).

33. We are also of the View that the Code of Criminal Procedure should empower the investigating oflicer to compound offences which are compound- able, at the investigation stage and make a report to the magistrates who will give effect to the compounding of such offences. This step will reduce the number of cases proceeding for trial at the threshold stage itself and relieve the court docket to a great extent. We recommend for insertion of a new sub-section (3A) to section 173 of the Code on the lines indicated. In order to ensure that there is no coercion or abuse by the police staff, the report of the investigating police oﬂicer incorporating the desire of the disputants to com- promise can be got attested preferably by a member of the District Legal Ser- vices Authority after the same is signed by the respective disputants. Such a measure will have salutary effect and will be contributory in expeditious dis- posal of cases. (Chapter XII, Paras ll & 12)

34. In order to reduce delay in disposal of criminal trials and appeals and also to alleviate the suffering of undertrial prisoners. we feel that the concept» l05 of plea bargaining be made applicable as an experimental measure to offences which are liable for punishment with iniprisonment. of less than 7 years and/or ﬁne including the offences covered by Section 320 of the Code. We further recommend that plea bargaining can also be availed of in respect of nature and gravity of offences and the quantum ofpunisliinerit. _(para 8. Chapter XII). However. plea bargaining should not be available to habitual offenders.'accused of social/economic offences of a grave nature and offences against women and children.

(Chapter XIII. para 8)

35. To enable a quick disposal of petty cases and to reduce congestion in the court of Magistrate. we recommend that under Scction 206(1) Of the Code the amount of ﬁne be raised from Rs. I00 to Rs. L000 since the value of the money has gone down considerably as laid down in Suction 25 of the Code of Criminal Procedure (Amendment) Bill, 1994. Accordingly, we endorse the proposed amendment in sub-section (ll of Section 206 on the following lines:

(a) in the opening paragraph. after the words and ﬁgures "under section 260". the words and ﬁgures "Or section 26!" shall be inserted:

tb) in the proviso. for the words "one hundred rupees", the words "one thousand rupees" shall be substituted.

36. In order to give discretion to the Session Judge to trasister a case either to the Chief Judicial Magistrate or to any other Judicial Magistrate 'of the First Class and to ﬁx a date for the appearance of the accused before the Chief Judicial Magistrate or the Judicial Magistrate as the case may be. so that lot of time which is wasted in summoning the accused by the Magistrate, may be saved, as provided in clause 27 of the Code of Criminal Procedure (Amend-

"ment) Bill, 1994. we feel that in section 228 of the principal Act, in sub-section (1). .in clause (a), for the words "and thereupon the Chief Judicial Magistrate".

the words "or any other Judicial Magistrate of the first class direct the accused to appear before the Chief Judicial Magistrate. or, as the case may be. the Judicial Magistrate _o-f the ﬁrst class. on such date as he deems ﬁt and there- upon such Magistrate" shall be substituted. Accordingly, we have endorsed the provisions of clause 27 of the bill in Chapter XIX.

37. The right of speedy trial as extended to the insane undertrial man- dates that a time limit should be ﬁxed for the period of postponement of trial. Indeﬁnite postponement is an infringement on personal liberty and rights of insane undertrials. We also suggest that amendments to sections 328, 329 and 330 in respect of pre-enquiry and pre-trial proceedings as speciﬁed in para l6 of Chapter XVI be made.

(Chapter XVI. para I6)

38. For expeditious justice in respect of the maintenance of wives. chil- dren and parents. we recommend that the summary trial procedure for record- ing evidence etc. be adopted and the evidence by way of atﬁdavits also be made admissible. Accordingly, Section 126 (2) of the Code be amended.

(Chapter XVII, para 9.3) 39.4 Adjournment in Criminal 'l'i'ia.Is ' 39.]. Section 309 of the Code of Criminal Procedure. I973 which deals with postponement and adjournment of Criminal proceedings provides:

ill in every inquiry or trial, the proceedings shall be held as expeditious- ly as possible. and in particular, when the examination of witnesses has once _begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court tinds the adjournment of the same beyond the following day -to be iiecessary for reasons to be recorded.

(2) If the Court after taking cognizance of an offence. or commencement or trial. ﬁnds it necessary, or advisable to postpone the commence-

ment of, or adjourn, any inquiry or trial, it may, fromiﬁme to time, li)(i for reasons to be recorded. postpone or a<.lj0urn the same on such terms as it thinks lit. for such time as it considers reasonable. and inay by a warrant remand the accused if in custody;

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding liiteeii days at a time:

Provided further that when witnesses are in attendance. no adjournment or postponement shall be granted, without examining them. except for special reasons to be recorded in writing:

Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.

[;'.rplrm.=mimr I.-- If sullicient evidence has been obtained to raise a sus- picion that the accused may have committed an offence. and it appears likely that further evidence may be obtained by a remand. this is a reasonable cause for a remand.

1E'.r/ilmirrzion 2.--~--~~-The terms on which an adjournment or postponement may be granted include. in appropriate cases. the payment of costs by tbs pro- secution or the accused.

39.2 in A. Lwk.s'/imu*n Run v. Jm1ici1i'I /W(I'gl'.S'fI'(lI(.'." the Supreme C0urI while examining the Constitutional validity of section 344 of the Code of I898 which corresponds to section 309 of the Code of I973 observed:

"Apart from the fact that it is only when either from the absence of a witness or some other reasonable cause the C0urt considers it either to be necessary or advisable to postpone the commencement of the inquiry or trial or adjourn the hearing of the case that the order can be made, the court is also required to record the order in writing giving the reasons why it thinks ﬁt that the case should be post- poned or adjoumed. it is further open to the Court to impose terms and to fix the period which cannot exceed 15 days at one time. This discretion being vested in Court of law has to be exercised judicially on well--recognised principles and is in our view immune from challenge on the ground of arbitrariness or want of guidelines. in our opinion. therefore. not only are the guidelines clearly con- tained in the statute bu-t the discretion being judicial is required to be exercised on general principles guided by rules of reason and justice on the facts of each case, and not in any arbitrary on fanciful manner. it may also be remembered that ii" the discretion is excr- cised in an arbitrary or unjudicial manner remedy by way of resort to the higher Courts is always open to the aggrieved party."

39.3 it is, however. unfortunate that despite the provision under section 309 of the Code which contemplates for holding the proceedings as expeditious- ly as possible and examination of witnesses day to day. yet it is an open fact that on account of adjoumments there is inordinate delay in disposal of criminal cases. Such adjoumments often take place on unsound grounds at the instance of the accused and prosecution and also due to laxity on the part of the Court and the investigating agency. The causes which led to such untenable and avoidable adjournment both at the stage of trial, appeal and revision may be classiﬁed as under:

During the Trial l. Non--appearance of the accused.

IQ . Non-production of the accused from jail.

Copies of the documents not ready/not supplied.

Non-appearance of the witness after service.

UIAF' '3"

, Witness not served/summons not issued or not returned by police ' station. " C I07

6. Non-production of case property.

7. Non-availability of the Defence Counsel.

8. Non-preparedness of the Defcmce Counsel.

9. Non-appearance of the Prosecutor.

IO. Non-preparedness of Prosecutor'.

I1. Presiding Ollicer on leave.

12. No time lelity/Court busy with other case.

I3. Ihc day of hearing declared 21 holiday.

I-4. Judgment/Order not ready.

I5. Stage completed (hence. adjourned for next stage).

I6. Listed Ior misc. work. therefore, adjourned.

During the Appeal and Revision I. Information not available.

2. No-n--appcarance of the Petitioner.

3. Non-appearance of the Respondent.

4. Presiding Olﬁcer on leave/ollicial duty.

5. Awaiting Order of transfer.

6. Non-supply of record of lower court.

\I . Non--preparedness of counsel for petitioner.

8. Adjourned for next stage.

9. No time left/court busy with other case.

IO. Listed for miscellaneous work, therefore, adjourned. ll. Judgment/Order not ready. ' I2. Information not available.

A perusal of the aforesaid causes reveals that they are not insurmountable and can be avoided by taking prompt and necessary steps by concerned autho- rities, namely. investigation agencies. prosecuting agencies. defence counsel and witness and the process servers and above all the courts.

39.4 Experience shows that the accused often adopt delaying tactics so that prosecution witnesses may not be examined early against him so that he may be able to win them over with the passage of time or as is well said that scars of wound heel up with the passage of time. In many cases, the intensity of vengeance to teach bitter lesson to the accused for his deeds, fades away with the passage of time. Thus, ultimately, the accused goes scot free shcerly On account of manoeuvring adjcumments by the accused, during the trial. Even the prosecution also can be absolved from the blame» of seeking adjournmen-ts_ on various grounds. Mr. Justice 0. Chinnappa Roddy in State of Malharatshtra v. Chmnpulal" observed:

"We are not unmindful of the delays caused by tardiness and tactics or the prosecuting agencies. We know of trials which are over delayed because of the indifference and somnolence of the deliberate inacti- vity of the prosecuting agencies. Poverty struck dumb accused per- sons too feeble to protest, languish in Prisons for months and years on and awaiting trial because of the insensibility of the prosecuting agencies ....... ..Sometimes when the evidence is of a weak character and a conviction is not probable result the prosecuting agencies adopt delaying tactics to keep the accused persons in incarceration as long as possible and to harass them. This is a well known tactic in most conspiracy cases. Again, an accused person may be seriously jeopardised in the conduct of his defence' with the passage of time.

15-1 M ofL & J/ND/97 108 Witnesses for the defence may become unavailable and their memo- ries too may fade like those oi' the witnesses for the prosecution. in such situations. in appropriate cases, we may readily infer an in- tringement oi' the right to life and liberty guaranteed by Article 21 of the Constitution ....... .."

39.5 The Constitution Bench of the Supreme Court in M.S._ Sheriaff v State 0] Madras" held that "it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure'. that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust."

39.6 It is therefore, quiet-essential to combat with the problem of ad- journ-ments on -this count. This can be dealt with by providing the similar mea- sures -as laid down under order XVIl of the Code of Civil Procedure introduced with effect from Feb. 1, 1977 by Act 104 of I976. The Law Commission in its Seventy Seventh Report on Delay and Arrears in Trial Courts, chapter 6, para 6.10 has 21250 recommended for strict enforcement of these p['OVlS'l0l'1S. Clauses (a) to (e) of the Proviso to sub-order 1(2) of Order XVII are repro- duced herein below for our ready reference:

"Provided that

(a) when the hearing of the suit has commenced, it shall be continued from dav to day until all the witnesses in attendance have been examined. unless the court ﬁnds that. for the exceptional reasons to be recorded by -it, the adjournment of the hearing beyond the follow ing day is necessary.

(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party.

(c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment.

(cl) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court. is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisﬁed that the party applying for ad-

journment could not have engaged another pleader in time.

(c) where a witness is present in court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the court may, if it thinks ﬁt, record the statement of the Witness and pass such orders as it thinks ﬁt dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid."

The Law Commission in its Seventy-Seventh Report also observed that the suggestions made regarding delay and arrears in respect of civil cases will also hold good for criminal cases.

_ 39.7 We feel that in view of dealy in trial of criminal cases also on account of adjournment it is desirable to incorporate the following additional provision in the light of the decision in State of Gujarat v. Narender Sing}:

Lakhubhai : '5

(f) Where the court is of the opinion that the inquiry or trial of the case is being delayed or adjourned on account of any oﬁicial belonging to the prosecuting agency or associated with it. the court shall make an order holding the person responsible for such act and communi-

cate the order to the concerned head of the agency for incorporating in the service records of the concerned oiﬁcial as well as for recom- mending suitable criminal and disciplinary action against him.

109

111 order to further keep a check upon the court there is a need to fur-

ther provide the following measures:

(g) Every criminal court shall send a return in the prescribed proforma to the Chief Justice of the High Court stating the particulars of the cases in which the adjournments were granted by them during the inquiry or trial of cases detailed reasons therefor". ' We feel that the aforesaid measure, it strictly adhered to, would further curtail to a great extent delay caused on uccount_of adjoumnlents unduly iought by the accused as well as the prosecuting agencies.

40.] Appointment of Special Magistrates.---- In India, the Criminal Proce- dure Code, H598, provided for appointment of Honorary Magistrates. These magistrates were appointed by the government to relieve the regular magisterial courts. However, it was felt that the system was used to reward many persons who were loyal to the government. Many persons were appointed as Special Magistrates who did not possess either qualification or experience to discharge judicial duties. it is also alleged that such persons were attracted by the honour attached to the post rather than by a sense of duty or service. They did not have the knowledge or inclination to perform magisterial work.

40.2 After India became independent, the desirability of having honorary magistrates was examined by a Joint Select Committee of Parliament while considering the Code of Criminal Procedure Bill, 1970. The Committee took note of the criticism of the working of honorary magistrates but at the same time did not lose sight of -the possible assistance the honorary magistracy could render to the judiciary to relieve it of some of its burden of work. The Com- mittee came to the conclusion that the facility of appointment of Special Magis- trates should be retained. However, safeguards were introduced in the Code of Criminal Procedure to forestall abuse of system. - V .

40.3 The Code of Ciriminal Procedure, 1973 brought following changes in the system of special magistrates:

(i) Magisterial powers could be conferred on Special Magistrates by the High Court of a State and not by the State Government as was the position earlier.

(ii) The persons to be appointed as Special magistrates had to be persons who held or had held any post under the government.

(iii) The High Courts were given the power to prescribe qualiﬁcations or experience in relation to legal affairs to be satisﬁed by a person be-

fore his appointment as a Special Magistrate.

(iv) The term of appointment of a Special Magistrate was restricted to a maximum of one year at a time; and (V) The High Courts could grant all or any of the powers of a ﬁrst class or a second class magistrate on a Special Magistrate.

40.4 Section 13 of the Code of Criminal Procedure, 1973 which provides for the institution of Special Magistrates reads:

(1) The High Court may, if requested by the Central or State Govern-

ment so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under -this Code on a Judicial Magistrate of the first class or of the second class, in respect Ito particular cases or to a particular classes of cases, in any local area, not being a metro- politan area.

Provided that no such power shall be conferred on a person unless he possesses such qualiﬁcation or experience in relation to legal affairs as the High Court may, be rules, specify.

(2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such term, not exceeding one year at a' time. as the High Court may by general or special order, direct.

(3) 110

The High Court may empower a Special Judicial Magistrate to exercise the powers of a Metropolitan Magistrate in relation to any metropolitan area outside his local jurisdiction.

40.5 Likewise, Section l8 of the Code which provides for the institution of Special Metropolitan Magistrates runs as follows:

(1)

Provided that no such power (2) (3) 40.6 Though after 1978, ﬁrst class magistcrial The High Court or the State Government, The High Court may. if requested by the Central or State Govern-

ment so to do, confer upon any person who holds or has held any post under the Government. all or any of the powers conferred» or conferrable by or under this Code on a Metropolitan Magistrate in respect to particular cases or to particular classes of cases. in any metropolitan area within its local jurisdiction.

shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may. by rules, specify.

Such Magistrates shall be called Special Metropofitan Magistrates and shall be appointed for such term. not exceeding one year at a time. as the High Court may. by general or special order, direct.

as the case may be. may empower any Special Metropolitan Magistrate to exercise. in any local area outside the metropolitan area. the powers of'a' Judicial' Magistrate of the first class.

the amendment of the Code of Criminal Procedure in powers can be conferred upon Special Judicial Magistrates, but even with second class powers the Special Judicial Magistrates can try a wide variety of cases. The offences enumerated in the [PC which can be tried by a second class Judicial Magistrate are enumerated in the Sche- due and fall in the following broad categories:

(a)

(b) (C)

(d) Offences against public tranquillity like. being a member of an un-

lawful assembly; knowingly joining or conducting any assembly of ﬁve or more persons after it has been commanded to disperse; giving provocation with intent to cause riot; harboring persons hired for an unlawful assembly or committing atfray.

Offences relating to weights and measures like fraudulent use of false instruments for weighing; fraudulent use of false weights or measures.

Offences atfecting public health, safety, convenience decency, and morals; for example, negligently doing any act known to be likely to be spread infection of any disease. adulterating food or drink in- tended for sale so as to make it noxious or selling any good or drink knowing the same to be noxious; offering for sale or issuing from a dispensary any drug or medical preparation known to have been adulterated; making the atmosphere noxious to health; driving or riding on a public way so rashly or negligently as to endanger human life; committing a public nuisance or singing obscence songs.

Oifences relating to religion. for example, causing disturbance to an assembly engaged in religious worship with intention to wound the feelings of the members of such assembly; to insult the religious feelings of any person or uttering any word or making any sound in the hearing of any person or making any gesture in the sight of any person with the intention to wound his religious feelings.

(e) Offences affecting the human body like attempt to commit suicide;

: to vduntarily causing hurt: wrongfully conﬁning any person: unlawful compulsory labour.

Offences relating to property like cheating; mischief, criminal tres- pass.

ill

(g) Criminal intimidation, insult and annoyance, for example. uttering any word or making any gesture intended to insult the modesty of a woman; appearing in a public place in a state of intoxication and thereby causing annoyance to any person.

In addition, a large number of crimes related to violations of special Acts. such as Municipal Acts and bye laws. Cinematography Act. Police Act are amenable to the jurisdiction of a Special Judicial Magistrate.

40.7 Many State Governments and Union Territories have, however. not appointed special magistraltes which led to the delay and arrears of crimi- nal cases. The statement of contents of the afliclztvit filed before the Supreme Court in l~'.'(m'ru Pulmclizt & ().--5;. v. State of Bihar" reveals that State of Malta- rashtra has not taken action to make request to the High Court under section 13 and I8 of the Code on the plea that it has t'ot'\x';r~.'sie(l a proposal to the Central Government to amend section 13 of the Code. Likwise. the State of Uttar Pradesh has also not taken any initiative in this direction. In the State of Karanataka even though the State Government has taken initiative and written to the High Court. the High Court has not yet finalised the proposal. in the State of Kerala. there is no such appointment. However, in the State of Himachal Pradesh the provision has also been invoked and the High Court has lmned rules and has conferred powers on three oﬂicers. in the State of Bihar. the government has also moved the High Court to confer powers to judicial nlghtrates. However, no notiﬁcation has been issued. Likewise, in the State of Punjab the Government has written to the High Court under section 13 and I8 and the proposal is still pending in the High Court. The State of Assam has, however, appointed 97 I.A.S. Oﬂicers as Special Judicial Magistrates. So far as Delhi is concerned, despite the fact that two lakh trafﬁc cases were pen- ding in magistrate courts, it has not taken any action to appoint judicial magis- trates of the 2nd class under section 6(4) and Meropolitan Magistrates under section 18 of the Code. This is not a happy state of affairs. in view of this the Supreme Court in Kadra Pahadia v. State of Bihar txupnr) issued certain directions with a view to ensure that the machinery contemplated by those pro- visions would be put into effect with the view to clearing of the backlog of petty criminal cases and further relieve the magisterial court of over wo-rk so that it is able to attend to more serious business.

40.8 in the Chief Ministers & Chief Justices conference held in I993. Resolution was adopted expressing the view that the provisions of the Code 01 Criminal Procedure, 1973, in regard to appointment of Judicial Magistrates of 2nd class. Special Judicial Magistrates and Special Metropolitan Magistrate. should be put to use by identifying cases which they are empowered to deal with under the Code.

40.9 In various workshops organised by the Law Commission in various States. it was generally agreed that the system of special magistrate be revlved with certain modiﬁcations.

40.10 The Law Commission has considered the various clifﬁeulties experienced in the working of the system of honorary magistrates in the pre- I973 period. We feel that in order to meet the situation leading to delay in disposal of cases and to activate disposal. of cases and timely action in the matter, new section 23A the inserted in the Code providing that the "State Government may. after consultation with the High -Court review the strength of courts once in two years for setting up a new/additional court depending upon the pendency of the cases therein."

40.11 We feel that there is need for appointing more Special Magistrates to deal with the above types of criminal cases. We, therefore, suggest neces- sary changes be made in sections l3 and i8 of the Code of Criminal Procedure in the following manner:

(i) in every district or metropolitan area there may be as many Special Magistrates at such places as the State Government may after consultation with the High Court. by notiﬁcation specify to be manned by a person who holds or has held any post in the Govern.

(ii)

(iii)

(iv) 1112 rnent. local authorities or corporations provided he possesses such qualiﬁcations and experience as the High Court by rules spccilied in the legal affairs.

Such Magistrates shall be appointed by the be called Special Nlagistratcs.

High Court and shall Such §Magistrates shall be appointed for such term, not exceeding two years at a time. as the High Court may. by general or special order. direct.

Such l\v1a7i~-Mates 5-.hail have all or any of the P0wers: under this (Lode of 21 l class or a [1 class Magistrate as the High C0urt may confer.

41. Dispospal of old cases 41.1 The Supreme Court in the very recent epoch-making judgment of '('umm(m* (fau.w' a registered A _ showed its deep concern over the unduly prolonged pendency of CI'lIIl1.I18l society thrcmglz its Directors v. Union of India."

case:

when it observed:

"it is a matter of common experience that in many cases where the persons i are accused of minor offences punishable not more than three years or even less»---~with or without ﬁne, ing for years together. If they are poor and helpless, they lanquish in jails for long periods either because there is no one to bail them out or because there is no one to think of them. The very pen- dency of criminal proceedings for long period by itself operates as an engine of oppression. Quite often, the private complainants institute these proceedings out of oblique motives. Even in cases of otiences punishable for seven years or less with Or without line~--~the prosecutions are kept pending for years and years together in criminal courts. In a majority of these cases, whether instituted by police or private complainants, the accused belong to poorer sections of the society, who are unable to afford competent legal advice. Instances have also come before courts where the accused, who are in jail, are not brought to the court on every date of hear- ing and for that reason also the cases undergo several adjourn-

ments."

From the aforesaid observation it is evident that in order to ensure and obviate the pendency of criminal proceedings for long period, which by itself operates as an engine of oppression, it was considered essential to issue appro- priate directions to protect and effectuate the rig.ht to life and liberty of the citi- zens guaranteed by Article 21 of the Constitution.

The relevant excerpts of the directions relating to delay in criminal trial and ellect thereof are given below:

2(a) Where criminal proceedings are pending regarding traﬁic offences in 2(b) any criminal court for more than two years on account of non serving summons to the accused or for any other reason whatso- ever, the court may discharge the accused and close the case.

Where the cases pending in criminal courts for more than two years under I.P.C. or any other law for the time being in force are com- poundable with permission of the court and if in such cases trial have still not commenced, the criminal court shall, after hearing the public prosecutor and other parties represented before it or their advocates, discharge or acquit the accused, as the case may be, andclose such cases.

2(c) Where the cases pending in criminal courts under I.P.C_ or any other law for the time being in force pertain to offences which are non- cognizable and bailable and if such pendency is for more than two years and if in such cases trials have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases.

the proceedings are kept pende 1 ll3 ltd) Where the cases pending in criminal courts under l.P.C. or any other law for the time being in force are pending in connection with offences which are punishable with ﬁne only and are not of recur-

ring nature. and if such pendency is for more than one year and if in such cases trials have still not commenced, the criminal court shall discharge or acquit the accused. as the case may be, and close such cases.

2{e) Where the cases pending in criminal courts under I.P.C. or any other law for the time being in force are punishable with impFiS0nm€nl upto one year, with or without ﬁne, and if such pendency is for more than one year and if in such cases trials have still not com- menced, the criminal court shall discharge or acquit the accused. as the case may be. and close such cases.

Zff) Where the cases pending in criminal courts under I.P.C. or any other law for the time being in force are punishable with imprisonment upto three years. with or without ﬁne, and if such pendency is for more than two years and if in such cases trial have still not commenced. the criminal court shall discharge or acquit the ac- cused. as the case may be, and close such cases.

3. For the purposes of directions contained in clauses fl) and (2) above, the period of pendency of criminal cases shall be calculated from the date the accused are summoned to appear in the court.

4. Directions (l) and (2) made hereinabove shall not apply to cases of offences involving; (a) corruption. misappropriation of public funds. cheating, whether under the Indian Penal Code, Prevention of Corruption Actor any other statute; (b) smuggling. foreign ex- change violation and offences under the Narcotics Drugs and Psycho. tropic Substances Act; (c) Essential Commodities Act, Food Adul- teration Act, Acts dealing with Environment or any other econo- mic offences: (d) offences under Arms Act. Explosive Substances Act. Terrorists and Disruptive Activities Act, (e) offences relating to the Army. Navy and Air Force: (f) offences against public transquility'; (g) offences relating to public servants, (h) offences relating to coins and Government stamp, (i) offences relating to elections, (j) offences relating to giving false evidence and offences against public justice: (k) any other type of offences against the State; (1) offences under the Taxing enactment: and (m) Offences of defamation as deﬁned in Section 499 I.P.C.

5. The criminal courts shall try the offences mentioned in Para (4) above on a priority basis. The High Courts are requested to issue neces- sary directions in this behalf to all the criminal courts under their control and supervision.

6. The criminal courts and all courts trying criminal cases shall take appropriate action in accordance with the above directions. These directions are applicable not only to the cases pending on this day but also to cases which may be instituted hereafter.

41.2 We have carefully persused the aforesaid directions from the point of view of speedy trial. The aforesaid directions laid down under para 2(1)). however. do not cover the offences which are compoundable without the permis- sion of the Court. We feel that the scope of para 2(b) be widened to cover all offences which are compoundable without the permission of the Court but which could not be compounded.

41.3 The directions given by the Supreme Court prima facie are appli- cable only to cases where trial has not commenced. It is a matter of common knowledge that even though trial has commenced but is still kept pending inordi- nately many a time without justiﬁable reasons. We are of the view that in such cases also some remedial measures on the same lines have to be evolved.

With reference to para 2f-b) of the direction, we feel that if the trial has commenced but not concluded then in such cases (under IPC) which are compoundable ,without the permission of the Court. or cases under any other law .

H4 .''or the time being in force for oflcnccs pttnishable upto one year. are pending in the criminal courts for more than two years then the criminal court shall after hearing the public prosecutor and otser parties represented before it or their advocates discharge or acquit the accused. Likewise, where the cases under IPC which are compoundable with the per'miss.iou of the court or in cases under any other law for the time being in force for offences punishable up to three years are pending in the criminal courts for more than three years then the criminal court shall after hearing the public prosecutor and other parties repre- sented before. it or their advocates. discharge or acquit the accused as the Case may be and close such cases. The difference in approach adopted by us in the above categories of otle-nces is necessitated in view of the minor nature of ollences involved in the said categories without permission of the court.

41.4. Likewise. the directions under paras 2(c), (d). (e) and {fl do not deal with the situation where the trials are commenced but not concluded within the period specified therein. in order to meet the situation the directions even under those paras should be. made applicable on the same lines to such cases where the trials are commenced but not concluded and delayed without justiﬁatble reasons.

41.5. For the aforesaid purposes the trial shall be deemed to have com~ menced when the accused appears in pursuance to the summons/warrant issued by the court.

41.6. In computing the period in respect of the case pending trail after commencement b-ut not concluded. the period of delay attributable o-n the part of the accused or his counsel shall be excluded.

41.7. We are of the opinion that the aforesaid directions should not be made applicable to cases where the accused has been convicted more than once or against whom more than one case. is pending.

41.8. We have made the aforesaid suggestions in respect" of cases where trial has commenced but not concluded and kept indeﬁnitely in View of the fact that the direction given by the Supreme Court in common cause case (supra) would not apply to such cases. It is a matter o-f common knowledge that in such cases, the parties have to undergo greater stress and strain as they remain bound over or remanded to custody.

41.9. We are also of the View that these directions should be made appli- cable only to the pending cases and not in respect of the future cases which may be launched. However, in. respect of the future cases there, should be a perio- dical review from time to time preferably every three years and on the lines laid down by the Supreme Court Legal Aid Case (supra) and also in Hussainara K-hatoon" and Hussainara Khatoon(Vl])"". '

42. In R.l). U parthyrry v. State of Arrdhra Pruriesh= & Others." the Supreme Court emphasising the right to speedy trial guaranteed under Article 21 of the Constitution directed the State Govt. to nominateldesignate ten Additional Judges to take up exclusively trial and decide long pending cases of murder within a- period -of six months. This is an important measure to be adopted-i wherever it is necessary.

43. Quit apart from the observations made above pilot projects have_ been undertaken in some States by utilising the services of Retd. District anti .'5't.ssion;; Jtttiges to preside over the courts where backlog is heavy. Such pi! *1 rrojecis may be adopted for disposal of cases pending for m0re than two years. We also feel that crash pro-gramme for csta.blis.hing such courts to deal with old cases have to be worked up in each State and put them into operation immediately. These steps. in our opinion, would reduce the arrears.

44.. Other Measures 44.1. We are of the view that there should be a periodical review of the- strength of the courts to; etlfecuvely deal with arrearsg pending, in the" courts and-

115

'accordingly it is of the view that a new section'23A shouldlbe Incorporated under the Code of Criminal Procedure which shall provide that the State Govern- ment may after consultation with the High Court review the Strength Of C0l1rtS once in two years for setting up a new/additional court depending upon the pendency of the cases therein in order to» meet the situation leading to delay in dlS- posal of cases and to activate disposal of cases and timely action in the matter.

44.2. There is a general complaint that there is undue delay in the serv- ing of summons or execution of warrants issued by the court which in turn results in the delay of the trial. Likewise, service is not made at the correct residential address which again results in delay. At present the service system is completely in the hands of the police in criminal cases who take their Own time as they are otherwise employed. It is a common experience that more than 25% -cases are adjourned due to non-appearance of the accused. It is, therefore,' highly desirable that a separate process serving agency directly under the control of the courts is established so that these delays can be avoided.

44.3. Lack of police personnel to escort the accused to the court is yet another cause for the delay, non-production of the accused by the police due to lack of police personnel is causing delay in a number of cases. Therefore, a special machinery has to be provided with proper vehicles for producing the accused before the court on each date in time.

FOOTNOTES

1. See Black's Law Dictionary, 6th Edn. p. 1400.

2. (1980) 1 SCC 81.

3. (1992) SCC 225; The Supreme Court referred to various decisions concerning delays in trial e.g. Hwsminare Khatoonx -(iii) v. Home Secretary, State of Bihar, (1980) 1 SCC 98: State of Bihar v, Uma Shannkar Kejriwal, (1982) 1 SCC 75; Katiar Palzadiya v, State of Bill", (1983) 2 SCC 104; 1983' SCC (Cri) 361 : State of Maharashtra v. Champallarl Purtjaji Shah (1981) 3 SCC 610: 1981 SCC (Cri) 762:

(1982) 1 SCR 299: T.V. Vatheeswaran v. State 07' T.N. (1983) 2 SCC 68 : 1983 SCC (Cri) 342 : (1983) 2 SCR 348 : Sheela Barse V- Union of India (1986) 3 SCC 632; S. Guin v. Grindlays Bank Ltd., (1986) 1 SCC 654; Rdg/Iubir Sirlgh v. State of Bihar (1986) 4 SCC 481; 1986 Sppl. SCC 505; Srinivas Gopai v. Union Territory of Amnachm Pradesh (1988) 4 SCC 36; T.J. Stephen V. Parle Bottling Co. Pvt.

Ltd., 1988 Sppl. SCC 458.

4. AIR 1978 SC 597.

5. Hussainara Khatoon1(I) v. Home Secretary, State of Bihar, (1980) 1 SCC 81.

6. 15 L Ed 2d 627.

7. Willie Mac Barkar v. John Wingo, 33 L. Ed. 2d 101. See also Strunk v. United States, 37 LEd. 2d 56.

8. A.I.R. 1986 SC 1773, 1778.

9. (1994) 6 SCC 731.

10. See also(1) Sunil Batra v. Delhi Ad'ministrationl(I), (1978) 4 SCC 4942(2) Hussainara Khatoon (I) v. H0me Secretary, State of Bihar, (1980) 1 SCC 81, Hussamara Khatoon (IV) v. Home secretary, State of Btlzar, Patna, (1980) 1 SCC 98 (4) Hussainare Khatoan (V1) v. Home Secretary, State of Bihar, Patna, (1980) 1 SCC 115, (5) Kadra Pa/zadia v. State of Bihar, (II) (1983) 2 SCC 104, (6), T.V. Vatheeswaran v. State of Tamil Nadu (1983) 2 SCC 68 and (7) Abdul Re/zman Antulay v. R.S. Nayak, (1992) 1 SCC 225.

10A. See also K.L. Bhatia, Gurdeep Singh, Jagmohan Singh; "A Riddle Wrapped in a Mystery inside an Enigma" 37 J.I.L.I. pp. 42, 45-46 (1995 .

6»--lM0fL&J/ND/97 I--

run r-A 'O Dibdbdliiij-J ?°.".°'$"P'*'N 116 . 1996(5) SCALE 523.

. AIR 1971 SC 186.

. AIR 1981 SC 1675.

AIR 1954 SC 397. 399.

1995(1) Crimes 445.

1995(6) 'SCALE 45.

1996(4) SCALE 127.

(1980) 1 SCC 81; (1980) 1 SCC 91; (1980) 1 SCC 93; (1980) 1 SCC 98; (1980) 1 SCC 108 and (1980) 1 SCC 115.

. Hussaina K/Iatoon & Other (VII) v. Home Secretary Bihar (1995) 5 SCC 326.

1996 (1) Crhnes 189 (SC).

CHAPTER XXII CONCLUSIONS AND RECOMMENDATIONS

1. In the light of the discussions made in the earlier chapters of this report the Commission is of the opinion that it is essential to make appropriate amendments in the Code of Criminal Procedure, 1973, particularly for rendering Speedy Justice. We have also examined the proposed changes brought out in the Code of Criminal Procedure (Amendment) Bill, 1994.

2. We have indicated in each chapter of the report, the provisions which should be made in lieu of, or in addition to, the existing provisions, and also the amendments, both major and minor, to be made in them. We do not consider it necessary to give a complete summary of all the recommendations made in the foregoing pages. The main changes proposed by us are set Out below in broad outlines.

3. There should be a separate and exclusive cadre of investigating agency to investigate grave offences in every district subject to supervision by the higher authorities. When a case is taken up for investigation by an otﬁcer of such agency, he should be in charge of the case throughout till the Conclusion of the trial. He should take the responsibility for production of witnesses, pro- duction of accused and for assisting the prosecuting agency.

(Ch. II, para 7)

4. The police oﬂicial entrusted with the investigation of grave offences should be separate and distinct from those entrusted with the enforcement of law and order and other miscellaneous duties. S arate investigating agency directly under the supervision of a designated Superintendent of Police be con- stituted. The hierarchy of the oﬁicers in such agency should have adequate training and incentives for furthering effective investigations. The respective Law and Home Departments of various State Governments may work out de- tails for structuring and betterment of their conditions of service.

(Ch. 11, para 9)

5. The oﬂicials of the investigating police force be made responsible for helping the courts in the conduct of cases and speedy trail by ensuring timely attendance of witnesses, production of accused and proper co-ordination with prosecuting agency. Other necessary steps should also be taken for promoting efficiency in investigation." Accordingly, that necessary changes in the Police Acts, both Central and State, Police Regulations, Police Standing Orders, Police Manuals, be made by the Home Department in consultation with the Law Departments of State Governments.

(Ch. II, para 9)

6. A Directorate of Prosecution be established as provided in clause 4 of the Code of Criminal Procedure (Amendment) Bill, 1994, and new section 25A be inserted. However, sub-section (4) of new section 25A placing the public prosecutors appointed under section 24(1) to condu t cases in the High Court to be subordinate to the Director of Prosecution ne not the there as, the Public Prosecutors appointed exclusively to conduct cases on the appellate side in the High Court should be differentiated from those prosecuting officers ap- pointed to conduct cases in the lower courts. Accordingly, sub-section (4) of the proposed section 25A be deleted.

(Ch. III, para 12)

7. The structuring of the proposed Directorate of prosecution shall be on the lines recommended by the National Police Commission. Some of them may be earmarked to advise the investigating agencies and to examine whether there is a ﬁt case for ﬁling the chargetsheet. However, the Government while appointing Public Prosecutors and Assistant Public Prosecutors under sections 117 118 24 and 25 shall, as far as practicable, appoint suﬂicient number of woman Pu- blic Prosecutors and Assistant! : Public Prosecutors so that they can elfectively deal with cases involving women" who are under 18 years of age and in respect whom offences under sections 354, 376, 376A to 376E (both inclusive) proposed by the National Commissionfor Women and 509 of the Indiah'Penal Code.

(Ch. III, paras 9, 10 & 13) 8.3 In view of the recommendations to establish the Directorate of Pro:

secution, section 25(3) and section 302 to the extentthat they enable police oﬂicers to conduct prosecution, needs to be suitably amended.

(Ch. III, para 17) .9. Regarding law of arrest in view of the guidelines enunciated by the Supreme Court in Joginder Kumafs case and also the consequent recommenda- tions of the Law Commission in its l52nd Report on "Custodial Crimes" the new sub-section to section 41 be inserted in the Code. Further a new section 41A be also inserted in the Code.

(Ch. IV, para 11)

10. The police custody need not be during the ﬁrst ﬁfteen days of re-

mand alone. A _provision should also be made for a fresh police custody, if sought by the CBI during investigation but it should not exceed 15 days in the whole. Accordingly, Section 167(2) be amended.

(Ch. V, paras 1 & 2) J 11. In order to eliminate the discrimination against the poor and the indigent accused in the grant of bail for bailable offences, clause 40 of the Criminal Procedure Amendment Bill, 1994 seeks to amend section 436 of the Code to make a mandatory provision that if the arrested persons accused of .a bailable olfence is an indigent and cannot furnish security, the court shall release him.on his execution of a bond without sureties. The amendments referred to above as those are consistent with the Supreme court's pronouncements and juristic opinion that poor accused committing bailable offences sh0uld not be denied bail on the basis of indigency.

(Ch. VI, paras 8.4 & 8.5.)

12. Section 436A be inserted in the Code as a protection for undertrail prisoners accused of non-capital offences and released on bail as contained in Clause 41 of the Code of Criminal Procedure (Amendment) Bill, 1994 except the words "instead of the personal bond with or without sureties" occurring in the proviso to clause 41 of the Bill.

(Ch. VI, para 10)

13. In order to make the provision under Section 437 more stringent and ensure that the accused released on bail does not interfere or intimidate the wit- nesses section 347 be amended as provided under clause 42 of the Code of Cri- minal Procedure (Amendment) Bill, 1994.

(Ch. VI, para 11,)

14. The provision contained under Section 438 regarding anticipatory bail should remain in the Code but subject to the amendments suggested in clause 43 of the Code of Criminal Procedure (Amendment) Bill, 1994 which provides adequate safeguards. ' ' (Ch. VI, para 18)

15. To eliminate' the pernicious evil of professional and falceisureties in the bail process Section 441-A be incorporated in the Code as provided in (clause 44 of the Code of Criminal Procedure (Amendment) Bill, 1994.

(Ch. iVI, paras 19.4 and 19.5) ll')

16. In keeping with the tune of amendments to sections 436, 437,_ 438 and the insertion of sections 436A and 441A. the amendment of sub-section (3) of section 446 on the lines set out in clause 45 of the Bill be inserted.

(Ch. Vl. paras 20.3 to 20.5)

17. A new section 437A be inserted empowering all the criminal courts (including the lst appellate court) to take bail and bail bond before the conclu- sion of the trial or disposal of the appeal requiring the accused to bind th€m~ selves to appear before the next appellate court; in case an appeal against aC-- quittal or an appeal for enhancement is ﬁled in the higher court. Such a bond shall be in force for a period oi' l2 months from the date of judgement dis- posing of the case either by trial court or by the Ist appellate court as the case may be. We feel, the twelve months limit would be enough to cover the period of limitation for processing and ﬁling of such appeals.

(Ch. Vll, para, 2) I8. Summons Procedure be dispensed with. Accordingly. Chapter XX be deleted. The deﬁnition of warrant case be amended as one relating to any otfence punishable with imprisonment for a term exceeding three years. Like- wise, deﬁnition of summons cases be amended relating to an offence not being warrant case summarily triable. Section 260 be also amended that all summons cases as per the proposed deﬁnition should 'be summarily tried and the magis- trate shall have the power to award sentence of imprisonment only up to a period of six months or a ﬁne up to Rs. 3000. However, in case of serious nature it the Magistrate is of the opinion that it is undesirable to try summarily, he may convert the same into a warrant case and. try accordingly after giving sufficient and valid reasons. Sub-sections (l) and (2) of the section 260 be amended accordingly. The new comprehensive procedure as per the amended Section 262(2) and also in the existing sections 263 and 265 shall be followed.

(Ch. Vll, paras 12. l3, l4 & 15)

19. In cases arising out of a police report, all the statements having been recorded during investigation should be supplied in advance and the cross- examination should proceed continuously. In the case Of other types of case arising otherwise than on police report also, evidence already recorded before issuing process would be available furnishing suﬂicient material for cross-exa~ mination, and many adjournments just for the purpose of carrying on further cross-examination can be avoided. Accordingly,' Sections 242(2)(3) and 246(4) be amended.

(Ch. VIII, para 17)

20. The statements of material witnesses recorded under section 164 which could be more authentic and also prevent the witnesses from turning hostile. Further sections 161, 162, I64 and 172 be amended on the lines suggest- ed in Chapter IX, para 7. This course is more salutary and will prove to be very effective in rendering criminal justice in a speedy manner. However, the changes contemplated, namely, setting up and separating the' investigating agency, and structuring the same and appointment of large number of magis- trates will take some time. We, in the alternative, recommend to retain the provisions of sections 16!, I62 and 172 as they are but with some checks in the direction of improving the authenticity of such statements recorded by the police and also obtaining signatures of the persons examined, if they are literate. Further, a copy of the statement should be given to the deponent under acknow- ledgement and also send them to the Magistrate and to the superior oﬂicers. That provision would ensure against any error or malpractice being committed by the officer.

(Ch. IX, paras 7, 8, 11.12.13 & 15)'

21. The allowances payable to the witnesses for their attendance in courts should be ﬁxed on a realistic basis and that payment should the elfected through a simple procedure which would avoid delay and inconvenience. Section 312 of Cr. P. C. and the rules made thereunder will have to be suit bly amended. . They should be paid allowances for all the days they attend. Adequate'fa_ci1i-j ties should be 'provided in the court premises for their stay." The treatni'ent'"' I7-1 M of L431 ND/97 120 afforded to them right from the stage. of investigation up to the Stage of 901* clusion of the trial should be in_a tilting manner giving them_ due respect and removing all causes which contribute to any anguish on their part.

(Ch. X, para 6)

22. Listing of the cases should be done in such a way that the witnesses who are summoned are examined on the day they are summoned and adjourn- ments should be avoided meticulously. The lists should be prepared In _suChv a way that a day or two are devoted continuously to all cases of a particular. police station and cases should not be proceeded mechanically just according_to the chronological order regardless of the fact of the likelihood of their being tried or _not. The courts also should proceed with trial on a_day-to--day basis and the listing of the cases should be on those lines. The High Courts should issue necessary circulars to all the criminal courts giving guidelines for listing. of cases.

(Ch, X. para 7)

23. We are of the View that the Courts can take the assitance of the prosecutor and defense counsel and prepare the questions which are to be put in a concise form to the accused under section 313. The Court can also permit the filing of written statements by the accused as sufficient compliances with sectiori 313.

(Ch. XI. para 6)

24. On the aspect of compounding of offences under sub-section (2) of section 320 (of'i'ences compoundable with the permission of the court) we re.- cuinmend that sections 324, 325, 335, 343, 344, 346, 379, 403, 406, 407, 4] I.

414. 417, 419. 421, 422, 423, 424, 428, 429, 430, 451, 482, 483, and 486 should be deleted from the table laid down under sub-section and be included in the table to' sub-section 1 of ' section 320. Further, Section 498A be inserted in table under sub-section (2) of section 320 whereby it can be compounded with the permission of the Court.

(Chapter XII, paras 4 & l0)

25. There is no provision mentioned in the tables appended to the Sec- tion 320 regarding compoundability where the accused is constructively liable under Sections 34 and 149, IPC. If the provision is left as it is, then only in respect of substantive offences mentioned in the tables, compounding is possible' and not in respect of cases of constructive liability for the same offence. Like- wise, in respect of offence of rioting resulting in the offence mentioned in the two tables, there_is no provision for compounding. The offences punishable under Sections 147 and l48 of IPC committed during the same transaction, the transaction being one and the same, where the guilt is proved, the accused are to be convicted under all those sections. It will be anomalous if one part of the offence is compoundable and other part remains non-compoundable where the convictions are capable of being made under both the provisions. Accord- ingly, we are of the view that sub-section (3) be amended suitably.

(Ch. XII, para 5)

26. We recommend that the concept of plea bargaining may be made applicable as an experimental measure. to offences which are liable for punish- ment with imprisonment of less than seven years and/or ﬁne including the offences covered by section 320 of the Criminal Procedure Code. Plea bargain- ing can also be in respect of the nature and gravity of offences and the quantum? of punishment. However, plea bar ainiiig should not be available to habitual offenders, those who are accused o socio-economic offences of a grave nature and offences against women and children.

(Ch. XIII, paras 8 & 9)p , , 27. A plea bargaining can be availed to by the accused in the categories of offences mentioned_above before the Court at any stage after the charge sheet' isﬁled by the investigating agency in police cases and in respect of private ;<..;-I: i..:7:Jl to :21; it---?«8 121 complaints at any stage after the cognizance is taken. An Order passed by the court on such a plea shall be ﬁnal and no appeal shall lie against such an order passed by the Court accepting the plea. "

(Ch. XIII, para 9.6)

28. A separate chapter XXIA on Plea Bargaining be incorporated in the Code of Criminal Procedure on the lines indicated in para 7 to 9.9.

(Ch. Xlli, paras 7 to 9.10)

29. The recommendations of the Law Commission in its 114th Report on Gram Nyayalaya regarding appointment of presiding officer may not be feasible because serving Munsifs/Civil Judges will not be able to shoulder the additional burden of presiding over Gram Nyayalayas in the rural areas. As it is, there is docket explosion in the civil courts and the civil justice delivering system is adversely attected by the phenomenon of huge backlog of cases leading to long.

Jclays in disposals. Restricting to serving judicial Otﬁcers only prevents the consideration of retired judicial olﬁcers and other personnel who have served in the government in various capacities. Engaging lawyers by the parties to appear before the Nyaya Panchayats would introduce technical legal formalities into the system leading to delays in the disposal of cases. Indeed it would frustrate the very purpose for which the Gram Nyayalayas are being introduced.

(Ch. XIV. para 6)

30. The state should enact legislation on Nyaya Panchayats to suit their local needs and conditions. The Andhra Pradesh Mandala Nyaya Panchayats Bill. I995 may be adopted as a model on the composition, powers and jurisdic- tion of the Nyaya Panchayats.

(Ch. XIV, para' 7:") _ 3].. _In view_ of _the wealgnesses of the existing provisions for compensa- tion to crime VlClll'l'lS in the criminal law. it is necessary to incorporate a new Section I357-A in the Code. i . ' A-

32. A time limit should be fixed for the period of postponement of trail of insane undertrial. Indeﬁnite postponement is an infringement of the personal libertly and rights of insane undertrails. In order that personal liberty is not arbitrarily deprived in the name of therapy, it is essential that the period for which the enquiry or trial can be postponed, should be subject to limitation.

For the accused whose condition is treatable and who can be better equipped to defend themselves postponement of trial furthers fair trial. For incurables postponement is of little utility and only operates as a mechanism for punishing without trial. It, therefore, seems appropriate that they should be--discharged of the charged offence. If their mental Condition makes them "a danger to themselves or others i.e. they are incapable of looking after them- selves and nobody is available who is willing to look after them, then the pro-

V cedure for involuntary civil commitment should be initiated to institutionalize these persons. Accordingly. sections 328, 329, 330 of the Code in respect of pre-enquiry and pie-trial proceedings be amended.

(Ch. XVI. paras, 12. 14,915 & I6)

33. Regarding maintenance under Section 125 the increase in ceiling from Rs. 500 to Rs. 1500 suggested in the 1994 Bill would not serve the (Ch. XV. paras '13 & l'7")p purpose owing to spiralling inﬂationary conditions. Nor altogether dropping' the ceiling limit is desirable. Justice would be done to awardees if the ceiling is raised to Rs. 5000.

» (Ch. XVII, para 5)

34. Under the existing law, there is no right to appeal against an order passed by the magistrate under section 125. Only a revision is possible. There .

is need to amend the law providing right to appeal. ' i ' (Ch. XVII, para 9.1) 122

35. Summary trail procedure for recording evidence etc, under section I26 be adopted and the evidence by way of alﬁdavits also be made admissible. Accordingly section l26(2) be amended.

(Ch. XVII, para 9-3)

36. It is necessary to empower the magistrate to attach the properly of the person liable to pay maintenance and sell in order to recover the amount. If the husband is employed. the magistrate shall have power to direct the em- ployer to deduct the amount of maintenance and arrange the payment. To give elfect to this suggestion. section I28 has to be amended suitably.

(CJ1. XVII, para 9.4)

37.' An absoulte condition provided in proviso to clause (a) of Bill for- mulated by the National Commission for Women, namely, that an Offence under section 376 of the Indian Penal Code (rape) shall be tried only by any such court presided over by a woman may not be feasible in practice always. The word "only" be substituted by "as far as practicable" in the proviso.

(Ch. XVIII, para 4.2)

38. The age of the woman to be questioned only in the presence of her parents etc. should be eighteen and not ﬁfteen as suggested by -the National Commission for Women.

(Ch. XVIII. para 5.4)

39. Section 160 be amended on the lines suggested by the National Com- mission for Women subject to certain modiﬁcations. In sub-section (3) the age of "twelve years" be raised to "eighteen years" in conformity with the Conven- tion on the Rights of the Child. The recommendation made in sub-section (4) of National Commission on Women Bill is not practicable having regard to the present condition and dearth of female police oﬂicers. It may also not be prac- ticable for the victim or any person interested in her to approach the person mentioned in sub-section (3). Instead sub-section (4) may be amended to the effect that where a female police officer is not available and to Contact the per- son mentioned in sub-section (3) is diﬂicult, the oﬂicer in charge of the police station, for reasons to be recorded in writing, shall proceed with the recording of the statement of the victim in the presence of a relative of the victim.

(Ch. XVIII, para 6.9)

40. The insertion of section 164A as recommended by the National Commission for Women is eminent desirable subject to the modiﬁcation that medical examination be made preferably by a female medical practitioner. Further a speedy and detailed medical examination of rape victims by doctors is essential for effective trial of rape offences. Likewise speedy despatch of the' report to the investigating officer is also necessary. -

(Ch. XVIII, para _7.3) .41. Some of the amendments to section 327 mentioned in the Bill pro- posed by Yhe National Commission of Women are not practicable. According- ly, in sub-section (2), the word "only" be substituted by the words "as far as practicable" because to limit such trials only by women judges as man- datory would unduly delay the trial. However, the amendment in sub-section (3) lifting the ban on printing or publication of rape trial proceedings but man-

dating conﬁdentiality of the names and addresses of -the parties be made.

(Ch. XVIII. para 12)

42. The Women prisoners be exempted from the rigour of' section 433-A of the Code for the reasons set out in Chapter XVIII.

(Ch. XVIII, para 15.7) 123

43.. In order to make the provision explicit so as to give 'benefit of set-off to the life convicts also section 428 can be amended by adding the words "or imprisonment for life" after the words "sentenced to imprisonment for a term."

_tCh. XIX. para 2.)

44. After section 144 a new section 144A is to be inserted in the Code to enable the District Magistrate to prohibit mass drill (or training) with arms in public places. in order to curb the militant activities of certain communal o.rganisations and to strengthen the hands of the State authority for effectively checking communal tension.

(Ch. XX, para 5.1)

45. Section 176 be amended to provide that in the case of death or dis- appearance of a person or a rape of a woman while in the custody of police. there shall be a mandatory judicial inquiry and in case of death, examination of the dead body shall be conducted within twenty-four hours of death. ' (Ch. XX. para 5.2)

46. A new proviso to sub-section (1) of section 190 of the Code be inserted to empower a magistrate to authorise further detention in custody of an accused person for a period not exceeding a week, after recording reasons, during the interim period of submission of the police report and before taking cognizance of the offence disclosed by the police report. Such a provision is necessary to enable the Magistrate to pass an -order of remand where it is not possible for him to take cognizance of an offence under clause (b) of section 190.

(Ch. XX, para 5.3')

47. Two provisos to sub-section (1) of section 389 of the Code be added to the effect that the Appellate Court would give notice to the prosecution before releasing a convicted person on bail, if he was convicted of an offence punishable with death, imprisonment for life or imprisonment -for a term of not less than ten years and also to enable the prosecution to move an application for cancella-

tion of such bail granted by the Appellate Court.

(Ch. XX, para 5.7)

48. A proviso be added to Section 428 providing for a set-off of the period of detention during investigation and trial against period of_1't4 years of actual imprisonment. This amendment is necessary so that the convicted accused can get a beneﬁt of the period suffered by him as detention during the trial and investigation being set off against period of 14 years mentioned in section 433A.

(Ch. XIX and XX)

49. In respect of bailable offences, there are instances where the person has to remain in jail for his, inability to furnish bail, till the case is disposed of. The amendment of section 436(1) to make mandatory provision to release such indigent person on an execution of a bond without sureties, is a salutary provision.

(Ch. XX, para 5.9)

50. The new sub-section (4) added to section 46 to «prohibit to arrest of a woman after sunset and before sunrise except in unavoidable circumstances.

(Ch. XX, para 6.3) A

51. A proviso be added to section 46(1) regarding the arrest of a woman 4 providing that where the woman is to be arrested and submission to custody on an oral intimation the arrest shall be presumed. However, we suggested that exist- mg sub-section (2) will be numbered as sub-section.(3) and sub-section (3) as sub-section (4).

(Ch. 'xx, para 5.3) 1524 e 52. 'A new section "l64'A be iris'erted'in the'Codc to p'rovide"'fo"rt a medical examination of the victim of rape by a registered medical practitioner. ' (Ch. xx, para 6.7)

53. A new sub-section (3A) be added to section 173 to enable the police to take note of the desire of the parties to compound offences.even at the stage of investigation. . ~ '- - (ChvK'XXV, para_§.8-)

54. hi order to guard 'against the arbitrary exercise of power and to. reduce reckless acquittals, section 378 be amended providing an appeal against an order bfaacquittal passed by a Magistrate in respect of cognizable and non- bailable'offeiice ﬁled on a police report to the Court of Session as directed by the District Magistrate. In respect of all other cases.f1l_ed. on a poliee;_rep._ort, an appeal shall lie to the High Court against an order. of acquittal Cpasscd bygany. other court other than the High Court, as directed by the State .Government.-» The power to recommend appeal in the first category is sought to be vested in the District Magistrate and the power in respect of second category would continue with the State Government. Section 376 be accordingly amended prescribing limitations for ﬁling the appeal and limiting the scope thereof.

' (Ch; XX,paras 6.12' and 6.l3)

55. A new Section 436A be inserted providing for release of undertrial prisoners who are in jail for a long period, with necessary modiﬁcation. ' (Ch. 'XX; para old?

56. To combat with the problem of adjournments the measures as laid down underordcr XVI] of the Code of Civil Procedure be inserted in the Code. Further an additional. provision as laid down in State of 4G'z¢famAt _\c, Nqrendar Singh Lukhubhai, 1995, Vol. fl Crimes 445 be incorporate. -

(Ch-. XXI. parai?it2;7 and (42.8)

57. There is need for appointing more Special ("Magistrates to deal with"

minor nature of criminal cases. Necessary changes accordingly be made in"

sections 13 and 18 of the Code of "Criminal Procedure.

_ (Ch. XXI, _Para '43.] l)

53. 'l'hc C'o'urt_ maylclonsider materials-" roduced by the iécused aire_'ciiii;';} the "very maintainability of the case at the preliminary stagesvconternplaterl under"

sections 227. 239 and' 245 as well as in the preliminary stages of the summary trials.

(Ch. XXI, Para 3!)

59. In order to minimise the long pending cases, it is necessary to adopt the directions given by the Supreme Court in'Common-- Cause V.' Um'0n of India 1996(4) SCALE 127 with certain modiﬁcations. Further the -directions given by the Supreme Court should not be made applicable=to._,cases where the accused"

has been convicted more than once or against whom more than one case is pending. Moreover, the directions of the Supreme Court should be made appli- cable only to pending cases and not in respect of future cases. However, there should be a periodical review from time to time preferably every three years.

p(Ch_." 'Xxi, para. 41.9))

60. It -is highly desirable a separate Process Serving Agency under the control of courts be established to avoid delay in the service of summons or execution of warrants issued by the court. _ , (Ch. XXI, para 41.3).,.

_ 61. A special machinery should be provided in order to procurev-vgﬁjclegm for producing the accused before the court on each date any time. ' V (Ch. XXI, para 41.4) I25

62. There should be a periodical review of the strength of the courts to effectively (leal with the arrears pending in the courts and accordingly a new Section 23A be incorporated in the Code.

(Ch. XXI, para 41.2)

63. The Court may consider materials produced by the accused which affects the very maintainability of the case at the preliminary stages contem- plated under sections 227, 239 and 245 as well as in the preliminary stages of the summary trials.

(Ch. XXI. para 30) We recommend accordingly.

Sd/-

(JUSTICE K. JAYACHANDRA REDDY) Chairman Sd/- sd/_ (JUSTICE R. L. GUPTA) (Ch. G. KRISHNAMURTHY) Member Member Sd/-

(PROFESSOR ALICE JACOB) Mem ber MGIPCBE----S8---1 M of L&J/ND/97-27 439-500

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The Code Of Criminal Procedure, 1973 (Act No 2 Of 1974) Vol I