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

[Cites 154, Cited by 0]

Law Commission Report

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

LAW COMMISSION OF INDIA

ONE HUNDRED AND FIFTY FOURTH
REPORT

ON ACO N0; \2\\1" CI

THE CODE OF CRIMINAL PROCEDURE,
1973

(ACT NO. 2 OF 1974)

(VOL. II)

I 996

ANNEXURE

AN.'\'EXURE

ANNBXURE

ANNEXURE

III

VOLUME ll

ANNEXU RES

Questionnaire on the Code of Criminal Procedure. 1973
Working Paper
Re-spouses received on the questionnaire

Proceeding in the Workshops

A. P. Mandala Nyaya Panchayat Bill .

Page No.

,_.

ANNEXURES

Q. No.

ll).

1].

ANNEXURE I

QUESTIONNAIRE
ON

CODE OF CRIMINAL PROCEDURE. 1973 .

(ACTH-NO. 2 or 1974)

INDEX

Sections 9 to 12 to make provision for listing of
cases for effective trial

Special/Honorary M zzgistrate Courts ~e-Amendment
of Section. 13 & l8

Executive Magistrate: Insertion of new sub-section
4A in Section 20

Public Prosecutor. 2 Regular cadre of Prosecuting
Ofﬁcers ~- Explanation to Section 24 to be added

Public Prosecutor Insertion of new Section 25A--i
Establishment of oﬂice of Director of Prosecution

Sentence which the Magistrate may pass section 29
Arrest of Person
Insertion of new sub-section' IA, VIB in Sec 41.

Protection of members of the Armed Forces from
Arrest Amendment of section 45;

Arrest how mnde'iAm'endment in sec. 46(1) . {

Arrest and hrandcuﬂ'ing~a Amendment of

Section 46(1). 'V . ' . V . o -.i

Amendment in sub-section (3) of sec. 46
Handcutﬁng during transit. I
Intimation of Arrest' of Accused Sec. 50A .

Search of the Arrested Person--~~~Amendment 'of'
Section 51 ' A " '

Examination of "accused by Medical Practitioner»
Explanation to 'section 53 to be' added '

Exanrinationiof "the accused in 'rape cases by

Medical Practitioner-It Amendmentiof Section 53A '

Insertion of new section 53B---- Medical Examina.- A
tion~~of the victim of rape A :

!/..

PAGE No.

u. .x>V_.ra ml

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14
CS

'(-3
\J

29.

30.

31.

33.

34.

36.

37.

38.

39.

(ii)

Examination of arrested person by Medical
Practitioner at the request of the arrested person

Amendment of Section 54
Identiﬁcation of person arrested «a new section
54A to be added

Duty of Magistrate to verify certain facts

Speciﬁc Provisions as to Arrest, interrogation and"

custody of women and children ----insertion of new
chapter 5A

Proclamation for person absconding .

Power to police ofﬁcer to seize certain property
Amendment of section I02.

Security for good behaviour from habitual
offenders amendment of section HO.

Imprisonment in default of security amendment
of Section 122. .

Order for maintenance of wives,
parents Amendment of Section 125

children &

Family Courts

Insertion of new section l44A~v---- Curbing the
militant activities . .

Delay in Investigation
Non--rccording of First Information Report

Role of Investigating Agencies-«Investigation of
Cognizable Offences----Amendment of Section 156

Procedure for

Investigation~---Amendment of
Section 157 ' ' I

Investigation of Victims of Rape: Amendment of
Section 157

Police Oﬂicer's power to investigate congnizable
case/procedure for investigation: Amendment of
Section 156

Use of Scientiﬁc Aid and Equipment in [nvcsti~
gation--~Amendment of Section 157

Police 0t'ricer's power to require attendance of
witnesses ----Amendment of Section 160

Penal Provision for .non--registration of First
Information Report.-Insertion of new Sec-
tion 167A .

Procedure for recording of statements of victims
of rape---Amendment of Section 160 .

PAGE No.

l0
l0

40.
41-

42-

43.

44.
45.

46-
47.

48.

49.
50&5l

52.
53.

54.
55.

56.
57.

58.
59.
60.
61.
62-
63.
64&65

66.

67&68

(iii)
Amendment of Section 160A . . . .

Deletion of Section 162 Cr. P.C. and change in

the mode of recording statements under Sec-
tion 161

Discharge of acc.1sed for unreasonable investi-
gation~Section 167(5) . . . .

Procedure when investigation cannot be completed
in 24 hours and consequent Police Custody

Insertion of new Sub-section 3A in Sec. 173

of death in
Sec-

Inquiry by Magistrate into cause
custody ----details given--amendment of
tlofl l76----details given

Insertion of new section 176A

Cognizance of offences by Magistrates--.amend-
ment of section 190

PI'0SeC1ti0I1 of judges and Public servants~-amend-
ment of Section 197 . . . . . .

Amendment of Section 198

Offences against marriage----jurisdiction of
mirriage courts . . . . . .
Issue of processing--amendment of Sec. 202 .
Special summons in cases of petty offences-

amendment of section 206 . . .
Persons jointly charged---amendment of Sec. 223 '

Section 227-~--discha1'ge of acctised due to delay .

Amendment of sections 227 & 229

Framing of charge---amendment of section 228 .

Amendment of Sec. 231 . . . . .
Amendment of Sec. 238 - . .

Proposed Section 238A . .

Amendment in Sec. 239 . . . . '~
Amendment of Sec. 242 . . . . .
Amendment of Sec. 244 . . . . .

Absence of
sections 249 and 256 .

complainant------amend ment

Power to try summarilymamendment of

section 260--changes . . . . .

Summons and warrant cases - . . -

2----2 M 0fL & J/ND/97

PAGE No.

12
12

13
13

14
14

15
15
15

15
15

15
16
16
16
16
16

17
17

69.

70.

71.

72 -

73.
74.

75.
76.

77.

73.&79. Insertion of Proposed Section 357(A) in Cr. RC.

80.

81-

82.

83.

84.
85.
86-

87.

88.
89.

90.
91.

92.
.93.

UV)

Insertion ~ of new' section 291A ---identiﬁcation
report by Magistrate.

Reports of scientiﬁc experts amendment of

section 293.

Introduction of a stage after framing of charge
for "admission 'and denial of documents.

Insertion of new section 3llA--~~taking specimen

signatures" or handwriting. . .
Amendment in Section 312 - . - -
Compounding of offences "amendment of
section 320 . . . . . .

Amendment in section 327 .

Notifying addresses of previously convicted

offenders --~ amendment of section 356 .

Amendment of section 3577---payment of compen-
sation.

Compensétioll iof persons groundlessly "a.rrested---
amendment of Sec. 358

Release on probation of good: conduct--~amend-
ment of Section 360 . . . . . .

Appeal against sentence or acquittal--amendment
of Section 377 «& 378

Suspensio'n of sentencepending a.ppeal--amendment
of section" 389. .

Insertion of a new section 417A .
Period of_ detention ----'ameI1dment'of Sec. 428 .
Special positions in respect of women

---amendmnent of sections 433, 433A & 125.-

In what cases bail to be 4 taken----amendment of
section 436. . . . . . « . . .

Insertion of new section 436A . . . .

Bailable and non-bailahle offences----amendmcnt of
section 437 p . v . p . . .

Amendment of section 437 - . . .

Anticipatory bail ~ nmendment of section .438 or
deletion. . . . .

Amendment of section 438 .

Declaration by sureties--~ insertion of new
. n . o o 0 0

PAGE No.
17

18
l8

18
19

19
19

20
20
20

20
21

21
22

22
22

(V)
Forfeiture of bond ~ amenclnzent of Section 446-

Anzendment of the; First Schedule ---- making

some more entries.
Amendment of Section 468

Annex1re----I 135th Report on Women in Custody New
Chapter V-A-

Anncxure~II 132nd Report _onf"Need for amendment
of the; Provisions of Chapter IX of the
Code of Criminal Procedure, 1973 in order
to ameliorate the hardship and mitigate
the distressiof neglected Women, Children
and Parents."- - . . . .

Annexure---- III A-'; Problems of Delay and Arrears in
Courtja nd: Speedy Trial.
B. j', Speedy' Trial-- Amendment Suggested.

C. Plea Bargaining: Insertion of New
Chapter;rXIIA: Procedure for fre-
Trial Bargaining and Plea Bargaining.

PAGE No.
22

22
22

29
30

QUBESTIONNAIRE
ON

CODE OF CRIMINAL PROCEDURE, 1973
(2. of 1974)

GENERAL PROVISIONS

CONSTITUTION OF CRIMINAL COURTS

General
1. Sections 9 to 12

Whether the existing provisions of the Constitution of Criminal Courts
namely, Sections 9 to 12 require any change?

2. Special/Honorary Magistrates: Amendment of Section 13 and deletion of
Section 38

Whether there is need for appointing more Special / Honorary lvlagisuates to
deal with minor criminal cases including metropolitan area? Do you suggest incor-
poration of necessary changes in Sections 13 and consequent deletion of Section
18 of the Code of Criminal Procedure.

3. Executive Magistrate: Insertion of new sub-section 4A in Section 20

Do you suggest that the State Governnient may by general or special Order
and subject to such control and directions as it may deem ﬁt to impose, delegates
its powers under sub-section 4 of Section 20 of the Code of Criminal Procedure.
to the District Magistrate and such a provision should be incorporated by pro-
viding a new sub-section 4A of Section 27) of the Code in order to avoid the delay?

4. l'ulr.)lic Prosecutor: Explanation to provide» to Section 24(6)

Do you agree for insertion of the following Explanation after the proviso
in sub-section 6 of section 24 of the Code of Criminal Procedure and such expla-
nation shall be operative retrospectively w.e.f. 18th day of December, 1978 as laid
down in S.B. Shahane v: State of Maharashtra A.I.R. 1995 S.C. 1628 and as men-

tioned under Clause 3 of the Code of Criminal Procedure (Amendment) Bill, 1994
which reads as under:

"(a) "regular Cadre of Prosecuting Oﬂicers" means a Cadre ot Prosecuting
Officers which includes therein the post of a l-'ublic Prosecutor, by
whatever name called, and which provides for promotion of Assistant
Public Prosecutors, by whatever name called, to that post;

"(b) "Prosecuting Oﬂicer" means a person, by whatever name called, ap-
pointed to perform the functions of a Public Prosecutor, an Additional
Public Prosecutor or an Assistant Public Prosecutor under this Code."

5. lndcpendcntl Prosecution Agency: Insertion of new Section 25A

A. Do you agree that the Public Prosecutor, Additional Public Prosecutor,
Assistant Public Prosecutor, should be independent from the control of the Police
in discharging their functions in the Courts. Do you suggest that in Order to
achieve the said objective, after Section 25, the following new section should be
inserted, as provided under section 4 of the Code of Criminal Procedure (Amend-
ment) Bill, 1994 namely, «

"2SA (l) The State Government may establish a i)l['CCiC.':l'£.liC oi Prosecution
consisting of a Director of Prosecution and as many Deputy Dll't'()lOI'S
of Prosecution as it thinks fit.

(2) The Head oé. the Directorateof Prosecution shall be the Director of
Prosecution, who shall function under the admini.strative control of
the Head of the Home Department in the State.

(T0 Every Deputy Director of Prosecution shall be SilbL'l'I;l.lI]ﬂl€ to the
Director at Prosecution

(/1) Every Public Prosecutor, Additional Public Prosetrutor and Special
Public Prosecutor' appointed by the State Government cther than those
appointed under sub-section (1) of Section 24 shall be subordinate
to the Dit'eCtt)r of PI()&t'.Cl.."1l(}l'l.

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

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

B. Do you also think it necessary that there should be another clause in
Section 25A providing for the appointment of Women Public Prosecutors and
Assistant Public Prosecutors speciﬁcally for the conduct of cases involving women
under 18 years of age and in respect of offences under Sections 354, 376, 376A to
376E and 509 of the Indian Penal Code as recommended by the National Com-

mission for Women?

C. Whether offence under Section 376 be necessarily tried by a Court pre-
sided over by a woman as recommended by the National Commission for Women?

6. Sentence which the Magistrate may pass : Section 29

Do you suggest that as mentioned in clause 5 of the Code of Criminal
Procedure (Amendment) Bill. 1994, in Section 29 of the Principal Act:

(a) in sub-section (2), for the words "ﬁve thousand rupees", the words
"twenty-ﬁve thousand rupees" shall be substituted.

(b) in sub-section (3), for the words "one thousand rupees", the words
"five thousand rupees" shall be substituted; keeping in view the depre-
ciation of the value of the rupee since 1973 and to make. the provision

more deterrent.

Do you suggest any further changes in respect of imposing sentences by
the Magistrate.

ARREST OF PERSONS

7. General

Would you suggest that the police should continue to have unrestricted
power to arrest any person under Section 41 at any time and at any place without
any order or permission from the Magistrate or any other Court'?

8. Insertion of new sub-section 1A, 1B in Section 41

The 1...:-nv Commission in its l52nd Report on "Custodial Crimes" observed
that there is a misconception prevailing that if there is a power to arrest the same
must be exercised without fail and suggested certain changes in Section 41. Like-
wise the Supreme Court also observed in Joginder Singh v. State of Punjab, (1994)
IT' (3) SC 423. Do you agree that as recommended by the Law Commission and
observed by the Supreme Court that two new sub-sections IA and 1B should be
inserted after sub-section 1 in Section 41 of the Code of Criminal Procedure?

"4l(lA) A police oilicer arresting a person under clause (a) of sub-section
(1) of this section must be reasonably satisﬁed, and must rword such satisfaction,
elating to the following matters:

(a) 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 arrestetl, in that
oﬁence:

(b) arrest is necessary in order to bring the movements of the person 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 behaviour in general."

Section 41 (IB)

(1) The police otﬁcer may, instead of arresting the person concerned.
issue to him a notice of appearance requiring him to appear before
the police oﬁicer issuing the notice or at such other place as may be
specified in the notice and to co-operate with the police olliccr in the
investigation of the offence referred to, in clause (a) of sub-section (1)
of section 4 l.

(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 otﬁcer 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 court."

Do you consider the aforesaid proposed amendment is adequate to avoid
frequent and unnecessary arrests? If not, what modiﬁcation do you wish to sug-

gest indicating the reasons therefor?

9. l'rnt<vction of members of the Armed Forces from Arrest: Amendment of sub-
section (2) of Section 45

Do you agree that in sub-section 2 of section 45 cf the Code, after the
words "member of the Force", the words "or to such other public servants" should
be inserted in order to extend similar protection to such other public servants as
are charged with the maintenance of public order as they also have to face similar
diﬂiculties as laid down under clause 6 of the Code of Criminal Procedure (Amend-

ment) Bill, 1994?

10. Arrest how made: Amendment in section 46(1)

Do you agree with the suggestion that sub-section I of section 46 of Code
should be amended by inserting a proviso thereunder providing that an accused
should not be handcuffed by the police ordinarily while the accused is in the
custody of the police, whether for transporting him to the court or elsewhere.
unless such a person has attempted to or there are reasonable apprehension to
believe that he will prevent the arrest by any means. A police oﬂicer not below
the rank of Deputy Superintendent of Police can only authorise, handcufﬁng in
such emergent situations. ' "

ll. Amendment in section 460)

Do you agree with the suggestion that in sub-section 3 of section 46 of the
Code, the words "or is not a proclaimed offender declared under sub-section (4)
of 82"' should be added at the end, as laid down under clause 7(a) of the Code
of Criminal Procedure (Amendment) Bill, 1994? *

I2. Amemintcnt in sub-section (3) of section 46

Do you agree with the suggestion that after sub-section 3 of section 46 of
the Code. the following sub-section should be inserted to prohibit arrest of a
woman after sunset and before sunrise except in unavoidable circumstances as
laid down under clause '.7(b) of the Code of Criminal Procedure (Amendment)
Bill. 1994 as recommended by the Law Commission in 135th Report on "Women
in Custody".

"(4) Save in exceptional circunistances, no woman shall be arrested after
sunset and before sunrise, and where such exceptional circumstances
exist, the police officer shall, by making a written report, obtain the
prior permission of his immediate superior officer for effecting such
arrest or, if the case is one of extreme urgency and such prior permis-
sion cannot be obtained before making such arrest, he shall, after
making the arrest, forthwith report the matter in writing to his imme-
diate superior otﬁcer explaining the urgency and the reasons for not
taking prior permission as aforesaid and shall also make a report to
\thedMagistrate within whose local jurisdiction the arrest hand been
ma c."

13. Handcuﬂing

Do you agree with the suggestion that section 49 should be amended by
insertion of a proviso as stated below:

"Provided no accused shall be handcuffed or put on other fetters by the
police or prison authoﬁty while transporting or in transit from one
jail to another or from jail to court and back, except where an accused
is likely to jump bail or breakout of the custody on the basis of well
founded ground ieading to the said inference in which circumstances
such accused shall be produced before the Magistrate and a prayer
for permission to hanticutf or put fetter upon the accused shall be
made before the Magistrate. Such Magistrate in rare cases of concrete
proof regarding proucness of the accused to violence, his tendency to
escape, he being so dangerous/desperate and upon the ﬁnding that no
other practical way of forbidding escape is available, the Magistrate
may grant permission to handcuﬁ or put fetter upon the accused. Pro-
vided further that in cases where the person arrested by Police, it
produced before the Magistrate and remand judicial or non-judicial
if given by the Magistrate the person concerned shall not be hand-
cuffed unless special orders in that respect are obtained from the
Magistrate at the time of grant of the remand.

Provided further when the police arrest a person in execution of a warrant
-of arrest obtained from a Magistrate, the person is arrested shall not
be handcuffed unless the police has obtained orders from the Magis-
trate for the handcutling of the person to be so at-roster].

Provided further that where a person is arrested by the police without
warrant the police officer concerned may, if he is satisfied on the basis
of the rinciple set out above, that if necessary to handcutf cuch a
person he may do so till the time he is taken to the police station or
thereafter his production before the Magistrate. Any further use of

fetter thereafter can only be under the order of the Magistrate as

stated above.

Any otﬁcial belonging to the police or the prison, found violating shall be
liable to the penal consequences as provided under the law."

The Supreme Court has directed the police and iail authority to meticu-
lously observe the above guidelines in the case of Citizens for Democracy through
its President versus the State of Assam 1995 (2) U.J. (SC) 431. Do you intend

to suggest any other measure to -prevent the violation of article 21 of the Consti-

tution of India in respect of haridcuﬁing of prisoners?

I4. Intimation of Arrest of Accused: Section 50A

Do you agree that .3 new section 50A on the following lines; as laid down
under clause 8 of the Code of Criminal Procedure (Amendment) Bill. l994 and
as recornmended by the Law Commission in its 152nd Report on "Custodial
Crimes" should be inserted, namely:

"50A. Every police oﬂicer or other person making any arrest under this
Code shall forthwith give the information regarding such arrest and
the place where the arrested person is being held to such person as
may be nominated by the arrested person for the purpose of giving
such information and shall make a record hereof."

15. Search of the arrested person: Amendment of Section 51

Do you agree that in croer to avoid {the possibility of planting some objects
during the search and In the light of the Supreme Court's decision in the case of
State of Bihar v. Kapil Singh, AIR 1969 SC 53 at 58, that it is necessary that one
of the formalities to be observed in search of a person with a view to finding
out any offending material is that the searching officer or any other officer assist-
ing. him should give their personal search to the accused before searching the
person of the accused?

Do j.ru.I agree that before such a search of an officer is made, the tearching
oﬂlcer should also observe the formalities contained in S-'.3u'i10n 100.

16. Examination of Accused by Medical Practitioner at the request of the Police
Officer: New Explanation to Section 53

Do you agree with the suggestion that for the Explanation Clause under
Section 53 of the Code, the following Explanation should be substituted, as laid
down in clause l0 under the Code of Criminal Procedure (Amendment) Bill.
1994. namely:

Explanation----In this section and in sections 53A and 54,--

(an) "examination" shall include the examination of blood. swabs in case
of sexual assault, sputum and sweat, hair samples and ﬁnger nail clip-
pings and such other tests which the registered medical practitioner
thinks necessary in a particular case;

(b) "registered medical practitioner" means a medical practitioner vtho
possesses any inedical qualiﬁcation as deﬁned in clause (h) of section
2 of the Indian Medical Council Act. 1956 and whose name has been
entered in a State Medical Register."

17. Examination of person accused of rape by Medical Practitioner

Do you agree with the suggestion that a new section 53A after section 53
should be inserted to provide for a detailed medical examination of a person
accused of an offence of rape or an. attempt to commit rape bv the registered
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 medi-
cal practitioner as laid down under clause 10 of the Code of Criminal Procedure
(Amendment) Bill. 1994, namely: '

''53A. (1) When a person is arrested on a charge of conimi*tting an offence
of rape or an attempt to commit rape and there are reasonable grounds
for believing that an examination of his person will afford evidence
as the commission of such olfence, it shall be lawful for a registered
medical practitioner employed in a hospital run by the Government
or by a local authority and in the absence cf such a practitioner. by
any other registered medical practitioner, acting at the request of a
police officer not below the rank of a sub-inspector and for any person
acting in good faith in his aid and under his direcrion._ to make such
an examination of the arrested person and. to use such» force as is
reasonably necessary for that purpose. '

3-2 M of L & J/NDI97

(2) The registered medical practitioner conducting such examination shall,
delay examine such person and prepare a report of 1113 examination
giving the following particulars, namely:

(i) the name and address of the accused and of the person by whom
he was brought,

(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused and

(iv) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived
at.

(4) The exact time of commencement and completion of the examination
shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the
report to the investigating ofﬁcer, who shall forward it to the Magis-
trate referred to in section 173 as part of the ducuments referred to
in clause (a) of subsection (5) of that section."

18. Insertion of new section 53B: Medical» examination of the victim at rape

Do you agree that a new section 53B as follows be inserted in the Code
to provide for a medical examination of the victim of a rape by a registered medi-
cal- 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 practi-
tioner, as laid down in Clause 19 of the Code of Criminal Procedure (Amendment)

Bill. 1994:

53B (1) Where, during the stage when an offence of committing rape or
attempt to commit rape is under investigation, it is proposed ;to get
the person of the woman with whom rape is alleged or attempted to
have been committed or attempted, examined by a medical expert.
such examination shall be conducted by a regishred medical practi-
tioner cmployed in a hospital run by the Government or a local autho-
rity and in the absence of such a practitioner, by any other registered
medical practitioner, with the consent of such woman or of a person
competent to give such consent on her behalf and such woman shall
be forwarded to such registered medical practitioner without delay.

(2) The registered medical practitioner, to whom such woman» is forward-
ed, shall, without delay, examine her person and prepare a report of
his examination giving the following particulars, namely:

(i) the name and address of the woman and of the person by whom
she was brought:

(ii) the age of the woman:

(iii) whether the woman was previously used to sexual intercourse:
(iv) marks of injury, if any, on the person of the woman:

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail.

(3) Tthe report shall state precisely the reasons for each conclusion arrived
a .

(4) The report shall speciﬁcally record that the consent of the woman or
of the person competent to give such consent on her behalf to such
examination had been obtained.

(5) The exact time of commencement and completion of the examination
shall also be noted in the report. ,

(6) The registered medical practitioner shall, without delay, forward the
report to the investigating officer who shall forward it to the Magistrate
referred to in section 173 as part of the documents referred to in
clause (a) of sub-section (5)) of that section.

(7) Nothing in this section shall be construed as rendering lawful any
examination without the consent of the woman or of any person com-
petent to give such consent on her behalf.

Explanation.----For the purposes of this section,"'examination" and "regis-
tered medical practitioner" Shall have -the same meanings as in

19. Examination of Arrested person by Medical Practitioner at the request of
the arrested person: Amendment in Section 54

Do you suggest that section 54 of the Code should be amended by re-
numbering as sub-section A thereof, and after sub-section (1) as so renumbered,
the following sub-section should be inserted in order to provide that a copy of the
report of the medical examination of the arrested person should also be furnished
by the registered medical practitioner to the arrested «person or his nominee, after
his medical examination has been conducted as laid down under clause 11 of the
Code of Criminal Procedure (Amendment) Bill, 1994, namely:

"(2) Where an examination is made under sub-section (1), a copy of the
report of such examination shall, on a request being made by the
arrested person or by any person nominated by him in this behalf, be
furnished by the registered medical practitioner to the arrested person
or the person so nominated."

B. Whether a proviso» be added to Section 54 to the effect that where the
arrested person is a female, the examination of the body should be under the
supervision of a female registered medical practitioner.

20. Identiﬁcation of person arrested: Section 54A

Do you agree with the suggestion for insertion of a new section 54A
under the Code to empower the Court to direct speciﬁcally the holding of the
identiﬁcation of the arrested person at the request of the prosecution as provided
under clause 12 of the Code of Criminal Procedure (Amendment) Bill, 1994;

"54A. Where a person is arrested on a charge of committing an offence
and his identiﬁcation by any other person or persons is considered
necessary for the purpose of investigation of such offence, the Court
having jurisdiction, may, on the request of the otﬁcer in charge of a
police station, direct the person so arrested to subject himself to
identiﬁcation by any person or persons in such manner as the Court
may deem ﬁt."

21. Duty of Magistrate to verify certain facts: Section 57A

Do you agree with the View of having a greater and effective compliance
of the various safeguards, a new section 57A should be inserted in the Code of
the undermention lines, as recommended by the Law Commission in its l52nd
Report on "Custodial Crimes":

"57A. Duty of Magistrate to verify certain facttﬁ. Where a person
arrested without warrant is produced before the Magistrate, the
Magistrate shall, by in-quiries to be made from the arrested person,
satisfy himself that the provisions of sections have been complied
with (i.e., 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."

8
ATROCITIES ON WOMEN

22. Speciﬁc Provisions as to Arrest, Interogation and custody of Women and
Children: Insertion of new Chapter 5A

Do you agree with the following recommendations of the Law Commis-
sion of India in its 135th Report on Women in: Custody that a new Chapter 5A
namely speciﬁc provisions as to arrest, interrogation and custody of women and
children be inserted in the Code of Criminal Procedure to foreclose harassment

of women in custody and to protect such women to the extent possible? (See

Annexure-I).

23. Proclamation for person absconding

Do you agree with the suggestion that in section 82 of the Code, after
sub-section (3), the following sub»-sections should be inserted to make the decla-
ration that the person is a proclaimed offender where he fails to appear at the
speciﬁed place and time mentioned in the proclamation issued under sub-section
(1) of section 82 in relation to offences under sections 302, 364, etc., of the Indian
Penal Code as laid down under Clause 13 of the Code of Criminal Procedure
(Amendment) Bill, 1994:

"(4) Where a proclamation published under sub-section (1) is in respect Of
a person accused of an offence punishable under section 302, 304, 364.
382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 436, 449, 459 or 460
of the Indian Penal Code, and such person fails to appear at the speci-
ﬁed place and time required by the proclamation, the Court may, after
making such enquiry as it thinks ﬁt, pronounce him a proclaimed
ollender and make a declaration to that effect.

(5) The provisions of subsections (2) and (3) shall apply to a. declaration
made by the Court under sub-section (4) as they apply to the procla-
mation published under sub-section (l)." e

24. Power of police oﬂicer to seize certain property: Amendment of Section 102

Do you agree with the suggestion that Section 102 of the Code of Criminal
Procedure should be amended on the following lines as provided under:
Clause 14 of the Code of Criminal Procedure (Amendment) Bill, 1994.

In Section 102 of the Principal Act-----

(a) In sub-section (3), after the words "transported to the Court" the
words "or where there is diﬂiculty in securing proper accommodation
for the custody of such property, or where the continued retention of
the property in police custody may not be considered necessary for the
purpose of investigation" shall be inserted;

(b) After sub-section (3), the following proviso shall be added at the end.
namely:

"Provided that where the property seized under sub-section (1) is sub-
ject to speedy and natural decay and if the person entitled to the
possession of such property is unknown or absent and the value
of such property is less than ﬁve hundred rupees, it may forth-
with be sold by auction under the orders of the .Superintendent
of Police and the provisions of section 457 and 358 shall, as nearly
as may be practicable, apply to the net proceeds of such sale."

25. Security for good behaviour from habitual oifenders: Amendment of section
110 -

Do you agree with the suggestion that in section 110 of the principal Act,
in clause (f) in sub-clause (i)
(i) in item (g) the word "or" shall 'be omitted;
(ii) after item (g), the following item shall be substituted namely:

"(h) the Foreigners Act, 1946; or"). in order to check the ﬂow of undesir-
able into the country and strengthen the hands of the State authorities

by empowering them to take action under section 110 of the Code
against persons assisting inﬁltration as laid down in section 15 of the
Code of Criminal Procedure (Amendment) Bill, 1994.

26. Imprisonment in default of security: Amendment of Section 122

Do you agree that in section 122 of the principal Aot, in sub-section (1),
clause (b), for the words "bond without sureties", the words "bond, with or without
sureties," shall be substituted, to remove the discrepancy between section 107 (1)
and section 122 (l)(b) of the Code, as laid down in the Code of Criminal Proce-
dure» (Amendment) Bill, 1994. .

27. Order for maintenance of wives, children & parents: Amendment of Section
125

Do you agree with the suggestion that in section 125 of the principal Act,
in sub-section (2), for the words "five hundred rupees"), the words "ﬁve thousand
rupees" shall be substituted, or do you suggest any further amendments on the
lines recommended by the Law Commission in its l32nd Report. (See AI1nexure-
II).

28. I_<'amily Courts

, Do you agree that the proceedings relating to maintenance of wives, chil-
dren and parents contained 'under Chapter IX should be transferred to famlly
courts as established under the Family Courts' Act, 1984?

29. Insertion of new section 144A

Do you agree that in order to curb the militant activities of certain com-
munal organisations and to strengthen the hands of State authorities for elfectively
checking communal tension and foster a sense of complete security in the minds
of members of the public, a new section 144A be inserted as follows in the Code
to empower the District Magistrate to prohibit mass drill (or training) with arms
in public places as laid down in section 18 of the Code of Criminal Procedure
(Amendment) Bill, 1994:

'144A. (1) The District Magistrate may, whenever he considers it necessary
so to do for -the preservation of public peace or public safety or for
the maintenance of public order, by pub ic notice or by order, prohibit
in any area within the local limits of his jurisdiction, the carrying of
arms in any procession or the organizing or holding of, or taking part
in, any mass drill or mass training with arms in any public place.

(2) A public notice issued or an order made under this section may be
directed to a particular -person or to persons belonging to any com-
munity, party or organisation. .

(3) No public notice issued or an order made under this section shall
remain in force for more than three months from the date on which it
IS issued or made.

(4) The State Government may, if it considers necessary so to do for the
preservation of public peace or public safety or for the maintenance of
public order, by notiﬁcation, direct that a public notice issued or order
made by the District Magistrate under t is section shall remain in
force for such further period not exceeding six months from the date
on which such public notice or order was issued or made by the Dis-
trict Magistrate would have, but for such direction, expired, as it may
specify in the said notiﬁcation.

(5) The State Government may, subject to such control and directions as
it may deem ﬁt to impose, by general or special order, delegate its
powers under sub-section (4) to the District Magistrate,

Explamtz'ort:------The word "arms" shall have the meaning assigned to it in
section 153A of the 'Indian Penal Code.'

Delay in dkposal of cases because of non-registration of First Iniomiation Report
a under section 154

30. What are the causes for delay in investigation by the investigating officers?
Have you any suggestions for minimising such delays? (See Annexure-III).

31. Do you agree that delay in disposal of criminal cases is caused due to non-
recording of ﬁrst information report by the police on account of various
reasons such as that the crime did not occure within the jurisdiction of the
-police station or for other ulterior motives of the incharge of the police sta-
tion? A complainant is thus constrained to approach the higher authorities or
resort to ﬁling of complaint before the court for getting prosecuted the crimi-
nal. Delay in lodging of FIR ensures in disappearance of material evidence
relating to the crime. Do you agree with the suggestion that although there is a
remedy already provided under sub-section (3) of Section 154, if the 0ﬁicer-
in-charge of a police station refuses to record the information reported relat-
ing to a cognisable offence but the aforesaid provision of, however, is not of
a penal character, as observed by the Law Commission in its 84th Report.
para 3.30 thereof?

32. Role of investigating agencies--Investigation of cognizable offences: Amend-
ment of Section 156

In order to avoid inordinate delays in the investigation of serious Offences
punishable with sentence for seven years and above, it Is felt that the police in
the State should be divided into two agencies (1) State Investigation Force and (2)
State Law & Order Force and that the investigating force should not be used for
other duties. To achieve the same do you agree that under sub-section (1) of
Section 156 the words "in every police station there shall be a separate oﬂicer in
the rank of Station House Oﬂicer to investigate cognizable cases punishable with
sentence for seven years and above" shall be inserted?

33. Procedure for Investigation: Amendment of Section 157

(a) Do you agree that in sub-section (1) of Section 157 of the Code of
Criminal Procedure for the words "an oﬂicer in charge of a p0llCe station" the
words "such oﬂicer" be substituted?

(b) Do you agree that in sub--section (1) of Section 157 after -the words
" .......... .. of his . subordinate otﬁcers" the words "meant to assist him in such
investigation" be Inserted?

34. Amendment of Section 157

Whether a further amendment of Section 157 of the Cr. RC. is necessary
that offences in relation to rape the witness should be questioned by a woman
police oﬂicer and if the victim is under 15 years of age, she should be questioned
only the presence of parents, relatives or other respectable persons as far as
possi le.

35. Police oﬂicer's power to investigate cognizable case/Procedure for investiga-
tion: Amendment ot Section 156

» Do you agree section 156/157 of the Code be amended by providing that
wherever practicable, the use of scientiﬁc methods of investigation, will be utilised
by the Investigating Oﬂicer as promptly as possible, while investigating a case?

36. Amendment of Section 157

Do you agree with the suggestion that scientiﬁc aid and equipment should
be -made available at the Police Station and at the district level for carrying out
the investigation by the Investigation Oﬂicer in scieniiﬁc manner as even directed
by the Supreme Court. In order to implement the aforesaid requirements, do you
agree that an explanation should be added under section 157 Cr. PC to provide on
the following lines:

"As far as possible, minimum scientiﬁc aid and equipment as may be
notiﬁed by the State Government should be made available, at every

police station and at the district level and investigation of crime should
be carried out through the use of such scientiﬁc aid and equipments
as far as practicable."

37. Police oﬁicei-'s power to require attendance of witnesses: Amendment of
Section 160

Do you agree with the recommendation of the Law Commission made
in its 152nd Report that after the existing proviso contained in section 160 (1)
on Code of Criminal Procedure, 1973, a second proviso be added, on the
following lines:

"Provided further that no person shall be required to attend at any
place other than his or her dwelling place unless, for the reasons
to be recorded in writing by the Investigating Oiﬁcer, it is necessary
to do so; and every such person shall be summoned by an order in
writing";

38. Do you agree that in order to prevent violation of Section 154 by non-
registration of FIR, there should be the insertion of a speciﬁc penal provi-
sion, say, as Section 167A, in the Indian Penal Code, as recommended by
the Law Commission in its 84th Report, para 3.32 thereof as follows:

"l67A. -- Whoever, being an officer-in-charge of a police station and
required by law to record any information relating to the commis-
sion of a cognisable offence reported to him, refuses or without
reasonable cause fails to record such information shall be punished
with imprisonment of either description for a term which may extend
to one year, or with ﬁne, or with both."

39. Amendment of Section 160

Do you agree with the recommendations of the Law Commission in its
84th Report on 'Rape and Allied Olfences: Some questions of substantive
law, procedure and evidence' that sub-sections (3) to (7) be inserted in- section
160 of the Code of Criminal Procedure, 1973 in the following manner:

"(3) Where, under this Chapter, the statement of a girl under the age
of twelve years is to be recorded, either as ﬁrst information of an
offence or in the course of an investigation into an offence, and the
girl is a person against whom an offence under section 354, 354A
or 375 of the Indian Penal Code' is alleged to have been committed
or attempted, the statement shall be recorded either by a female
'police oﬂicer or by a person authorised by such organisation interest-
ed in the welfare of women or children as is recognised in this
behalf by the State Government by notiﬁcation in the official gazette.

(4) Where the case is one to which the provisions of sub--section (3)
apply, and a female police oﬂicer is not available, the oﬂicer in
charge of the police station shall, in order to' facilitate the recording
of the statement, forward to the person referred to in that sub-sec-
tion a written request setting out the points on which information
is required to be elicited from the girl.

(5) The person to whom such a written request "is forwarded shall, after
recording the statement of the girl, transmit the record to the oﬁicer
in charge of the police station.

(6) Where the statement recorded by such person as forwarded under
sub-section (5) appears in any respect to require clariﬁcation or
ampliﬁcation, the officer in charge of the police station shall return
the record to the 'person by whom it was forwarded, with a request
for clariﬁcation or ampliﬁcation on speciﬁed matters; and such
person shall thereupon record the further statement of the girl in
conformity with the request and return the record to the oﬂicer in
charge of the police station. '

(7) The statement of the girl recorded and forwarded under sub-sections
(3) to (6) shall, for the purpose of the law relating to the admissi-
bility in evidence of statements made by any person, be deemed to
be a statement recorded by a police oﬁicer."

40. Amendment of Section 160A

Do you suggest that the aforesaid clauses may be incorporated as Sec-
tion 160A means only to cover rape and arrest even in the event of removal of
Sections 161 and 162?

41. Deletion of Section 162 Cr. P.C. and change in the mode of recording under
Section 161

The Fourth Report of the National Police Commission has observed that
recording of witnesses' statements bylthe police during investigation provide
scope for arguments based on contradictions, however trivial or natural they
might be in the circumstances of any particular case. It, therefore, recommen-
ded to do away with the detailed recording of statement as made by a witness
in the course of investigation under Section 161 and substitute in its place a
revised arrangement in which the investigating officer can make a record of the
facts as ascertained by him on examination of a witness. However, it may
be considered by you whether Section 1612 of the Cr. P.C. should be dispensed
with regarding recording of statements of witnesses and instead the statement of
important witnesses be recorded under Section 164 of the Code of Criminal
Procedure. If so, what should be the types of offences in respect of which record-
ing of statements of witnesses under Section 164 Cr. P.C. should be resorted to.

42. Section 167(5) Cr. P.C.

Do you think that section 167(5) of the Cr. P.C. be amended on the lines
of the amendment made by the State of West Bengal wherein they provide for
the discharge of the accused on the ground of unreasonable delay in investiga-
tion of an offence beyond a period of six months in a case triable by a Magis-
trate as a summons case, beyond a period of three years in a case exclusively
triable by a Court of Sessions, or, in a case under chapter XVIII of the Indian
Penal Code, beyond a period of two years in any other case from the date of
which the accused was arrested or made his appearance?

43. Procedure when investigation cannot be completed in 24 hours and conse-
quent Police Custody

In the Central Bureau of In*veStz'gati0n, Special Iavestigatlonl Cell-1, New
Delhi v. Armpam J. Kulkarnri, 1992 3 CSC 141, the Supreme Court held that
under the proviso to Section 167 (2), the police custody can be only during the
first 15 days of the remand and not later. It is felt that such limitation would
cause -some practical diﬂiculty «for -the proper investigation in some given cases.
Therefore, do you agree that the police custody can be sought during the period
of remand at any time if a need arises and Section 167 of the Code of Criminal
Procedure be amended accordingly. But, however, the total remand of police
custody should not exceed 15 days but it may exceed only under special circum-
stances with the permission of the court and for reasons to be recorded by the
court. '

44» Insertion of new sub-section 3A -in Section 173

'1 Do you agree that the following new sub--section (3A) be added to sec-
tion 173 to (i) enable the police to take note of the desire of the parties to
compound offences compoundable under section 320 at any stage of investigation
even at the stage of investigation.

(ii) to help quicker disposal of cases of compoundable category and to
reduce the work load of the police.

(iii) whether a speciﬁc time limit of three months for completion of the
investigation in respect of the offences under section 176 be incor-
porated?

45. Inquiry by Magistrate into cause of death : Amendment of Section 176

Do you agree that Section 176 be amended to provide that in_ the case
of death or disappearance of a person, or rape of 'a. woman. while in the cus-
tody of the police, there shall be a mandatory _]LlCllC1al inquiry and in case of

death, examination of the dead body shall be conducted within twenty--four hours

of death, as laid down in clause 21 of the Code of Criminal Procedure (Amend-
ment) Bill, 1994 in the following manner:

In section 176 of the principal Act,--

(i) in sub-section (1) the words "where any person dies while in the
custody of the police or" shall be omitted;

(ii) after sub-section (1), the following sub-section shall be inserted,
namely:----

"(lA) Where;
(a) any person dies or disappears, or
(b) rape is alleged to have been committed on any woman,

while such person or woman is in the custody of the police, in addition to the
inquiry or investigation held by the police, an inquiry shall be held by the
Judicial Magistrate or the: Metropolitan Magistrate, as the case may be, within
whose local jurisdiction the offence has been committed;

(iii) after sub-section (4), before the explanation, the following sub-section
shall be inserted, namely:

"(5) (a) The Judicial Magistrate or the Metropolitan Magistrate or
Executive Magistrate or police oﬂicer holding an inquiry or
investigation, as the case may be, under sub-section (IA)
shall, within twenty-four hours of the death) of a person, for-
ward the body with a view to its being examined to the nearest
Civil Surgeon or other qualiﬁed medical man appointed in this
behalf by the State Government, unless it is not possible to do
so for reason to be recorded in writing."

(b) Do you agree that a better method of postmortem is evolved
in view of the prevailing view the most of the time due to collu-
sion of police and medical oﬂicer, the postmortem is not done
properly?

out whether he can commit" the case to the Court of
Session for trial. as provided in Section 209 in order to avoid
further delay? 7

46. [Insertion of new section 176A : Inquiry by Magistrate into custodial injury.

Do you agree with the recommendation of the Law Commission in«its 152nd
Report on Custodial Crimes; that the aggrieved person, on refusal to record
the FIR by the police oﬂicers should have a right to ﬁle a petition (i) before
the Chief Judicial Magistrate in the case of custodial injury or torture. -

(1) Any person (including Legal Aid Centre or NGO, any friend or
relative) either directly or on being aggrieved by a refusal on the part of an
oiﬁcer in charge of a police station to record the information referred to in sub:
section (3) of section 154 in cases relating to custodial offences, may ﬁle a petition
giving the substance of such information before the Chief Judicial Magistrate.,in'
case of custodial offences. -

(2) The Chief Judicial Magistrate if satisﬁed, on a preliminary enouirv
that there is a prima facie case, may himself hold enquiry into the complaint
or direct some other Judicial Magistrate to hold enquiry and thereupon direct
the oﬂicer of the Court to make a complaint to the competent court in respect
of offence that may appear to have been committed.

(3) The Chief Judicial Magistrate may obtain the assistance of any
public servant or authority as he may deem ﬁt in holding the enquiry under sub'-
seetion (2). t
4-2 M of L & J/ND/97

47. Cognizance of offences by Magistrates: Amendment of section 190

Do you agree that the following proviso be inserted to sub-section (1)
of section 190 of the Code to empower a Magistrate to authorise further deten-
tion in custody of an accused person for a period not exceeding a week, after
recording reasons therefor, in view of the decision of the Patna High Court
in Rammed Mahlo's case (1977) Bihar L.J.R. 498 that there is a lacuna in the
Code as there is no provision therein which enables a Magistrate to pass an
order of remand after submission of the police report under section 173(2) and
before taking cognizance of the olfence disclosed by the police report under
section 190, as laid down in Clause 22 of the Code of Criminal Procedure

(Amendment) Bill, 1994 2

"Provided that where it is not possible for a Magistrate to take cogni-
zance of an oifence under clause (b), he shall, after recording reasons
therefor, authorise the detention of the accused person otherwise
than in the custody of the police, for a period not exceeding seven
days."

48. Prosecution of Judges and public servants : Amendment of section 197

Do you agree that sub-section (3) of section 197 amended to extend
protection similar to one available to the members of Armed Forces charged with
the maintenance of public order in the matter of prosecution in respect of offences
alleged to have been committed while acting or purporting to act in the dis-
charge of their duties, to other public servants, charged with the maintenance
of public order as they have also to face similar diﬁcul-ties, as mentioned in
clause 23 of the Code of Criminal Procedure (Amendment) Bill, 1994 in the

following manner:

In section 197 of the principal Act. in sub-section (3), after the words
"members of the Forces", the words "or to such other public ser-
vants" shall be inserted.

49. Amendment of Section 198

Do you think for the words "l5 years" the words "17 years" should be
substituted? 1 S

50. Offences Against Marriage : Jurisdiction of Family Courts

, _ Do you agree that all the offences mentioned in Chapter XX, XXA. and
Section 509 of the Indian Penal Code, 1860 should be tried only by the Family
courts and suitable amendments may accordingly be made both in the Family
Courts Act, 1984 and the Code of Criminal Procedure? If so, what amend-
merits do you suggest. (See also Sections 198, 198A of the Code of Criminal
Procedure.) What are the other oifences in IPC and other relevant Acts which
may be tried by the Family Courts?

51. Do you agree that in such criminal cases relating to matrimonial
offences should ﬂrstly be examined by Marriage Counsellor and other Experts
as speciﬁed under Sections 5, 6 and 12 of the Family Courts Act, 1984 for making
efforts for -reconciliation between the parties before the commencement of trial
and insert the necessary provision in the Family Courts Act, 1984 making these
offences oompoundable on the same lines as in Section 320 of the Code of
Criminal Procedure?

52. Postponement of issue of process : Amendment of Section 202

. , Do you think that in sub-section (1) of section 202 after the words "may.
if he thinks ﬁt," the following shall be inserted, namely, "and shall in a case
where the accused is residing at a place beyond the area in which he exercises
his jurisdiction," in order to see -that innocent persons are not harassed by
-unscrupulous persons as laid down in Clause 24 of the Code of Criminal Proce-
dure (Amendment) Bill, 1994?

53. Special summons in cases of petty offences : Amendment of Section 206 "
Do you agree that sub-section (1) of section 206 be amended as follows:

(a) in the opening paragraph, alter the words and ﬁgures "under
section 260", the words and ﬁgures "or section 26l" shall be inserted;

(b) in the proviso, for the words "one hundred rupees", the words "one
thousand rupees" shall be substituted,

to enable a quick disposal of petty cases and to reduce congestion in the Count
of Magistrates the value of the money has gone down considerably #5 laid
down in clause 25 of the Code of Criminal Procedure (Amendment) Bill.

1994?

54. What persons may be charged jointly: Amendment of Section 223

Do you agree that for prompt disposal of cases, scope of proviso to section
223 be widened in the following manner to enable the Court of Session also to hold
such trials as laid down in clause 27 of the Code of Criminal Procedure

(Amendment) Bill, 1994:
(a) for the word "Magistrate", the words "Magistrate or Court of Session"
shall be substituted;

(b) for the words "if he is satisﬁed", the words "if he or it is satisﬁed"
shall be substituted. - ' e

55. Amendment in Section 227

Whereas under Section 227, the Count of Sessions is required to consider
the record of the case and the documents submitted therewith; viz., the._=Pol1'ce
Report and the documents sent with it under Section 173 Cr. P.C. and after
hearing the submissions of the accused as the Court may think necessafy,;"may
discharge the accused. It implies that the record produced by the prosecution
is only considered by the Court at this stage.

Do you agree that if accused is able to produce such documentary evi-
dence at the preliminary stage itself which shall be admitted or denied by the
prosecution, and if so admitted by the prosecution, on the basis ofsuch docu-
mentary evidence produced by the accused, the Court may discharge the accused
under Section 227, without letting the accused to undergo the dilatory trial and

then acquitting him on that basis?

56. Amendment in Section 227 and 229

Should delay in disposal of criminal cases entitle an accused to "be
discharged in respect of the ofﬁence being prosecuted? If .so, what should be
the norms for measurement of delay what other «ﬁactons should be considered
while discharging an accused on such grounds under section 227 and 229.

57. Framing of charge : Amendment of Section 228

Do you agree that in section 228 of the principal Act, in sub-,sec_1i.Qn.(l).
in clause (a), for the words "and thereupon the Chief Judicial Magistrate", the
words "the Chief Judicial Magistrate or any other Judicial Magistrate of. the
ﬁrst class and direct the accused to appear before the Chief Judicial Magistrate,
or, as the case may be, the Judicial Magistrate of the ﬁrst class, on such date
as he deems ﬁt and thereupon such Magistrate" shall be substituted in order
to give discretion to the Sections Judge to transfer 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 Magis-
trate or the Judicial Magistrate, as the case may be, so that a lot of time, which
is wasted in summoning the accused by the Magistrate, may be saved, as laid
down in clause 27 of -the Code of Criminal Procedure (Amendment) Bill, 1994?

58. Amendment in Section 231

Do you agree that the prosecution should be required to «produce all
evidence in support of the prosecution within a speciﬁc period of framing of

the charge against the accused under Section 231 Cr. PC. for expenditious dis-

posal of the case?

59; Amendment in Section 238
2 Do you agree with the suggestion that under Section 238 read with

«Section 207, the Court shall be required to satisfy himself that he has complied

with the provisions of Section 207 Cr. P.C., within a period of one month of
taking cognizance of offence, which provision may curtail the delay caused due
to non-compliance of Section 207 for a long period?

60. Proposed Section 238A

Do you agree that a new Section 238A should be inserted wherein it may
be provided that the court shall hear the argument on charge within a period of
30 days of the ﬁrst appearance by the accused before the Court or by taking
cognizance of the Court?

61. Amendment in Section 239

Whereas under Section 239, the Magistrate, upon considering the Police
Report and the documents sent with it under Section 173 and making such exami-
nation if any, of the accused, the Court may discharge the accused. It implies
'-he "he Pm-"e Report and the documents sent with it under Section 173 are only
required to be examined by the Magistrate at this stage.

Do Vou agree that if accused is able to produce such documentary evi-
dence. which shall be admitted or denied by the prosecution, and if so admitted
bv the prosecution, the Magistrate may discharge the accused on the basis of
such documentary evidence. to avoid him to undergo the dilatory trial and then
acquit him?

62. Amendment in Section 242

Do you agree that a new sub-section (4) be inserted under Section» 242
on the lines as proposed under the Section 239 above?

63. Amendment in Section 244

Do you agree that a similar provision of ﬁxing of a time limit for recor-
ding of evidence for pnosecution in warrant cases instituted otherwise than on

police report, as proposed under Section 231 above, should also be ﬁxed under
Section 244? f ,

64. Absence of complainant: Amendment of Section 249 and 256

Do you suggest that sections 249 and 256 of the Code be amended to
enable the Magistrate to discharge the accused in case the complainant remains
absent in the proceedings instituted upon complainant, on any day ﬁxed for
the hearing of the case, even in cases of offences which are non-compound-
able and cognizable, on the following lines: -

Section 249 absence of complainant-----when the proceedings have been
instituted upon complainant, on any day ﬁxed for the hearing, the
complainant is absent, the Magistrate may, in his discretion, notwith-
standing anything herein before contained, at any time before the
charge has been framed, discharged the accused. .

65. Do you agree that simultaneously there should be a provision regard-
ding restoration of a criminal case dismissed for default in appearance and
consequential discharge or acquittal of the accused for non-appearance as pro-
jected under section 249 and 256 of the Code of Criminal Procedure as recom-

-and conditions? . to .

mended in 1415': Report of the Law Commission. If so, subject to which terms

66. Power to try sunnnarily: Amendment of Section 260 ' 1

Do you agree that sub-section (1) of section 260 be amended to make
iummary' trial of olfences speciﬁed therein mandatory and to provide that the
oﬁence of theft and other cognate offences, namely, offences under sections 379.
380, 381, 411 and 414 of the Indian Penal Code may be tried summarily where
the value of the property involved does not exceed two thousand rupees instead
of 'two hundredrupees at present? Do you suggest the amendment in the
following manner:

(a) for the words "two hundred rupees", wherever they occur, the words
"two thousand rupees" shall be substituted; (b) in clause (vi), for
the words "criminal intimidation", the words "criminal intimidation
punishable with imprisonment for a term which may extend to two
years, or with ﬁne. or with both" shall be substituted ass proviglegl
in ciause 28 of the Code of Criminal Procedure (Amendment) Bill,
1994. A

The Code divides offences into two major-categories--summons and"vvaLr-
rant cases. It also provides for summary trial for all summons cases and certain
other offences under section 260. The following questions arise: _ A

(i) Can the scope of summons cases be extended to cover all cases attrac-
ting punishment upto three years instead of two years?

(ii) As a measure of simpliﬁcation of procedure, should not all summons
cases be tried, summarily and the limit of punishment raised to six
months subject of Sec. 259 and Sec. 260(2)

, (iii) Can you suggest a modiﬁed summons procedure whichis" 'sub'stantia'l'.y
' ' ' different and simpler thanpwarrant procedure? _

67. Summons and Warrant cases

Do you agree that there should be only one procedure for both warrant
ondlummons cases. If so, what should be the common procedure? Can summons
procedure be dispensed with and make warrant procedure beingapplied» uni'-
formly? ~ . ' ' J

68. Alternatively do you agree that all summons cases should be tried
summarily sic that warrant procedure be applicable only in warrant cases and
consequently the deﬁnition of "warrant cases" in section 2 (x) be amended and
the words 'exceeding two years' should be substituted by the words "three years".

'69.-Insertion of new section 291A : Identiﬁcation, report of Magistrate- ..

_ Do you agree that in order to save time of the Court, a new section 291A
be inserted in the following manner, as laid down in clause 29 of the Code of
'Criminal Procedure (Amendment) Bill, 1994, with a view to making memorandum
of identiﬁcation prepared by the Magistrate admissible in evidence without formal
proof of facts stated therein with a provision that the Court may, if it thinks ﬁt,
on the application of the prosecution or the accused, summon or examine the
Magistrate as to the subject matter contained in the memorandum of identiﬁ-
cation.

70. Reports of certain Government scientiﬁc experts : Amendment of Section 293
Do you think that in sub section (4) of section 293------
(a) for clause (b), the following clause shall~be 'substituted; na1_=nely:.- A ~

"(b) the Chief Controller of Explosives" (b) after clause (f), the following
clause shall be added, namely:

"(g) any other Government scientiﬁc Expert s ciﬁed b tiﬁ t' 9
the Central Government for this Pufposeflge' tneo ;

.. .. _. In view of the changes made under th I d" E l 1' Am d
'Act, 1978, from the designation 'the Chief Ins1':ecii)rlacii E§g1g:i:::* (to 'glib
Controller of Explosives' as laid down in clause 31 of the Code "of Criminal
Proeetlturo (Amendment) Bill, 1994?

71. Introduction of a stage after framing of chﬁrge for admission and denial of
documents

Even though section 294 lays down that where any document is ﬁled before
any court b-y the prosecution or the accused, the prosecution or the accused?
as the case may be the pleader for the prosecution or the accused, if any, shall
be called upon to admit or deny the genuineness of each such document. Where
the genuineness of any document is not disputed, such document may be read
in evidence without proof of the signature of the person to whom it purports to
be signed. Further, section 296 also contemplates that evidence of any person
whose evidence is of a formal character may be given by aﬂidavit. But generally
such provisions are not resorted to either by the prosecution or by the accused
during trial. In order to make proper use of such provisions, it needs to be
examined as to whether a stage after framing charge may be carved out in which
it may be made compulsory to admit or deny any document if any produced
by the opposite party, to avoid delay because of proving such document. Simi-
larly, prosecution or the accused should be allowed to make use of section 296

as mentioned above during their evidence.

. 4

72. Insertion of new section 311A. : Power of Magistrate to order a person
specimen signatures or handwriting

Do you agree that a new section 311A be inserted in the Code in view
of the suggestions made by the Supreme Court in State of UP Vs. Ram Babu
Mishra, AIR 1980 SC, 791 that a suitable legislation be made on the anology
of section 5 of the Indentiﬁcation of Prisoners Act 1980, to provide for the
investi-ture of Magistrates with powers to issue directions to any person inclu-
ding an accused person to give specimen signatures and handwriting as contained
in clause 3 of the Code of Criminal Procedure (Amendment) Bill, 1994?

73. Amendment in Section 312.

(A) Witnesses who attend court are not paid .3PP1'opria.te monetary
allowances and when paid, it is limited only to the day on which they are ex-
mined, although they might be called on a large number of occasions, dislo-
cating their daily work. Should they not be compensated or paid daily allow-
ance for all the days they are forced to attend court?

(B) Do you think that it is also imperative -to insert a' provision for11pro'-
viding adequate protection of witnesses so that they can depose truthfullyand
fearlessly? :. r

74. Compounding of oﬁences: Amendment of section 320 by adding some more
references p

(a) Do you agree that the table appended to section 320 be amended by
adding sections 160, 334, 336, 356, 380, 384, 395, 453, 456, 461, 4853.498,
498A, 510? p ' " '-' T'

(b) Do you agree that the table appended to by adding (a) the olfences
under sections 320 and 326 attracting on y clauses 73 and 83 in the deﬁnition
in section 320 can also be added?

(c) In sections 369, 461, 406, 407, 408, 411 and 414 I.P.C. the value of
the property can be raised upto Rs. 3,000/- instead of Rs. 250/ - in view of the
present rate of value of money?

(d) Do you agree that where the accused are convicted in respect of
these oﬁences constructively by application of sections should also be corres-
pondingly be made applicable? .

(e) Do you agree that if a conviction and sentence under sections 130,
145, 147, 150, 151 I.P.C. is awarded in conjunction with those oﬂ'ences com-
poundable. such conviction and sentence should also be compoundable in the
like manner.

(f) Do you agree that the section 498 should be deleted in the table
number one and be inserted in the table under sub-section(2)? . _

(g) What are the other offences that can be made 'com.poundable?z"€

75. Amendment of Section 327

Do you agree with the recommendation of the Law Comm'ission in its
84th Report on 'Rape and Allied Olfencesz Some questions of substantive law,
procedure and evidence' that trial in camera. be held in cases of sexual oﬁences
in order to avoid embarrassment to the victim to relate the full glare of publicity
and to enable her to give all the factual details in the following manner

Proviso to be added to section 327 of the Code of Criminal Procedure,
1973.
"Provided further that unless the presiding judge or magistrate, for rea-

sons to be recorded, directs otherwise, the inquiry into and trial of
rape or allied offence shall be conducted in camera.

Explam1tion.----In this sub-section. the expression 'rape or allied oifence'
applies to----

(a) an offence punishable under section 354 or section 354A of the Indian
Penal Code;

-(b) an offence punishable under section 376. section 376A, section 376B
or section 376C of that Code;

(c) an attempt to commit, abetment of or conspiracy to commit any
such olfence as is mentioned in clause (a) 011' (b) of this Explanation."

Further, the ﬁollowing sub~section should be added to section 327:

Sub-section to be added to section 327, Code of Criminal Procedure. 1973'

after re-numbering present section as sub~section (1).

"(2) Where any proceedings are held in camera, it shall not be lawful
for any person to print or publish any matter in relation to any
such proceeding except with the previous permission of the Court."

76. Order for notifying address of previous] convicted offender: Amend-
ment of Section 356 .

Do you agree that sub section (1) of section 356 of the Code be amended
in the following manner in order to bring within its ambit all oﬂences in
Cha er XVI of the Indian Penal Code (oifences affecting the human body)

able with imprisonment for three years or more as well as the aggravated
form of the offence under section 506 (criminal intimidation) punishable with im-
gglsonment for a term which may extend to seven years. or with ﬁne, or with

th, as laid down in clause 34 of the Code of Criminal Procedure (Amend-
ment) Bill, 1994?

77. Amendment of Section 357

(A) Do you agree with the suggestion that sub-section (1) of Section 357
should be amended so as to empower the competent Court to order payment
of compensation even in case where the conviction has been recorded and re-
gardless of whether ﬁne is imposed or not if an offence is compounded before
the Court or the Competent Authority as proposed under 'proposed Chapter
XIIA of the CrPC, in view of the recommendations of the Law Commission
made in its 142nd Report? A r ' '

78. Insertion of proppsed Section 357(A) in C1-PC

Do you agree that in order to provide separately for compensation for
custodial offences, committed within the custody of a public servant, 'a-'5 new
section 357(A) should be inserted as recommended by the Law Commission in
its 152nd Report providing for adequate compensation with the types of harm
suifered by the victim and such amount wholly or partly be collected from the
delinquent public servant.

79. Alternatively whether a separate provision be inserted based on the con-
cept of "victimology" providing for the constitution of a Compensation Board

on the lines on those prevailing in the United Kingdom? , i

80. Compensation of persons groundlessly arrested : Amendment of Section 358

Do you agree that sub section (l) and (2) of section 358 of the Code be
amended to substitute the words "one thousand rupees" in place of the'wo«r_ds
"one hundred rupees", to make the provision more effective as laid down in
clause 35 of the Code of Criminal Procedure (Amendment) Bill, 1994.

81. Order to release on probation of good conduct or after adomonition
Amendment of Section 360

Do you agree that a new sub-section (3A) of section 360 of the Code be
amended by providing such measures for etlecltive 'implementation of correc-
tional methods so that after release of the accused on probation', the accused
is treated well and rehabilitated.

82. Appeal by the State Government or complainant against sentence or
acquittal

Do you agree that the appeal against the sentence or acquittal against
the orders of the Magistrate can be ﬁled before the Sessions Court instead Of
High Court and that section 377 and 378 be amended accordingly as contained
in clause 37 of the Criminal Law (Amendment) Bill, 1994.

83. Suspension of sentence pending the appeahrelease of appellant on bail:
Amendment? of Section 389 A

Do you agree that a proviso be added to sub-section (1) of section 389
that in all cases where conviction is in respect of an offence punishable with 7
years or above the Public Prosecutor be given an opportunity for showing cause
against such release.

84. Prevention in Women's institutionminsertion of a new Section- 417A"

Do you agree with the suggestion of the Law Commission of India in
its 84th Report on 'Rape and Allied Oﬂ'ences. that Section 417A be intserited
in the Code of Criminal Procedure so that where there is no _.suitable«ar_range-
rrrent in the locality for keeping arres'ted worneiiv'in"custody'«ii1ta'place 'ofjdeterr
tion exclusively meant for women the arrested Women besevnftoia__jin:st.ituttiot1
established and maintained for -the reception, care. protection' and' Werlfare "of
women or children licensed under the women's and ~chi'1d_ren':s ins_ti_tutions.,.(Li--
cencing) Act, 1956 or an institution recognisedfby. the State;G0v'ernn1ent,' ; '

85. Period of detention undergone by the accused to be set off against the
sentence of imprisonment : Amendment of Section 428 ' "i ' A

Do you suggest insertion of the following proviso to section 428 to the
effect that in cases referred to in section 433A also. such period of detention
shall be set otf against the period of 14 years referred to in that section"in appr
priate cases? ' A _ »

86. Special positions in respect of Women ' ' . ' :'.:.i

(a) In respect of women convicted of any o-thence, should there be any
further change under Sections 433 and 433A of the Code of Criminal Proce-

dure regarding remission or commutation of sentences. ~

5- ' 'A(b) Whether any further changes are necessary 'under-Iiseclionml25i of tlie
Code of Criminal Procedure in matter of maintenance of wife. children,,_ etc."

87. In what cases bail to be taken : Amendment to section 436

Do you agree that section 436 (1) of the Code be amended in the follow-
ing manner in view of the fact that in relspect of bailable 'oﬂ°ences, a penson. has
to remain in jail for his inability to furnish bail, till the case is disposed «of, as

provided in clause 40 of the Code of Criminal Procedure (Amendment) Bill,
1994:

(a) in the 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 surety, instead of taking bail" shall be substituted;

(b) after the ﬁrst proviso the following Explanation shall be inserted,
namely:-~

Explanation--~Where a person is unable to give bail within a week
of the date of his arrest, it shall be a suﬂicient ground for the oili-
cer or the court to presume that he is an indigent persion for the
purposes of this proviso.

88. Insertion 01f new Section 436A: Maximum period for which an under-trial
prisoner can be detained

Do you agree that the following new section 436A be inserted in the
Code in view of the: fact that undertrial prisoners were detained in jail for pe-
riods beyond the maximum period of imprisonment pnovided for the alleged
offence as provided in clause 41 of the Code of Criminal Procedure (Amendment)
Bill, 1944 :

"436A. Where a person has, during the period of investigation, inquiry
or trial under this Code of an offence under any law [not being an
offense for which the punishment of death has been speciﬁed as
one of the punishments under that law) undergone detention for a
period extending, up to one-half of the maximum period of impri-
sonment speciﬁed for that offence under that law, he shall be re-
leased by the Court on his ppersonal 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, order the continued
detention of such person for a period longer than one-half of the said
period of 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 during
the period of investigation, inquiry or trial for more than the maximum
period of imprisonment provided for the said offence under that law:

Exiplanation.--In 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.

89. When bail may be taken in case of non-bailable olfence : Amendment of
of section 437

Do you agree that section 437 be amended in the following manner in order
to make the provision stringent and also to see that the person on bail does not
interfere or intimidate witness, as provided in clause 42 of the Code of Criminal
Procedure (Amendment) Bill, 1994:

(1) in sub-section (1):--

(a) in clause (11), for the words "a non-bailable and cognizable
offence", the words "a cognizable offence punishable with im-
prisonment for three years or more but not less than seven years
shall be substituted;

(b) after the third proviso, the following proviso shall be inserted,
namely : t L '"

, "Provided also that no person shall. if the offence alleged to have been
committed by him is punishable with death, imprisonment for life, or imprison-
ment for seven years or more be released on bail by the Court under this sub-
section without giving an opportunity of hearing to the Pub1icAPro's'ecutor.'?--

5-2 M of L & J/ND/97

(ii) in sub-section (3). for the portion beginning with the vs'fn'ds "the
Court may inipose". and ending with the words "the interest of
justice", the following shall be substituted. namely:

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

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

(b) that such person shall not commit an offence similar to the
offence of which he is accused. or suspected, of the commission
of which he is suspected, and

(c) that such person shall not directly or indirectly make any induce-
ment, 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 ofﬁcer or tamper with the evidence,
and may also impose, in the interests of justice. such other condi-
tions as it considers necessary".

90. Amendment of Section 437

Whether a proviso should be inserted namely where such person is a
female. she shall ordinarily be released on bail unless the court thinks otherwise
for the reasons to be recorded in writing.

91. Direction for grant of bail to person apprehending arrest : Amendment of
section 438

Do you agree with the View that section 438 is being misused and be
deleted?

92. Amendment in Section 438

Do you suggest any other amendments in section 438 to the effect that
the Court of Sessions or High Court before granting such bail should take into
consideration certain circumstances and follow necessary steps by giving notice
to the Public Prosecutor and accordingly making the necessary provisions for
the same in the Code?

93. Declaration by sureties : Insertion of new section 441A

Do you agree that after section 441 the following section shall be inserted
providing that a person standing surety for the accused person shall disclose
as to how many cases he has already stood surety for accused persons as provided
in clause 44 of the Code of Criminal Procedure (Amendment) Bill, 1994:

"44lA. 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 persons to whom he has stood surety including the accused, giving
therein all the relevant particulars."

94. Procedure when bond has been forfeited : Amendment of Section 446

Do you suggest any amendments in section 446 regarding levy of penalties
or reduction of the same by the Court (See clause 45 of the Bill)

95. Amendment of the First Schedule

Do you suggest any addition of entries in the Schedule or any amendment
to the existing Schedule? '

96. Amendment in Section 468

Do you agree that a Court should be barred to take cognizance of offence
after elapse of a period of limitation of ﬁve years of an offence, in cases where
the offence is punishable with imprisonment for a term exceeding three years but
not exceeding ten years, by insertion of a new provision under sub-clause (d) of
sub-section 2 of Section 468 Cr. P.C.?

ANNEXURE l
135TH REPORT ON WOMEN IN CUSTODY

NEW CHAPTER V-A

1. Application of the Chapter

The provisions of this Chapter shall, as regards the matters covered there-
by, apply notwithstanding anything to the contrary contained in any other pro-
vision of this Code.

2. Arrest of women

(1) 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
intimation of arrest shall be presumed, and unless the circumstances otherwise
require or unless the police ofﬁcer arresting is a female, the police officer shall
not actually touch the person of the woman for making her arrest.

(2) Except in unavoidable circumstances, no womzm shall be arrested
after sunset and before sunrise, and where such unavoidable circumstances exist
the police oﬂicer making the arrest shall, by making a written report, obtain
the prior permission of the immediate superior officer not below the rank of an
Inspector for effecting such arrest or. if the case is one of the extreme urgency,
shall, after making the arrest. forthwith report the matter in writing to his such
immediate superior officer. with the reasons for arrest and the reasons for not
talking prior permission as aforesaid and shall also make a similar repont to
Magistrate within whose legal jurisdiction the arrest has been made.

3. Medical Examination of women

(1) The Magistrate before whom an arrested female is produced shall,
whether or not such vfemale makes a request fo-r examination of her body under
Section 54, inform her about her right to such examination, in order to bring
on record any facts which may show that' an offence against the body has been
committed with respect to such: female after her arrest. (This amendment can
in due course be m-ad_e applicable to males also).

(2) Whenever the person of a female is to be examined either under Sec-

tion 53 or under Section 54, the examination shall be made only by or under
the supervision of a female registered medical practitioner, and with strict regard

to decency.
(Present sub-section (2) of section 53, Cr. P.C. to be deleted).
(3) The registered medical practitioner holding an examination under

section 53 or section 54 shall furnish to the arrested female a copy of the report
of the examination, free of cost.

(This amendment can in due course be made applicable to males also).

4. Women. and children attending for investigation

(1) A male person under the age of ﬁfteen years or a woman shall not
be required to attend under Section 160 at any place other than his or her dwell-
ing place.

(Present proviso to section 160(1), Cr. P.C. to be deleted).

(2) Where, under this Code, the statement of a male person under the
age of ﬁfteen years or of a woman is recorded by a male police officer, either
as ﬁrst information of an offence or in the course of an investigation into an
offence, a relative or friend of such male person or woman, and also a person
authorised by such organisation interested in the welfare of woman or children
as is recognised in this behalf by the State Government by notiﬁcation in the
Oﬂicial Gazette, shall be allowed to remain present throughout the period during
which the statement is being recorded.

NOTE: This will arise provided Sections 161 and 162 are retained

5. Admonition and probation under the Code

Where the person convicted by a court is a woman. the court shall, in
exercising its discretion as to release of the otlender on probation under sub-
section (1) of section 360 or release 0]' the offender after the admonition under
sub-section (3) of that section, have due regard to the fact that the offender is a
woman.

6. Period of detention of women sentenced to imprisonment for life

In respect of women convicted oil' any offence, should there be any further
change under Sections 433 and 433A of the Cr. f".C., regarding remission or
commutation of sentences.

7. Pregnant woman and suspension of imprisonment

(1) When a Pregnant woman is convicted of_ any offence and the court
sentences her to imprisonment for life or for a speciﬁed -term, the court may,
if it thinks ﬁt, at the time of passing such sentence, regard being had to the

age, character or antecedents of the offender, the circumstances in which the

oﬂence was committed and the circumstances of the woman herself, direct:

(a) that execution of the sentence of imprisonment in her case shall be
suspended till she is delivered of a child or the pregnancy is other-
wise terminated and such period thereafter, as the court may speci-
fy, expires, and *

(b) that, during such period of suspension of execution of sentence,

she shall be released on her entering a bond with or without sureties~--"

(i) to appear and undergo sentence on the: expiry of such 'period and,

(ii) in the meantime, to keep the peace and be of good behaviour,
and to observe such other conditions, if any, as the court may
impose. ' '

_ (2) An order under this section may be made by an Appellate Court, or
by the High Court or the court of Session when exercising its power of revision.

(3) When an order has been made under this section in respect of any
woman, the High Court or the Court of Sessions may, on appeal when there
is a right of appeal to such Court or when exercising its p0wers of revision, set
aside or modify such order in the interest of justice.

(4) The provisions of Sections 121, 124 and 373 shall, so far as may be,
apply in the case of sureties offered in pursuance of the provisions of this section.

(5) The Court, before directing the release of a woman under su<b-sec-
tion (1), shall be satisﬁed that the woman or her surety, if any, has a ﬁxed
place of abode or regular' occupation in the place for which the court acts, or
in. which the woman is likely to live during the period named for the observance
of the conditions.

(6) If the Court which convicted the woman or a 'Court which could
have dealt with the woman in respect of her original offence, is satisﬁed that
the woman has failed to observe any of the conditions of her recognizance, it
may issue a warrant for her apprehension, and after hearing; the parties, revoke
or set aside the order of suspension and direct that the sentence be executed
forthwith for the period to which she has been sentenced,

(7) Where the period for which the execution of a sentence of imprison-
.nent passed on a woman is suspended by the court under sub-section (1) expires,

(a) the woman shall surrender herself to that court or to such other court
as may be directed by that court in its order;

(b) if she does not so surrender herself, she shall be arrested under a
warrant to be issued by such court; and

(C) the court before which she surrenders herself, or the court before
which she is produced on arrest under its warrant. as the case may
be, shall direct the sentence to be executed for the period to which
she has been sentenced.

(8) Where. in respect of any woman, execution of the sentence of im-
prisonment has been suspended under the provisions of this section, the period
of suspension shall not be set off against the term of imprisonment imposed on
her; and the liability of such woman to undergo imprisonment in accordance
with the sentence, on the expiry of the period of suspension of sentence. shall
remain unaffected by the suspension.

NOTE: ' [Compare the decision in Champalal v. State of Maharashtra, AIR
' 1982 SC 791: (1982) Cr. LJ. 612. (contrast section 428, Cr. P.C.. 1973)]

8. Female prisoners : The High Court on its administrative side may direct
the Sessions Judges to satisfy themselves that female prisoners are protected and
properly looked after, in accordance with the safeguards contained in sections
4501 to 450N and may take such measures as may be desirable in order to move
the State Government to take necessary action.

9.. Medical examinatiion : As far as practicable the following provisions
shall be complied with. regarding the medical examination of female prisoners
and consequential action:

(a) On admission to jail, every female prisoner shall be medically exami-
ned by lady medical otlicer and. wherever deemed necessary for
medical reasons, he kept separately in a female enclosure for such
period as, in the opinion of the Medical Officer concerned, may
be necessary.

(b) Every female prisoner shall also be medically examined on her
readmission to jail after relea.se on bail, parole or furlough, by a
lady medical officer.

(c) If the officer incharge or the medical oﬂieer suspects that a female
prisoner is pregnant, the female prisoner shall be sent to the district
Hospital for detailed examination and report.

((1) The Lady Medical Oﬂicer of the District Government Hospital to
whom the female prisoner has been referred under clause (C) shall
certify the state of her health, pregnancy, duration of pregnancy and
probable date of delivery and the special diet, if any, to be-prescribed
and other measures to be adopted.

(e) Gynaecological examination of female prisoner shall thereafter be
performed in the District Government Hospital by a lady medical
oﬂicer and proper pre-natal and ante-natal care shall be provided to
the female prisoner according to medical advice.

(f) In cases of advanced stage of pregnancy, the female prisoner shall
be shifted to a female ward of the Government Hospital.

(g) A pregnant female prisoner referred to in clause (f) shall be kept in
the women's ward of the Government Hospital for not less than
ﬁfteen days after the birth of a child or for such longer period as
may be advised by the Gynaecologist, (227).

10. Transit

(1) A female prisoner shall not be handcuffed and shall not be required
to wear any fetters or Crossbars during her transit from one jail to another or
for the purpose of being taken to the court or for investigation.

. (_2) A female prisoner shall be escorted by the Matron or Female Warden,
if required to leave the female enclosure and such matron or female warden

s}l]iall_ rpmain with the prisoner till her return to the enclosure or release from
t e ]al.

(3) A female relative of the female prisoner shall be allowed to accom-
pany the female prisoner during her transit from one jail to another or for the
purpose of being taken to court or for investigation,

11. Place of detention : Where a woman is arrested and there are no suit-
able arrangements in the locality for keeping her in custody in a place of deten-
tion exclusively meant for woman. she shall be setit to an institution established
and maintained l'or the reception, care, protection and welfare of women or
children, licensed under the Women's and Children's Institution (Licensing)
Act, 1956 or an institution recognised by the State Government as far as prac-
ticable exccpt in cases where any special law requires that she should be sent
to a protective home or other place of detention authorised for the purposes of
such special law.

12. Inspection of jails : (1) A judicial ofﬁcer preferably a lady ofﬁccr
(where one is available) to be nominated by the Sessions Judge. or where a
Lady Judicial Otlicer is not available, a male Judicial Officer accompanied by
a Lady Social worker. shall, at places other than the Headquarters of the
Court of Session, at least once in every two months, make a surprise visit to
jails for inspection, with a view to:

(i) providing female prisoners opportunity to communicate their grievan-
ces:

(ii) ascertaining the conditions in the jails and verifying whether the
requisite facilities are being provided and the provisions of the
law are being observed;

(iii) bringing to the notice of the Sessions Judge lapses, if any, on the
part of the ofﬁcers in charge of jails, on the above matters and
shall prepare a report of every such inspection.

, (2) The Sessions Judge shall carry out similar inspections of the jails
located at the Headquarters of the Court of Sessions.

(3) The Sessions Judge shall forward copies of the inspection reports
relating to inspections under this scheme to the Commissioner of Police (or
other corresponding' oﬂicer), the Inspector General (Prisons) and the State
Government and may make such recommendations as may 'be required on the
facts and in the circumstances of the case.

(4) If the authorities fail to carry out the recommendations of the Sessions
Judge, the matter shall be brought to the notice of the High Court for suitable
action.

13. Appointing oi Jail Visitors : (1) The Central Government or the State
Government, as the case may be, shall, for every District or Jail, appoint not
less than three visitors, of whom at least one shall be a medical oﬂicer and
two shall be social workers. of whom at least one shall be a wotinan, wherever
practicable.

(2) Not less than two visitors, out of whom at least one shall be a lady
social worker, shall, once in every six months, make a joint inspection of
every part of the jail in the District in respect of which they have been appoint-
ed, with a view to: ascertaining in regard to female prisoners the conditions
prevailing therein and whether the requisite facilities are being provided and the
provisions of the law are being complied with and whether the directions, if
any, given by the Sessions Judge, or the High Court or the 'Supreme Court,
as the case may be, are being carried out.

(3) The visitors shall send a report of their inspection to the Sessions
Judge, who shall deal with such report in the same manner as has been provid-
ed in section (1) above, in respect of the report of inspection submitted by a
judicial oﬁicer.

14. Deﬁnitions : (1) For the purposes of section 60 to 6ON (both inclusive)---

(a) '_'female prisoner" 'means a woman detained in jail, whether during
investi ation, in uir or trial or after conviction or under a law
.3 '1 Y. .
providing for preventive detention, and

(b) "jail" includes a police lockup, a prison and a place where persons
are kept under detention under a law providing for preventive deten-
tion.

ANNEXURE II

l32nd Report on "Need for amendment of the Provisions of Chapter IX of the
Code of Criminal Procedure? 1973 in order to ameliorate the hardship and mitigate
the distress of neglected Women, Children and Parents."

1. Do you agree with the suggestions of the Law Commission in its l32nd
Report that an Explanation be added to section 125(1) that the phrase "unable
to maintain herself" relates to the then actual separate income of the wife, if
any, and not to the possibility or potentiality of the wife 'being able to earn
for herself by securing an employment or by exerting herself in future'?

2. Do you agree with the recommendations of the Law Commission of
India in its l32nd Report that sub section (2) of section 125 Should be so amend-
ed that the order of maintenance operates irom the date of the ﬁling of the
application claiming monthly allowance by way of maintenance and the magis-
trate has no option or discretion to make it operative fr0m the date of the
magistrate's order awarding maintenance allowance?

3. Do you agree with the recommendations of the Law Commission Of
India in its l32nd Report that first proviso to section 125(3) disabling a wife or
claimant from recovering the maintenance amount on expiry of one year should
be deleted?

4. Do you agree with the recommendations of the Law Commission of
India in its l32nd Report that proviso (2) to section 125(3) pertaining to consi-
deration of the offer of the person (against whom an order for monthly allowance
by way of maintenance is claimed) to maintain the wife after the passing of
the order may be deleted'? '

5. Do you agree with the recommendations of the Law Commission of
India in its l32nd Report that sub sections (4) and (5) of section I25. depriving
a wife from claiming maintenance if 'living in adultery', should be deleted
inter alia as it is by and large invoked to embarrass and harass a wife?

6. Do you agree with the recommendations of the Law Commission of
India in its l32nd Report that "the magistrate passing an order for maintenance
under section 125 should be empowered to pass an order directing a person
liable to pay the monthly allowance to deposit the monthly allowance for a
period up to six months in advance in a ﬁt case taking into account the fact's
and circumstances of the case'?

7. Do you agree with the recommendations of the Law Commission of
India in its l32nd Report that "a magistrate passing an order for maintenance
under section 125 shall be empowered to issue an order against the empl0yer of
the person liable to pay the monthly allowance determined by him. directing
such employer to deduct from the salary of such person a sum equivalent to the
amount of maintenance determined by him and to deposit the same in the court
within a week of such deduction from month to month whenever it appears
appropriate to do so on account of the failure of such person to regularly pay
the amount directly to the wife, child or parents in whose favour an order has
been «passed?

8. Do you agree with the recommendations of the Law C0mn1isSion of
India in its l32nd Report that "the amount of monthly allowance ordered to
be paid, including the arrears. shall be a charge on the properties of the person
against whom the order has been passed"?

9. Do you agree with the recommendations of the Law C0mmission of
India in its l32nd Report that "an order for monthly allowance shall not stand
discharged or satisﬁed except by actual payment from time to time or with a
settlement of the court recording its satisfaction that the arrangement or settle-
ment is for good consideration, genuine, voluntary, lawful and fair"?

IO. Do you agree with the recommendations of the Law Commission of
India in its 132ml Report that "a person aggrieved by an order Of maintenance
passed by the magistrate shall have a right of appeal to the Court of Sessions.
However, when the appeal is directed against an order awarding maintenance,
the appeal shall not be muintainable unless the appellant deposits the amount
of arrears of maintenance from the date oi" institution of the petition till the
date of the order under appeal in the court of the magistrate and pr0duces along
with the memorandum of appeal an aﬂidavit to the effect that such amount has
been deposited and future amount will be regularly deposited"?

ll. Do you agree with the recommendations of the Law Commission of
India in its l32nd Report that "an otﬁcer, to be designated as Maintenance
Counsellor, shall be appointed by the State to represent the case of the wife,
child or parent claiming maintenance free of cost as a measure of social welfare
with the option to the concerned person to appoint an advocate of his or her
choice at the cost ol' such person. if so desired."

l2. Do you agree with the recommendations of the Law Commission of
India in its l32nd Report that the following special procedure for speedy dis-
posal of the matters pertaining to maintenance under section 125 should be in-
corporated in Chapter 9 of the Code.

(I) Prescribing a time limit for filing a written statement or statement of
objections coupled with conferment of the power on the magistrate
to pass an order as prayed on failure of the respondent to ﬁle the
statement within the prescribed time limit:

(2) deciding the matter on affidavits with opportunity to the other side
to cross--exarnine the witnesses of the deponentsg and

(3) requiring the magistrate as far as practicable to dispose of the matter
within six months after hearing it from day to day.

V.'

ANNEXURE III

A. PROBLEMS OF DELAY AND ARREARS IN COURT AND
SPEEDY TRIAL

A. Problems

1. (:2) What in your opinion, are the causes of delay in the trial courts in
the disposal of cases?

(b) Have you any suggestion to make for cutting short such delays?

2. Speciﬁc Causes
l-{ow far is delay due to
(a) Inadequate number of Judges?

(b) lnsulﬁcient accommodation, lack of books, lack of stenographical
assistance or other factors by way of unsatisfactory conditions of
work affecting quality of work?

3. Pelt) criminal cases -- disposal by other agencies

Should petty criminal cases be disposed of by honorary magistrates?

4. Arguments

Would you consider it appropriate that there should be s0me time-limit
for oral arguments, during which counsel can, if so desired, supplement by written
submission?

5. Do you think that in order to avoid delay in rendering speedy justice
taking the services of retired judicial oﬂicers and administrative staff to help
them on a temporary basis like a pilot project will go ina long way in ensuring
the speedy trial of criminal cases?

6. How are case lists prepared? Is it done in a systematic manner with
reference to ﬂow of cases and the need for quick disposal; or are they being
prepared in routine manner? It appears to be the practice to post about 40 to
50 cases every day. while the actual judicial work, ie. examination of witnesses
etc., does not co-ver more than a couple of cases, even that too. for one or
two witnesses only. Is it better management of the courts possible? Should
all appearance cases and miscellaneous matters be listed before a pool of special
ma istxates so that all other courts may devote their time to taking evidences
and hear arguments, and thus they should be free from involvement in mis-
cellaneous matters and consumption of time required for such purposes can be
utilised for the effective trial of main cases?

7. Adjournments in trial

Even though Section 309 contemplates for holding the proceedings as
expeditiously as possible and examination of witnesses from day to day, yet
it is an open fact that on account of adjoumments. there is caused inordinate
delay in disposal of criminal cases. To control adjoumments is a matter of
great importance -to tackle the issue of delay. In what manner Section 309
can further be amended?

29
6-2 M of L & J/ND/97

8. Disposal of certain cases by Nyaya Panchayat

In order to render criminal justice at the door steps of victim and for
expeditious disposed of cases, is it feasible to refer some of the criminal cases
Nyaya Panchayat as recommended by the Law Commission in its 114th
Report on Gram Nyayalaya. What should be the category Of offences which
may be referred to Nyaya Panchayats?

9. Compounding of oiienccs

Of late, various High Courts have quashed criminal proceedings, (in
respect of non-cognizable offences) because of settlement between the parties
to achieve the harmony and peace in the society, for example, criminal proceed-
ings in respect of offences under Section 406 relating, to misappropriation of
dowry articles or Isiri Dhan and offences under Section 498A, IPC were quashed
Arun Kumar Vohra v. Mrs'. Reetu V0-lira -(1995) 1 All India Criminal 'Law
Reporter 431; Nirlap Sinig'/'1: v. State of Pmzjabl. l993 (2) All India Criminal
Law Reporter 800. Similarly should other class offences may be made com-
poundable by expanding the scope of Section 320 of the Code of Criminal Pro-
cedure. --

10. Conversion of some warrant cases into summons and -to be tried summarily

Should any other class of offences. which are triable as a warrant case.
be converted into trial in summary «manner as laid down under Chapters XX
and XXI.

11. Compounding at the stage of investigation

Wherein respect"6f any offence compoundable under Section 320 of the
Code of Criminal Procedure, if the parties give their desire to compound the
case on the initiative of the Investigating Officer he shall make a report of the
same to the Magistrate who thereupon deal with the case under Section 320.
Whether such a step will help in reducing the number of cases going for trial
before a court at the initial stage itself.

12. What are the causes for delay in investigation by the investigating oflicers?
Have you any suggestions for minimising such delay? should the State Police
be divided into two agencies: (i) 'State Investigating, Force and (ii) State Law
and Order Force and that in each District the Investigating Force should not be
used for other duties?

13. Can the Code of Criminal Procedure be amended to permit creation of a
Judicial-cum-Police Agency to screen all decisions by State and Central Investi-
gating Agencies either to ﬁle charge sheet or to drop investigation. In what
manner such Agencies be structured?

14. Whether trial should proceed in a case where an under-trial prisoner has
already spent a sufficiently long period in jail. which is equivalent to a substan-
ttial portion of the term of imprisonment prescribed for the offence? If the
answer is in affirmative what should be the norm for releasing a person who
has been arraigned for such a considerable period.

15. It is noticed that when the police ﬁle a charge sheet in a court. there is
some amount of delay in taking it on ﬁle. Is there any particular reason for
this, as such delays extend to three or four months in some cases?

'B. Speedy Trial ~-- Amt-ndnient Suggested

Procedure in Sessions: cases

1. (a) Is the procedure under sections 208-209 of the Code of Criminal
Procedure, 1973. in regard to sessions cases, an improvement over
the pre-1973 position from the point of view of ensuring a speedy
and fair trial of the accused? If not, please comment with reasons,

(b) If, in your view. the procedure in the Code of 1973 in regard to
sessions cases is not an improvcment,--~

(i) Should the pre-1973 position be restored, by adopting section
207A of the Code of 1898 as inserted in 1955 and by making
suitable ntoditications in various sections of the Cod: of 1973; or

(ii) Should the pre-1955 position be restored, by adopting sections
207 et seq oi' the Code ot' I898 as they stood before 1955; Or

(iii) Is it, in your opinion, yet too early to judge the effect of the
change made by the Code of 1973'?

2. Section I3

It is noticed that a large number of ollences which tigure in the first class
magistrate's courts are not of a serious nature, although they are cognizable.
Cannot such cases be transferred to the courts of special magistrates who have
been invested with the powers of a second class magistrate'? What special
administrative or legal arrangements would be required if a list of cases is pre-
pared to be tried by such magistrarres? 2. Review of Strength of the Court :
Insertion: of new Seclion. 23A.

3. l)o you suggest incorporation of new section 23A providing that the State
Government may after consultation with the High Court should review the
strength of courts once in two years for setting up a new/additional court de-
pending upon the pendency of the cases therein in order to meet the situation
leading to delay in disposal of cases and «the activate disposal of cases and timely
action in the matter?

4. Compounding of Offence at any stage of investigation and insertion of new
Sub-section 3A in Section 173

Do you agree that the following new sub-section (3A) be added to section
173 to (i) enable the police to- take note of the desire of the parties to compound
offences compoundablc under sectoin 320 at any stage of investigation even at
the stage of investigation. (ii) to help quicker disposal of cases of compound-
able category and to reduce the work load of the police.

5. Section 23l

Do you agree that the prosecution and Investigating Agency as the case
may be required to produce all evidence in support of the prosecution within
a specific period of framing of the charge against the accused under Section 231
Cr. P.C. for expeditious disposal of the case?

6. Section 238

Do you agree with the suggestion that under Section 238 read with Section
207, the Court shall be required to satisfy himself that he has complied with the
provisions of Section 207 Cr.P.C., within a period of one month of taking cogni-
zance of offence, which provision may curtail the delay caused due to non-
compliance of Section 207 for a long period?

7. Section 312

Witnesses who attend court are not paid appropriate monetary allowances
and when paid, it is limited only to the day on which they are examined, although
they might be called on a large number of occasions, dislocating their daily
work. Should they not be compensated or paid daily allowance for all the days
they are forced to attend court so that their presence can be secured in a better

manner?

8. Appointment of honorary /special Magistrates

Whether immediate appointment of _Honorary/Special Magistrate are
necessary for trying certain offences for expeditious disposal of cases and if so,
what are the classes of offences they can try.

C, Plea Bargaining : Insertion of new Chapter XIIA : Procedure for Pre-
Trial Bargaining and Plea Bargaining

1. Whether before the commencement of trial an endeavour should be
made by the lvlagist1'ate to explore the willingness of the parties to compounding
the compoundable offences?

2. Do you agree with the suggestion that a separate chapter XIIA for
concessional treatment to offenders willing to plead guilty be introduced in the
Code of Criminal Procedure on the lines recommended by the Law Commission
of India in its 142nd Report on "Concessional Treatment for Offenders who on
their own initiative choose to plead guilty without any bargaining." Such pro-
cedure may inter-aliw provide for the following:

(a) Competent Authority ---- _The1 jurisdiction for the exercise of the; powers
under this chapter shall be exercised by the competent Authority Inentioned
hereunder:

In respect of criminal cases where the relevant statute provides for imprison-
ment of less than 7 years for the offences alleged to have been com-.
mitted, a metropolitan magistrate or a magistrate of the ﬁrst class.
designated by the High Courts and in respect of criminal cases
where the relevant statute provides for imprisonment is between
years to 10 years for the oﬁences alleged to have been conlmitted a,
Bench consisting of two services, duly designated in the High Court.
shall be the Competent Authorities under this Chapter for the purposes
of! receiving, considering and disposing the application files under this
c apler.

(b) The procedure may be invoked only by the oﬁender himself by making
an application pleading guilty with a plea bargaining after cognizance is taken
and before the evidence is recorded.

(c) The atpplication will be entertained only after the Competent Authority
is, upon ascertaining in the manner speciﬁc in the procedure, is satisﬁed that
it; is made voluntarily and knowingly.

(d) The Competent Authority will hear the application in the presence
of the aggrieved party and the public prosecutor.

I he Competent Authority shall thereupon impose the necessary such
puiiishments as it deems ﬁt, keeping in view the nature of the offence and the
penal provision attracted and plea of the accused.

ANNEXURE II

DR. S. C. SRIVASTAVA D.O. No 6(3) (33) /95--LC (LS,
Joint. Secretary & Law Oﬁicer

GOVERNMENT or INDIA
MINISTRY or LAW, JUSTICE & COMPANY AFFAIRS
DEPARTMENT or LEGAL AFFAIRS, LAW COMMISSION, SHASTRI BHAVAN
NEW DELHI-l I0 001
Tel 338593]

Dated October 26, 1991.

Dear Sir.

This is to encroach upon your valuable time for the cause of national
importance. The Government of India has made a reference to the Law Com-
mission of India to undertake a comprehensive revision of the Code of Criminal
Procedure, i973 and come up with appropriate recommendation.

Ever since, the Code of Criminal Procedure, 1973 came into force, the
need for amending its various provisions was being felt for removing certain
difﬁculties/lacunae experienced in its working. Consequently, the Code was
amended in 1978, 1980, 1983, 1988, l990, 1991 and I993 for certain speciﬁc
purposes.

The Government of India _introduced the Code of Criminal Procedure
(Amendment) Bill, 1994 in the llayya Sabha for carrying out number of changes
in the Code. While the Bill 'IS at present pending, before the Parliamentary
Standing Committee on Home Affairs, the Government of India has made the
aforesaid reference to the Law Commission.

The Law Commission has already made various recommendations in its
various reports on the subject relating to -the reforms in the Code of Criminal
Procedure and other ancilliary matters. Various other agencies of the Govern-
ment have also made recommendations on the subject.

It is needless to emphasise thatthcre has been inordinate delay in the
disposal of criminal cases and there is consequent loss of faith in the criminal
justice system which has shaken, the conﬁdence of the people in the rule of law.
Of late. there has been alarming rise in the arrears of criminal cases which
have been pending for several years.

In view of above, the Law Commission has undertaken the study of the
comprehensive revision of the Code of Criminal Procedure so as to remove the
germane problems ieading to consequential delay in disposal of criminal cases.
It is felt that there is a need to review the machinery and the processes involved
in the administration of criminal justice. Accordingly, the Commission seeks to
elicit your considered opinion on the following subjects, at the first instance, as
the same will be helpful in formulating its recommendations to the Government
for mending the Code. Needless to mention that your learned opinion on
other issues not highlighted hereunder would also be of great assistance to us.

_Qu1te apart from the issues I}ighlI'g_hted hereunder, the Commission will
soon circulate a comprehensive questionnaire on the Code of Criminal Procedure.
This would be followed by Workshops at various places to have a thread bare
discussion on the various issues. involving the provisions of the Code.

1. Role of Investigating Agencies

The prime role of Investigating Agencies in discharging the functions of
collecting evidence against the accused cannot be ignored. Unless. the Investigat-

ing Otﬁcers are tuned. and trained in their ﬁeld of investigation, «there is bound

to be lacunae of various kinds in the prosecution of the accused. You are
requested to send detailed views on this issue so that eﬁective reforms Can be"
brought in the role of investigating Agencies. For this purpose in case of serious
offences punishable for 7 years imprisonment and above, a separate investigating
agency exclusively (to investigate such cases may be appointed which will be
incharge of the case till the conclusion of the trial. Such ﬁeld of consideration
by you may also point out measures as to how to structure the Investigating Agen-
cies: and necessary supervision by the higher authorities, and also in respect of
duties of "Investigating Ofﬁcers in connection with the collecting of evidence and
conducting of trial of cases.

2. Arrest

The Supreme'Court has emphasised that arrest in every case is not a must.
Therefore, a change can be con-sidered in Section 4], namely, whether a police
officer may instead of asking the person concerned issue him a notice of appea-
rance requiring him to appear 'before the police officer as may be speciﬁed, unless
there are special reasons for immediate arrest. '

3. Reforms in prosecuting agency

Recently, the Supremt Court has held in the case of S. B. Shahane v.
State of Maharashtra, AIR 1995 SC 1628 -that there -should be a separate cadre
of Public Prosecutors so that they can render their functions independently from
the control of Police, as well as to reduce the possibility of political or other
types of interference with the police investigation and for effective scrutiny of

investigation. T , _ ,

-g. ' . Since the prosecuting agency render statutory functions as oﬂicerst of the
Court, there is all -the more reason that such prosecuting oﬂicers should be abso-
lutely independent. What steps should be undertaken in this regard so that
the objective behind it can, be attained in the true spirit, may be highlighted
by you. (i) Whether they should be headed by a Director of Prosecution,_(ii}
what should be qualiﬁcations of such a Director and (iii) what should "be
the methods of appointing him and Public Prosecutors to conduct such cases.

4. Deletion of Section 162 Cr.P.C. and change in the mode of recording under
Section 161 . '

The Fourth Report of the National Police Commission has observed that
recording of witnesses' statementsby 'the police during investigation provide scope
for arguments based on contradictions, however trivial or natural they might
be in the circumstances of any particular case. It, therefore, recommended to
do away with the detailed recording of statement as made by a witness in the
course of investigation under Section 161 and subrltitute in its place a revised
arrangement in which the investigating oﬂicen can make a record of the facts
as ascertained by him on examination of a witness. However, it may be con-
sidered by you whether Section 162 of /the Cr.P.C. should dispensed with regard-
ing recording of statements of witnesses and instead the statement of important
witnesses' be recorded under Section 164 of the Code of Criminal Procedure.
If so, what should be the types of offences in respect of which recording of state--
ments of witnesses under Section 164 Cr.P.C. should be resorted to.

5. Procedure when 'nrvest1'gationi cannot be completed in 24 hours 'and conse-
quent Policy Custody '

ln the Central Bureau of Investigation, Special lrzvestigation Cell-1, New
Delhi v. Armpam J. Kulkarni, 1992 3 SCC 141, the Supreme Court held that
under the proviso to Section 167 (2), the police custody can be onlv during the
ﬁrst 15 days of the remand and not later. It is felt that such limitation would
cause some practical difficulty for the proper =investigattio~n in some given cases.'
Therefore, do you agree that the police custody can be sought during' the period
of remand at any time if a need arises and Section 167 of the Code of Criminal

Procedure be amended accordingly. But. however. the total remand of police
custody should not exceed l5 days but it may exceed only under special circum-
stances with the permission of the court and for reasons to be recorded by the
iourt. '

6. Disposal of certain cases by Nyaya Panchayat

In order to render criminal justice at the door steps of victim and for
expeditious disposal of cases. is it feasible to refer some of the criminal cases
to Nyaya Panchayat as recommended by the Law Commission in its .l l4th Report
on Gram Nyayalaya. What should be the category of offences which may be
referred to Nyaya Panchayats, needs consideration.

7._k Adjoumments in trial

Even though Section 309 contemplates for holding the proceedings as
expeditiously» as possible and examination of witnesses from day to day. yet it
is an open. fact that on account of adjournments, there is caused inordinate delay
in disposal of criminal cases. To control adjournments is a matter of great im-
portance to tackle the issue of delay. A deep thought has to be given on it.
and in what manner Section 309 can further be amended.

8. Compounding of offences

Of late. various High Courts have quashed criminal proceedings, (in
respect of non-cognizable offences even) because of settlement between the parties
to achieve the harmony and peace in the society, for example, criminal proceedings
in respect of offences under Section 406 relating to misappropriation of dowry
articles or Istri Dhan. and offences under Section 498A. lPC were quashed
(Arun Kumar Vohra v. Mrs. Reetu Vohra (1995) (I) All India Criminal Law
Reporter 431; Sirlap Singh v. State of Punjab, I993 (2) All India Criminal Law
Reporter 800). Similarly, should other class offences may be made compoundable
by expanding the scope of Section 320 of the Code of Criminal Procedure.

9. Conversion of some warrant cases into summons and to be tried summarily

Should any other class of offences, which are triable as a warrant case,
be converted into trial in summary manner as laid down under Chapters XX
and XXI.

I0. Compounding at the stage of investigation

Where in respect of any offence compoundable under Seotion 320 of the
Code of Criminal Procedure, if the parties give their desire to compound the
case, the Investigating Officer shall make a report of the same to the Magistrate
who thereupon deal with the case under Section 320. Whether such a step
will help in reducing the number of cases going for trial before a court at the
initial stage itself.

ll. Appointment of honorary/special Magistrates

The appointments can be considered for trying certain offences, for expe-
ditious disposal of cases. This matter also needs further probe as to the class
of o~tTe'nces. which such Magistrates can try.

12. Anticipatory Bail

Anticipamry butt provisions have very often been found to be misused by
the accused. Should such provisions be retained on the statute bo0k.
13. Plea Bargainihtgg

Plea bargaining hag ained ground recently in many countries. Should
such a plea bargaining be d at the pre-trial stage.

14. Special Positions in respectt of Women

(a) In respect of women convicted of any offence, should there be any
further change under Sections 433 and 433A of the Code Of Criminal Procedure
regarding remission or commutation of sentences.

(b) Whether any further changes are necessary under Section 125 of the
Code Criminal Procedure in matter of maintenance of wife, children, etc.

15. Victimology

The concept of victimology, namely, providing suiﬁcient compensation ant
relief for rehabilitation of the victims is recognised in many countries, and State
also under law is required to take steps in this direction. Whether Section 357
of the Code of Criminal Procedure be suitably amended to fulﬁl this object.

I would, therefore, request you to kindly spare some of your precious time
in giving your valued opinion to the issues raised herein above at your earliest
convenience, preferably within one month.

Looking forward to your co-operation.

With regards,

Yours sincerely,

(S. C. SRIVASTAVA)

ANNEXURE III
I nnsrowsns ir.ECr:IVED ON THE QUESTIONNAIRE ON THE CODE OF

CRIMINAL PROCEDURE. 1973

As already stated the Law Commission circulated a comprehensive Ques-
tionnaire (Appendix I) on the Code of Criminal Procedure for eliciting opinions
from various quarters. The Commission also circulated the letter (Appen-dix II)
highlighting the main issues involved in the Code of Criminal Procedure.

The Questionnaire was sent to the Chief Justices of High Courts and the
Registrars of the High 'Courts (with a request to kindly get it circulated among
all the Judges), Sessions Judges, Supreme Court Bar Association, High Court
Bar Associations, District Bar Associations, Human Rights Commission, State
Law Commissions, Bar Council of India, State Bar Councils, Advocates, Acade-
micians and some social organisations. The Questionnaire was also sent to the
Chief Secretaries, Home Secretaries (with a request to get it circulated to all the
police officers) and Law Secretaries of various States and Union Territories.

Responses were received from ﬁfty-eight judges, fourteen advocates, four
police officers, two State Governments, four academicians, and three State Law
Commissions.

Issue No. 1.--Rous Or INVESTIGATING AGENCY

Views of Judges

Out of thirteen judges, eight are of the view that a separate
investigating agency should be appointed for all sessions cases / murder cases etc.
They should be given intensive training in the investigation of grave crimes, know-
ledge of law, forensic science etc. Their pay scale may be more than the other
police agency. Such agency be headed in every district by an ofﬁcer osf I.P.S. One
judge is satisﬁed with the existing provisions of the Code and four have not either
touched upon or clearly expressed their views. One has opted for 'no comment'. .
Out of forty-ﬁve judicial oﬁicers, thirty-four agree with the proposal of the Law
Commission. However, some of them have also suggested to take the help of
expert legal advisors by the investigating agency. Eight officers have not res-
ponded clearly and are silent on the issue. One officer did not agree with the
suggestion. The Institute of Judicial Training & Research (U.P'.) Lucknow has
responded in the affirmative.

Views of Advocates / Public Prosecutors/Bar Associations

Eight Advocates/ Prosecutors have suggested to entrust investigations to a
separate police agency which should be separated from the regular police en-
trusted with law and order functions. However, as per Mr. K, F. Rustamji there
is no need to have a separate investigating agency exclusively to investigate con-
ventional crime, even if it is grave crime except specialized offences like econo-
mic oﬂences. According to two advocates, it will not be advisab e to create a
separate cadre because maintenance of law and order and inves=ti~gation of a case
are interlinked. Further. One advocate is silent on the issue. The Madras Bar
Association has responded in the alﬁrrnative.

Views of ACa:dbn1iCi3ﬂ3

According to Dr. K. N. Chandrasekharan Pillai, the police department
can create one branch consisting of only graduates/.po~st-graduates for criminal
investigation. There are many special branches in various states which are

preferred to General grades of police for crime investigation, The other acade-
micians did not oilcr their views on the issue.

7----2 M of L & JINDI97

Views of Police Officers

Two police oﬂicers havt supported the issue raised by Law Commission
and suggested the proposal needs to be considered at the earliest. However, two

have not responded to the issue.

Views of the State Law Commission

The Himachal Pradesh Law Commission has responded in 'Elff1I'l'1]agli\_/.\c.,
The Madras State Law Commission has informed that a detailed note wili
be sent shortly, however, it has not responded to any issue/Question of Law

Commission of India.

Views of State Governments

Only the Government of Gujarat has responded and it has agreed with
the suggestion of the Law Commission of India. The Government of Karnataka
has forwarded a note on "the structure of the system of Directorate of Prosecu-

tions and prosecuting Agencies in practice in Karnataka" which relates to the

Issue Number 3. However, it has not responded to any other issue / Question of
Law Commission of India.

Issue No. 2-ARREST

Views of Judges

Four judges have supported the proposal of the Law Commission, four
are satisﬁed with the present position, and rest of them have not given the reply
directly or are silent on the issue. However, one has not offered any comment.
Twenty--four Judicial Oﬂ'1cers/ District Judges agree with the 'proposal of the
Law Commission of India. However. twelve judges have partly agreed saying
that to authorise the issue of notice by the police to the person concerned would
not be safe as there is no guarantee that police officer will not indulge in dis-
crimination. At the same 'time, there would be delay in case notice is issued for
appearance of the concerned person before the police officer." some have sug-
gested to make the provision conditional on the -basis of bailable and non-baiim
ble offences. Three have offered 'no comment' on the issue and three are silent.
The Institute of Judicial Training & Research (U.P) Lucknow has agreed as pro-

posed by Law Commission of India.

Views of Advocaites/Government pleaders/Bar Associations

Five advocates have supported the proposal of the Law C'0mmission, but
have suggested that the discretion of the Police Officer with regard to special
reason for effecting immediate arrest needs to be preserved without any hind-
rance, and the other four/ﬁve advocates partly agreed on the issue and one
disagreed. One advocate is silent on the point. The Madras Bar Association

has also supported the issue.

Views of Police Officers
One police oﬂicer feels that the existing laws are adequate and amend-

ment is not necessary in this regard whereas the other two feel that the power 'of_,_
It is necessary that we should re:-cat'eg'o'rise""

arrest is the most abused power.
all the offences into two groups "arrestable" and "non-arrestable". Presently

arrests are resorted to even before the suspected person's version is ascertained
and appreciated. In most cases, it has led to unwarranted and unjustiﬁed arrests.
This safeguard should be built into the law.

Views of Acadbniicians
Dr. K. N. Chandrasekharan Pillai has agreed to the suggestion, however,
other academicians have not responded.

Views of State Law Commission

The Himachal Pradesh Law Commission agreed as proposed subject to
further suggestion that the words which.may reasonably be suspeoted 'to be' be
added after the word 'person' and before the word 'any' in 'Section 41(1)(b),

Views of State Governments

Only the Government of Gujarat has responded to this issue and it has
supported the proposal.

Issue No. 3--REFORMS IN PROSECUTING AGENCY
Views of Judges

Nine judges are in favour of a separate cadre of Public Prosecutors so it
can function independently from the control of police and politicians. Some of.
them are of the view that the such Directorate of Prosecution be headed by a
Judicial Officer not below the rank of District Judge. He may be appointed by
promotion and /or by direct recruitment of advocates with sufficient experience.
Justice K. N. Goyal (Retd) partly agreed and has given elaborate suggestions
vide para 'A', clause 4 pages I to 3, to his reply whereas, three judges either
have not expressed their views or are silent on the issue. Thirty-one judicial
oﬂicers have responded saying that there should be a separate cadre of Public
Prosecution, headed by 'Director of Prosecution'. Some of them have suggested
that the Director should be appointed by the High Court of the State. They also
have suggested qualifications for the other Prosecutors, Head of the Directorate
should be a person who had been a judge of High court for at least ﬁve years
or worked as Advocate--General for ﬁve years or worked as Public Prosecutor in

the High court for a period of 10 years. Ten officers have not directly responded

to the issue and three partly agreed. The Institute of Judicial Training & Re-
search (U.P.) Lucknow has responded in the affirmative, however, it did not agree
with the proposal of Women Public Prosecutors and Assistant Public Prosecu-

1'.OI'S.

Views of Advocates/Government Pleaders,/Bar Associations

Ten advocates are of the view that there should be a separate indepen-
dent cadre of Public Prosecutors which should be an autonomous body, prefe-
rably headed by a judicial oﬂicer of the rank of Sessions Judge. One of them
has suggested that it should be headed by the District Attorney at the District
level, Advocate General at the State level and Attorney General of India at the
National level. Other Advocates are silent on the point. The Madras Bar
Association has suggested that for the Sessions Court, Members of Bar Asso-
ciation. with 7 years experience and Director and Dy. Director must be
appointed with experience of 15 years and with the concurrence of the High
Court. For other Courts the p-roposed cadre people may be appointed.

Views of Academicians
Dr. K. N. Chandrasekharan Pillai has expressed his view saying that this

;branch should not oversee the investigation or have any relation with the judi-
ciary. It should be independent. A Directorof Public Prosecution having

degree of L.L.B. with 10 years bar experience could be the head of this branch.
It should be a post that can be ﬁlled by way of promotion of eligible candidates
from among the Public Prosecutors who are in turn be appointed only by way
of competitive test/interview. Professor H. C. Dholakia has also suggested to
appoint women prosecutors to conduct the case under Sections 354, 376, 376A to
376E and 509 of I.P.C. Professor B. B. Pande and Professor A. K. Saxena have

not responded.

Views of State Law Commission

Himachal Pradesh Law Commission has agreed to what has been propos-
ed by Law Commission of India.

Views of Police Officers

Mr. C. Dinakar, Director General of Police, C.O.D, Training, Special
Unit, Bangalore and Mr. H. J.' Dora, I.P.S. Additional Director General of
Police, C.I.D. Hyderabad have responded in the affirmative,' however, Mr. C.

' ,."Anjaneya Reddy, I.P.:S. D.G. (Vig. & Ex.), Hyderabad has drawn the attention

' to National Police Commission's Fourth Report. »

Views of State Governments

The Government of Karnataka has forwarded a note on the structure of
the system of Directorate of Prosecuting Agency which is functioning in the
said state and also informed that 14th report of Law Commission of India was
implemented to establish the Directorate of Prosecution. The Government of
Gujarat has supported the proposal of the Law Commission of India.

ISSUE No. 4--DELErIoN on SECTION 162 CR. P.C. AND CHANGE IN THE MODE
on RECORDING UNDER SECTION 161

Views of Judges

None of the Judges, has suggested to delete Section 162 of the Code.
Three/four have suggested for some amendment of both the Sections. Two are
silent on the issue and one has expressed satisfaction of the existing provisions.
One of them says that further recording under Section 161 of -the important wit-
nesses slhould n-ot be accepted because (a) if their statements are not recorded,
that wil. give ample scope to the witnesses to change their version, (b) the large
number of magistrate would 'be required to remain busy in recording the state-
ment of important witnesses u/s 164.

However, a proviso may be added in section 162 that where witnesses
totally deny the statement u/s 162, the same may be allowed in evidence after
showing his signatures made thereon. Another judge has suggested that a pro-
viso may be added that in case of discrepancies in the said two .statements,
undue weight should not be given unless it affects the prosecution case.

Thirty Judicial Officers do not agree with the suggestion of Law Com-
mission saying that the deletion of section 162 and amendment under Section
161 will not serve any purpose. Eight have not responde--d to the issue. Three
have agreed as suggested by Law Commission. However, one oﬂicer is of the
view that Section 161(2) and Proviso of Section 162(2) may be deleted. Rest of
oﬂicers have partly agreed with the proposal. The views of the Institute of
Judicial Training & Research (U.P.) Lucknow, partly support the proposal of the
Law Commission of India. '

Views of Advocates/Public Prosecutors/Bar Associations

Six advocates are of the view that Section 162 should not be deleted,
however, some have suggested certain amendments in the existing provisions.
One has suggested for the use of scientiﬁc means viz. tape rec0rder etc. to in-
spire greater conﬁdence. But others have suggested that such move would in-
crease the load on the already heavily burdened judicial oﬂicers. A provision
for obtaining signature of literate witnesses may be made and a carbon copy of
such statement should be furnished to the witnesses. Three advocates partly
agreed with the suggestion and two are silent on the point, The Madras Bar
Association has responded in the affirmative.

Views: of Acadiemlicians

Dr. K. N. Chandrasekharan Pillai does not support the proposal and rest
of the three academicians are silent on the issue.

Views of the State Law Commissions

The Himachal Pradesh Law Commission does not support the proposal.
However, it has suggested that the statement under section 161 should be re-
corded in the presence of an Advocate/ relatives/ respectable person of the areal
any other person of the choice of witness.

Views of Police Oﬁice-rs

Two police oﬂicers do not agree for deletion of Section 162. According

~to them the accused gets an opportunity to contradict the witnesses with the

statements recorded during investigation. It helps the prosecution to refresh the

memory of witnesses and confront them with in case of hostility. It is not neces-
sary that the statements are recorded in detail and furnished to the accused and
to the court. They don't agree for recording the statement of important wit-
nesses under section 164. Mr. C. Anjaneya Reddy, Director General (Vig. &
ENFT), Hyderabad has given the example of report of National Police Com-
mission on the issue.

Views of the State Governments

Only the Government of Gujarat has responded to the issue and it did
not agree with the proposal.

Issue No. 5---PROCEDURE WHEN INVESTIGATION CANNOT BE COMPLETED In 24
nouns AND CONSEQUENT POLICE cusronv

Views of Judges

Seven judges out of thirteen have supported the proposal of Law Corn-
mission and four of them suggested that the period of 15 days may be enhanced
to 30 days. Others have not either expressed their views or are silent on the
issue. Twenty-eight Judicial oﬂicers agree with the suggestion, however, they
are of the view that duration of police custody may be increased upto 30 days
in view of the nature of the offence. Fourteen oﬁicers have not responded
to the issue clearly. Two judges do not agree with the suggestion. The Insti-
tute of Judicial Training & Research ('U.P.l Lucknow, has responded in the
aﬂirmative.

'Views of Advocates/Government Pleaders/Bar Associations

Five advocates have extended their support to the proposal made by the
Law Commission. However. three point out saying that the period of 15 days'
police custody can be extended under special and exceptional circumstances for
reasons to be recorded by the court. Two Advocates disagree and two have not
offered any comment. The Madras Bar Association has responded in the
affirmative.

Views of Police Oﬁicers

Two police officers have supported the proposal of the Law Commission
and Mr. C. Dinakar and Mr. S. Sripall are silent on the point. '
Views of the Academicians

Only Dr. K. N. Chandrasek.haran_ Pillai has supported the plea for revis-
ing section I67 so as to enable the police to seek custody even during remand.

Views of the State Law Commission

Only Himachal Pradesh Law Commission has responded and has agreed
to the proposal.

Views of the State Governments

According to the Government of Gujarat Section 167 should be suitably
amended. No other State Government has responded the issue.

lssur. No. 6-DISPOSAL or CERTAIN CASES nv NYAYA PANCHAYAT.

Views of Judges

Only six Judges have responded to the issue saying that Nyaya Panchayats
are unable to give a fair trial to the accused person. Members of Nyaya Pan-
chayat usually are not educated and do not know the basics of law and its proce-
dure. They themselves are the Prosecutors and Judges. Due to growing political
rivalry in the villages, if injustice is caused to the accused, instead of going in
revision, the accused may seek justice in streets, which will disturb the whole

system. Abandonment of jury system in India is proof positive that adjudicatory

ower should not be entrusted to any forum other than judiciary. Seven judges
ave replied in the negative. '

Seventeen judicial 0iﬁCCl'S have supported the proposal saying that petty
offences like those punishable under sections 323, 337. 338, 441, 442. 447, 352
l.P.C., theft of property worth less than Rs. 500/-, Cattle Trespass Act etc. may
be referred to Nyaya Panchayats. However, Twenty-two oﬂicers apprehended
that it will not be feasible to refer any of the cases to Nyaya Panchayat due to
groupism of people in the villages. Five officers have not responded to the issue.
The Institute of Judicial Training & Research (U.P.) Lucknow has offered no
comments. -

Views of Advocates/Government Pleaders/Bar Associations

Three Advocates did not agree with the proposal and say that it is not
advisable as the rural setting is still not free from factions and prejudices, which
are not conducive for administration of justice by Nyaya Panchayat. One is satis-
ﬁed with the existing system. Whereas one Advocalte is in favour of disposal
of cases by Nyaya Panchayat. Seven Advocates are silent on the issue. Accord-
ing to the Madras Bar Association the caste factor and political lineage- are rain-
pant in villages, therefore, it should not be done.

Views of Academicians

Dr. K. N. Chandrasekharan Pillai has not supported empowering Nyaya
Panchayats to deal with criminal cases. Other academicians have not touched
upon the issue.

Views of Police Oﬂicers

Shri H.J. Dora. I.P.C. and Shri C. Anjaneya Reddy have responded and
feelthat. the proposed amendment may be considered. Other police officers have
not responded.

The State Law Commissions

The Himachal Pradesh Law Commission is of the opinion that cases of
trivial nature may be entrusted to Nyaya Panchayats with a rider that it should
have no power to inﬂict the punishment of imprisonment. The amount of ﬁne
should not exceed Rs. 500.

Views of the State Governments

Only Government of Gujarat has responded by saying rthat such cases
should initially be referred to Nyaya Panchayat and if Nyaya Panchayat 'records
a ﬁnding to the elfect that it is not possible to arrive at an amicable settlement
or compromise, those may be sent to the criminal court. It-'has proposed «to confer
judicial powers in Nyaya Panchayat only to record the compromise.

Issue No. 7~--ADJOURNMENTS IN TRIAL

Views of Judges

Only one Judge has suggested that Section 309 be amended on similar
lines as of the provisions as contained in Section 14 of the Terrorist and Disrup-
tive Activities (Prevention) Act, 1987. Two-Three are of the view that it requires
some amendment but the way out they have not suggested. One does not agree
with any change in the section. However, nine judges have not touched upon
the issue.

Twenty--seven Judicial Oflicers are of the View that Section 309 may suit-
ably be amended and no unwanted adjournments be granted. Some of them
are of the view that the time limit should be ﬁxed for the disposal of cases and
in case of non-disposal of the cases, the matter should be referred to the Supreme
Court/' High Court. Sixteen oﬂicers have not responded clearly and one is silent.
The Institute of Judicial Training & Research (U.P.) Lucknow has suggested to
make the provisions that if a complainant seeks adjournmenlts beyond the limit
ﬁxed by the Code. the interim order will be passed in favour of opposite party
and in the case of the accused the bail granted the accused shall stand automati-
cally cancelled till the next date.

Views of Advocates/Government pleaders/Bar Associations

Two/three advocates are of the view that no trial ought to be permitted to
be adjourned once it has begun except in very rare cases. One of them has
suggested the measure of inﬂicting penalty on witnesses not present and convert-
ing the statement recorded under section 161 and signed by them as evidence
in examination-in--chief with limited evidentiary value attached to it would go a
long way. Of course the problem of defence not getting the benelit of cross
examination of such witness is to be tackled. Proceeding with the case even in
the absence of an Advocate. who had been told ab-out"the date would go a long
way in curbing the menace of adjoumments under ﬂimsy grounds. Another
Advocate further has suggested that the Judges may be required to sit as long
as necessary in order to complete their calender. Six Pleaders have not res-
ponded to the issue. The Madras Bar Association has suggested. "it need not
be amended. High Courts can impress upon Subordinate Courts to adhere to
Section 309 strictly."

Views of Academicians

Only Dr. K.N. Chandrasekharan Pillai has responded to 'the proposal
saying that the provisions in Explanation 2 under S. 309 might be emphasised
to discourage the tendency of parties to seek adjournments and section 309 may
be amended accordingly.

Views of Police Otficers

Shri H.J. Dora, I.P.S. has welcomed the proposed amendment of section
309 and Shri (,1 Anjaneya Reddy, I.P.S. has agreed with the problem. however,
he has not suggested any solution for the same. Remaining two officers have
not responded.

Views of the State Law Commissions

The Himachal Pradesh Law Commission has suggested for quick service
of summons for the presence of the witnesses by a separate investigating agency.
Further a necessary amendment should be made thereby creating a duty on the
magistrate or on a court to record reasons for adjournments.

Views of State Govemments

On this issue, nothing has been suggested by the Government of Gujarat.

Issue No. 8-COMPOUNDING or OFFENCES

Views of Judges

Eight Judges have supported the proposal and suggested amendment.
One does support partly giving its reasons in his reply, however, four/ ﬁve have
not touched the issue. According to some Judges all offences except murder
and rape under I.P.C. should be made compoundable with the permission of
the court keeping in view the larger interest of the society in general and the
victim in particular and the amount Rs. 250/ - be increased.

a Twenty-eight Judicial Officers /District Judges, endorsed the views as
expressed by the Law Commission on this issue. Majority of them have sug-
gested to increase the amount from Rs. 250/- to 2000/ - or 2500/-- or 5000/-
or 10,000/-. Some of them have suggested to make all oﬂences compoundable
except those which are punishable with life imprisonment or death. However,
some of them have speciﬁed some Sections of lPC to be included under section
320 and even some offences should be compoundable without the permission of
the court. Rest of them are silent and one officer has responded in the nega-
tive. The Institute of Judicial Training & Research (U.P.) Lucknow has res-
ponded in the aﬂirmative. ,.

Views of Advocates/Govemment Pleaders/Bar Associations

Six Aclvc-cates have supported the proposal. However, a few of them
have further suggested that a provision for compounding by agreement to pay
compensation may also be considered for inclusion in Section 320. Two advo-
cates disagreed with the proposal and three have not responded. According to
the Madras Bar Association 160 can be compounded.

Views of Acaair-micians

Dr. K. N. Chandrasekharan Pillai has welcomed the proposal to widen
the scope of section 320 by giving the list of cases including the example of the
case, Ma/zesh C/ra'n=d'm v. Stalle of Rmj(1'5'I}.1.'m- AIR 1988. SC. 2lll.. >Pr,0-
fessor H.C. Dholakia has also suggested to expand the table under
Section 320 by including the offences under sections 160, 334. 336, 356. 369,
380, 384, 395, 406. 4-07. 408, 411. 4l4. 453. 456, 461. 485. 510. of IPC etc. Rest
of the academicians have not responded the issue.

Views of Police Officers

Mr. C. Anjaneya Reddy has said that the number of compoundable
offences can be enlarged. Shri H. J. Dora, IPS has partly agreed and has sug-
gested that the power of compounding offences can be retained with the court.
Other police ofﬁcers are silent on the point.

Views of the State Law Commissions

The Himachal Pradesh Law Commission has partly agreed with the pro-
posal. However, it has clearly stated that offences under section 498 A of l.P.C.
are offences against the Society and should not be made compoundable.

Views of the State Governments
The Government of Gujarat has responded in the affirmative.

ISSUE NO. 9--CONVERSlON OF' SOME WARRANT CASES INTO SUMMONS AND CASES
TO BE TRIED SUMMARILY

Views of Judges

Two Judges have replied in the afﬁrmative, whereas according to another
ﬁve no change is proposed because it is already being done by the Magistrate
as and when such situation arises. Five Judges have not responded to the same.
One / two are of the view that there should be only one procedure. Twenty-one
judicial ofﬁcers have supported the proposal of the Law Commission. However,
some of them want only one procedure "warrant procedure"; some of them
wish to change the deﬁnition of "warrant case", a few oﬁicers want that oifences
punishable with imprisonment for a period less than 3 years he tried in sum-
mary manner. Eight ofﬁcers want no change and Fourteen have not' expressed
their views. The Institute of Judicial Training & Research (U.P.) Lucknow has
supported the proposal.

Views of Advocates/Govemment Pleaders/Bar Associations

Five Advocates have supported the proposal by tile Law Commission.
One of them is of the opinion that all the summons cases should be tried sum-
marily so that warrant procedure be applicable only in warrant cases.' And the
deﬁnition of warrant cases be amended as proposed by the Law Commission.
Four Advocates did not comment. Two are of the view that the existing proce-
dure is good but observed that provisions for summary trial should be abolished.
The Madras Bar Association has responded in the negative. '

Views of Police Oﬂicers

Shri Il.J. Dora, I.P.S. and Shri Anjaneya Reddy has responded in the
affirmative and other two police ofﬁcers have not responded.

Views of Academicians

Dr. KN. Chandrasekharan Pillai does not wish to support «the suggestion
for conversion of warrant cases into summons and Professor B.B. Pande and
Professor A.K. Saxena have not expressed their views on this issue, however,
Professor H.C. Dholakia has responded in the aﬂirma-tive.

Views of the State Law Commissions

Only the Himachal Pradesh Law Commission has responded to the issue.
it has opined that the trial of all the criminal offences except murder and rape,
should be simple and be tried as summons cases unless Magistrate thinks it
ﬁt to try a particular case as a warrant case.

Views of the State Govemments

The Government of Gujarat has responded in the negative by saying
"no procedure should be different for warrant and summons cases."

Issue No. 10--COMPOUNDING AT THE STAGE OF INVESTIGATION

Views of Judges

Only one judge has supported the proposal. Three do not agree and
apprehended more harm than good. Further according »to one Judge, in view
of the provisions of Section 25 of the Evidence Act and Section 161 of the Code
of Criminal Procedure, this power cannot be conferred on the investigating
oﬂicers. Remaining have not touched upon the issue.

- Twenty-seven judicial ofﬁcers have supported the issue. However, they
have suggested that it should be with the permission of the Court and volun-
tarily. According tc three ofﬁcets, it is not desirable at the stage of investiga-
tion due to some_reasons/investigating officers' role, Fifteenl Sixteen ofiicers
have not responded. The Institute of Judicial Training & Research (U.P.)
Lucknow has offered no comments on this issue. '

Views of Advocates/Government Pleaders/Bar Associations

Majority of Advocates have suppoﬂted the proposal of the Law Com-
mission, however, six /seven have not responded the issue. The Madras» Bar
Association did not agree with the proposal. ' ~
Views of Academicians

Dr. K. N. Chandrasekharan Pillai and Professor H. C. Dholakia have wel~
coined the suggestion whereas Professor B.B. Pande and Professor A.K. Saxena
are silent on the issue. '

Views of Police Officers

Two POULC ofﬁcers agreed with the suggestion. However, Shri C. Anja-
neya Reddy has suggested that the officers of the rank of Dy. S.P. and above
should be authorized to compound the offences at the investigation s-tage and
make a report to the Court. One officer has not responded to the issue.

Views of the State Law Commission

Himachal Pradesh Law Commission has responded in the aﬂirma-tive.

Views of the State Government

The Government of Gujarat has responded in affirmative.
3-2 M of 1. at JHNDI97

-_ u-.. _

Issue No. ll--APP0lNTMENT or SPECIAL/ HONORARY MAGISTRATES UNDER
SECTIONS 13 AND 18 or THE CODE

Views of Judges

Majority of the Judges of the High Courts as well as the Judges of the
District Courts and other subordinate courts are of the view that Honorary]
Special Magistrates should be appointed to try certain petty offences for expedi-
tious disposal of such cases. In this connection, it may be relevant to point out
that 11 Judges of the diﬂerent High Courts a few of them retired, have expressed
their views on this issue. in addition to 45 Judges of the District Courts and other
subordinate courts. It has been found that majority (6 out of 7) of the Judges
of the High Courts have lent their support in favour of appointment of Hono-
rary/Special Magistrates whereas it has been opposed by Justice M. Karpaga
Vinayagam of the Madras High Court. However. 4 High Court Judges have
not made any comment on this point. Further, out of 45 Judges of the District
Courts and other subordinate Courts, 28 are in favour of such appointments as
against 5 who are opposed to this proposal and 12 of them are silent in this
regard. It may also be pointed out that a committee consisting of Hon'ble Judges
of Andhra Pradesh High Court with Hon'b1e Justice D. Reddeppa Reddy.
Justice B.S. Raikote and Justice A.S. Srivastava has suggested that appointrnent
of Special Judicial Magistrates of Second Class and Special Matro-nolitan Magis-
trates may be made under Sections 13 and 18 of the Code for the trial of cases
coming under offenms which are triable by Magistrates of the Second Class. On
the other hand, Hou"ble Justice M'. Karpaga Vinayagam observed that the pro-
posal of appointment of government servants under sections 13 and 18 of the
Code as Judicial Magistrates of Second Class to try particular cases and that?
too, for a period of one year, is not useful and proper. Instead, he has suggested
that the post of Judicial Magistrates by selection on regular basis should be

increased.

Views of Advocates/Government Pleaders/Bar Associations

Favouring the proposal of atppointment of Honorary / Special Judicial
Magistrates, Shri K.T.S. Tulsi, Additional Solicitor General of India, comments
that this could be a signiﬁcant step whereby public involvement can be ensured
in the process of criminal justice. He further observes that there are a large
number of citizens in all parts of the country with adequate experience and edu-
cational qualiﬁcations, who enjoy wide respect in different sections of society.
Their involvement in the criminal justice system would not only reduce the burden
on the criminal justice machinery but would also! lead to a wider acceptability
of the system and generate conﬁdence amongst the public, but: this should be
done with regard to minor offences only. In all, Fourteen advocates including
Additional Solicitor General of India and High Court Bar Associations of
Bombay and Madras, who sent their replies, have supported this proposal. .

Views of Academicians

The Commission received the views of Professor H.C. Dholalgia, a former
Member of the Law Commission of India on the subject. He is also of the
view that more special/honorary judicial magistrates should be appointed" in
order to deal with minor offences by including metropolitan areas also. On the
other hand, Professor Dr. K. N. Chandrasekharan Pillai does not support the pro-
posal. However, Professor B.B. Pandey and Professor A.K. Saxena have made 'no
comment on this issue.

Views of Police Oﬂicers

The Police Officers are divided on this issue. Whereas the appointment
of specral/ honorary Magistrates is favoured by Shri H.J. Dora, Additional DGP
(CID) and CA. Reddy D.G. (Vig and Enforcement), Hyderabad, for summary
trial of cases and offences punishable with ﬁne only, Shri C. Dinkar, DGP(COD),
Bangalore, IS of the view that such appointmersts are not desirable under section
18 of the Code, though appointment under section 13 may be continued.

_ On the other hand, Shri S.'_Sripall, DGP, Tamil Nadu, questions the
rationale behind the proposed abortion of second class Magistrates contem--

plated in the Code. He is, however, of the view that a large number of offences

be tried in the courts of First Class Judicial Magistrates

which are required to _ _ _
s Judicial Magistrates as these offences

should be transferred to the Second Clas
are less serious in nature.

Views of the State Law Commissions

_ . While agreeing with the proposed amendment, the Himachal Pradesh
Law Commission is in favour of amendment of sections 13 and 18 of the Code
to the extent that in section 13(1) the word "or advocate" after the wo-rd "Gov-
ernment" and before the word "all" be added whereas section 18 be retained as
it is except that from sub-section (3), the words "State Government----as the
case may be"---may be deleted. Thus, the Commission has recommended the
appointment of an advocate also in addition to that: of a government servant
under section 13 of the Code while under section 18 the State Governiuent should
be deprived of its authority to empower any Special Metropolitan Magistrate to
exercise, in any local area. outside the metropolitan area, the powers of a Judicial
Magistrate: of First Class, as is the provision in the Code at present. Besides,
theTamil Nadu State Law Commission has intimated with reference to the ques-
tionnaire on the Code of Criminal Procedure that a detailed note will be sent

shortly by it and the same is yet to be received.

Views of the State Governments

~ No comments were received on this issue though the State Governments
of Karnataka and Gujarat have conveyed their responsw on the questionnaire.

Issue No. 12---AN'l'IClPATORY BAIL

Views of Judges
The majority view (5:3) of the High Court Judges is that Section 438 of

the Code must_ be retained and not deleted, but certain guidelines. formulated
by the Supreme Court i»n_;nLimerous.decisions' and that strict conditions should
be laid down in order to prevent misuse of this provision. Justice R.G. Vaid-
y'an_a_th of Bombay High Court has also suggested that this section should be
usedwonly in extraordinary and exceptional cases, and normally not in serious

offences whichvare punishable either with death or imprisonment for life. Justice

K. N. Goel (Retd.) has, however, suggested that the power to grant anticipatoga'

bail should be given only to the High Courts and not to the Courts of Sessio

The logic is based on the fact that now High Courts are interfering under Article
226 of the Constitution with the FIR/ arrest of the accused persons by stay of
proceedings. Hence, the negation of section 438 in U.P. It has been suggested
by a few Judges that Public Prosecutor should be given a clear notice of 7 days
and that only High Court should exercise the power -within whose jurisdiction
the offence has been committed. The majority (28:10) of the Judges of District
Courts and other subordinate judiciary have also taken similar stand. It is to
bepointed out at this place that States of Orissa and West Bengal have already
inserted a similar proviso after sub-section (1) in Section 438 of the Code, which

reads:

ORISSA: "Provided that where the apprehended accusation relates to an
offence punishable with death, imprisonment for life or imprisonment
for a term of _not less than seven years, no ﬁnal order shall be made
on such application without giving the State notice to present its case"

Orissa Act 11 of 1988, s. 2.

WEST BENGAL: " ....... ..Provided that where the apprehended accusa-
tion relates to. an offence punishable with death, imprisonment for
life or imprisonment for a term of not less than seven years, no ﬁnal
order shall be made on such application without giving the State not
less than seven days' notice to present its case." ................... ..W.B.
Act 25 of 1990.

_On the other hand, Justice D. Redeppa Reddy of the Andhra Pradesh
High Court along with Justice B.S. Raikote and Justice K.S. Srivastava are in
favour of deletion of section 438 of the Code as -they ﬁnd that anticipatory bail
is doing more harm than good to the society. . .

Views of the Police Otﬁcers

The majority of police officers are in favour of deletion of section 438
from the Code of Criminal Procedure keeping in view the diﬂiculties faced by
the investigating agencies in detection of heinous offences relating to property and
person. However, Shri C. Anjaneya Reddi, DG (Vig. & Enift.) and ex-oﬂicio
PS to the Government of Andhra Pradesh (GAD) of Hyderabad observes that
the provision for anticipatory bail should be retained. as in the legislation aiiect-
ing women and weaker sections, arrest has been mandatory, there is every likeli-
hood of false or exaggerated allegations being made in respect of these offences.
Arrest will follow even before preliminary investigation is done. So unless
anticipatory bail is provided there is no way for the accused persons to save
themselves from social ignominy following such arrest.

Views of Advocates/Govemment Pleaders/Bar Associations

In the lawyers' opinion, anticipatory bail should not be written oﬁe des-
pite the fact that this provision has been widely misused. According to them,
like the misuse of this provision, the provisions on arrest have also been misused.
However, statutory provision needs to be clariﬁed that only the Courts which
have jurisdiction to try' offences ought to be empowered to grant anticipatory
bail and if the accused apprehendse arrest at some other place, he must show that
he is the resident of that place in order to be able to invoke the jurisdiction of
local court. Such transitory anticipatory bail must not execeed 7 days and should
be conﬁrmed by the Court of jurisdiction, failing which the same should lapse.

Views of Acaslemicians
Professor H.C. Dholakia, a former Member of the Law Commission of

India. has opined that in order to prevent misuse of provisions regarding antici-.

patory bail. stringent requirements may be prescribed. In this context, he refers to
the West Bengal Amendment as follows:

In sub-section 1 of section 438. the following proviso shall be added: ,

"Provided that when the apparent accusation relates to an offence punish-
able with death, imprisonment for life or a term not less than 7 years,
no ﬁnal orders shall be made on such application without giving the
State not less than 7 days' notice to present its case:"

Other academicians have, however, not made any comment in this context.

Views of the State Law Commissions
No comments have been received.

Views of the State Governments

State of Gujarat does not support the deletion of Section 438 of the--Code"

No more replies have been received on this subject. .

Issue No. 13----PLEA BARGAINING
Views of Judges!

In most of the cases of response received by the Commission from the
High Court Judges, no comment has been made on this point. Some 4 judges
have taken up the issue wherein three of them have favoured the proposal.
Thus. two ditferent views have emerged as follows: ' at

Justice D. Redeppa Reddi does not approve of this method of settling
disputes as it may give rise to dubious practices besides beinghit by Article 14
of the Constitution because of conferment of unfettered and unguided discre-
tionary powers on the presiding oﬂicers. Further, it wouldalso invite unneces-
sary criticism of the judiciary from litigant public. However nineteen judges
of. district courts and other subordinate judiciary have favoured the proposal

as against 9 who are opposed to it. On. the other hand, Justice G.S.N. Tripathiv»
of Allahabad High Court supports the idea of pre-trial bargaining inrespect of-

compoundable offences only.

Views of Police Oﬁicers

The views on this point are equally divided. Shri H. I. Dora, Addl.
DGP (CID) Hyderabad does not favour the acceptance of plea bargaining while
Shri Anjeneya Reddi DG (Vig. & Enft.) supports its acceptance. - '

Views of Advocates

Plea bargaining has been appreciated by the lawyers' community also.
Shri K.T.S. Tulsi, Addl. Solicitor General of India, observes that it is an
important technique to avoid overcrowding of criminal cases in courts, but' the
same should be adopted with safeguards prevent its abuse. In this regard he
suggests that if investigation and prosecution are entrusted with the District
Attorneys and Advocate-Generals, there would be less possibility of. this-technique
being abused. The Madras Bar Association has also supportedthis' proposal.
Views ofiAc-ademicians

No comments have been received.

Views of State Law Commissions

No comments have been received.

Views of State Governments

Only Sate Government of Gujarat has replied" in the aﬂirmative on
this point. --

V Issue No. I4----SPECIAL posrrron IN RESPECT or woman I I I
Views of Judges I I

The Judges of High Counts feel that in respect 'of women convicted ..of--

an offence, the provisions are self-contained -and do not require further amend-.
ment. However, minority of Judges (3:7) have appreciated the proposed amend-
ment for further changes in sections 433 and 433A of the Code. _The subordi-
nate judges and district judges have subscribed to the same view in 8 to
20 ratio. Further. the' amendment of section' 125» of the Code has been sup-
ported along with a suggestion to make at special provision for interim main-

tenance in favour of wives, children and old parents. Some suggestions for

the increase of maintenance allowance upto Rs. 1000/-, 2000/ -, 2500/- and.
3000,"- have also been given. Some subordinate judges have approved: _th_e_j
limit upto Rs. 5000/ - as proposed by the Commission.

Views - of Police Ollicers

Majority view is in favour of consideration of the special position for women

including the amendment of section 125 of the Code. A

Views of Advocates ' , , g _ K» W A V C
In all fourteen replies have" been received on 'this "point: Majority of e the
lawyers ﬁnd no relevance in amending sections"433 and 433A of the 'Code. How-

ever, in resppect of section 125, the proposed amendment has been ' approved.'

Shri K.T.S. Tulsi has suggested that a provision for ensuring safe and adequate
residence to the wife and children (if necessary by dividing the existing accommo-
dation) may also be incorporated. The Madras Bar Association suggests that
Rs. 2500/- should be substituted in place of Rs. 500/ - under section 125 of the
Code.

Views of Academicians

Aeadeinicians are against the proposal of special status in respect of women
prisoners. ' ' < ' ' *- -r * " " ' ~--

Views ot State Law Commissions
No comments have been received.

View of State Governments

The State Government of Gujarat has supported the proposed change in
respect of special position of women as well as in respect of maintenance under sec-

tion. 125 of the Code. .

Issue ,N'o.'lS
Vktimolosr
Views g;jof'Ju'dVges' , g V by .
While supporting the concept of victimology the Judges of the High Courts
(8:1) have suggested that if compensation is to be awarded under section 35.7.of
the Code, the Magistrate or the Court concerned should be empowered to direct
the State to pay compensation to the victimiof assault because in many a case
the accused persons are too poor to paygthe compensation. The Judges of district
courts and subordinate courts have also supported the proposal by amajority of
25 to 30. In this respect it may also be relevant to point out that the historical
pronouncement of the Allahabad High Court made on 9-2-1996 in the Civil Writ
Petitions No. 32982 of 1994, 39919, 39920, 39921, 40216 and 40752 of 1994 ﬁled

by Shri Sudhir Chaptiyal, Dev Raj Kapoor and others on behalf of the Uttrakhand
Sangharsh Samiti against State of Uttar Pradesh has laid down guidelines for

victim. compensation. Similarly Twenty-ﬁve out of Twenty-seven judges of sub-

ordinate judiciary have welcomed this proposal.

Views of Police Officers

The proposal of victimology has been welcomed by the police officers also
who say that action has already been taken by the governments in 'providing reha-
bilitation, reemployment to victims of SC and ST related_ offences. Shri _C. Anjenaya
has also suggested that not less than 75 %' of the amount ofgpenalty should be

paid to the victim of assault by way of compensation.

Viuewsiot Advocates'

The lawyers have approved this proposal by saying that it is a step in the

right direction. Shri K. T. S. Tulsi has suggested that section 357 needs to clarified.
in respect" of awarding compensation at the stage of plea bargaining or compound-
ing of oﬁences and the order in that regard must be made enforceable as a decree
of court. .. ' . -

Views gt Academicians

Professor K. N. Chandrashekharan Pillai has observed that evenwithout an 1'

amendment to section 357 of _tl1e Code, it is possiblefor the courts to award com-
pensation. Today the State is also made liable to pay compensation under. public
law (see Neelawati Behara alias Lalita Behara vs. State of Orissa & Ors. AIR
1993 S.C.1960). Professor A.K. Saxena has suggested that it will not be possible
for the State of provide compensation to all the victims claiming compensation as
it will "put a huge ﬁnancial burden upon society in the shape of taxes. But when
the compensation is to be paid "by the convict through his earnings under forced
labour he will be automatically reformed and will be 'deterred from becoming a
habitual criminal. . ' ' ' - c ' -

List of State Governments, Judges of High Courts, District Judges/Judicial
Ofﬁcers, Bar Councils/Bar Associations, Advocates/Public Prosecutors, Police
Oﬂicers, academicians and State Law Commissions. 5 1

A. State Governments
1. Mr. P.J. Dholakia, Secretary & RLA, Govt. of Gujarat.'

-2. Mr. VD'Souza Robinson, Additional Secretary to Govt. of. Karnatalra
(Department of Law and Parliamentary Affairs). --

.. ll

B. Judges of High Courts

1.
2.
3.

1].

Justice D. Reddeppa Reddy*
Justice B. S. Raikote*

Justice Krishna Saran Srivatav*
*(High courts of Andhra Pradesh)

. Justice S. P. Kulkami

(High Court of Bombay, Nagpur Bench)

. Justice 0. P. Jain

(High Court of Allahabad)

. Justice R. G. Vaidyanatha

(High Court of Bombay)

. Justice Anant D Mane

(High Court of Bombay, Bench at Aurangabad)

. Justice G. S. N. Tripathi

(High Court of Allhabad)

. Justice M. Karpagavinayagam

(High Court of Madras)
Justice K. N. Goel (Retd.) (Lucknow)

Justice Giridhar Malviya
(High Court of Allahabad)

& 13 Judgement of Allahabad High Court by D. B. in writ petition
No. 39919, 39920, 39921, -40216 and 40752 of 1994 ﬁled by Uttarak-
hand Sangharsh Samity.

c. District Judges/Judicial otncersi

. Shri Arun D. Kulkarni

Shri R. C. Kathuria
(District and Session Judge, Haryana)

. Shri O. P. Garg

(District and Session Judge, Haryana)

Q Shri S. N. Kapoor '

(Addl. District and Sessions Judge, Karkard6oma'_Co'ur:f.__VDelhi).

. Shri A. S. Yenegure

(Addl. District and Asstt. Sessions Judge, Szrwantwadig Maharashtra)

. Shri M. G. Jadhav

(Chief Judicial Magistrate, Sawantwadi, Maharashtra)

. Shri M. D. Keskar

(Chief Judicial Magistrate. Ratnagiri, Maharashtra)

. Shri R. B. Patil

(Civil Judge, Deorukh, Ratnagiri, Maharashtra), '

. Shri B. S. Wasnik '

(Civil Judge. Aurangabad, Maharashtra)

(Addl:Dis'triet Judge. Aurangabad, Maharashtra)

. Shri P. R. Borkar _

(Extra Jt. District Judge, Aurangabada "'«iaharuhtra)* v

1].

l2.

20.

21.

. '22.

23.

24.

25.

26.

28.

29.

30.

31.

32.

Shri S. Z. I-I. Kazi
(Joint District & Sessions Judge. Thane, Maharashtra)

Shri G. D. Tadwalkar
(Addl. District and Sessions Judge. Sawantwadi, Sindhudurg)

. Shri Pavashe L. S.

(Chief Judicial Magistrate. Solapur, Maharashtra)

. Shri A. B. Palkar

(District & Sessions Judge. Solapur, Maharashtra)

. Shri S. Y. Padhye

(Addl. District Judge & Asstt. Session J udge, Solapur, Maharashtra)

. Shri S. R. Ghanavatkar

(District & Session Judge, Satara, Maharashtra)

. Shri L. D. Anekar

(Addl. District Judge, Nagpur, Maharashtra)

. Shri J. A. Patil

(District Judge, Pune, Maharashtra)

. Shri P. G. Choudhari

(Addl. District Judge, Osmanabad)

Shri K. P. Kotecha
(Addl. District Judge & Sessions Judge, Osmanabad)

Shri J. C. Shirsale
(Civil Judge, Osmanabad)

Dr, (Smt.) Pratibha Rasalu
(Addl. District Judge, Nagpur, Maharashtra)

Shri F. N. Velati
(Jr. District Judge, Nagpur, Maharashtra)

Shri S. S. Sabne
(Addl. District Judge, Nagpur, Maharashtra)

Shri M. M. Parlikar
(Addl. District Judge, Nagpur, Maharashtra)

Shri C. L. Pangarkar
(Jr. Director, Judicial Oﬂicers' training Institute, Nagpur, Maharashtra)

. .uShri V.' R./Kingaonkar 3 '

(I/c, Director, Judicial Oﬂicers' training Institute, Nagpur Maharashtra)

Shri P. S. Mane

(District Judge, Nasik, Maharashtra)

Shri Subhash S. Deshmukh
(Addl. District Judge, Nasik, Maharashtra)

Shri A. V. Karnik _
(District & Session Judge, Alimadnagar Maharashtra)

Shri B. R. Choudhari V
(Chief Judicial Magistrate. Aurangabad Maharashtra)

Shri A. D. Bhosale '
(Addl. Distt. & Session Judge, Aurangabad Maharashtra)

. Shri P. R. Borkar

(Extra Jt. District Judge, Aurangabad, Maharashtra)

. Shri K. D. Patil.

(Addl.;_Djstt. Judge, Akola. Maharashtra)

37.

40.

41.

42.

43.

44.

45.

. Shri A. H. Shah

(Additional Principal Judge, Bombay City Maharashtra)

. Shri M. L. TAahaliyani

(Chief Metropolitan Magistrate, Mumbai, Maharashtra)

Shri P. K. Chavare
(Addl. Session Judge. Mumbai City. Maharashtra)

. Mrs. Mridula R. Bhatkar

(Judge, City Civil Courts. Gr. Bombay Maharashtra)

. Shri J. N. Patel

(Designated Courts, under TADA (P) Act, 1987, Brihan Mumbai.
Maharashtra)

Shri B. K. Kulkarni
(Principal Judge, City Civil Court. Bombay Maharashtra)

Shri G. L. Chopra
("District & Session Judge, Amritsar, Punjab)

Shri H. R. Shelat
(Distt. Judge, Valsad, Ahmedabad, Gujarat-Now Judge, High Court,
Gujarat)

Shri S. D. Gunewar
(District & Session Judge, Ratnagiri Maharashtra)

Shri A. S. Rane
(Extra Joint District Judge, Nagpur, Maharashtra)

Institute of Judicial Training & Research Lucknow (U. P.).'

D. Advocates/l'ublic Prosecutors/Bar Associations

9-2 M of L&J/ND/97

10.
ll.

. Shri

/. Shri
. Shri

Shri. Benoy Kumar Sinha, Advocate, Bar Council of Bihar.

. Shri Vijay Shankar Mishra

(Govt. Advocate, High Court, Ahmedabad).

Shri S. B. Pawar, Advocate, High Court. Bombay.

Shri P. Sitapati. Advocate & Spl. Public 'Prosecutor,'Secunderabad.
Shri C. Padmanabha Reddy, Sr. Advocate, Hyderabad.
T. Bali Reddy. Advocate, Hyderabad.

K. F. Rustamji, Bombay.

Ashok Damodar Shah, Advocate, Ahmedabad.
Shri K.T.S. Tulsi, Addl. Solicitor-General, India, New Delhi.
Shri

Shri
Shri

K. Sethumadhava Rao, Spl. P.P.. Nellore.
Rudra Jyoti Bhattacharjee, Advocatte, High Court of Calcutta

F.E. Devitre. Bombay Bar Association, High Court of Bombay.

l5.

Shri Arun R. Gupte. Senior Counsel for Central Govt, Mumbai,
Maharashtra.

Shri M. Ravindran. Sr. Advocate. President, Madras High Court Bar
Association, Madras.

Shri Imtiaz Husain. Member. State Bar Council of M.l'., Jabalpur.

Police Officers

2. Shri C. Anjaneya Reddy. IPS. DG. (Vig. & Enft.), Hyderabad.

Shri H. J. Dora. l.P.S., Addl. DG.. CID. Hyderabad, Andhra
Pradesh.

And hra Pradesh.

3. Shri C. Dinkar, DG, COD Training, Special Units and Economic

Oﬂ°ences. Bangalore. Karnataka.

4. S. Sripal, IPS. DGP. Tamilnadu.

Academicians

Dr. K. N. Chandrasekharan _Pillai. Professor, Head and Dean,
Department of Law, Cochin University. Cochin, Kerala.

Prof. B. P. Pande, Coordinator, Faculty of Law, University of Delhi,
New Delhi.

Prof. H. C. Dholakia, former Member of Law Commission,

State Law Commissions

1. Himachal Pradesh State Law Commission, Simla. (Member Secretary).

2. Rajasthan Law Commission, Jaipur.

Tamil Nadu Law Commission, Madras.

Memorandum

1. Ms. Anita Dhanda, Indian Law Institute, New Delhi.

2. Shri Balwant Singh Malik, Senior Advocate, Supreme Court, New

Delhi.

ANNEXURE IV

SUMIVIARY OF PROCEEDINGS OF THE WORKSHOPS ON THE CODE
OF CRIMINAL PROCEDURE

Proceedings of the Meeting of the Law Commission of India held at Andhra
pa Pradesh Judicial Academy, Sccunderabad on 26-1l~1995 at 10.00 am.

In the process of undertaking a comprehensive revision of the Code of
Criminal Procedure, 1973, the Chairman, Law Commission of India, Hon'b1e
Sri: Justice K. Jayachandra Reddy held a Ineuting in association with Sri Ch.
Krishna Murth_v, Member. Law Commission of India, on 26-11-1995 from
10.00 a.m. to 1.30 p.m. at Andhra Pradesh Judicial Academy, Secundcrabad.
The following senior judicial ofﬁcers, senior police oﬂicers and senior advocates
participated in the said meeting. a

1. Sri Y. Venkateswara Rao, District & Sessions Judge. Rangareddy
District.

2. Sri C. Y. Somayajulu, Chief Judge, City Small Causes Court, Hydera-
bad.

3. Sri M.E.N. Patrudu, Registrar (Management), High Court of A.P.,
Hyderabad.

4. Sri G. Yethirajulu. Director, A.P. Judicial Academy, Secunderabad.
5. Sri L. Ramachenna Reddy, Special Judge for C.B.I. Cases, Hyderabad.
6. Sri D. Subrahmanyam, Metropolitan Sessions Judge, Hyderabad.

7., Sri K. Veerapu Naidu, Add. Director. A.P. Judicial Academy, Secun-
' derabad. A_ ' '

8 Sri N. Vidya Prasad, Add. Dist. & Sessions Judge, Rangareddy District.
9. Sri D. Appa Rao, Addl. Chief Judge, City Civil Court, Hyderabad.
10. Sri S. Chandra Rao, C.M. M-cum»-M.S.J., Hyderabad.

11. "Sri'G'Bhavani Prasad, Secretary, Legal Affairs, Govt. of A.P.,
Hyderabad.

' 12. Sri G. Vo. Seethapati, Special Judge for Economic offences, Hyderabad.
13. Sri H. J. Dora, IPS., Addl. D.G.P., CID, Hyderabad.

14. Sri Lokendra Sharma, D.I.G.. C.I.D. I

15. Sri K. Ch. Venkata Reddy, IPS., Joint Director, A.P. Police Academy.
16. Sri M. Ramakrishna Rao, Chief Legal Advisor-cum-P.P., I-Iyderabad.

17. Sri E. Yella Reddy, President, Bar Council of India & President, A.P.
State Bar Council & Advocate.

18. Sri C. Padmanablia Reddy, Advocate.

19. Sri P. Seethapati, Advocate.

20. Sri T. Bali Reddy, President, A.P. High Count Advocates' Association
& Advocate.

During the meeting the Hon_'ble Chairman, Law Commission of India.
while addressing the participants apprised the members about the reference made
by the Government of India to the Law Commission to undertake a compre-
hensive revision of the Criminal Procedure Code, 1973 and to make appropriate

recommendations. lt is expressed by the Chairman that the need for amending
various provisions of Criminal Procedure Code. 1973 was being felt for re-
moving certain lacunae experienced and in pursuance of such experiences ainend-
menzts were= made in 1978. 1980, 1983, 1988. 1990, 1991 and 1993 on certain
aspects. lt is further apprised that the Law Commission has already made
several recommendations through its various reports about the reforms to be
brought in the Code of Criminal Procedure and that certain recommendations
were also received from various other agencies and the Government about the
ncccssL.y of r=.=.s;l1 recommendations. It is further expressed by the Hon'ble
Chairman that there has been inordinate delay in disposal of criminal cases
and there is consequent loss of faith in the criminal justice system which has
sl1zil~..cn ah: co;;.-"sdencc of the people in the rule of law and that there has been
alarming rise in the arrears of criminal cases. It is further expressed that in
View of the above circumstances. the Law Commission of India' has undertaken
a study for comprehensive revision of the Code of Criminal Procedureso as
to remove the germane problems leading to consequential delay in disposal of
criminal cases. The H0n'blc Chairman further expressed that the Law Com;
mission seeks to elicit opinion from diﬁerent parts of the country to formulate
the information and to make necessary recommendations to the Governmen
for amending the Code. A

1. Role of Investigating Agencies: It is essential to have a separate
investigating agency in cases of serious otfences punishable for seven years
imprisonment and above to enable such agency to monitor the progress from
the stage of registering the F.I.R. to the stage of conclusion of the trial. It
is further suggested that the delays can be avoided in speeding up the trials
if. an investigating agency is exclusively created for investigation purpose only.

2. Arrest: The powers that are being exercised by the police" oﬂicers
under Section 4] of the Criminal Procedure Code have to be controlled by
putting: some limitations on the powers conferred under the above Section.

3. Reforms in proéccutisrg agency : It is suggested that there should be
a separate cadre of Public Prosecutors to enable them to function independently
from the control of the police and avoid political or other types of interference
with the police investigation and there is a further suggestion that the Directo-
rate of Prosecution shall be headed by a. District & Sessions Judge and other
judicial oﬂlcers as Director, Joint Directors etc., to monitor the functioning of
the Public Prosecutors of the respective State. It is further suggested that there
shall be coordination between 'the Prosecuting Agency and the Investigating
Agency to assist the courts for effective dispensation of justice. .

4. Deletion of Section: '162 C1-.P.C., and change in the mode of recording
under Section 161: It was unanimously suggested that the 'recording of statement
under Section 160 (1) Gr. P.C., can be dispensed with and an alternative has
to be provided either by way of making it necessary to get the statements of the
witnesses recorded under Section 164 Cr. P.C., through a Judicial Magistrate
or such other measure that' is necessary.

5. Procedure when cannot be completed in 24 hours and
consequent Police Custody: In view of the decision of the Supreme Court in
C.B.I.. New Delhi vs. Arupam J. Kulkarni, 1992 (3) SCC 141, the police
custody under proviso to Section 167 (2) can be only during the ﬁrst 15 days
of the remand and not later. It is suggested th-at Section 167 can be amended
in such a way that the police custody can be given at any time before con-
clusion of the investigation with a saving clause that such police custody is per-
missible under special circumstances. l

6. Disposal of certain cases by Nyaya Patnchayat : It is suggested that
the Nyaya Panchayat at Mandal level would certainly reduce the burden of
regular civil and criminal courts at gross-root level. But in order to make
the people to repose conﬁdence on such Nyaya Panchayats they shall be headed
by judicial o-ﬁicers not below the rank of Munsif Magistrate who is in service.

7. Adzjoutmmentts in trial.: Frequent granting of adjournments on ﬂimsy
grounds shall be avoided under Section 309 Cr. P.C., and that the Bench shall

watch the situation whenever adjournment is to be granted and the advocates
and prosecutors shall be sensitized about the necessity of iepecding up the
trials to lessen pendency of the courts.

8. Compounding of offences: Section 3120 of the Code of Criminal
Procedure has to be once again gone through as to what are the penal provi-
sions of l.P.C.. that are to be brought to the table under Section 326 Cr.
P.C. It is also expressed that in the said revision, care shall also be taken
whether it is essential to delete any existing penal provisions of l.P.C., from
the table of Section 320 Cr. P.C., regarding the compounding of oﬁences. so that
the morale of the public may not be alfected.

9. Conversion of some warrant cases into summons and to be tried sunt-
marily: The participants suggested that it is sufficient if a uniform procedure is
adopted in respect of all cases triable before the judicial First Class Magis-
trates by amending the provisions in such a way to see that sufficient opportunity
is given to the accused in defending himself in order to meet the ends of justice.

10. Compounding at the stage of investigation : It is suggested that suit-
able amendments have to be made to the relevant provisions to enable the investi-
gating agency to effect compromise at -the investigation stage between the victims
and the accused in respect of offences which are not exclusively triable by Sessions
Courts and to report the said compromise to the competent count to record
the same after hearing both parties.

11. Appointment of Honorary/Special Magistrates»: It is necessary that
the appointments for the above -posts shall be done by appointing eligible persons
on full timepbasis and the present practice of appointing retired judicial officers
or the executive oﬂicers has to be dispensed with.

12. Anticipatory: It is suggested that there shall be by some restrict-
tions in the power of granting anticipatory bail under Section 438 Cr. P.C., since
there is a comment that this beneﬁcial provision is being misused to a very large
extent. Some of the participants suggested that the provision itself can be deleted
from the Code. '

13. Plea Bargaining : It is suggested that since the plea Bargaining which
is known as alternate dispute resolution has been successful in western countries
it is desirable to introduce the same in India also on experimental basis and on
the basis of the success of such experiment the same can be extended to other
parts of the country.

14. Special positions in respect of women: It is suggested that there may
be liberal application "of remission and commutation of sentences in respect of
women to achieve the object of Sections 433 & 433-A of the Criminal Procedure
Code by amending them suitably.

It was expressed that the reliefs provided under Section 125 of the Criminal
Procedure Code are not reaching the dependents due to the ineffective procedure
of execution of the orders. Therefore, it is suggested that it is essential. to create
a special agency to enforce the awards to enable the dependents to survive.

15. Victimology: It is suggested that it is essential to amend the Code
in such a way providing for awarding of compensation in all desirable cases
against the accused and the State by way of awarding compensation and reha-
bilitation to the victims by incorporating a separate provision.

After detailed discussions and the above suggestions, the Hon'ble Chairman
of the Law Commission requested the participants to send 'the suggestions in
writing giving the details, if necessary, by sending them to the Secretary. Law
Commission of India, New Delhi, within fortnight. After conclusion of the dis-
cussions, the Director, A.P. Judicial Academy proposed vote of thanks and the
meeting was concluded at 1.30 p.m. ' '

Memorandum of proceeding of the Workshop by Law Commission of India,
Held on 9th December, 1995 in the Judges' Library High Court, Allahabad

For considering the amendment ill the Code of Criminal Procedure with
a view to streamline administration of criminal justice a Workshop was organised
ill the Judges' Library, High Court. Allahabad on 9th December, 1995 at
10.00 A.M. Tlle Workshop was presided over by Hon'ble K. Jayachandra
Reddy, Chairman. Law Commission and Hon'ble Judges of the High Court.
including the Hon'ble Chief Justice, Lawyers, Police Officers and Professor of
Law ill the university of Allahabad and members of Registry participated in
tllc Workshop. A questionnaire was also circulated amongst them earlier at
the instance of the Law Commission.
The following were present: A V
l. Hon'ble Mr. A. Lakshmana Rao, Chief Justice. Allahabad High
Court. , ,
2. Mr. Justice K. Jayacllantlra Reddy, Chairman, Law Commission' of
Illdia.
. l-lon'ble Mr. Justice V. N. Kllare, Judge, Allahabad High Court.
. Hon'ble Mr. Justice Palok Basu, Judge, Allahabad High Court.
. Hon'ble Mr. Justice Girdhar Malaviya. Judge, Allahabad I-ligh Court.
Hon'ble Mr. Justice A. B. Srivastava, Judge, Allahabad l%ligh'Coilrt.
Hon'ble Mr. Justice G.S.N. Tripathi, Judge, Allahabad High Court.
Hon'ble Mr. Justice Kundan Singh, Judge, Allahabad High Court.
Hon'ble Mr. Justice N.B. Ashthana. Judge. Allahabad High Court.

10. Hon'ble Mr. Justice S. N. Sahai (Retd)/Chairman, State Law Com-
mission. .

§°.°°.\'.°'U""'-"

11. Prof. (Mrs) Alice Jacob, Member Law Commission. '
12. Mr. Ch. Prabhakara Rao, Member Secretary, Law Commission.

13. Prof. S. C. Srivastava, Joint Secretary & Law Oﬂicer, Law Com-
mission.. _. .

14. Mr. Justice 1. Panduranga Rao, former Judge, A.P. High Court and
presently Chairman, Special Court under Land Grabbing (Prohibi-
tion) Act, Hyderabad.

. Sri A. D. Giri, Advocate High Court, Allahabad.
. Sri. D. s; Mishra, Advocate. High Court. Allahabad.

Sri P. N. Mishra, Advocate, High Court, Allahabad- 4 _
. Sri Jagdish Singh Sengar, Advocate, High Court, Allahabad.'
Sri Vijay Shanker Mishra, Advocate, High Court, Allahabad.

Sri Syed Farman Zaqvi, Additional Government, Advocate, High
Court, Allahabad.

21. Sri Gopal Chaturvedi, Advocate, High Court, Allahabad.
22. Sri Dilip Gupta, Advocate, High Court, Allahabad.

23. Dr. A. K. Saxena, Prof. Dean & Head of Law Faculty. Allahabad
University, Allahabad.

24. Dr. Rakesh Khanna, Professor, Allahabad University. Allahabad.
25. Sli 0. P. Garg, District Judge, Allahabad. "
26.2 Sri M. L. Singhal, Director, Judicial Training Research Institute-, U.P.
27. Sri Ashok Kumar Srivastava, Additional District Judge, Allahabad.

28. Sri A. N. Mittal, Special Chief Judicial Magistrate. Allahabad.

29. Sri Daya Shanker Pandey, District Government Counsel (Criminal)
Allahabad.

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.°'°°°.'la\'°'

30; S:'i'Devi Prasad Tripathi. Senior Public Prosecuting Officer. Civil
Court, Allahabad. J

3i. Sri Chandra Gupta, District Government Counsel (Criminal). Allaha-

bad.

32. Dr. D. V. Mehta. Additional Director General, Police Head Quarter.
Allahabad.

33. Sri Ramesh Sehgal. Deputy Inspector General, Police Head Quarter.
Allahabad.

34. Sri A. B. La], Deputy Inspector General, Housing and Welfare. Police
I-lead Quarter. Allahabad.

35. Sri H. P. Shukla, Deputy Inspector Gene-ral. Railways, Allahabad.
36. Sri P. C. Singh, Deputy Inspector General, Vigilance. Allahabad.
37. Sri V. K. Tewari, Superintendent of Police, Railways, Allahabad.
38. Sri Jagmohan Yadav. Commandant, P.A.C. 42 Battalion. Allahabad.

39. Sri A. P. Maheshwari. Superintendent of Police. S.l.B., Coop.,
Lucknow.

40. Sri Khem Karan, Secretary/Legal Remembrancer, U.P.

41. Sri N. S. Gahlot, Registrar, Allahabad High Court.

42. Sri J. C. Gupta. Vigilance Oﬂﬁcer, High Court. Allahabad.
43. Members of Registry.

After the welcome address by Hon'ble the Senior Judge Mr. Justice
V. N. Khare, Hon'ble Chief Justice of Allahabad High Court Mr. Justice
A. L. Rao delivered the introductory lecture wherein he emphasised how fair
and speedy justice can be achieved in criminal cases after enumerating the pro-
cedure for grant of bail to the accused pending investigation/trial which. accord-
ing t-o him, should be the rule of law. Hon'ble the Chief Justice elaborated
that the investigation should be commensurate to the fundamental rights of
individual liberty and freedom enshrined in Article 21 of the Con '2 the Police
to arrest the accused in each and every cognizable case without intervention
of the court. '

Hon'ble the Chief Justice also emphasised that there should be an inde-
pendent authority which should conduct the prosecution objectively and inde-
pendently free from inﬂuence and restraints of the investigating agency.

His Lordship also said that all efforts should be made to eliminate
the inordinate delay in the disposal of the cases for which purpose he laid
emphasis on the fact that there should be proper service of summons to the
witnesses and trial of petty cases should be entrusted to the panchayats. He
also laid emphasis on extending the scope of compoundable offences and urged
that in suitable cases notice should be sent to the accused asking to remit
speciﬁed amount of ﬁne without attending the Court. The result of the cases
should -be -'promptly communicated to the accused as also to the concerned
parties including investigating/ prosecuting agency.

In his keynote address Hon'ble Mr. Justice K. Jayachandra Reddy.
Chairman of the Law Commission impressed that the speedy trial is guaranteed
by the"-Constitution and with that end in view the Law Commission is consider-
ing suitable amendment in the Code of Criminal Procedure. His Lordship
pointed out that there are four agencies involved in the criminal trial i.e. (i)

-Investi ating' agency: (ii) Prosecution; (iii) Defence counsel and (iv) Court. The

Hdfrb 6 Chairman expressed the view that the investigating agency should

'be"sepa'rate from the rest of the police wing dealing with law, order and security.

I-Iis Lordship expressed concern over delay in the disposal of the cases as a
result of which many a times a prisonerylanguishes in prison for longer time
during trial than the period for which he_is otherwise sentenced. In the circum-
stances the power conferred upon the police for arresting an accused for cogniz-

able offence should be suitably curtailed. His Lordship suggested amendment
in the Code and the Evidence Act so as to make the statement under Section 161
Cr.P.C. admissible in evidence. Provision should also be made for compound-
ing of petty oﬁences at the investigation stage. He also suggested the Workshop
to consider the proposal for bargaining for lesser sentence by pleading guilty at
the stage of framing charge and-'or initiation of the proceedings.

In order to make the prosecuting agency efﬁcient and objective his Lord-
ship suggested that there should be regular cadre of prosecuting agency headed
by Director of prosecution. Separate courts should be established for trial in
the cases of custodial deaths and atrocities on women. He also suggested for
enlarging the scope of Nyaya Panchayat in the matter of administration of
justice.

Some of the aforesaid participants in the discussion have already given
their views in writing to the Secretary. Law Commission through Shri Alok
Kumar Singh, Additional Registrar and some of the writes-up are being enclosed
with this memorandum.

The substance of the discussion held during the course of the Workshop
may be summed up as follows:~--

Speedy trial commensurate with justice should be the keynote for any
amendment in the Criminal Procedure Code, Indian Penal Code and the Evidence
Act. Provisions should be made so that investigation of the olfence should
be entrusted to a separate wing of the -police headed by a Director of Investigation.
This wing of the police should deal with the investigation of the offence right
from the stage of lodging of report to the submission of the charge-sheet.

Provision should also be made to avoid indiscriminate and unnecessary
arrest of the accused in each and every cognizable offence. The arrest should
be resorted to only where offender is likely to absoond and/or repeat the crime.

Except in heinous offence like murder. dacoity etc., punishable with death
or imprisonment for life, grant of bail should be rule rather than exception.

There should be a separate wing of prosecution under Director of 'Prose-
cution. It should be independent from investigating agency and deal with cases
in an objective and independent manner with a view to assist the court in
imparting real justice. e t .

Some of the speakers also emphasised on the role of the court in the matter
of speedy trial. It was urged that the trial should proceed day to day until
concluded. All efforts should be made to ensure attendance of the witnesses
on the date ﬁxed. The evidence of the formal witnesses should be recorded
on aﬂidavits which should be submitted along with the charge-sheet. System of
bargaining for lesser sentence by pleading guilty by the accused at the commence-
ment. of the trial may be introduced. The compounding of the oﬁences.may
be encouraged and there should also be provision for awarding compensation
to the victim of an offence. . .

The speakers also laid emphasis on making use of modern scientiﬁc inven-
tions such as video camera, computers etc. It was urged that the investigation
may commence even before the ﬁrst information report is lodged and the investi-
gating agency with the aid of the video camera may take photographs of the scene
of the occurrence and of other material evidence on the spot.

Some of the participants also suggested for imparting training to theinves'ti-

gating/prosecuting staff and also the presiding Judges of the Court in order to

improve the efﬁciency and performance.

In the end the Hon'ble Chief Justice of the High Court thanked the partici-
pants, for their valued suggestions and requested them to send their views in
writing to enable the Law Commission to make use of the same while affecting
amendment in the Criminal Procedure code and other ancillary laws.

The proceedings of the Workshops were conducted by Shri Alok Kumar
Singh, Additional Registrar of the Allahabad High Court. . r _ ..

Proceedings of the Workshop on Amendments to Cr. P.C. held on 19-12-1995

At 10 AM in the Committee Room, Vidhansoudha, Bangalore

A workshop on the Code of Criminal Procedure was held on 19-12-1995
at 10.00 AM in the Committee Room. Vidhansoudha, Bangalore.

The following were present:

20.
21.
22.

23.
2'4.
25.
26.
27.
28.
29.

1. Sri
welcomed

. Mr. Ananda Rao

1.
2.
3.
4.
5.
6.
7.
8.
9
10. Mr. S. B. Chanal

. Mr. Bennur

Hon'ble Mr. Justice Jayuchandra Reddy.
Mr. D. Basavaraji Law Secretary, I/c.
Mr. N. A. Muthanna Prl. Home Secretary.

Mr. B. N. P. Albuquerque Secretarynll, Finance Dept.
Mr. A. S. Malurkar Director General of Police.

Mr. S. C. Bharman Addl. DGP (Law & Order).

Mr. C. Dinakar DGP (COD).

J ayasingh Peter Member, State Law Commission.

Member, State Law Commission.
Addl. Law Secretary.

Addl. Law Secretary.

. Javaraiah Director, Translation: Dept.

. D. Shankar Reddy
Mr. M. R. Devappa

. Robinson D'souza --~
Former Director of Prosecutions.

Joint Director of Prosecutions rep. Direc-
tor or Prosecutions.

. Vasantha Rao Kulkarni ---- Jt. Director of Prosecutions.

. K. V. Vasudava Murthy ---- Secy., Kar, Legal Aid Board.
. K. N. Subha Reddy ~v-- President. Advocates Assn.

Asstt. Secretary, Kar. Legal Aid Board.

Prabhakar Law Oﬁieer, Agriculture Dept. (President,
Prosecutors Association).

. Mr. K.

Deputy Secretary, Law Department.
Dy. Secretary, Law Deptt.

Dy. Secretary, Law Deptt.
Dy. Secretary, Law Deptt.

. Narsimhan
. V. C. Hatti
. Moossakunni Nair Moole

. G-. T. Veerabhadrappa
1. A. B. Patil State Public Prosecutor.

. S. Srinivasan »~ Addl. DGP (Technical Service & Crimes).
Mr. Murari Mouni ---~ Dy. Secretary, Law Deptt. A
. Venkatasudharshan Under Secy., Law Department.

. M. Ramesh Rao Under Secy., Law Department.

. Vedamurthy ~-- Under Secy., Law Department.

Basavaraj, Law Secretary, I/c, who was the Co-chairman,

the participants and introduced the Hon'ble Chairman and brieﬂy

mentioned the amendments to Cr. P.C. suggested-by the Law Commission.

The Hon'b1e Chairman. Law Commission gave an overall picture of

the amendments suggested by »_the_ Law Comm_is;sion, their urgent necessity in
the present circumstances and invited the participants to express their views.

10-2 M ofL & J/ND/97

3. Sri K. N. Subba Reddy, President Bar Association

Expressed that the investigating agency should be separated from the
Law & Order agency. A separate and exclusive agency should be there for
handling the criminal cases. that the 10s do not attend trial cases and witnesses
do not come forward to give evidence. He agreed with the proposal of the Law
Commission with regard to Secs. 161 and 162 Cr. P. C.

4. Sri M. R. Devappa, Joint Director of Prosecutions represented on behalf
of Director of Prosecutions, Bangalore who is on official tour Presented a report
which is appended to these proceedings.

5. Sri Vasantha Rao Kulkarni, Joint? Director of Prosecutions

Suggested that a notice should be issued to the Pub-lic Prosecutors while
considering application under Sets. 437 and 438 Cr. P. C.

6. Sri Ananda Rao, Member, State Law Commission, Tamil Nadu

Read a report expressing his views on the matter. A copy of the report
is appended to these proceedings.

7. Sri Shanwkar Reddy, Former Director of Prosecutions

Suggest-ed that Sec. 313 Cr. P.C. need to be retained as it is. and said
that the Courts must put to the accused only those material aspects appearing
in the evidence against him. He also said that See. 313(2) Cr. P.C. is not made
use of by the courts.

Regarding 161 & 162 Cr. P.C. he felt that, it is necessary to appoint Spl.
Magistrates. He also emphasi'sed training to Magistrates on every aspect in-
cluding writing of judgements.

He also discussed regarding Secs. 24 and 25 Cr. P.C. He felt that the
present system in Karnataka under the Law Department :supervision is working
satisfactorily and that the Police Officers have adjusted to this system_ The
change of party in power should not result in change of prosecutors. There was
also a discussion regarding preferring of appeals and the authority to take ﬁnal
decision. It was suggested that the power of taking ﬁnal decision should be
vested with the Director of Prosecutions and his views should be ﬁnal.

8. Sri K. V. Vasudeva Murthy, Secretary, Kairnataka Legal Aid Board

Chairman, Law Commission called his views about venatrustment of cases
to Nyayapanchayat instead of Lok Adalath.

Sri Vasudeva Murthy said that the present system of Lok Adalath in
Karnataka is working satisfactorily with the assistance of Retired Judges as con-
ciliators. and senior advocates and he expressed his reserva-tion about Nyaya Pan-
chayat eltectively delivering justice if local and political persons are made mem-
bers of Panohayats.

Sri K. V. Vasudeva Murthy suggested that instead of summoning a
Doctor in every case as a witness after his transfer to a distant place he may
be examined on interrogaitorieis.

9. Sri Huthanna, Pr]. Home Secretary

Referred to the present perception of the public in delivery of Criminal
Justice system and the judiciary is failing. He left of the increase in litigants
resulting in increasing cases. He also advocated to provide necessary infrastruc-
ture_ to Police Department. Elementary support to the department is being
denied. He requested to impress upon the 'Union Government as well as State

Government to sanction adequate funds to judiciary when crores of rupees' are _ _; p L A

being sanctioned to the development activities. He suggested inclusion of ex-
penditure on Courts and Criminal Justice as a priority aspect in the budget. He
also said that the number of courts should be increased commensurate with the

developmental activities.

10'." A Sri hlalurkar, Director General of Police.

He expressed that Sec. 161 may not require any amendments. He felt
that -there are not enough Magistrate in the Courts resulting in increase of

number of cases.

About the co-operation and co-ordination between the Police and Prose-
cution Department. he said that, in each district. :1 monthly meeting of the
Superintendent of Police and other Police Oﬂicers and the Ass-tt. Director of
Prosecutions is being held and they discuss and review the cases pending trial
in the Courts. He left that. it is difficult to secure the witnesses belore the
Court and if the Courts adjourn the case without examining the witnesses. it
will be further ditticult for them to attend again. They have to be given Batta.
He said that the witnesses have to be brieﬂed before their examination. He wel-
comed Nyayapanchayats and constitution of Special Magistrates.

He felt that the responsibility of paying Batta to witnesses may be en-
trusted to Investigating Officer, so that it would be convenient for them to get
the witnesses.

ll. Sri Dinakar, C.0.D.

Referred to the arrest of persons whose names are mentioned in' FIR.
though the Cr. P.C. says that, their arrest is not a must, it is being wrongly
presumed. He felt that by doing this, even innocent mrsons are arrested. He
said thatxarrest of women accused is normally made during day time and sent to
remand homes managed by ladies. 7

He discussed regarding handcuﬁing of the accused. Chairman, Law
Commission said that ordinarily handcuﬂing should not be done. It is purely
depending upon the accused and the nature of the offence the accused committed
is to be taken into consideration. He expressed his feeling -that the very pur-
pose of Anticipatory Bail is being misused' and it is difficult to recover the pro-
perty involved in the offence.

12. Sri S. C. Bharman

He said that the present rate of conviction is much lower compared to
earlier system existing in 1973 and the pnosecution is not only to blame. He
said that getting the charge sheets scrutinised by prosecutors will delay the

matter.

Sri. Shankar Roddy interfered and said that, during his tenure as Direc-
tor of Prosecutions he had issued circulars and a register is maintained in every
Prosecutor's Oﬂice showing details of as to when the charge sheet is received,
when it is ﬁled, signature of the person who received the charge sheet etc.

13. Additional State Public Prosecutor Sri A. B. Patil.

That all the Magistrates should be given proper training in writing judge-
ments that too Executive Magistrates. They are ignorant about law. There are
also so many repetition in the judgement and due to this appellate Courts tim-

ings will be unnecessarily wasted.

64
Memorandum of the Proceedings of the Legal Workshop on Criminal Law held
at Kerala High Court on 20-12-1995.

A '.~ori;..~'llop on Criminal Law was held at Kerala High Court on 20-12-95
at 3.30 p.m. The Hon'ble Judges of the Kerala High court. Advocate-General.
Additional Advocate--General Director of Public Prosecution, Additional Director
of Public Prosecution, Director of Training and Registrar of the High
Court and Senior Advocates amongst others were present in the workshop.

The following ofﬁcials participated in the workshop:

. Justice K. T. Thomas

. Justice K. G. Balakrishnan

. Justice K. S. Joseph

. Justice K. K. Usha

. Justice B. M. Tulsi

Justice T. V. Ramakrishnan

. Justice K. S. Radhakrishnan

. Shri S. Nrarayanan

. Justice N. Dhinkar

Justice B. N. Pavtnaik

. Justice P. Shanmujarn

. Justice P. A, Mohammed

. K. A. Abdul Salam, CBI Retainer Counsel

. C. S. Rajan, Secy., Indian Law Institute.

. M. A. T. Rao, Advocate

. Director of Training

Registrar

P. S. Divakaran, Registrar

M. V. Viswanathan. Add]. Director of Training
M. K. Damodaran

. K. A." Mohamed Sherif, District Judge

. B. Kamal Pasha, IInd cell District Judge EKM
D. Maharajan, Chief Judicial Magistrate EKM
M. N. Sukhnarayan

. K. C. Peter

. M. Rotric Singh

. S..K. Devi

. K. P. Dandapani

. V. 1. Joseph

. S. Venkila Subramanayam

. Mrs Lilly Leslie, Additional Govt, Pleader Public Prosecutor.
Ernakulam

. G. Krishna Kumari, Senior Govt. Pleader.
33. Alan Papali

34. Salil Narayanan

35. P. G. Charko

36. P. M. Saji

37. K. Mohan

38. George Verghees Kananthanam

39. V. N. Achuthan

40. T. R. Raman

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[9

41
42
43
44
45

46
47
53

. T. V. Prabhukaran
. Shyam P. Prabhu

. Manoj K. John

. Reji George

. Shibu P. Pudussery

. L. J. Suresh Babu
to 52 abstained
. K. V. Vinod Kumar

54. K. S. Vipinan

55
56

57.
58..
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.

69.
70.
71.
72.
73.

74.

82.
84.

85.
86.

88.

0OOO\l\l\l
*-'O\Oooox?.l

. M. Esakki Achari
. M. R. G. Nair
Madam Pillai

S. R. Manoj

P. T. Girijan

P. R. Venkash
Pins. C. Mundadar
J aleja Sreenivasan
Anu Srivaraman
P. V. Asha

Uma 'Gopinath
Asha Cherian
Kochiwol Koduvatahe
V. G. Sreedevi

K. V. Bhadra Kumari
Deepsur D. J ayan

V. Sithukuttyamme
M. Hemalathar

P. V. Kochuthreeh

Valslammu Kurian
. B. Uma

. Jaishri Sheba Jacob
. Wilson John

. Rani Joy

. N. Saju Thomas

. P. P. Peelhnimbnm
M. K. Shashi Kumar
. S. K. Balachandran
V. Ram Kumar
Roy Chacko

N. A. Ganapati

.Rajjeev V. Kurup
Sipy K. Joseph

89. T. R. Ramach

90. T. Selhumadhavan

91. Susheela R. Bhatt
92. Saju John

93. T. V. Ajay Kumar
94. Daisy A. Philipax
95. G. Hari Haran

96. V. Jayap-rasad

97. M. T. George

98. Sajith Mathew Joy
99. Abhay Ahuja, Advocate, High Court, Bombay
100. A. V. Ravi Shankar
101. Vijaya Kumar, Secretary, Kerala State Legal Aid & Advice-Board
102. Beelm Kurian Thomas
103. Rafaic Chennara

104. Sreekant

105. P. R. Shaji

106. P. Sanggary

107. Dheji P. Abraham
108. V. R. Ramachandran Nair
109. Jayaprasad, M. R.

110. Udaya Kumar, K. B.
111. Gangader, A. R.

112. Eldho Pant

113. Thomas Kunnathoor
1.14. E. M. Abdulkadir
115. Sanjay, T.

116. K. R. Rajkumar

117. Jose P. George

118. K. M. Paulose

119. G. Reyappan Pallon
120. P. Santhosh Kumar
121. O. D. Sivadas

122. Sunny Xavier

123. S. P. Chaly

124. Pramod, R.
125. A. Sathianaddan
126. A. S. Jose

I27. Saigi Jacob
128. Biju M. John

129. P. Babukumar

130 M. N. Ravindran .
l3l.4 V. K. Mohammed Yusuf : Advocate
l32. Thomas T. Valance

l33. Santhosh V. K.
l34. Alex M.

l35. A. M. Babu
136. Soyuj P. K.
137. P. C. Haridas
l38. Bindu R.

139. Joseph K.
l40. K. George

The Hon'ble Chairman of the Law Commission in his inaugural address
and the participants. In the Presidential address the I-Ion'ble the Acting Chief
Justice pointed out the relevancy in conducting the workshop on Criminal Law
in which the Chairman, Law Commission of India is the Chief Guest especially
when the Law Commission of India is collecting views from various quarters
for making recommendations for amendment in the Criminal Procedure Code.
the Indian Penal Code and the Evidence Act.

The Hon'ble Chairman of the Law Commission in his inagural address
initiating the discussion broadly outlined the areas in which amendments in the
criminal law were proposed. The Hon'b1e Chairman stated that there were
complaints that Section 41 Cr. P.C. was being misused. The question whether
instead of arrest it is sufficient to take a bond from the accused or suspected
persons for appearance is to be considered. Another area was the use of the
statements recorded under section 161 Cr. P.C. for corroboration and the use
of such statements recorded by the police. There is a suggestion that signed
statements may be obtained so that it can be used as evidence. Enlarging the
scope for compounding of offences by adding the list' of'_*s~ueh' 'compo1mdablg
oﬁences under section 320 Cr. P.C. is another point for contemplation. The
Chairman also invited suggestions regarding the proposal for "a prosecuting
agency independent from the investigating agency. Settlement of cases through
Nyaya Panchayats and plea bargaining were also referred to the Chairman. The
Chairman also stressed the need for making the provisions for summary trial
effective. The Chairman mentioned the proposal for a Victim Compensation
Board as a new step in the branch of victimology.

Participating in the discussion, Shri N. N, Sukumaran Nayar. Senior
Advocate emphasised that the power of authority under section 4] Cr. P.C.
must be balanced with the fundamental rights of the citizens. Taking into con-
sideration the social changes, drastic amendments must be made to the Criminal
Procedure Code. Misuse of powers under section 4] Cr. PC. by the investigat-
ing oﬂicers must be curbed.

Shri T. V. Prabhakaran suggested that sections 161 and 162 Cr. P. C.
must be left untouched. It is necessary to record statements under section l6l
Cr. P.C. so that the defence will know the evidence that is likely to be adduced
against the accused persons. He also stated that the provisions for compound-
ing under Section 320 Cr. P.C. must be taken in criminal legislation other than
the India Penal Code also. The old provisions in the Cr. P.C. must be
restored. Oﬂfcncoe punishable with a limited period of imprisonment must
generally be made oompoundable.

Shri V. N. Achutha Kurup pointed that in many cases. the statements
under section l6l Cr. P.C. were not truly and correctly recorded.

Shri Pirannancode Sreedharan Nair suggested that statement under sec-
tion 161 Cr. P.C. are necessary to know for what purpose a witness is cited.

Advocate Shri T. R. Ruman Pillni suggested that investigation must be
efﬁcient and must be taken up by senior olﬁccrs. They should not entrust the
work to the subordinates. lt will be advantageous if the investigating officers
have discussions and consultations with the prosecutors. There must be provi-
sion for completing the trial within a time limit.

Advocate Shri M. K. Damodaran supported the proposition for a sepa-
rate investigating agency. He, however, suggested that the eye witnesses to
the case must be produced before a Magistrate within two or three days of the
incident and their statements must be recorded. There must be a separate
Directorate of Public Prosecution and Public Prosecutors must be selected by
the Court. He also pleaded that the provisions in section 206 Cr. P.C. must be
liberally used in petty cases.

The doyen of the Bar. Advocate Shri l(unhirama Menon suggested that
commital proceedings can be done away with. if petty cases are made over
to honorary magistrate courts, the time spent for calling such cases in the regu-
lar courts can be utilised for trial of contended cases. Shri Kunhirama Menon
also suggested that sections 307 and 308 Cr. P. C. be suitably amended so that
there will be no need to examine the approvers and permit them to be cross-
examined before tendering pardon.

Smt. Suseela Bhat champoining the cause of women wanted maintenance
amount under section 125 Cr. P.C. to be enhanced. She also suggested that
a time limit must be ﬁxed for disposal of mtaintenance cases. Stay of execu-
tion of maintenance orders must be granted only on condition of deposit of
the amount and there must be provision in the statute itself for the purpose.
Adjournments should be granted in maintenance cases only on payment of cost.

Shri Ra-tna Singh, Director General of Prosecutions explained the steps
taken by the Directorate to expedite trial of case. He pointed out that petty
cases consume a lot of court's time and it should be avoided. When the main
wiétnesses are hostile the prosecutor himself must have the discretion to give
up the remaining witnesses and cut short the trials. He also suggested that
the investigating agency must be separate from the prosecuting agency. He
advocated shorter questioning under Section 313 Cr. P.C. section 206 Cr. P.C.
provisions must be liberally used. He also suggested that the evidence under
Iection 138 N.I. Act must be made compoundable. '

Registrar of the High Court Shri K. V. Sankaranarayanan extended vote
of thanks to all the participants of the workshop. The workshop was over by
6 p.m.

Proceedings of the legal workshop on Criminal Law was held on 21st December, 1995
at Thiruvananthapuram, Kerala

ll.

12.

l3.

l4.

l5.

16.

I').

The following were present:

. Sri. R. Rajendra Babu

Smt. D. Sreedevi

Sri. P. S. Gopinathan

Sri. M. Sasidharan Nambiar
Sri. R. Gopalakrishnan Pillai
Sri. B. Jnanasudarsanzm
Smt. P. Vijayam

Sri. Antony T. Moraes

Sri. N. Mohan Das

Sri. A. Moosa

Sri. A. Ajith Prasad

Sri. V. K. Babu Prakash

Sri. N. Rajan

Sri. C. Khalid

Smt. Lalitha
Sri. Nagarajan
Smt. Basheera Beevi

Sri. P. S. Thaha

Sri. Kochu Govinda Pillai

11----2 M 95L Ct. J/ND/97

: Professor, Law Academy, Peroorkadia.
-J Thiruvananthapuram. ' ..

District and Sessions Judge,
Thiruvananthapuram

Judge, Family Court,
Thiruvana nthapuram.

Motor Accidents Claims Tribunal,
Thiruvananthapuram.

Enquiry Commission and Special

.. Judge. Thiruvananthapuram.

District Judge (Vizhimam Enquiry
Commission), Thiruvananthapuram.

Chief Judicial Magistrate,
Thiruvananthapuram.

Additional Chief Judicial Magistrate,
Thiruvananthapuram.

Prl. Asst. Sessions Judge,
ThiruvananthapuTam-

II Addl. Asst. Sessions Judge,
Thiruvananthapuram,

Judl. Magistrate of the I Class I,
Thiruvananthapuram.

Judl. Magistrate of the I Class II,
Thiruvananthapuram.

Judl. Magistrate of the I Class III,
Thiruvananthapuram.

Judl. Magistrate of the I Class JV,
Thiruvananthapuram.

Law Secretary,
Government of Kerala,
Thiruvananthapuram.

Addl. Secretary, Law Department,
Government of Kerala, '
Thiruvananthapuram

Joint Secretary, Law Department,
Government of Kerala,
Thiruvananthapuram.

Legal Assistant, Law Department,
Government of Kerala,' ' '
Thiruvananthapuram.

Professor, Govt. Law College,
Thiruvananthapuram.

.a»'

kg
5*'

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29.

30.

32.

33.
34.

'. R_z*._iiVu.n [PS

Sri. Siby Mzitlic-w

Sri. Alc:.x2u1.der .l:xcob

Sri. SL'nkllll'1:.!.r

Sri. Abdul Hakkim

. K. SI'r:c:l<umzLri

'. /\". Sh tjklllan

Sri. N. Chaiidrawkharaii Nair

Sri. M. Nandakumzir

Sri. B. S. Mavoji
Sri. M. Jayachandran Nair
Sri. K. K. Vijayan

Smt'. Gracy John Kattakayam
Sml. Valsa John

Sri. S. R. Jayakumar

Sri. M. M. Husszm

Sri. V. G. Govindan Nair

Sri. Sasthaniangcalani G. Gopz~.la-
kri5hn:~'..n Nair ;

Sri. Poovappmly M. R3ll'l£LCl13 nd-
ran

Sri. Véngannoor K. Chandra.-
sekharan Nair

Sri. S. Balachandran

Sri. Chrmnniyoor P. Sasidharan
Nair

Sri. M. Rajagopalan Nair
Smt. Viinzzla. K. Nambiar
Sri. Konchlra G. Neelzikantan Nair :
Sri_ A. J. Mohammcd Sa.li

46. Sri. K. Gopaikumaran Nair

Dy. LC}. of Police; (CISRl

Thiruvananthapuriiiii.

Dy. l.G. of Police (1[x(il'.'1l.nlStru.tl()")\
Thiru Va nan! hap uru m .

Commandant Special Armed Police.
T lll ru V'cLI1£Il1tl'l2l.P11l''cL1Tl. '

City Commissioner of Polic. Kochi.

Legal Advisor. Police Hqrsx.
Thiruvns;:m.thapuram.

./\sssoci:.nc Prof. of Forensic Medicine
:1 nd Deputy Police Surgeon.

Medical Collcg-2.
ThlI'uV€!.Iiilil1l1il])§.:F£1n],

Addl. District x\'lagis1r:!uc.
Thirwan '.mtl1apuran1.

Dy. Dir. of Prosecution,
Th l r :.\.v:~.naml1apu.rz1m.

Dy. Collector (Housing).
T111 rava i;1utha.pu.ram.

Dy. Collector (Election).
Thiruvananthapuram.

Public Prosecutor,
Thi ruvzmanthupuram.

Addl. Public Prosecutor.
Thi ruvananthzipuram.

-110-
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Advocate, Thirtimiiztntlzzzpurnm.

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The following persons had taken active participation in the deliberations

I. Sri. R. RIi_it.I'l(il"cl Babu

9 Sri. N. Mohan Das

3. Sri. V. K. Babu Pralszisli
4.. Sri.':{.'. bialid

5. Sri. Smt. Btl.Sl'1CCl"d. Becgum
6. Sri. P. Tllalli'.

7. Sri. Kocllu. Govillda. Pillzi
3. Sri. Rajimn IPS

9. Sri. Abdul H ;2.l<kim

Sri. M. Jayachandran Nair
ll. Sri. V. G. Govin<la.n Nair

_. Sri. Clierunniyoor P. Sasidharan. .
Nair

Sri. Szigthainangalam G. Gopala.
krishnan Nair

expressed their views and suggestions on the proposed amendments.

Digtt. & Sessions Judge, Thiruvanantha
puram.

ll Addl, Asst. Sessions Judge, Thiruva
nantllapurani.

Judicial. Magistrate of the] Class III
Thiruvariantlmpuram.

Law Sec1'ct;,=.x'y, Govt. of Kerala, Thim-
va n2.nthapura.n1.

Legal Asst... Law Dcpartmmlt, Govt. ow
Kern l a, Th1 ruvanaiitllapurani.

I'rofessor, Govermncnt Law" Colleg

Thi ruw nantha p urain.

Professor, Law Academy .Pei'oorkac'.a
T hiruvananths.puram.
Deputy Inspector General of Polic

(CSIR). Thiruvananthapuram.

' Legal Advisor, Police Head Quarlerg

Thiruvananthapuram.
Public Prosecutor, Thiruvananthap-tram'
Advocate, Thiruvananthapuram.

Advocate, Thiruvananthapuram.

Advocate, Tliiruvanantliapuram,

' 'v " We, the Judicial Ofﬁoers have decided to have a "detailed discussion on
the proposed amendments on 19th day of January, 1996 and our views and sug-
gestions on the quetionnaire on Criminal Procedure Code will be forwarded
shortly. I extend our thanks for your lordships coming over here and giving us

the chance toexpress our views and suggestions on the proposed amendments

and for spending your lordships valuable time with us for a while.

Memorandum of the proceedings of the Legal Workshop on Criminal Law held
at Jaipur on 13-1-96.

A Workshop on criminal law was held at Jaipur on 13-1-96. It was
attended amongst others by Chairman Central Law Commission Hon'ble Justice
K. Jayachandra Reddy, Members Justice R.L. Gupta, Dr. Alice Jacob and
Member Secretary Shri Prabhakar Rao, Joint Secretary Dr. S.C. Srivastava,
Chairman State Law Commission. Hon'ble Justice V.S. Dave, State Home Minister
Shri Kailash Meghwal. Hon'ble Justice Smt. Gyan Sudha Mishra of Rajasthan
High Court. Director General of Police, Rajasthan Shri Davendra Singh, Dy.
Director of Police, Shri Shyam Pratap Singh Rathore and other Police Oﬂicers,
Members State Law Commission Shri Sunder Lal Mehta, Shri P.A. Sinha and

Dy. Secretary Dr. B.L. Babel, Advocates, Professors and Women Social Workers.

There was a free and open exchange of views on the proposed amendments

J' in Cr. P.C. Many very important suggestions were made on behalf of the Gov-

ernment as well as all the Classes and Sections of Society.

First of all Chairman State Law Commission, Hon'ble Justice Shri V.S. Dave
welcomed all the guests and participants and expounded as to why basically and
fundamentally amendments became necessary in Criminal Laws. Chairman
Central Law Commission; Hon'ble Justice Shri K. Jayachandra Reddy, stating that
Investigation, Prosecution, Defence and Courts were the Four main Wings of
Judicial Administration, explained the background of the proposed amendments.

(1) I-Ion'ble Justice Shri V.S. Dave, Chairman, State Law Commksion, Rajasthan,
Jaipur. _

I _ (1),For making investigation. effective and immediate a separate cell should
be established, in other words, there should be a separate agency for conducting
investigation. '

(2) All eﬁorts should be made to establish harmony and adjustments bet-

ween prosecuting agency and investigating agency.

(3) Special Magistrates should be appointed for recording statements under
section 164 Cr. P.C.

(4) The statements recorded under section 162 Cr. P.C. should also be
used for corroboration.

(5) Director of prosecution should be a senior most Judicial Ofﬁcer.

(6) The matter of reintroducing Nyaya Panchayat and its utility should be
considered. - ~ '

(7) All efforts should be for compromise between the parties before charge-
sheet is produced in the Court.

(8) All the offences punishable with three years or more than 3 years impri-
sonment should be tried as warrant cases.

(9) The 'practice of appointing Honorary and Special Magistrates should
be re-introduced.

(10) Section 313 of Cr. P.C. should be thoroughly improved and it should
not be a mere formality.

(11) There should be proper and adequate provision for compensating the
aggrieved and victims of crimes.

(12) Full importance should be given to the doctrine of victimology.

(13) Law should be enacted for fully compensating the aggrieved persons
suffering from various crimes.

(14) There should be the same procedure for summons and warrant trials.
(15) It is necessary to change the procedure of trial of summary cases in

Essential Commodities Act. The necessity of trial being completed by one and
the same Presiding Oiﬁcer should be done away with.

(2) Hon'ble Kailash Meghwal", Home Minister, Government of Rajasthan, Jaipur.

(l) The assault on a human being should be made as a cognizable offence.
These offences happened to be of simple nature yet they cause endless pain to
the aggrieved and if he is made to ﬁle a complaint in the Court, it means great
expense and great delay.

(2) Mostly the provisions of Sec. 34 and Sec. 149 of I.P.C. are misused.
In any one case all the members of the family are falsely implicated though they
may be innocent. Therefore, effective steps should be taken to stop the misuse
of these provisions. '

(3) Today Judicial Administration has been reduced to mere paper justice
and for making it true and substantial fundamental amendments should be made.

(4) There must be some alternative procedure to replace third degree
methods during investigation.

(3) Shri Davendra Singh, Director General of Police, Rajasthan.

(1) It is extremely necessary to have harmony and adjustments between
investigation and prosecution and one can not succeed without the other. It is
necessary that the investigation should get the beneﬁt of the help of prosecution
even at the stage of investigation. so that no lacuna remains during investigation.

(2) There are many lapses in today's Judicial Administration which should
be removed. The question of handcuﬂing an accused is an important issue. It is
necessary to handcuﬂf the serious criminals. Many times accused escape when
they are not handcuffed and responsibility is ﬁxed on the concerned Police Oﬂicers.

(4) Shri Shyam Pratap Singh Rathore, Addl. Director of Police. Rajasthan. Jaipur.

(1) A separate Oﬁicer should be appointed for recording F.I.R. and his
work should only be to record F.I.Rs.

(2) Section 160 Or. P.C. should be amended and the investigating oflicer
should be authorised to summon a person living outside his jurisdiction to record
his statements.

(3) The practise of handcuﬂing an accused should be terminated.

(5) Sllri Ajit Singh, Superintendent of Police, Jodhpnr.
(1) The deﬁnition of the term "public" should be amended in Cr. P.C.
(2) Section 41, 42 and 43 Cr. P.C. should be reconsidered. g
(3) The practice of handcufﬁng an accused should remain as it is.
(4) Proposals for amendments seeking handcuﬂing only with the permis-

sion of the Superintendent of Police or Oﬁicer higher than Superintendent of

Police should be reconsidered because many times these oﬂicers are not available
and 1t_becomes imperative to handcuﬁ an accused person.

(6) Shri Knpil Carg, Superintendent of Poﬁce, Udaipur.

_ (1) Section 437 Cr. P.C. requires thorough amendment. The provision for
granting bails should be made more stringent.

(2) In any matter in which bail bonds were once cancelled, bail should not
be again granted in that matter.

(3) Provision should be made that in any case bail may be granted only
once.

_ (4) The provision under section 438 Cr. P.C. that is relating to anticipatory
bail should be done away with. 1

(5) Offence violating the modesty of a woman under section 354 I.P.C.
must be made non-bailable.

(6) Section 305 of I.P.C. should be madecognizable and (non-hbaiilable.

(7) Shri M.L. Kalia, Former Director General of Police, Rajastlian, Jaipur.

(l) Adequate increase must be made in the number of personnel so that they
may discharge their duties well. I »

(2) In case third degree methods are to be banned. the alternative:-; must be
suggested.

(3) The View point. of Public and Govcrnn_1ent regarding Police requires
change. ,

(4) Only one investigating oﬂicer should be entrusted with the investigation
of a case. *

(8) Shri :R.G. Sharma, Addl. Director, Prosecution.

(1) Many times the chargcsheet is tiled in court pimecution with delay

resulting in acquittal of an accused person. Tlterefore. there must be provision

for punishing the defaulting officers in a case. where chargeshect is lilctl with delay.
(2) Summary procedure must be adopted in cases of embezzlement.

('3) There must be very clear. directions for the issuance -of production
warrants.

(9) Shri Liaqat Ali Khan, Addl. Superintendent of'Pnlice, Hazrumangarli.
(I) There must be very good harmony and adjustment between prosecution

1 and investigation.

(2) A Senior Police Officer should be appointed on the post of Director
Prosecution.

(I0) Shri Natwar Lal Shanna, Addl.i Siiperin.tensdent of Police. _
(l) The term 'Disappear' wherever used in Criminal -'Procedure Code

_s_hou1d_ be . deleted.

in .Shri Gioveridhani Lal Meena, Jhalwar.

(1) The offences under section 395, 356. and 380 I.P.C. should not be
made compoundable.

(12) Shri Umaid Singh. Police Inspector.

(1) Section 147 I.P.C. should not be made compoundable because it is a
serious offence against the State and it directly affects law and order situation.

(13) Miss Sumitra Goya], Add}. Govt. Advocate.

._ (1) The procedure for trial of offences committed against women should
be changed and amended.

(2) In case of rape and the like the courts should not indulge in technica-
lities but should adopt a liberal attitude as far as technicalities are concerned.

(14) Shri R.N. Khandelwal, Advocate.

(1) 'Investigating agency should be established separately.
(2) In matters of investigations the accountability of police officers must
be ﬁxed.

(3) Courts while passing Judgments must comment against defaulting
officers as far as investigation was concerned anda system of grading should be
adopted. »

(4) Accused should not be arrested in matters which are cgonipoundable,

,. -- (5) Ihe cases under.FERA and Customs Act must be made cotzipoundable.

(13) Shri P.C. Jain; .=Adv"0'Cate.~ *' '
(l) investigation agency must» be independent. -
(2) The investigatiing officer must at least be a LLB.

(3) The copies of the statements recorded under section |6l and 162 Ct.
P.C. must immediately be sent to the courts. so that no alterations could at all
be made. ' ' '

ms) Siiri Mathuresh Bihari, Advocate.

(l) The statements recorded under section 161 Cr. P.C. must be got signed
by witnesses. = ' '

(2) For service of summons and warrants a separate oflicer and process
server should be appointed. ' ' A '

(3) The expenses of witnesses must be defrayed without delay: so that
they may not hesitate in coming to courts. - e r i

(4) Where in a case of multiple offences some offences were compoundable
then all the oﬁences should be allowed to be compounded. -
(I7) Jahoor Naqvi, Advocate.

(l) The provision of anticipatory bail under section 438 Cr. P.C. should
not be withdrawn. V -- A
(18) Shri Dharam Gopal. Advécategﬁharatpur.

(l) The Nyaya'Panchayat must be reintroduced.

(2) In View of increasing number of cases more courts should be established.

(3) Law like prevention of atrocities on SC/ST' Act. have created lot of
problems causing dissensionsl in society and" therefore. such' laws' should' not be
enacted. .. . t A T » A

(19,) Shl'i'Gul Raj Gopal Khandelwal, . V
I (1) There must be a separate agency for investigation.

(2) The ma.ttersgcompounded outsidethe Court 1 should. be recognised by
the Court.

T (3) Nyaya Panchayat must be reintroduced. T

(4) Provision should be made for the appointment of a' Judicial Officer
in a Nyaya Panchayat. _. 2

(5) Even. the Magistrates must be_ conferredpowers under section 482 Cr.P.C'.

(6) The Procedure of trial of cases on Police challan and'. on private corn-T
plaints must bethe same. - V .- ' T ' -- ' -
(7) The provisions under section 438 Cr. PC. for anticipatory bail imlust
continue. - V i A ,. -I y -.
' (8) The maximum 'amount provided in sectio'n'125 Cr. PC. for rnaiitte}
nance must be increased. ' T
(9) Section 304 A Cr. P.C. I-Il1lSt be made non-bailable.

(10) Honorary Magistrates should be appointed.

(20) Shri R.N. Mittal, Advocate, Bharatpur. A

_ (1) The jurisdiction for revenue cases vested in executive magistrates must
bewithdrawn and should be 'vested with judicial oﬂicers, because executive
Magistrates get no time to hear such matters. ' " ' " ' A_ v. -

' (2) The power tohandcuﬂ'. an accused must be' only that of Dy. "Superin-
tendent of Police or his higher oﬂicer. _ _ , » _,,.:; 2- '.3

(21) Shri Ram Lal Vivek. Addl. Director. Prosecution, Bhnratpur.
(I) Investigating agency must be a separate agency.
(2) During investigation the judicial oﬁicer should go on site and enquire.
(3) Section 162 Cr. P.C. should be_ deleted.
(4) The participation of public must be ensured in judicial administration.

(5) The post of Director Prosecution must be ﬁlled from amongst the
officers of prosecution department.

(22) Shri Gopal Ram Bhabra, Bayana.

(l) The function of a police officer must be only up to registering the F.l.R.
The investigation must be done by a separate agency.

(2) The copies of all the. documents prepared during investigation must
be sent to the court. '

(3) Security should be ensured for the convicts and under--trial prisoners,
so that there may not be any repetition of the case of Rajan Pillai.

(4) No advocate should be arrested without informing the Advocates Asso-
ciation.

(5) Provision should be made for effective implementation of order relat-
ing to Maintenance.

(6) Bail should not be granted in cases of rape.
(7) The burden of proof in cases of bigamy should be on the husband.

(23) Shri Bhagchand Jain, Advocate.
(I) The accused should be medically examined during investigation.

(2)_ There should be a provision under section 107. 109 and 1&5] Cr. PC.
for releasing on personal bonds.

(3) Before reading out the substance of charge in summons cases the accus-
ed must be heard.

(4) A limit of Rs. 10,000 should be ﬁxed in matters which are cornpoundable.

(5) There should be a provision in Cr. P.C. for serving the summons
through Dak.

(24) Slui Amar Singh.

(1) During trial in the court investigating ofﬁccr should present along with
the prosecuting agency.

(2) Section 41 Cr. P.C. should be amended so that arrest may be made only
after investigation.

(3) The provision under section 161, and 162 Ct. P.C. should remain as
they are but a provision should be made for getting a statement signed by the
witness.

(4) At the end of such statement ROC should be written.

(5) Nyaya Panchayat should not be conferred with powers to award
punishment.
(25) Shri 0.P. Jain, Advocate, Sikar.

(l) The copies of all the documents prepared during investigation should
be produced in the court.

((2) Wherever necessary no challan should be produced in the court with-
out a report from FSL. .

(3) The Medical Board should be constituted for Medically examining the
accused and the aggrieved persons.

(4) Provisions should be made for sale of properties under section 82. 83
Cr. P.C.

(26) Shri Acharya, Director Prosecutiloni, Rajasthan, Jaipur.
(l) Section 24 Cr. P.C. should be amended.
(2) Public Prosecutor must be under the control of Director Prosecution.

(3) A provision should be added by way of section 25 A Cr. I'.C. laying
down the qualiﬁcations of Director Prosecution.

(4) A separate legal cell should be established in Police Department.

(27) Shri Verma, Addl. Director, Prosecution.
(1) In order to curb delay in trial a period should be ﬁxed for trial.

(2) A provision should be made to ensure service of summons and warrants.

(28) Shri Amar Singh Codara, District & Session Judge Jaipur City, Jaipur.

(1) The procedure for the trial of summons and warrant cases must be
the same.

(2) Similarly the procedure for trial of cases on police challan and cases
on private complaints must be the same.

(29) Shri Jagat Singh, Law Secretary, Govt. of Rajasthan.
(l) The copies of F.l.R. must be sent to the Magistrate without any delay.

(2) The Prosecution Department should be responsible to the Advocate
General. .

(3) Trial must be from day to day.

(4) Provision should be made, so that cases of ordinary nature may be sent
to Nyaya Panchayat.

(5) Doctrine of Victimology must be applied and aggrieved persons in
serious matters must get compensation.

l2--~2 M of L & J/ND/97

Proceedings of the Workshop on Criminal Law by the Law Commission of India
and Criminal Justice Society of India held at Haryana Niwas, Chandigarh on
20-1-1996

Under the auspices of Law Commission of India and Criminal Justice
Society of India, a worksohp on Criminal Law was held on 20-1-1996 at Haryana

Niwas, Chandigarh.
l. The following persons attended the workshop:
S. No.

Mr. Justice K.J. Reddy, Chairman. Law Commission.

. Mr. Justice S.P. Kurdukar. Cj. Pb. & Hry High Court.

Mr. K.T.S. Tulsi. Additional Solicitor General of India.
Hon'ble Mr. Justice R.P. Sethi, Pb. & Hry High Court.
Hon'ble Mrs. Justice Dr. S. Saksena. Pb. & Hry High Court.
Mr. Kalyan Rudra. IPS. DG(P), Haryana.

Mr. O.P. Sharma. IPS. DG(P). Punjab.

Mrs. Alice Jacob, Member. Law Commission.

Sh. Prabhakar Rao. Member. Law Commission.

Sh. R.L. Gupta. Member, Law Commission.

Sh. S.C. Srivastava, Joint Secy., Law Commission.

Mr. K.P.S. Gill, Ex. DGP (Pb.).

Mr. M.S. Chahal. IAS. Financial Commissioner. Punjab.

. Mr. S.S. Brar, Home Secretary, Punjab Civil Secretariat.

Mrs. Kakshish Kaur, Legal Remembrancer, Govt. of Punjab.
Mr. M.K. Bansal, Legal Remembrancer, Govt. of Haryana.

. Pardeep Mehra. IAS. Advisor to U.T. Adm. Chandigarh.
. H.L. Sibal. Advocate General, Haryana 29/5-A, Chandigarh.
. M.L. Sarin, Advocate General. Punjab, 48/4-A, Chandigarh.
. Sh. B.L. Kulati. Registrar, Pb. & Hry. High Court.

. Sh. G.L. Chopra, District Judge, Amritsar.

. Sh. A.S. Sodhi, District Judge, Hoshiarpur.

. Sh. M.S. Nagra, District Judge, Gurgaon.

. Mrs. Nirmal Yadav, Addl. District Judge. Rohtak.

. Sh. R.C. Kathuria. District Judge (Vig.) Haryana, Chandigarh.
. Sh. Amar Dutt, District Judge, Chandigarh.

. Sh. B.B. Parsoon. Additional,District Judge. Chandigarh.

. Mr. K.K. Atri. lPS, I.G.P., Litigation. Punjab Chandigarh.

. R.K. Gupta, IPS. I.G.P., (Trg. 1) Punjab, Chandigarh.

. R.C. Prasad, IPS. DIG Ferozepur Range, Ferozepur.

. R.C. Singh, IPS, S.S.P. Hoshiarpur.

. D.R. Markan. Law Ofﬁcer, CID Punjab, Chandigarh.

. R.S. Dalal, (I.P.S.), DIG. Ambala Range, Ambala.

. Rakesh Malik (.P.S.). DIG Crime. Panchkula.

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36. Mr. S.N. Vashisht (I.P.S.), SP Crime, Panchkula.

37. Mr. L.R. Dabbas (I.P.S.) AIG T&T, Panchkula.

38. Mr. RP. Singh, IPS, IGP. Chandigarh.

39. Mr. C.S.R. Reddy, IPS, SSP, Chandigarh.

40. Harijai Singh, Editor-in-Chief. The Tribune, Chandigarh.

41. Mr. Kanwar Sandhu, Editor, Indian Express, Chandigarh. V

42. Sh. Y.S. Bajwa, Advocate, Legal Correspondent, Indian Express, l9/l8-A, Chandigarh.

4'3. Sh. P.S. Thiara, Advocate, Legal Correspondent, Ajit, Chandigarh.

Sh, S.K, Gambhir. Advocate and Secy. Genl. of the Criminal Justice Society, New Delhi.

45. Mr. P.K. Chaube, Advocate, R-19 (2nd Floor), Gulmohar New Delhi.

2549/ 19-C.

44. Park, Additional Solicitor General of India and President in his welcome address, referred to the ere innocent people are convicted,

2. Shri K.T.S. Tulsi, of Criminal Justice Society of India, grave situation prevailing in our society wh but the real criminal who may be more dangerous, remain untouched. He further added that there is a need to restore public conﬁdence in the criminal justice system. He also focused the attention' to the alarmingly low rate of conviction of terrorists and non-terrorists.

3. Hon'ble Shri S.P. Kurudukar, Chief Justice, Punjab and Haryana High Court, in his inaugural address, emphasized the need to amend the Code of Criminal Procedure, Indian Penal Code and the Indian Evidence Act. He also emphasised the need to review the sentencing policy.

Law Commission of India, Shri Justice K. Jayaehandra Reddy. in his presidential address, apprised the participants about the refer- ence made by the Government of India to the Law Commission to undertake a comprehensive revision of the Code of Criminal Procedure, the Indian Penal Code and the Indian Evidence Act. He invited responses from the participants for suggesting amendments to the existing criminal justice system apart from the need to reform law in the lightof changing circumstances and the principle of according speedier justice.

4. The Chairman, He highlighted the main issues mentioned in the questionnaire on Code of Criminal Procedure particularly the aspect of delay, arrest, creation of sepa- rate investigating agency, provision for separate directorate of prosecution, police custody, Nyaya Panchayat, plea bargaining, victimology, and to review the scheme of summons, warrant and summary trial cases. He also referred to the changes to be brought in respect of compounding of offences, of the Punjab and Haryana High Court called for major overhaul of the procedural law and stressed on the need for delega- tion of trial of minor offences by the Nyaya Palikas. He favoured scrapping which deals with confession of the accused and of Section 164 of the Cr PC the statements of witnesses to be recorded by the magistrates during investiga-.

tion, which according to him, do not serve any useful purpose.

5. Mr. Justice R.P. Sethi His Lordship was of the opinion that both Sections 162 and 164 are notnecessary. He said that Section 161 should be made effective by associat- ing people. He also pointed out that accused may be asked: "Have you heard the statement? Do you want to say anything?"

Justice Sethi also suggested that minor offences be delegated to Nyaya Panchayat.

80 He felt that when people are associated, presumption of guilt be presum- ed in favour of prosecution for heinous offences where investigation is properly done.

Mr. Justice Sethi was also of the opinion that major part of the fine should be awarded to the victim.

Justice Sethi called for a delegation of powers to the 'Nyaya Palikas' for petty offences subject to appeal to the appellate authorities.

6. The factor of' delay in justice, especially in the case of women and old persons, was stressed by Justice Dr. S. Saxena. She suggested that the time limit for the husband to ﬁle a written reply evidence be ﬁxed. She regrett- ed that husbands adopted dilatory tactics in payment of maintenance and a woman had to wait as if she was begging.

Justice (Mrs.) Saxena suggested that in granting relief, the capacity of the woman should not be considered, and the only thing that to be considered should b-e whether she really had a source of income. She felt the court must be empowered to get the maintenance amount reduced from the source of earn~ ing of the persons itself. ' Justice (Mrs.) Saxena also emphasized the need for revision for inter- locatory order and enhancement of the amount of maintenance prescribed in the court.

Referring to the rape offences, Justice (Mrs) Saxena felt that Section 327 of the Code of Criminal Procedure is hardly observed. She also pointed out the aspect of delay in disposal of cases due to the absence of witnesses.

Referring to the Indian Evidence Act, Justice (Mrs.) Saxena felt that this section has been misused and has been applied even where no recovery has been'made. She, therefore, pleaded for amendment of Section 27.

15. Justice Chellapathy suggested that certain offences must be transferred to the Nyaya Panchayats. Citing the example of the Karnataka Gram Panchayat Act, he remarked that it had some very good clauses with respect to the Nyaya Panchayats.

He regretted that although it was the duty of the presiding officers to prepare questionnaires, in most instances, it was done by clerk at the court.

8. Mr. Hira Lal Sibal, Advocate General, Haryana, called for changes in the lodging of the FIR system. He remarked that the FIR often did not re- present the statement of the complainant. The evidence and the witnesses are collected by the complainant with the help of the police to substantiate the story of the complainant. I He added that the FIR was generally recorded some days after the inci- dent. He suggested that a provision must be made that every statement which was recorded be sent to the magistrate. He felt the accused defence was never investigated and no evidence was taken by the police. Usually, no attempt was made by the police to ﬁnd out the truth, but if it was done, it would acquire greater credibility, he added.

While opposing the idea of completely doing away with the statement Of the accused, which is recorded under Section 313 Cr PC. Mr. Hira Lal Sibal, said that it should be retained for particular type of offences, such as those under 409 of the IPC. He also spoke about enacting special procedures for terrorist crime.

9. Mr. K. P. S. Gill, former Director General of Police, Punjab, said that different types of crime should be dealt with differently and the terrorist crime should not be grouped with other types of crime and said that it needed 3 separate investigational strategy with a different approach. He also insisted upon the daily writing of case diaries by the investigating oﬂicers and proper check by the supervisory officers to avoid manipulations later.

He narrated his experience as a SP. wherein he introduced the practice of the daily recording of the diary. Each officer at the thana was required to write what he had done all day long. and the report was sent to the SP daily. The consequence, according to him, was reduction in the conviction rate and speedier disposal of cases. This method, he said, could be enlarged with the latest elec- tronic devices. He felt that the most of the delays were deliberate because the investigating officer had a vested interest in it.

10. Mr. R. S. Cheema, senior advocate, stressed on the relief of antici- patory bail, under Section 438 CrPC, as the basic bull work for democracy and opposed its scrap. Mr. Cheema also talked about Section 313 CrPC being a formality and wanted it to be modiﬁed so as to strengthen the existing provision of putting written defence by the accused.

12. Mr. G. S. Grewal and Mr. Piara Singh Mann spoke about putting more strength in the criminal procedure for speedy trial of cases in the courts. Mr. Grewal maintained that an independent prosecuting agency would ensure quicker justice.

He said that what was needed was a revolutionary change in the' laws as the era of "a tooth for a tooth" no longer exists. .

He also said the special circumstances and the situation of the country in the era of organised crime and terrorist activities called for a more rational approach. Stating that procedures must be friendly to the common man, he suggested that some responsible people of the community must be involved at the time of the lodging of the FIR as well as the time of recording of the statement. .

18. Mr. M. L. Sharma, Joint Director, CB1, felt that the laws were not adequate to handle the situation and hence police often resorted to measures which were not approved. He added that in a conspiracy situation and in the case of sponsored crime, the number of people involved ran into dozens. He felt that a confession made before the SP should be made admissible in the court, as often the same person. often pleaded not quilty before the court. He also suggested that the testimony of the undercover agents and wiretapping be" accept- ed in the courts as in the western countries. .

9. He advocated a particular deﬁnition for organised crime and Supported the retention of provisions of _16l CrPC' (evidence of witnesses during investiga- tion) though with certain modiﬁcations.

10. Mr. R. S. Dayal, DIG, Ambala range, and Mr. R.C. Prasad, DIG, Ferozpur range, expressed their views on the problems being faced by the investi- gating agencies and the "mistrust" which the other connecting agencies like the prosecution and the courts had about them.

14. Mr. Bansal, Legal Remembrancer, Haryana emphasized the need to amend Section 304A to impose more ﬁne.

As regards sessions trial, he was of the view that pre-1973 position be restored, i.e. on the same time the prosecution and defence may produce witnesses. He also pointed out that recording of. statement of eye witnesses should be imposed.

Mrs. Baxi, Legal Remembrancer, Govt. of Punjab, also suggested the need to review Section 468. She felt that the question of maintenance under section 125 CrPC be transferred to family court. This, according to her, would save time.

Prof. Paras Dewan felt that as in Germany at the time of charge-sheet the question should be asked from the accused so that inquisitorial system, namely, the court should investigate. be adopted.

He also felt that listing of cases in courts be made on some understand- ing. A monthly review be also made by the High Court taking stock of situa. tion, he added.

Mr. Gambhir, Advocate, felt that there is no need to change Section 161 CrPC. He, however, felt that under Section 309(2) a time limit be put on remand.

Mr. Kathuria, Sessions Judge, pointed out that cases under Section l25 CrPC should not be transferred to family courts.

He also felt that Section 200 CrPC be amended and it should be left to the discretion of the magistrate to record complaint. He did not favour any change in Section 169.

Ml'. R. K. Gupta l.G., Punjab felt that whenever a complaint is made to the police, FIR must be registered. He was also of the view that stay given under Section 482 of the Code of Criminal Procedure delays the trial. If stay is not effected within six months. the investigation should go on, he added.

6. Dr. B. B. Parsoon, Additional District and Sessions Judge, Chandigarh. proposed that career in judiciary should start from the Nyaya Panchayats where the judicial officer could be associated with the members. of the Panchayat and the jurisdiction of the presiding oﬂicer could be ﬁxed by making cluster of village panchayats. This, he said, would facilitate grassroot judicial democracy. He also called for an amendment in the provisions of Section 125 CrPC so that the destitute females are provided maintenance not only from the income, pro- perty of the husband but also the iii-laws, in case the husband does not possess any income or property as in case of joint families. Mr, Parsoon also condemn- ed the gender bias against females by the investigating agencies.

7. Mr. R. C. Kathuria, District and Sessions Judge (Vigilance), Haryana, laid emphasis on the care the system needed to take of the victims of the crime. He stressed on more frequent invocation of the provisions of CrPC (search warrants for illegal detention of the detainees) rather than invoking the provi- sions of Article 226 (for habeas corpus).

19. G. S. Grewal, Advocate, remarked that anybody who could misuse law? tried to misuse it. He cited the instance of TADA where one-year time was granted for the purpose of investigation. According to him, not a single case had come to his notice where the investigation was carried out within a period of one year. The two remedies, according to him, are day-to-day trial and increase in the eﬂiciency of the investigating oﬂicer.

Proceeding of the workshop Held at Patna on 3-2-1996 The workshop was attended by Hon'ble Chief Justice of Patna, ﬁve High Court Judges. six lawyers, three District Judges and ﬁve p01iC_e ofﬁcers including the D.G.P. At the outset Hon'ble Chief Justice of Patna Hlgh Court Shri Justice D. P. Wadhwa welcomed the gathering and expressed his happi- ness to arrange the present workshop and hear the views from the Hon'ble Chairman and others.

2. The following were present:

(1) Hon'ble Chairman Justice K. Jayachandra Reddy (2) Hon'ble Member Justice R. L. Gupta (3) Hon'ble Member Ch. G. Krishna Murthy (4) Hon'ble Chief Justice D. P. Wadhwa (5) Hon'ble Member Secretary Ch. Prabhakara Rao (6) Hon'ble Law Minister, Bihar--Shri Bijendra Pd. Yadav (7) Hon'ble Justice S. K. Homchaudhuri (8) Hon'ble Justice Nagendra Rai (9) Hon'ble Justice S. N. Jha ( 10) Hon'ble Justice Aftab Alam (ll) Hon'ble Justice R. M. Prasad (12) Hon'ble Justice N. K. 'Sinha (l3) l-Ion'ble Justice P. K. Sarin (I4) Shri Braj Kishore Prasad. Chairman, Bar Council (I5) Shri P. N. Pandey, Sr. Advocate (16) Shri Kanhaiya Pd. Singh, Sr. Advocate (17) Shri Janardan Rai, Advocate (18) Shri K. P'. Gupta, Advocate (19) Shri J. P. Gupta, Advocate (20) Shri D. P. Maheshwari. Home Commissioner (21) Shri Krishna Choudhary, D.I.G. Police (22) Shri S. K. Saxena, D.G. Police (23) Shri Anil Kumar. I.+G. (C.rI.D.) (24) Shri P. K. Sarkar, Law Secretary (25) Shri N. N. Singh, Registrar-General .3. Hon'ble Chairman Mr. Justice K. J. Reddy had stated that Prime Minister and Home Minister had called upon the Law Commission of India to redraft the Criminal Law in order to bring about speedy justice and come up to the standards of the litigant public. Hence, the Law Commission has been arranging these type of workshops in order to elicit opinion from the various sections of the society.

4. Of late the law of crime has taken new dimensions as the white collar offences are being committed frequently. The British rulers had enacted various laws in the past which have stood the test of the time and even the laws that were passed in 19th century are still being followed by us. They have used their wisdom by understanding the conditio-ns prevailing in India 83 R4 and see that the law is passed which is being applied till today. _But due to the growth of various types of crimes. the courts are unable to dispose of the cases promptly and even the under-trial prisoners have to languish 1n jails for mo-nths/years thereby the public is feeling frustrated due to the delay being caused in the disposal of cases by the courts. Even for minor offences much time is being wasted. It may be due to various reasons; viz., the lawyers are asking for more adjournments. the prosecution is not able to procure witnesses and with the overcrowdedness of the dockets. the courts are not able to cope up with the same thereby the delay is being caused. We have therefore to ﬁnd out ways and means to ensure speedy disposal so that the innocent people may not languish in jails unnecessarily.

5. Hon'ble Chairman had highlighted important topics o-n which the questionnaire had been prepared by the Law Commission of lndia. He had dealt with the subjects one by one namely, :1. Investigation: In any criminal trial the investigating ofﬁcer has got an impo-rtant role at the time of investigating the crime from the very beginning. Of late the investigation is not being conducted effectively due to various reasons. For example, the investigating officer while investigating a particular offence may toe drafted for other duties like bandobast and maintenance of law and order. If the investigation is not perfect and effective the entire case wo-uld be exposed to criticism before the court. It was therefore emphasis- ed that steps should be taken to make the investigation perfect and effective. For achieving the objective, we should appoint investigat- ing oﬂicers separately whose duties should be exclusively for the investigation. In other words, there should be separate wing only for that purpose and they should be trained in that particular ﬁeld.

b. Prosecuting Agency: Another agency which would ensure perfect trial 'before the court is prosecuting agency. There should be sepa- rate Director of Prosecution. It was suggested that at the State level there should be Director of Prosecution and at the District level there should be Additional Director of Prosecution. There should be mutual discussion and brieﬁng among the Prosecutor and Direc- tor/Additional Director of Prosecution of the police personnel. A cadre has to be created and necessary rules on that behalf may be formulated in order to ensure the creation of the said posts. Even though in some of the States Director (Prosecution) has been func- tioning. there is no similar oﬂice in other States, Therefore, unifor- mity may be ensured. ' c. Trial: It has been suggested that the procedure for the summons cases and warrant cases should be scrutinised thoroughly in order to make it simple. Presently, two types of procedures are being follow- ed for the said offences. Therefore, suggestions are solicited for the purpose of simplifying the procedures. For example, offences punish- able up to two years can be summarily tried.

d. Section 161 Cr. P.C. : This is a matter where Defence Counsel are finding fault with the statements made by the witnesses and record- ed by the policeofﬁcers. Entire criminal cases trial depends upon the evidences of the various witnesses and the defence counsel would naturally take advantage of the lacuna that is noticed in the state- ments recorded by the police officials who are criticised for obtain- ing the signatures or thumb impressions of the witnesses without reading the contents to them and certain amount of coercion is being influenced on the witnesses at the time of recording the state- ments of the witnesses. Generally, the police officers prepare the statements in the police Station and present the same as if they have been taken in the presence of the witnesses. Therefore, a sugges- tion has been made by the Hon'ble Chairman to consider this aspect as to whether section 161 of Cr. P.C. statements should be deleted or retained in the statute.

e. Honorary magistrates: Hon'ble Chairman suggested for the appoint- ment of honorary magistrates who can be entrusted with the respon- sibility of petty offences. They were trying such offences in the past 85 and they have been lately abolished. He therefore suggested to revive the said office.

i. Compromise: Within the ambit of section 320 of Cr. P.C. attempts should be made seriously to compound the offences. In other w0rdS, the parties should be free to compromise the offences either at the beginning of trial or during the course of the trial.

g. Plea bargaining concept : In some of the developed countries the concept of plea bargaining is being applied. In India except in small compoundable ollences, the concept is not being applied. Even in compoundable offences it is not quite negligible. Therefore, efforts should be made to bring in the concept by incorporating it in the statute so that the court can save some time if the accused confess to have committed the crime and plead for some conces- sion at the time of award of sentence.

It. Concept of victimology: Again in other countries helpless victims are being provided some financial assistance either by order of the court or by order of the State. In India the court is presently in some deserving cases awarding compensation to the victims while taking the circumstances into consideration. If the accused is not able to pay the compensation, there can be creation of some fund so that the compensation can be paid to the victims out of the said fund. How to get the money is the matter of modality which can be formulated in due course.

6. The Hon'ble Chairman has pointed out various other minor things in the light of the questionnaire prepared by the Law Commission on Cr. P.C. He has requested the participants to convey their views in writing if not orally.

7. Justice Nagendra Rai and Justice S. N. Jha: The Judges have agreed that the investigation agency should be separate from the present set up. There should be a separate officer like Director of Prosecution who should work in co- ordination with the D.G.P. They have suggested that D.G.P. should be the head of the organisation and would keep liaison or co-ordination with the j:

Director of Prosecution.

They have not favoured the proposal for creation of honorary magistrates as experience in the State of Bihar is not happy because those posts are likely to be ﬁlled up on various political considerations. They have also suggested for deletion of section' 16] Cr. PC. statements. But they have emphasised on the applicability or use of section 164 statement very rigorously. They have also dealt with the aspect of arrest within the ambit of sec- tion 41 Cr. P.C.

8. Mr. Krishna Choudhary, D.l.G. : He also agreed with the proposal for separation of investigating agency from the police department. In other words a separate wing in the police department and in that connection he has suggested for separate provision for making the investigating agency liable for laches in the investigation.

He has advocated for giving freedom to the police people for handcufﬁng prisoners. It is the unhappy situation prevailing in Bihar as there are cases of escaping. Due to the judgements of various courts they are not able to effec- tively control the prisoners at the time of transport etc. He also agreed for police custody for ﬁfteen days.

9. Mr. D. P. Maheswar, Home Commissioner : He has particularly dealt with the functions of the Director of Prosecutions. He stated that in the State of Bihar Director of Prosecution is monitoring the prosecutions only and the appointments are being made by the Law Department thereby the indepen- dence of the office has been ensured.

10. Mr. Gupta Advocate, Ranchi : He has advocated for introduction of. Gram Nyalaya. He had emphatically suggested that after creation of the said Nyalayas, petty offences can be entrusted to them. Presently the courts 13--2 M of L 19¢ J,'NDj97 86 are overburdened with the trial of petty cases which is not desirable. If the Gram N-yalayas are created efforts can be made seriously to settle the disputes easily. He also suggested for restriction of grant of adjoumments.

11. Mr. P. N. Pandey, Advocate : To a suggestion made earlier for deletion of section 91 of the Cr. PC. by one of the speakers, he suggested that there is no need to delete the said section. He has also advocated for introduc- tion of plea bargaining concept in our criminal law.

12. Thereafter, there was some discussion regarding utility of section 3l3 of Cr. P.C. statements. To a clariﬁcation sought by Shri Saxena, D.G.P., Hon'ble Chairman has explained the implication of the plea of pare-bargaining. It was stated by various speakers that it does not serve any useful purpose except observing the formality and wasting the time of the court. Therefore, the general consensus of the gathering was that it may be considered for dele- tion.

13. Post-lunch Session: The Hon'ble Chairman has suggested that Law Commission of India had prepared a questionnaire on l.P.C. and copies thereof are distributed to the gathering on that day. Therefore, he highlighted various topics dealt with in the questionnaire and requested the participants to convey their views in writing afterwards. He had stated that the necessity of fresh thinking on the redrafting of sections 34 and 14! of I.P.C. Under Section 141 I'.P.C. the presence of ﬁve or more persons is required and this section has to be read along with section 34 which deals with the common intention. There are many offences wherein guilt of the accused is proved, but it fails due to the lack of requirement of ﬁve persons. Therefore, it requires fresh thinking and he had also dealt with subjects like community service, holding public offices, public censure, constructive liability of the company. authorisation, highway accidents, publishing scurrilous matters in the press, blackmailing, culpable homicide, fresh thinking on section 299 and 300 I.P.C., hit and run cases, wrong- ful restriction, hijacking of aircraft and under Article 21 of the Constitution. Hon'ble Chairman has elaborately explained the distinction in the provisions contained in sections 299 and 300 while citing illustrations thereunder. He has further stated that the Home Minister had called upon the Law Commission to give the report on the law of evidence also. But it was felt that the said Act does not require much changes except suggesting for amendment of sec- tions like 6, 8, 11, 25, 30 and I14.

14. The workshop concluded with the vote of thanks by Hon'ble Chﬁir-

man and reply by Chief Justice of Patna.

Proceedings of the Workshop conducted at Mumbai on 24-2-1996 A workshop on the Criminal Law was conducted at Mumbai on 24-2-96.

The following participated:

1.

{J 9".~""'9' Justice K. Jayachandra Reddy, Chairman, Law Commission. Shri Ch. Prabhakara Rao, Member Secretary, Law Commission. The Honourable Shri Justice R.(j. Vaidyanath.

. The Hon'ble Shri Justice S.P. Kulk:-irni.

Shri V. K. Kulkarni, I/C Principal Judge. City Civil Court, B' Bay.

Shri J.N. Patel, Judge, Designated Court, (Under TADAJ Act. I987). Greater Bombay.

Shri P.K. Chavare, Judge. City Civil Court and Additional Sessions Judge. Greater ﬁombay.

8. Smt. M.R. Bhatkar, Judge, City Civil Court, Greater B0mbay, ll.

. Shri A.H. Shah, Additional Principal Judge, City Civil Court, Greater Bombay.

. Shri M.L_ Talialiyani, l/C Chief Metropolitan Magistrate, Esplande, Bombay.

Shri K.D. Patil, Ilnd Additional District Judge & Additional Sessions Judge, Akola.

. Shri P.R. Borkar, Extra Joint District Judge, Aurangabvad.

13. Shri A.D. Bhosale, IIIrd Additional District and Additional Sessions Judge, Aurangabad.

. -Shri B.R. Choudhari, Chief Judicial Magistrate, Aurangabad. . Shri A.V. Kamik, District and Sessions Judge, Ahmednagar. . Shri Subhash S. Deshmukh, IIIrd Additional District & Sessions Judge, Nashik.

. Shri A.J'. Rohee, 11nd Addl. Distt. and Sessions Judge, Malegaon, sitting at Nas-hik.

. Shri P.S. Mane, Distt. and Sessions Judge, Nashik. . Shri V.R. Kingaonkar, I/C Director, J._O.T.I., Nagpur. . (i) Shri S.S. Sabne, Ist Addl. Distt. & Addl. Sessions Judge, Nagpur.

(ii) Shri M.M. Parlikar, IInd Addl. Distt. Judge and Addl. Sessions Judge. Nagpur.

(iii) Shri S.B. Bahle, VIIIth Addl. Distt. Judge and Addl. Sessions Judge, Nagpur.

. Shri F.N. Velati, Joint District and Addl. Sessions Judge, Nagpur.

22. Dr. (S1nt.) Pratibha Rasal, Vth Addl. District Judge and Addl. Sessions Judge, Nagpur.

23. Shri A.D. Anekar, IXth Addl. Distt. Judge and Assn. Sessions '»:~'§3'.':'£ Judge, Nagpur.

. Shri P.G. Choudhari, Addl. Distt. and Sessions Judge, Osmanabad.

Shri K.P. Kotecha, IInd Addl. Distt. and Sessions Judge, Osmanabad.

. Shri J.C. Shirsale, Civil Judge, Sr, Division, Osmanabad. . Shri J.A. Patil, Distt. and Sessions Judge, Pune.

87 88

28. Shri S.R. Ghanavatkar. Distt_ and Sessions Judge, Satara,

29. Shri S.V. Padhye, lVth Add]. Distt. Judge and Asstt. Sessions Judge, Solapur.

30. Shri A.B. Palkar. Distt. and Sessions Judge, Solapur. 3l. Shri L.S. Pavashe. Chief Judicial Magistrate, Solapur.

32. Shri GD. Tadwalkar, Addl. Disrt. and Sessions Judge, Sindhudurga at Sawantwadi.

33. Shri S.Z.H. Kazi. Joint District and Sessions Judge, Thane.

34. Shri P.R. Borkar, Extra Joint District Judge and Shri A.D. Kulkarni, Addl. District Judge. Aurangabad.

35. Shri S.D. Gundwar, Distt. and Sessio-ns Judge, Ratnagiri,

36. Shri R.I3. Patil, Civil Judge (J.D.) & J.M.F.C., Deorukh.

37. Shri A.S. Yenegure, 2nd Addl. Distt_ Judge and Asstt. Sessions Judge, Sawantwadi.

38. Shri M.G. Jadhav, Chief Judicial Magistrate & Jt. Civil Judge, S.D., Ratnagiri at Sawantwadi,

39. Shri M.D. Keskar, Chief Judicial Magistrate, Ratnagiri.

While inaugurating the workshop the Hon'ble Chief Justice Mr, Justice M.B. Shah stated that the present workshop was arranged to obtain opinions from various sections of the society on the provisions contained in Cr. P.C., I.P.C and the Evidence Act. He indicated about the posts held by the Hon'ble Chairman of the Law Commission from time to time, i.e. he worked as High Court Judge, later on Supreme Court Judge wherein he had delivered important decisions on criminal law. He has further stated that effort of the law is to punish the culprit and for that purpose if necessary the law has got to be amended. In that context he placed reliance on the reported decision in Collec- tor Vs Gurnal wherein it has been indicated that the prosecution need not prove the guilt of the accused with mathematical precision. The presumption can be drawn on the basis of the circumstances. The fundamental principle of the jurisprudence has to be reaﬂirmed with reference to the statutes and in that context he referred to State of Punjab V Balbir Singh wherein Justice K.J. Reddy liadjgdealt with section. 50 of the NDPS 'Act. '

2. He further suggested that investigating agencies should be established separately. The statements recorded at the time of enquiry should be consi- dered as relevant, as being considered relevant under the Customs Act. He further stated that sufficient number of prosecutors are not being appointed which is causing delay at the time of trial of the cases. The bail applications that are being ﬁled under section 438 of Cr. P.C. should be scrutinised very carefully at the time of granting bail and the antic'pat0ry bail should be granted very cautiously. Under the accidental cases the victims are not getting sulﬁcient ﬁnancial help and the punishment being awarded to the guilty persons are not adequate under the present law.

3. Thereupon, Hon'ble Chairman of Law Commission dealt with the subject by stating that before independence, four Law Commissions were established and after the independence, the ﬁrst Law Commission was consti- tuted under the chairmanship of Shri Setalvad and brought about many impor- tant reports. The Law Commission in its 41st report Qlealt with the amendments on Cr. P.C. according to which the same was amended in 1973. Presently, being the Law Minister, the Prime Minister of India desired that the Law Commission should make a comprehensive study and come up with a report dealing with provisions contained in Cr. P.C. and I.P.C. Home Minister also desired accordingly. Hence, the Commission is conducting workshops at various places to know the views of different sections of the society. After having deliberations, it will submit a report to the government. Presently, the litigant public are also interested in getting speedy and inexpensive justice.

The refore, 89 the Law Commission has prepared questionnaire on V3I'i0us topic' and they are as follows:

(a) lnvc.stigation.--The investigating officer is presently entrusted with other responsibilities such as bandobast to VlPs and maintenance Of law and order. Due to the multifarious activities they are not able to cope up with efficient functioning of investigation which is quite important in any criminal case. Therefore, the suggestion is that there should be separate agency which should exclusively deal with investigation.

(b) Section 41 Cr. P.C.-----The police has been empowered to arrest any-

body on the basis of suspicion under section 4] Cr. PC. But the criticism is that many innocent people are unnecessarily harassed. Therefore, arrest should be made only in exceptional cases accord- ing to the circumstances of the case. It is not mandatory on the part of the police to arrest everybody. Hence various views have been expressed on that subject.

(e) Compounding of olfenees.-----The concept of

(f) Plea-bargamillg.-----The concept of plea-bargaining should be tried

(g)

(h) under these provisions are not recorded on the spot and the police would generally prepare in their Station Houses and later on make the witness sign either by compulsion or and the like. The present practice is that the said statements are being utilised by the counsel in the court for the purpose of contradiction. But the suggestion is as to whether the said statement should be utilised for corroboration also. Therefore in that connection he referred to the 14th and 41st report of the Law Commission wherein it was suggested to obtain the signatures or thumb impressions of the witnesses after the state- ments are recorded. Therefore, the Hon'ble Chairman suggested for valuable views from the participants.

Under section 167 Cr. P.C., fortnight. Whether this provision matter for consideration.

the police custody is ordered for a requires scrutiny or not is a Nyaya Panchayats.--ln 114th report of the Law Commission it was suggested for establishing Nyalayas wherein a Law O-ﬂicer and layman would be associated. It would appear that in some States the said Nyalayas are functioning. In Maharashtra it would appear that they are not functioning and as such the feasibility of establishing the same may be considered.

compounding oﬁences should be broad based and more sections should be brought under this concept and particularly petty offences may be brought under this category.

in India particularly with reference to petty offences and the same is being practised in countries like U.S.A. Victimology.--The concept of victimology has to be inserted in Indian law as the State has got responsibility to take care of the victims. Whether the accused is convicted or acquitted, it makes no difference to the victim. When once there is a loss of life in the family, the dependents of the victim should be supported by the State Government. Therefore, there should be a provision for paying adequate compensation to such persons and certain amount of methodology has to be formulated in order to pay sufﬁcient amount of compensation to the victims.

Section 313 Cr. P.C.---The statement of the accused should be viewed under the principle audi alteram partem and of late statements of the accused are being recorded in a lengthy way and there is no purpose actually served by recording such statements. Therefore, it requires scrutiny about its utility.

. _ 'l'hereupon_ the participants came up with their views and the same are indicated below in 5611311111.' 90 'Mr. Justice A. C. Agarwal.--The present law is mostly in favour of the accused and under Article 2! ol the Constitution the principle of double jeopardy has been provided under which second trial is inadvisable and under Article 22 of the Constitution there is a guarantee for giving protection to the accused and the present practice is to lead all p-ossible evidence which ultimately ends in acquittal due to the lacunae in the prosecution case. Our jurisprudence is particularly in favour of the accused as such it has got to be reviewed in the interest of justice.

l"urther he stated that the investigating agency should be separated from the prosecuting agency. Special magistrates/Executive magistrates should be . appointed for supervising the investigating agency which should work under the Law Ministry. He has in that context suggested for changes in the process of leading Chief-examination and the cross-examination, He has suggested for enlarging the scope for bringing many olfences under the category of compoundable offences and petty offences can be tried by the Nyaya Panchayats. T hereupon the Hon'ble Chairman of the Law Commission came up with the information regarding category of the prosecutors. He suggested that public prosecutors should be appointed permanently and there should not be a change as and when the governments change. If there is a permanent agency like that, there will be coordination between the prosecuting and investigating agency.

Mr. Justice A. A. Desai.-----He suggested that there should not be meddling with section 313 Cr. PC. as by this section certain right has been conferred on the accused under humanitarian consideration and this section should remain with some modiﬁcation, i.e., the accused should be in a position to come up with his defence at the time of framing of charges. In other words he should be precluded from changing his defence at a later stage.

Thereupon few participants have come up with their views that section 313 statements are privileged right to the accused as such they should remain as they are.

Mr. Justice S. N. Val-iava.--Presently the law is in favour of the accused. Therefore, in order to bring home the guilt of the accused, the accused should declare his defence at the time of framing of the charges. Therefore, the law should be amended drastically on this aspect.

Mr. Justice Vishnu Sahai.--The present system of recording the state-

vments of the accused under section 313 Cr. P.C., even though it remains in favour of the defence statements under section 161 Cr. P.C. can be utilised in corroboration also in addition to such statements being used for the purpose of contradiction. Further, he has stated that under section 309 Cr.P.C., there should not be a limit without discretion for the judge to give adjournments. Therefore, the said provision does not require any amendment. Regarding the com-pounding of offences, he suggested that such type of compromise should be made possible at the stage of investigation itself. Honorary magistrates can be appointed to deal with petty offences on the basis of merit and credibility. Similarly, the concept of victimology can be inserted in our law. Of late anticipatory bails are being granted indiscriminately and they are being misused. As such he opined that they should be granted only in exceptional cases in the interest of justice and certain amount of discretion should be given to the judge for granting anticipatory bail. He also pleads for such provisions to be provided under various laws to protect the rights of women folk-

Mr. Justice B.N. _Sriikrishna.----He suggested that it should be the aim of the law to punish the guilty whatever be the technicalities that may be in favour of the accused. A Mr. Justice R.G. Vaidyanatha.--Under section 438, there should be some control to grant bail to a person apprehending arrest and the beneﬁt should not be conferred to the accused. Under section 162 Cr.P.C. the beneﬁt if at all is available should not be used in favour of the accused only and the same can bc used in favour of the prosecution also. Honorary magistrates can be asked to record the statements of the witnesses. The prosecuting agency should be independent.

Mr. Moore. Law Secretary.--He suggested that the prosectiting agency should be independent. Presently in Maharashtra the prosecuting officers are working under the police officers which is not desirable. Further he stated that the investigating oﬂicers have no knowledge of law and as such 'they should be associated with the pl'0S€CL!t0l'S. In such. circumstances the investigating oﬁicer would get the assistance of the prosecuting otﬁcer from the very beginning of the investigation.

Presently due to the lacuna in section l6l or the_evidence 'being unavail- able the courts are not able to convict the accused. _This type of law should be changed drastically. Anticipatory bail should continue.

The Secretary (Appellate side) Law Department.----The present presump- tion as per jurisprudence is that.the accused is always innocent. It should be changed. In other words the philosophy of the Indian criminal system should not be always in favour oi" the accused. At the time of punishing the accused the law should be quite deterrent. In the State of Maharashtra the Director.

Prosecution is functioning and in order to have a coordination between the prosecuting agency and the Director, Prosecution certain modalities are being worked out.

Shri Adik Shirodkar, Sr. Advocate.--In the decided case by the Supreme Court namely, Nandiny Satpzithy, the court had made an observation ab0ut the investigation collection of the evidence, obtaining necessary statements etc. under the credibility on the part of the police oﬂicers. Unless and until certain amount of credibility on the part of the investigating officer is ensured, the process will not be conducted effectively. The present presumption of jurispru- dence that the accused is innocent should continue and the law Of contradictions and omissions was considered by the courts in many decided judgements. The status of the section 161 Cr.P.C. should remain as it is. Similarly, section 313 Cr.P'.C. But the statement of the accused under this provision may be curtailed. Because the law provides that the accused can defend himself. Anticipatory bail should continue as it is. In that context he referred to the cited case in Gurubaksh Singh. He has further canvassed that the magistrates I should be supplied with necessary law journals so that they can get their know- ledge up to date. He agrees for the introducin plea bargaining and the com- promising of the cases. He canvassed the i ea for appointment of more magistrates and ultimately he stated that the prosecuting agency should be separate from the investigating agency.

Shri Vyasya, Senior Advocate.--He almost agreed with the views expressed by Shri Svhirodkar and also the proposed amendments set out in the questionnaire. The presumption of jurisprudence that the accused is always innocent should continue. ' ' -

M . Mrs. Desai, Govt. Pleader.-----A_s the crime rate is going up. the law should .be changed drastically. Anticipatory bail should continue. Under section 167 Cr.P.C. ﬁfteen days for police custody appears to be sufficient so as to complete the investigation. She suggested for review of section 67 of the Bombay Police Act. She further stated that the investigating oﬂicer should have the knowledge of law or obtain the assistance from the people having knowledge of law.

Shri _Giipta. Senior Advocate.---He referred to the l52nd report of the Law Commission with regard to Custodial Crimes. He canvassed for the ideas of implementing the report. ' _ _Shi-i S.R. Chitnis, Senior Advocater-He suggested that the present posi- tion with regard to sections 16] and 162 Cr.P.C. should continue. In Bhajan I.al's case the Supreme Court had clearly pointed out about the functions of the investigating agency. As provided under sections 437 and 438 the anticipatory bail should be granted sparingly and cautiously, Shri Govindkar, Govt. Pleadei-.--The grant of anticipatory bail should continue and only persons with merit may be appointed as Special Prosecutors- .

Shri Raja Bhosle, Govt. Pleadei-.--The public prosecutors should not work under any governmental department. The status with regard to section I62 Cr.P.C. should remain as it is and as provided under section 4| Cr.P.C. the police should have restricted power to arrest. The position undﬁr S€Cti0n5 B8 and 438 should remain as it is.

Shri T horakia, District Judge..----By appointing separate agency for inves- tigation the problem will not be solved. in other words, the investigating officer should have proper training in performing his duties. He is of opinion that the povter of the police to arrest should not be curtailed. Even the police otlicer should be given proper training to keep their knowledge up to date and there should be Coordination between the investigating agency and the prose- cuting agency.

The cases pertaining to petty oliences should be entrusted to Nyaya Panchayats and for adjourning the cases in the court the judges should have discretion either to grant or not or otherwise on the basis of the circumstances. The list under the category of compoundable offences should be enlarged. H6 has also canvassed the idea of introducing plea bargaining. He suggested that for every agency credibility is the criterion.

Shri Kulkarni and Shri Kotikar.---These District Judges have not contri- buted anything even at the request of the Chief Justice except approving the views as expressed in the questionnaire.

Shri Khobrey.---He formulated a scheme in order to make the investigat- ing officers work effectively. He has furnished a scheme in a detailed way. This can be read as the part of the replies received with reference to questionnaire sent by the Law Commission.

Mrs. Desai, District Judge.----She canvassed the idea for creating the prosecuting agency as separate and suggested ways and means to make the investigating agency to work eﬂiciently. She also suggested for keeping the status of section l62 Cr.P.C. as it is and the said statements can be utilised for the purpose of coordination also. The anticipatory bail should continue, but it should be restricted to only selected cases-. At the time of recording statements of the accused under section 313, the accused should not be allowed to change the version from time to time. In other words, he should adhere to one version throughout either at the time of framing of charges or at the time of recording statement under section 313 Cr.P'.C. Mrs. Bhat, Dktrict Judge.----She canvassed a view for the appointment of prosecutors from the beginning of the case. For appointing such prosecutors the District Judges should be consulted. A There was cross discussion among the speakers. They have stated that since the material /evidence is being collected against the accused, he should be given opportunity to defend himself. Another suggestion was that the accused should be given time up to seven days to disclose his version. Another view was that physical arrest of the person under section 41 Cr.P.C, should ' be done away with.

Mr. Patel, District Judge.----The Judge should have discretion to admit a particular document or otherwise. Another view was that maintenance allowance should be increased under section 125 Cr.P.C. it was further suggested that the warrants issued 'by the courts are not being executed in time. There should be a provision for attachment of salaries of the husbands if the maintenance is not paid to their wives in section 125 Cr.P.C. proceedings.

Shri Agarwal, Secretary, Home Depar-timent.----ln some cases copies of complaints are not supplied to the parties, particularly in the private complaints. The opposite parties are not getting opportunity to defend themselves in the absence of supply of material. This position requires proper consideration. Another suggestion was with regard to utilisation of video cameras and their admission for the purpose of evidentiary value.

After lunch Hon'ble Chairman of Law Commission stated that on the basis of report of the previous Law Commissions, certain amendments were proposed in I.P.C. and a Bill was introduced in the Parliament, b .:t the same had elapsed due to the dissolution of the House. Thereafter, there was a rethinking, and the Union Home Minister desired that instead of amending a few provisions, there sho-uld be thorough revision of the entire Act. Hence, the Law Commission has undertaken the task of making recommendations for amendment in I.P.C. by way of inserting new concepts. In that context, he dealt with the following topics:

1. Under the category of punishment, community service can be intro-

duced.

2. Disqualiﬁcation for public servants.

3. Public censure.

-B . Constructive liability _of the corporation under section 194A & B of the Companies Act.

5. Cheating of government in contracts by public servants.

6. Blackmailing.

7. Hijacking of vehicles.

8. Anti social elements.

9. Culpability.

10. F.I.R. being not registered which is an otfence.

11. The deﬁnition of section 299' and 300 I.P.C. and the distinction in the phraseology in the two sections.

There was a little discussion on the above topics. Then, H0n'ble Chair- man requested the -participants to consider the 'above topics an-d reduce their views in writing in detail and send them to Law Commission. Thereafter the workshop ended with vote of thanks by the Hon'ble Chairman, 14-2 M ofL & I/ND/97 Proceedings of workshop held at Madras on March 13, 1996 relating to the pro- posed amendments to certain sections/clauses of code of criminal procedure The above workshop was headed by Mr. Justice K. J_ayachandra Roddy, Chairman, Law Commission of India along with Thiru Justice V. Ramaswami. Chairman, "Tamil Nadu State Law Commission. ' Present :

1. S. Sripall~D.G.P. (Trg.)

2. V.K. Rajagopalan----Addl. D.G.P. C.B.C.I.D.

3. K.V.s. Murthy~D.I.G. Admn.

4. Letika Saran~D.I.G. C.B.C.I.D. ,

5. S. Ramani----Joint Director, Vigilance & Anti-Corruption" - 6

. K.E>. '-/'enkatraman~--Legal Adviser, Director of Vigilance & Anti Corruption.

7. S. Saravanaperumal----Director, Prosecution.

8. V. Chandraselcaran---AddL Secy. (Courts), I-I0me Department, Madras-9.

9. M. Muniraman--Law Secretary.

10. M. Nagoormeeran--~Director of Govt. Litigations, High Court.

11. A. Krishnankutty Nair~--D'y. Secy. to Go-vt., Law Department.

12:. AR. Chittaranjan~JUnder Secy. to Govt, Law Department.

13. K. Sumathi----Advocate, High Court, Madras (Women Lawyers Association).

14. S. Vanamamalair--I_egal Adviser to DIG/C.B.C.I.D.

15. "LC. Sridharan----Under Secy. to Govt. (Law).

16. RK. Kasi Viswanathan--~Dy. Cornmr. of Police, City Police Ofﬁce.

17. Ammu Balachandran----Advocate, Madras High Co-urt.

18. P. Anand Rao--~Full Time Member, State Law Commission,

19. P. Jeyasingh Peter----Full Time Member, State Law Commissim.

20. Justice K. Swamidurai--Part Time Member, State Law Commission- 2l. K. Ramalingam----Inspector General of Prisons.

22. L. Vijayanarayanan----Dy. Inspector General of Prisons.

23. RC Varadarajulu-«Member-Secretary, State Law Commission.

24. S. Loordusaamy--Deputy Secretary. State Law Commission.

Mr. iustice V. Ramaswami, Chairman, State Law Commission, welcomed the participants. He highlighted the importance of workshop and briefed about the proposed changes required for certain sections in the Code of Criminal Procedure. He requested all the participants to come out with their views] suggestions on the above.

After this followed Key Note address from Mr. Justice K. Jayachandra Roddy, Chairman, Law Commission of India. He said that it was the first time in the 19th century Law Commission was constituted during the British Rule and the Law Commission was headed by Macuulay. This Commission have given a lot of suggestions to amend the laws and the suggestions were accepted and laws were amended accordingly. After independence, ﬁrst Law Commission of India was constituted in the year 1955. He said that Law Com- mission of India was constituted every three years from the year 1955. He said Law Commission have the uphill task of suggesting to bring out various rc- forms in the ﬁeld of law and as regard the code of criminal procedure. He said that Law Commission in its 14th report have suggested amendments to 94 95 certain sections in the code of criminal procedure. He also pointed out that an Amendment Bill was recently introduced in the Rajya Sabha in the year 1994 for amendment of the code of criminal procedure. He also informed that Law Commission of India was asked by Government of India that instead of making piecemeal suggestion to the code of criminal procedure, but to make an in--depth study of the entire code of criminal procedure and to come out with the suggestions to amend the code of criminal procedure wherever relevant to suit the modern times. Having this uphill task he has,been conducting work- shop at various States of India participated by professionals like judges, law- yers, high police oﬂicials and other persons connected with it and the workshop held today is one such. He briefed the important sections which needs to be amended and requested the participants to give their valuable suggestions. H6 also enlightened the valuable suggestions given by the participants in the work- shop held earlier in various other States and some of them have to be really thought of though few other suggestions may not be partially possible.

Gist of discussion (1) Chairman, Law Commission of India referred to the 4th report of police commission and informed that necessity arises to have a separate investi- gating agency in the police department so that investigation process in the cases of serious offences may not be disturbed since such police officers are disturbed by entrusting them with other work such as bandobust, security etc. Thiru S. Sripall, D.G.P. (Trg) suggested that instead of having a separate investigating agency, it would be better to increase the strength of the police oﬁicers and also give some additional powers for investigation and this would help in expediting the investigation and such investigating oﬂicers would not be entrusted with any other work and thus would help in completing the investi- gation a.t the earliest.

(2) Section 41 of the Code of Criminal Procedure Immediate Arrest _ V I Chairman, Law Commission of India said that police Officers thinks that arrest is a must. He «pointed out that the Supreme Court in a judgement in one of its cases has ruled that police oﬁicers are misusing their discretionary powers for the immediate arrest whether the offences are of minor/major One and stressed the need for having a separate prosecuting agency to prevent imme- diate arrest; This agency should work on three aspects--~ (1) As an investigating agency.

*(2) Certain -legal questions.rnay arise in which case there should be a legal cell in the police department for the investigation. He said in -some States' there are legal cel1'consisting of legal experts to act as an advisor to D.G.P., Commissioner of Police.

(3) Filing of police charges.

Effective investigation is very much necessary. Co-operation between investigating and prosecuting agency should be good.

Thiru S. Saravanaperumal, Director Prosecution, though welcomed the above measure, opined that Director of Prosecution must be a senior police officer so that investigation and prosecution will be done at the earliest and the Director of Prosecution should not be from the law professionals like District Judge etc. Thiru V. K. Rajagopalan, Additional D.G.P. C.B. C.I.D, supported the statement of Director Prosecution.

Thiru S. Sripall, D.G.P. Training opined that immediate arrest should not -be completely avoided because few persons approach the political inﬂuence thereby delaying the investigation. However, he agreed for certain changes in discharging immediate arrest.

Ammu Balachandran & K. Sumathi opined that Director of Prosecution should be law professional instead of police personnel.

Sections 161 & 162 D.G.P. Thiru S. Sripall agreed with the proposal to get the accused trrested in warrant cases. Whereas in respect of summons cases to ascertain the facts coiitraoicting the witnesses and get the attestation. Chairman, Law Lemn;i;sion 0." India re.erred to section 157 of the Indian Evidence Act and said that he wissied the following:

(a) Police Commission suggestion on the above is agreeable.

(7:3) -;egarding the statement as above, said that there is no harm in taring the signature to be attested. This would enable to identify tiie witnesses. The witnesses should be produced before the higher authority and the magistrate. This would be much more authentic as well as contradicting.

Thiru Saravanaperumal, Director of Prosecution said that the above will only lead to overburden the magistrate who Wlll not be accepting to this. How- ever, amendment to these sections was sought by him and other police personnel.

Section 167 Chairman, Law Commission of India said that the arrested persons for the Gist fortnight should be kept under police custody and thereafter under judicial custody and therefore amendment to section 167 is necessary. There was no objection from the police oﬂicers.

Nyaya Panchayat Chairman, Law Commission of India said that though Nyaya Panchayat does not prevail in all the States, a Bill has been introduced in Andhra Pradesh Assembly recently, wherein a retired judicial oﬂicer should preside over the Nyaya P'anchayat and the type of offences to be tried are prescribed in the Bill. He also pointed out that Judge, Desai while as Chairman Law Commission of India gave vital suggestions to the Govt. on the above. Since the above does not prevail in the State of Tamil Nadu there was no remarks from the partici- pants. ' Anticipatory Baii There were comments on Anticipatory bail from the participants which are used as key tool to escape from arrest and thereby delay the investigation by getting the political affluence.

Thiru S. Sripall, D.G.P., said that changes are must in respect of antici- patory bail so that it is not used by rich persons quite often to escape punish- ment for their offences. Also the place where anticipatory bail sought for irrespective of oliences committed in some other States.' * A Thiru S. Saravanaperumal and Thiru S. Ramani,' Joint Director, Vigi- lance & Anti-corruption also agreed that changes are necessaryfor anticipatory bail in the matter of application such as giving notice to the Public Prosecuton.

grounds on merits, kind of offences etc. -

Plea-Bargaining p Chairman, Law Commission of India referred to the method of plea- ba-rgaining prevalent in U.S.A. wherein the accused for minor Offences is ﬁned and not being prosecuted.

Thiru s. 'Sripall, D.G.P. viewed that this_ must be seriously thought of _ because the society should not take advantage of this and pay the amount for the offences committed. It also matters about the type of offences that should come under the category of plea-bargaining. Ammu Balachandran, Advocate, Madras and K. Sumathi, Advocate, Wowen Lawyers Association suggested that trial in respect of cases such as rape should be tried in family courts in the State and only women prosecutor should be appointed for such courts. In this con- text special reference is made to -Article 125 that the pr0'vision is salutary to make more changes. A-- » » 9'7 Proper compensation for victimology There was unanimous opinion that the victims should be properly Com- pensated in the affected areas such as where dacoity has taken place. Thiru S. Sripall, D.G.P. opined that investigation should be thoroughly done at the local place where dacoity has taken place. He also suggested to ascertain the assets of the accused person/s. Chairman, Law Commission suggested to have victim compensatory court. He also informed that proper care should given to the witnesses and they should be in a respectable manner, Ammu Balachandran & K. Sumathi Advocates said that witnesses oral statement should be recorded so that it does not vary from the written statement from them during the course of the trial.

Chairman, State Law Commission suggested for a separate police set up for serious offences. Mr. S. Sripall, D.G.P., said that investigation suffers be- cause of the multifarious duties by station staff and we should aim in reducing the jurisdiction of the police station and increase number of police stations. He further said that policemen are foot soldiers of the executive and therefore they should have ample power in their ﬁeld to conduct thorough investigation with- out any interruption. He also requested for increase in number of police oﬂi- cers. He also suggested for a District Crime Branch in each District headed by Dy. Supdt. of Police so that while conducting investigation it should not be disturbed for any other matters and sufficient police officers should be pro- vided to him.

Additional D.G.P. also opined that investigation is very much delayed as the investigation oﬂicers are asked to lookafter maters like bandobast, security etc. Chairman State Law Commission, opined that investigation is also delay. ed due to sudden transfer of investigating ofﬁcers, allocation of different urgent work etc. Thiru K. V. S. Moorthy, I.G. CBCIDgsaid that additional level of sepa- rate investigating team should be set up, since hundreds of murder cases are pending for trial for disposal.

Ammu Balachandran said that even after F.I.R. no action is being taken

-by the police saying that matters of urgent importance such as murder cases even seems to be pending. So she suggested some changes are necessary for the speedy disposal of cases.

As regards the arrest of accused, Thiru S. Sripall, D.G.P. suggested that modern ﬁnger print technology should be well utilised for the arrest of accus- ed when information provides that he is guilty. The modern techniques must be made available in all the police stations to take necessary action on the accused. However changes to prevent immediate arrest is sought for.

Director of Prosecution Thiru S. Saravanaperumal, Director of Prosecution said that to expedite the investigation and to prosecute the accused the Director of Prosecution must have some police oﬂicers. Now this is being done by Public Prosecutors who are politically appointed as a result of which after the tenure the new Puiblic Prosecutor takes charges etc. Hence public prosecutor himself should the from the senior police officers.

K. Sumathi, Advocate and Ammu Balachandran strongly opposed this and said that the Director of Prosecution should be from judicial side only for the proper handling of cases.

Thiru V. K. Rajagopalan, Addl. D.G.P. said that at least Asst public Prosecutor should be a police personnel for the proper assistance to the prose. cutor.

Amendment to I.P.C.

Chairman, Law Commission of India pointed out that two 'Sections. that are being added in respect of liabilities of the Directors of the company and this is being referred to Company Law Board and the other being complexity in sections 34 & 149.

Ransom Offences Chairman, Law Commission of India said that public property contrac- tors are cheating government _by their defective work. _They should be dealt with. The offences against privacy with reference to Article 21 is necessary.

Amendment to Sections 299 & 300 It was generally opined that it shall be left out as it is.

Chairman, Law Commission of India concluded the meeting after getting the suggestions from various. personnel and he requested them to send written suggestion to him or through Member-Secretary, State Law Commission for consi- deration.

He also requested the participants if they desire to have a long time session with the Chairman of Tamil Nadu State Law Commission On their subjects.

Chairman, State Law Commission once again thanked the participants and requested them to send their written suggestion to State Law Commission which would be dealt with. He also requested the participants to have lunch and with this meeting ended.

Proceedings of the Workshop conducted at Sales Tax Bhawa_n._New Delhi, _on 4-5-96 regarding the proposed Amendments by the Law Commission for Revision of code of Criminal Procedure, 1973.

A workshop was organised by Delhi High Court at Sales Tax Bhawan, J.T.O.. New Delhi on 4th May, 1996 regarding the proposed amendments by the Law Commission for revision of Code of Criminal. The workshop was attended by the following persons :

1. H_on'ble Mr. Justice K. Jayachandra Reddy, Chairman, Law Com-

mission.

2. Eionlble Mr. Justice M'. Jagannadha Rao, Chief Justice, Delhi High ' 01111'.

3. Hon'ble Ms. Justice Usha Mehra

4. Honlble Mr. Justice Manmohan Sarin

5. Hon'ble Mr. Justice Y. K. Sabharwal

6. Hon'ble Mr. Justice Arun Kumar

7. Honihle Mr. Justice Daiveer Bhandari

8. Hon'ble Mr. Justice Cyriac Joseph

9. I-Ion"ble Mr. Justice K. Ramamoorthy

10. Hon'bIe Mr. Justice J. E. Goal II. Hon'ble Mr. Justice R. L. Gupta, Member, Law Commission

12. Mr. G. Krishnamurthy, Member, Law Commission

13. Prof. (Mrs) Alice Jacob, Member, Law Commission

14. Mr. Prabhakara Rao, Member Secretary. Law Commission

15. Dr. S. C. Srivastava, Joint Secretary & Law Oﬂicer, Law Commis- sion

16. Mr. M. A. Khan, Registrar, Delhi High Court

17. The District & Sessions Judge, Tis Hazari Courts alongwith ten senior Additional District & Sessions Judges & 20 Senior Metro- politan Magistrates

18. The Commissioner of Police with some senior oﬂicers

19. The Director of Prosecution, Govt. of N.C.T. of Delhi with Shri R. P., Dhania, Shri R. K. Manchauda, Chief Prosecutors, and S/ Shri K. K. Singh, Ranbir Singh, Addl. Public Prosecutors '20. Sh. R. D. Joly, 413, Lawyers Chamber, Delhi High Court

21. Sh. Raj Kumar Bahri, 1550-D, Babar Pur Road, Shahdara, Delhi

22. Ms. Neelam Grover, 9, Lawyers Chamber, Delhi High Court

23. Sh. K. B. Andley, 63, Defence Enclave, Vikas Marg, Delhi

24. Sh. R. K. Naseem, 027, New Krishna Park, Dholi Piao. Opp. Janak- puri, New Delhi.

25. Sh. Ramesh Gupta, Chamber No. 64, Patiala House. New Delhi

26. Sh. K. K. Sud, 103, Lawyers Chamber, Delhi High Court, New Delhi 27- Sh. Dinesh Mathur, A-17, Hawz Khas, New Delhi 28- Sh. S. K. Aggarwal, Standing Counsel, (Gen-1.), Govt. of N.C.T. of Delhi, New Delhi.

The Registrar enlightened the House with his, remarks on the need to organise the workshop and invited H0n'ble Ms. Justice Usha Mehra to take over from him and address the House. The workshop/seminar was presided over by Hcrfble Mr. Justice Reddy, Chairman, Law Commission. Hon'ble Ms. Justice Usha Mehra laid stress on the importance of the workshop and need to make amendments in the Criminal Procedure Code. Her Lordship also talked about the scenario of Crime and Criminal Laws in the post-independence era. Her Lordship also suggested some remedies to the problems coming in lO0 the way of justice delivery up}:-.'1'.9atuS. Hon'ble Mr. Justice M. J. Rao, Chief Justice, Delhi High Court also addressed the participants and apprised the House with the reforms in the Criminal Laws which are reqarired in the fast changing criminal environment in the country. Hon'ble Mr. Justice Reddy, Chairman, Law Commission spoke on the necessity of organising the work- shop. His Lordship also emphasised on the uniformity, in the justice delivery apparatus.

Separate Investigating Agency The need to set up a separate investigating agency was expressed by His Lordship Mr. Justice Reddy. The participants were asked of their views on the above point and suggestions were furnished that due to other responsibilities the Investigating O-ﬂicer cannot justify the investigation which he is required to perform. Stress was laid on the fact that the present investigation procedure is not adequate and, therefore, a separate investigating Agency should be formu- lated. Most of the cases in the Courts were adjourned because of the fact that the investigating officer is not present in the Court.

Mr. R. C. Gupta, ADJ also recommended that the Investigating Ofﬁccr must be trained and special remuneration should also be provided to them. The Agency should be separate for all the cases.

Mr. Dhingra suggests that the agency should be separate for all the cases. It should not be under the same police department, should be independent and independent from political interferences. Mr. Dayal, ADJ stresses that it should be controlled by the Directorate of Prosecution. Mr. B. N. Singh, Representa- tive, Delhi Police suggested that separation alone may not help but other aspects have to be looked into.

The House agrees on the point that a separate investigating agency should be formulated and it should be governed by the Directorate of prosecu- tion which will be headed by' a Director. The Director has' to be from the judiciary. His Lordship Mr. Justice Reddy argued for the proper guidelines to be laid down showing the procedure of co-ordination between the police oﬂicers and the Director otherwise unwanted disputes may arise due to ego problems. Mr. Justice Reddy also talked about the detailed procedure of wit- ness Act. how the statements are recorded and put to the courts and suggests the steps to eliminate the error concept etc. Anticipatory Bail At the outset it is pointed out that there is no anticipatory bail in the State of Uttar Pradesh and as such the provision of anticipatory bail can be waived in the Capital also. The consensus says that this provision should not go -because the capital is housing most of the VIPs and other famous personali- ties for whom going to lockup itself is more than being jailed as a social stigma is attached to it. It was suggested that it should not go but it should be more liberalised. Misuse of sub-section 1. 2, & 3 of Section 458 should be stopped._ The provisions 'of Section 488 have to be retained with some improvements. Witnesses _ 7 Most of the cases are adjourned because witnesses do not turn up as they come from far-ﬂung areas. Proposal of giving protection to the witnesses was also forwarded. ~ Deletion of Section 162 Cr. PC It was ﬁnally decided that change in Section 162 Cr. PC is required.

Compounding Ms. Neelam Grover said that trial courts must be empowered. Mr. Khanna, Mr. Malik, Ms. R. S. Nag, Mr. Sood all talked on the point and the House was unanimous for the compounding.

Vote of Thanks by Hon'ble Justice M. M. Satin.

Act XLIV of 1956 Central Act 2 of I924.

Act I3 of I994.

ANNEXURE V Registered No. HSE/49 [Price: Rs. 2-S5 Paise.

THE ANDHRA PRADESH GAZETTE PART--lV-A EXTRAORDINARY PUBLISHED BY AUTHORITY No. 32] HYDERABAD, THURSDAY, MAY 4, I995 ANDHRA PRADESH BILLS ANDHRA PRADESH LEGISLATIVE ASSEMBLY The following Bill was introduced in the Andhra Pradesh Legislative Assembly on 4th May. 1995.

L.A. BILL No. 32 OF I995.

A BILL TO PROVIDE FOR THE ADMINISTRATION OF CIVIL AND CRIMINAL JUSTICE IN MANDALS AND MATTERS CONNECTED TI-IEREWITI-I OR INCIDENTAL THERETO.

Be it enacted by the Legislative Assembly of the State of Andhra Pradesh in the Forty-sixth Year of the Republic of India as folIows:----

PA RT I----PRELIMINARY

1. (1) This Act may be called -the Andhra Pradesh Mandala Nyaya Pan-shomm; "zen:

chayats Act, 1995. and commencement B. 62-] (2) It extends to the whole of the State of Andhra Pradesh. except.----~--: 2'

(a) the municipal corporations governed by the law relating the Municipal Corporations for the time being in force in the State:

(b) the municipalities governed by the law relating to municipalities for the time being in force in the State:

(c) the mining settlements governed by the Andhra Pradesh (Telengana Area). Mining Settlements Act, 1956: and

(d) the Cantonments governed by the Cantonments Act, I924.

I (3) It shall come into force, on such date as the Government may, by notiﬁcation, appoint. ' ,- ~ -

2. In this Act, unless the context otherwise requires,---- I)eﬁr1iliuns

(a) "Government" means) the State Govemment of Andhra Pradesh:

(b) "Gram Panchayat" means a Gram Panchayat constituted under Andhra Pradesh Panchayat Raj 'Act. 1994.

(c) "Mandal" means Government by notiﬁcation to"be Andhra Pradesh Districts.

such area in a districtas may be declared by the a Mandal under section 3 of the I01') I5 «2 M of L & .|/ND/97 I02 (Formation) Act, 1974; A" 7 ''f '994- (tl) "Member" means a member of the Nyaya Panchayal:

(e) "Nyayadhyaksha" means a Nyayadhyaksha nominated under section 9.

(f) "Nyayapalaka" means a Nyayapalaka nominated under section 8:

(g) "Nyaya Panchayat" means a Manda] Nyaya Panchayat established under section 8:.

(h) "Notification" means a notiﬁcation published in the Andhra Pradcsh Gazette and the word "notiﬁed" shall be construed accordingly:

(i) "Prescribed" means prescribed by rules made under this Act.

imabiishmmt (,1 3. The_Government may, for the administration of Civil and Criminal Manda! N_va,Va Justice, established a Mandal Nyaya Panchayat for each Mandal. by a notifica-

"3"°h8>'ﬁ'b- tion with effect from such date as may be speciﬁed therein.

4. Every Nyaya Panchayat shall consist of ﬁve members, possessing the qualiﬁcations speciﬁed in section 5 who shall be nominated by the District Magis- trate concerned in consultation with the District and Sessions Judge; Provided that out of the ﬁve members to be nominated, one shall be a member belonging to Scheduled Castes or Scheduled Tribes or Backward Classes onminorities or one shall be a woman. .

Qualiﬁcations 5. (1) No person shall be eligible for nomination member uiiless,------ ' l'fi - -- 4 . ~ . .

}f,'l",§i,'ma°§a- (a) he has completed the age of thirty years. _ 1' -. e '. -. . . . ' . ; .

mm as m m m (b) he is either a graduates in law or a graduate of anytrecognised Lniver- sity or a well knownsocial worker or a person having good reputation. (2) A person who has been convicted by Criminal Court,--

(i) for an offence under the Andhra Pradesh Prohibition Act, 1995; Act l7 of 1995.

(ii) for an offence under the Protection of Civil Rights Act, 1955; or Central Ac, 33 of

(iii) for any other offence involving moral turpitude; '95s' Shall be disqualiﬁed for nomination or to continue as a member.

. (3) A person shall also be disqualiﬁed for nomination or to continue as member, if he is,----- '

(i) of unsound mind and stands so declared by a competent court;

(ii) a deaf-mute;

' (iii) applicant to be adjudicated as an insolvent or an undischarged insol- vent; or ~

(iv) a person against whom proceedings are pending in a Criminal Court.

6. (1) There shall be a Nyayapalaka for one or more Nyaya Panchayats, who shall possess the qualiﬁcations speciﬁed in subsection (2) _and shall be nomi- nated by the District Magistrate, in consultation with the District and Sessions i Judge. . V .

(2) No person shall be qualiﬁed for nomination as Nyayapalaka unless he is.----~

(a) a retired judicial officer; or

(b) a person who has.held any post under the Government and who had exercised magisterial powers for not less than three years; or (O) a person who has held any_ post under the Government and has passed Criminal Judicial and Civil Judicial tests conducted by the Andhra Pradesh Public Service Ccmmissionz or Central Act II of 1812.

l()3

(d) a person who has served as a member of the Nyaya Panchayat for not less than three years.

(3) The Nyayapalaka shall assist and advise the Nyaya Panchayat or Paiichayats to which he is nominated on any two days in a week mutually agreed upon by him and the Nyaya Panchayat concerned it as often as his services are required by the Nyaya Panchayat concerned and mutually agreed upon by him and the Nyaya Panchayat.

7. (l) Save as otherwise provided, in this Act, the term of office of the Term of Om". of members shall be three years from the date of their nomination. Members.

(2) Any casual vacancy among the members of the Nyaya Panchayat shall be tilled by nomination of another member in the same manner as a regular vacancy but the term of office of the member so nominated shall be the residue of the person in whose vacancy he is nominated.

8. A member or the Nyayadhyaksha or the Nyayapalaka may resign his Resignzvinii of oﬂice by giving notice in writing to the District Magistrate and such resignation "R/'"b¢T-S shall take effect on the date on which it is accepted by the District Magistrate. §ff'3;§£,r;ypa,;§sh"'

9. (l) The District Magistrate shall nominate one of the members to preside Nomination of over and conduct the proceedings of the Nyaya Panchayat and the Member so Nyayadhyakshw nominated shall be designated as Mandal Nyayadhyaksha and where a woman member is nominated she shall be designated as Mandal Mahila Nyayadhyaksha.

(2) In the absence of the Nyayadhyaksha, the proceedings shall be con- ducted by one of the members present and chosen from among themselves who shall be called the Presiding Member.

(3) The quorum for conducting the proceedings of the Nyaya Panchayat shall be three members inclusive of the Nyayadhyaksha or as the case may be the Presiding Member.

10. (l) The Nyaya Panchayat shall try all the civil disputes speciﬁed in ma, of C ' section 15 and the olfences speciﬁed in section 26. 'W3' Provided that in respect' of the category of disputes speciﬁed in items (9) and (10) of section .15 and items (6), (7) and (8) of section 26, as far as practic- able, a Mandal Mahila Nyayadhyaksha shall conduct the proceedings of the Nyaya Panchayat. _ Provided further that in respect of offences speciﬁed in section 26 punish- able with imprisonment, the Nyaya Panchayat shall be assisted by the Nyaya- palaka in the trial and shall be advised by him in reaching the ﬁndings:

Provided also that where the Nyaya Panchayat is of the opinion that in a civil dispute the assistance and advice of the Nyayapalaka is required in the interests of justice, the Nyayapal shall, as the request of the Nyaya Panchayat render such, assistance and advise the Nyaya Panchayat suitably. (2) The Nyaya Panchayat shall be provided with one junior clerk with knowledge of typewriting and one attender. '

11. The oﬂices of member, the lflyayadhyal-rsha and the Nyayapalaka shall Members em to be be honorary offices and they shall be paid such daily allowances as may. by order, honorgry (,m¢es_ be ﬁxed by the Government.

12. Every Nyaya Panchayat shall have a seal in such form and of such Seal of Nyaya dimensions as may be prescribed. Panchayat

13. (1) Subject to the provisions of this Act, the Nyaya Panchyat shall in Conduct of regard to the conduct of its business follow such rules as may be prescribed. gusinlfss of Nyaya (2) Save as otherwise provided in this Act or the rules made thereunder am an the provisions of the Indian Evidence Act. 1872. the Code of Criminal Procedure, Nyaya Pancliayal to have exclusive 'Civil and Criminal Jurisdiction.

Central Act 2 of 1974.

Central Act 5 of 1908.

Suits cognizablc by Nyaya Panchaiat.

Certain disputes not to be tried by Nyaya Panchayat.

V. I04 ""'.'..' "if ' . ,a_ I908. shall not apply to the proceediiigs 2C:I}l1f3;4(\0' Central Act 5 0f1,903.

Act 2 of I974.

1973, and the Code ol' Civil Procedure.

of a Nyziya Panchayat:

Provided that the Government may by notification apply such provisions of the Code of Criminal Procedure. 1973. as they deem necessary for the investi- gation and trial of offences by the Nyaya Panchayat under this Act. l4. Notwithstanding anything contained in the Code of Criminal Proce~. dure. 1973, or the Code of Civil Procedure, l908, or any other law for the time being in force relating to suits or applications cogriizable by revenue courts, and subject to the provisions of this Act. a Nyaya .Panchayat shall have and the ordi- nary civil or criminal courts as the case may be. shall not have, jurisdiction for trial of such olfences as are speciﬁed in section 26 and such suits and disputes as are specilied in section 15. A PART ll~r ~ClVlL JURISDICTION

15. The Nyaya Panchayat shall take cognizance of civil suits or disputes of the following description, namely:

(I) a suit for recovery of money due on a promissory note or agreement or contract or arising out of a business or trade transaction the value of which does not exceed rupees fifty thousand: (2) suits relating to non-payment of wages to labour: (3)

suits relating to disputes between landlord and lessee in respect of the lease of land;

(4)'suits relating to right of way for men, carts and cattle in ﬁelds court-yards;

and (5) (6) suits relating to water channels;

suits relating to right of drawing water from a well or tube-well or irrigation channel;

(7) suits relating to boundary disputes and encroachments other than those relating to Government properties:

(8) suits relating to purchase and sale of lands to the extent of ﬁve acres of dry land or two and half acres of wet land; (9) matrimonial disputes including custody of children (other than suits for dissolution of marriage of judicial separation) which may be resolved by conciliation;

(IO) disputes relating to maintenance:

(ll) any other disputes of a civil nature that may be referred to by) the parties for conciliation and settlement:

(l2) disputes reagrding recovery of movable property or regarding com-

pensation for wrongful taking over or injuring movable property:

(13) disputes regarding damage caused by cattle (trespass:

(l4) disputes regarding rent due on any immovable property; (15) any other dispuites which the Government may, from time to time, by order empower the Nyaya Panchayat to take cognizance.

16. (l)_ The Nyaya Panchayat shall not have jurisdiction to take cognizanc of the following disputes, namely:-- --

(i) a dispute by or_ against the State or Central Government or a local body, or a public servant for acts clone in his official capacity:

(ii) a dispute by or against a minor or a person of unsound mind;

(iii) a dispute for a balance of partnership account. unless the balance has been struck by theparties or their agents. ' B. 62-2' ' ' ' ' t Central 'Act V of 1908.

I05 Nyaya Panchayat to close a case in . . certain circums-

(a) legal title to immovable property; or tances,

17.' If, in a_civi1 dispute itbecomes; necessary to decide:

(b) any legal question regarding the validity of a contract of agreement; or

(c) any complicated issue of fact or law which should be decided by court of law, the Nyaya Panchayat may on its own motion and shall on an application by either party to the dispute pass orders closing the case, and advise the parties to approach the appropriate civil court

18. The provisions of the Indian Limitation Act, 1963 shall apply to dis-'APP1i°a"0n °"h° putes cognizable by a Nyaya Panchayat under this Act.

19. No legal practitioner shall be allowed to appear before a Nyaya Pan- Appearance in chayat on behalf of any party to a dispute but any party may authorise in writing P350" °' by 35°"

a servant, gumastha, partner, relation or a friend who is not a legal practitioner to appear and plead for him as his authorised agent with the permission of the Nyayadliyalcsha.

A ' " ' " ' A' it If 1' Pr ceduretobe

20. (l) The party lnltlatlllg a civil dispute of the nature referred to in foﬁowed by Nyaya section 15 shall ﬁle a petition before the Nyaya Panchayat in the prescribed form Panchayat in Civil' furnished to him free of cost, stating his name and address, the name and address disputes-, of the opposite party and a brief statement of his case.

(2) The petitioner shall not be required to pay any court fees on his petition.

(3) The Nyaya Panchayat shall serve a notice on the opposite party enclos- ing a copy of the petition and ﬁxing a date for his appearance and to ﬁle a counter in defence.

(4) After the respondent ﬁles his counter the Nyaya Panchayat shall ﬁx a date for hearing and inform both the parties to be present.

(5) (a) On the date ﬁxed for hearing the Nyaya Panchayat shall hear both the parties in regard to their respective contentions and if thedispute is of a petty nature which does not require recording of any evidence pronounce the decision on the same day.

(b) In case any of the parties to the dispute desire to produce oral and / or documentary evidence or the members of the Nyaya Panchayat are of the opinion that the disputes involves questions of fact which have to be decided by recording oral or documentary evidence for a just decision on the dispute. the' Nyaya Panchayat shall require the parties to produce oral and documentary evidence, if any, on a date ﬁxed for hearing. ' (6) Evidence given orally before the Nyaya Panchayat shall be on oath or on solemn affirmation. ' (7) The evidence of each person shall be recorded in the form of a memo» I . randum of the substance of the evidence. A (8) In regard to any incidental matters that may arise during the course of enquiry, the Nyaya Panchayat shall adopt such procedure as is deemed fit from time to time.

(9) The Nyaya Panchayat shall have the same powers as are vested in a civil court under the Code of Civil Procedure-, 1908 while trying the suit in res- pect of the following matters, namely:--~--

(i) the summoning and enforcing attendance of any defendant or witness ' and examining the witness on oath:

(ii)_the discovery and production of any document or other material object_produceable as evidence; .

(iii) the reception of evidence on affidavits. A. 16-2 M ofL 3!. J/ND/97 106 (11)) The hearing shall be on a day to day basis and shall be disposed of within a period of six weeks.

(11) After the enquiry is completed the members shall discuss among themselves and pronounce the decision within one week after the last day of hearing. The order shall be signed by all the members present. Where the deci-

sion is by majority of the members present that fact should be noted in the order itself and the dissenting members also shall record their reasons for the dissent in the order.

(12) The order shall contain the number of the petition, the names of the parties, the particulars of the claim, the points in issue, the substance of evidence adduced on either side, if any, the ﬁndings reached by the Nyaya Panchayat V and the reasons therefor. The order shall be written and pronounced either by the Nyayadhyaksha or by a member authorised by him. A copy of the order shall be delivered to both the parties as quickly as possible free of cost.

1"."-"Sf" Of CW" 21. The District and Sessions Judge may on an application by either party D'sp"'°5' to the civil dispute pending before a Nyaya Panchayat transfer the same to any other Nyaya Panchayat within his jurisdiction, if it is considered necessary in the interests of justice.

Pavni:iit_qf , 22. In suits for money where the Nyaya Panchayat passes a decree for pay~ fi';::°'°5' "1 mom'-Y ment of money the Nyaya Panchayat may also order payment of interest thereon recs' at a rate not exceeding 12% per annum on the sum decreed from the date of suit till the date of payment or it may direct that it be paid by instalments, without interest or with interest.

Execution of 23. Any decree or order passed by a Nyaya Panchayat shall be sent to <1°°"=€5 and Orders' the District Munsif having jurisdiction over the Mandal concerned and thereupon the District Munsif shall execute the same in accordance with the provisions of the Code of Civil Procedure Code, 1908 as if it is a decree passed by him.

goinpromise 24. If both the parties to a civil suit or dispute arrive at a compromise °°'°°" and ﬁle an application before the Nyaya Panchayat to record the same, the Nyaya Panchayat shall pass a decree in accordance therewith.

25. (1) An appeal shall lie to the District Judge having jurisdiction from anyjorder passed by a Nyaya Panchayat within thirty days from the date of receipt of' a copy of such order.

(2) «Pending disposal of the appeal, the District Judge may stay the execu- tion of an order or decree, as the case may be appealed against.

(3) The decision of the District Judge in any such appeal shall be ﬁnal. PART III--CRIMINAL JURISDICTION Nyaya Panchayat 26. The Nyaya Panchayat shall take cognizance of, and try, any of the '(Fake 'cognizance following offences either on a complaint or on a police report, when committed gﬁggflwry within the local limits of its jurisdiction, namely:

(1) offences punishable under sections 160, 277, 278, 283 to 291, 323. I334.

341, 342, 352, 358, 504 and 510 of the Indian Penal Code'.

(2) offences punishable under section 379 of the Indian Penal Code in respect of property of the value of which does not exceed rupees ﬁfty thousand;

(3) offences punishable under section 426 of the Indian Penal Code when the loss or damage, caused thereby does not exceed rupees ﬁfty thousand.

(4) complaints of illegal seizure or detention of cattle under the Chapter----V Central Act of the Cattle Trespass Act, 1871 and offences of forcibly opposing' °f1371- the seizure of the cattle or rescuing the same, punishable under sec- tion 24 of that Act, and offences of damage to land or crops or public roads by pigs or cattle punishable under section 26 of that Act:

107

Provided that in the case oi' complaint of ill-.113:-rt] seizure or detention of cattle under Chaptcr-- V alorcs:aid, the crnnpcnsatton that may be awarded by a Nyaya Panchayat shall not exceed ﬁve hundred rupees; AC' '3 01° 1993- (5) offences punishable under the Andhra Pradesh Panchayat Rai Act, 1994; Act E7 M1995' (6) otiences under clauses (:1). (c) and (d) of section 8 and sections 9 to 11 of the Andhra Pradesh Prohibition Act. 1995:

(7) offences against women punishable under the lndian Penal Code and triably by 2: Judicial First Class Magistrate:

Central Act 2 of (8) maintenance cases under section l25 Code of Criminal Procedure, 1973. 1974.

Explana1ion:----The offences mentioned in this section shall include abet- ments of such offences.

27. (1) In every criminal case trial by the Nyaya Panchayat, as soon aSPr_oc_cdure for the accused appears before the Nyaya Panchayat, he shall be questioned wl1ethet'°"m'"a]"Wis he pleads guilty to the accusation or not. If he pleads guilty the Nyaya Pan-

chayat shall record the plea and pass orders of conviction and sentence him only to ﬁne not exceeding the amount of ﬁne prescribed for the concerned offence under the law.

(2) If the accused does not plead guilty he shall be asked to lilc a state- ment of his defence. Where however he gives oral statement it shall be reduced to writing and his signature shall be obtained thereon. After hearing both the complainant and the accused. the Nyaya Panchayat shall give its findings whe- ther the offence is proved or not. If the accused is found guilty. the Nyaya Pan- chayat shall impose a ﬁne, not exceeding the amount of ﬁne prescribed for the concemed offence under the law; but shall not award any sentence of imprison- ment, though prescribed for such offence.

ccncrai (3) If the Nyaya Panchayat is of the opinion that the case warrants record-

Act 2 of 1974. ing of evidence following the provisions of the Code of Criminal Procedure, 1973 or warrants imprisonment in case of conviction, whether it is _a case falling under subsection (1) of sub-section (2), it shall request the Nyayapalaka to assist and advise the Nyaya Panchayat in the trial and in reaching the ﬁndings as far as possible following the summary procedure laid down in sections 260 to 265 of the Code of Criminal Procedure, 1973. After the trial is concluded the Nyaya- palaka shall tenderghis advice to the Nyaya Panchayat and after considering the same the Nyaya Panchayat shall take a decision and pronounce the judgment accordingly. .

(4) The provisions of section 19 shall apply to the trial of criminal cases also by the Nyaya Panchayat.

28. (I) The hearing shall be on a day to day basis and the case shall be Hearing and disposed of within a period of six weeks. After the enquiry is completed, the decisions. .. members of the Nyaya Panchayat shall discuss among themselves and pronounce the decision within a week of the last date of hearing. The order shall be signed by all the members present. Where the decision is by majority of the members present that fact shall be noted in the order itself and the dissenting members also shall record their reasons for the dissent in the order.

(2) The order shall contain the number of the case, the names of the parties, the particulars of the claim, the points in issue, the substance of evi- dence adduced on either side, if any, the ﬁndings reached by the Nyaya Pan- chayat and the reasons therefore. The order shall be written and pronounced either by the Nyayadhyaksha or by a member authorised by him. A copy of the order shall be delivered to both the parties as quickly as possible free of cost with the seal of the Nyaya Ptanchayat.

29. Evidence given orally before Nyaya Panchayat shall be on oath or Evgdencero (,6 on solemn aﬁirmation. A on oath,

30. If at any stage of the proceedings, it appears to the Nyaya Panchyat Power of Nyaya that the case is one which ought to be "tried by a Judicial Magistrate of the P'"'°l}"y"""° First Class or if at the close of trial. the Nyaya -Pancayat is of the opinion "ans er cases l7--~2 M of L & J/ND/97 l08 that the accused is guilty and that he ought to be received a puiiisliment more severe than that which it is empowered to impose, it shall submit the case to the First Class Magistrate having jurisdiction who may transfer First Class Magistrate having ]llI'iSdlClCl0n who may transfer the Case to his own court and proceed according to law.

Power of District 31. The District and Sessions Judge 'having jurisdiction iiiay on an Judge 'O "a"3f""app1ication by any party or whenever he considers it necessary in the interests of cam' justice, transfer any case pending before a Nyaya Pancliagyast to any other Nyaya Panchayat within his jurisdiction.

Transfer of cases 32. Notwithstanding anything contained in the Code of Criminal Proce-

by Magistrate. dure, 1973, if a complaint or Police report of an offence cognizable by a Nyaya Panchayat is made to a Magistrate, he may direct the complainant or the Police to present the complaint to the Nyaya Panchayat within whose jurisdic- tion the otfence was committed.

Appeal in mmina; 33. (1) An appeal shall lie to the Court of Sessions from any order or cases. sentence passed by a Nyaya Panchayat within sixty days of the passing of such order or sentence.

(2) The Court of Sessions may, pending disposal of the appeal under sub-section (1) direct that further proceedings in respect of any criminal pro- ceedings he stayed or the execution of any sentence be suspended.

(3) Any order passed by a Court of Sessions under sub--section (1) shall be ﬁnal.

certain persons 34. The Nyaya Panchayat shall not take cognizance of any offence of accused oftheft theft in which the accused,---

not to be tried . _ _ ' bytNyaya Pancha- (a) has been previously convicted with imprisonment of either descrip- ya .

tion for a term not less than three years; or

(b) has been previously ﬁned out any Nyaya Panchayat; or (6) has been bound _over to be of good behaviour in proceedings insti- Central Aci tuted under section 109 or section 110 of the Code of C.riniinal20f1974- Procedure, 1973.

3_5._The oﬁences cognizable by a Nyaya Panchayat and punishable under Indian Penal Code speciﬁed in sections under clauses (l), (2) and (3) of section 26 may be compounded by both the parties with the permission of the Nyaya Panchayat.

Compounding of offences.

Compmsation 36. In imposing any ﬁne, the Nyaya Panchayat may direct that the whole to complainant emor any portion of the ﬁne recovered shall be applied--~

(a) towards defraying the expenses properly incurred in the case by the complainant ; or

(b) in giving compensation to a person for any material loss or damage caused to him by reasons of commission of the offence.

pu,,ish,,,emf0, 37. Where a Nyaya Panchayat imposes a ﬁne and such ﬁne is. not paid non-paymentof as required, it shall record an order specifying the amount of the ﬁne imposed ﬁm?- and that it has not been paid and shall forward the same to the nearest Magig-

trate, who shall proceed to execute it as if it were an order passed by himself and such Magistrate may sentence the accused to imprisonment in default of payment of ﬁne.

compensation", 3_8._If a Nyaya Panchayat is satisﬁed, after enquiry that a case brought faocueied for false orbefore it is false, frivolous or vexatious, it may order the complainant to pay rivo ous case. accused such compensation, not exceeding rupees one hundred as it deems _ Provided that no such order shall be.passed, unless the complainant is given an opportunity to show cause against it.

IO')

39. lnsicad of passing a sentence, the Nyaya i'anc:hayat may, except in Youthful offenders the case of the offences under the Andhra Prat':-csli Prohibition Act, l995, dis charge after due admonition a youthful offender who, in the opinion of such Nyaya Panchayat is, at the time of conviction for the olfence, under the age of sixteen years.

PART lV--ivllSCEI..L-ANEOUS nth, The p:'ocee:iings before the Nyaya Panchayat and the judgement of l'rocecd%r.gs¢o be the Nyaya Panchayat shall be in Telugu language. mT€lU3uv 4!. (1') If the applicant or complainant iails to appear after having been Dlsposalof suits informed of the time and place iixed tor the hcariatg, the N3-'aya Panchayat 11iayr'=1§§l_'§4'-_?1€*ifEI1 _ hear and decide the suit or criminal case in his absence. f;j;'.E°c"§"{f?1 "'"'"~' (2) The Nyaya Panchayat may hear and decide a suit or criminal case 111 the absence of the applicant or the accused if a summon has been served upon him or if he has been informed of the time and place fixed for hearing:

Provided that no sentence shall be passed by a Nyaya Panchnyat on any accused, unless he has appeared either in person or by a representative before the Nyaya Panchayat and the substance of his statement has been recorded in the prescribed register.

(3) If, after the service of summons upon him an accused fails to appear either in person or by a. representative the Nyaya Panchayat may apply to the First Class Magistrate having jurisdiction and such First Class Magistrate ' shall compel the accused to appear in person or by the representative before the Nyaya Panchayat as if he were a Court trying the case. (4) Where an accused person has under sub-section (3) been-compelled to appear before the Nyaya Panchayt, the Nyaya Panchayat shall forthwith take his statement and -thereafter his attendance at the hearing of the case shall not be compulsory.

42. (1) If in the opinion of the Government_a Nyaya _Panchayat is_notp0We,0fGDvem_ competent to perform or persistently makes default in performing, the functions ment to dissolve a imposed on it by law or exceeds or abuses its power, they may by notiﬁcation Nyaya Pancha)'at.

dissolve the Nyaya Panchayat with effect from such date as may be speciﬁed therein but a new Nyaya Panchayat shall be established in lieu thereof within a period of six months from the date of such dissolution.

Provided that the Government may, for reasons to be recorded in writing postpone the establishment of the new Nyaya Panchayat for such further period as may be ﬁxed; but the interval between the dissolution and the establishment aforesaid shall not exceed one year.

(2) On the date ﬁxed for the dissolution of the Nyaya Panchayat under subsection (1) all its members including Nyayadhyaksha and Nyayapal shall forthwith be deemed to have vacated their oﬂices as such. .

(3) Before publishing a notiﬁcation under sub~secti0n (1), the Govern- ment shall oommunicate to the Nyaya Panch-ayat the grounds on which they proposed to dissolve the Nyaya Panchayat, ﬁx a reasonable period for the Nyaya Panchayal to show cause against such proposal and consider its explanation and objections if any.

(4) Where a Nyaya Panchayat is dissolved and no new Nyaya Panchayat is constituted in lieu thereof, -the District Magistrate shall transfer all suits and proceedings and the Criminal cases pending before such dissolved Nyaya Pan- chayat to any other Nyaya Panchayat within his jurisdiction.

43. (l) The District Magistrate may by notiﬁcation and with elfect from Rem V I f a date to be smciﬁed therein remove any member or Nyayadhyaksha or Nyaya-Nyafagﬁzksha palaka who in his opinion is guilty of misconduct in the exercise of the powers Nyayapalaka or' vested in him under this Act. A Nyayadhyaksha who is removed from office member-

shall cease to be a member also.

Conviction by Nyaya Panchayat not a previous Res judicate and pending suits and Assistance of Police Power to make llt) (2) The District Magistrate shall. when he proposes to take action under sub--section (1) give to the member or Nyayadliyalgsha or_Nyayapalaka concern- ed an opportunity for explanation and the notification issued shall contain a statement of the reasons for the action taken.

Provided that the District. Judge concerned shall be consulted before taking action under this section.

(3) Any person aggrieved by an order in a notiﬁcatiorrissued under sub- section (1), may within thirty days from the date of publication of Such notiﬁ- cation prefer an appeal to the Government and the Government may pending a decision on such appeal postpone the date speciﬁed in such notiﬁcation, and shall, in case the review petition is allowed by order, cancel such notification.

(4) if any notification issued under sub-section (l) is cancelled under sub- section (3), the person if any nominated as Nyayadhyaksha, Nyayapalaka or member between the date of such notiﬁcation and the date of the cancellation thereof shall cease to hold office to which he so nominated and the person in respect of whom such notiﬁcation was first issued shall be restored to office from the date of cancellation of such notiﬁcation.

(5) Any person in respect of whom a notiﬁcation has been issued under sub-section (1) removing him from oﬂice of Nyayadhyaksha or member shall unless the notiﬁcation is cancelled under subsection (3), be ineligible for nomi- nation as Nyayadhyaksha, Nyayapalaka or as member or from holding any of the ofﬁces for a period of three years from the date from which his removal from oﬂice has taken effect.

44. A conviction by a Nyaya Panchayat under this Act shall not be deemed to be a previous conviction for the purpose of section 75 oi' the Indian Penal Code.

45. (1) The Nyaya Panchayat shall not try any suit in respect of any matter which is pending for decision in, or has been heared and decided by a Court of competent jurisdiction in a former suit between the same parties or those under whom they c:'aim.

(2) Where a case is pending in any court against an accused person in respect of any offence or where an accused person has been tried for any offence. no Nyaya Panchayat shall take congnizance of any such offence or on the same facts, of any other offence of which the accused might have been charged or convicted. -

46. Every Police Oﬂicer functioning within the jurisdiction of a Nyaya Panchayat shall be bound to assist the Nyaya Panchayat in the exercise of the lawful authority.

47. (1) The Government may, by notification make rules for carrying out all or any of the purposes of this Act. -

(2) In particular and without prejudice to the generality of the fore- going power the Government may make rules,----

(i) as to the payment of Honorarium to the Nyayadhyaksha, members and the Nyayapal of the Nyaya Panchayat;

(ii) as to the conditions of service of the staif appointed for the pur- poses of the Nyaya Panchayat;

(iii) as to the receipt and custody of a'l documents and records by or on behalf of Nyaya Panchayat and the grant of copies of judgment, orders and other records.

(iv) as to the place and_ the manner in which the proceedings of the Nyaya Panchayat Will be Conducted;

(v) as to the manner in which any process issued by the Nyaya Pan- chayat may be served;

(vi) as to the particulars of the registers and records to be maintained by the Nyaya Panchayats; ) 111

(vii) as to the conduct of training programme for members of Nyaya Panchayats;

(viii) as to the supervision and iiispectioii of the Nyaya Panchayat by the District Magistrate and the District and Sessions Judge in respect of speciﬁed matters;

(ix) as to any other matter which is necessary to give eﬂ'ect_t_o_ the__pijo- visions of this Act.

(3) Every rule made under the Act shall immediately after it is made be laid before the Legislative Assembly of the State if it is in sessions and if it is not in session, in the session immediately following for a total period of fourteen days, which may be comprised in the session or in two successive sessions and if before the expiration of the session in which it is so laid or session immediately following the Legislative Assembly agrees in making any modification in the rules or in the annulment of the rule, the rule shall from the date on which the modiﬁcation or annulment is notiﬁed have effect only in such modiﬁed form or shall stand annulled as the case may be so, however that any such modiﬁcation or annulment shall be without prejudice to the vali-

dity of anything previously done under that rule.

jay person is deterred by the cost STATEMENT OF OBJECTS AND REASONS Speedy and eﬂicient justice is an essential ingredient of good governance. It is common knowledge that the prevailing system of administration of Justice is cluttered with dilatory procedures and is burdened with heirarchy of appeals and revisions consuming decades. Litigation has become oppressive with tech- nicalities, excessive professional intervention and exhorbitant costs. The average ly and delayed judicial and legal process. Even petty problems get complicated and it is difﬁcult to see the light of relief through the dark tunnels of procedure and precedent. « .. . .

In this background, creation of a mechanism to settle disputes and render . justice with speed, eﬂiciency and economy has been engaging the attention of the Government for quite sometime. In order to minimise the procedural delays and needless expenditure and to see that judicial decisions are given in relatively simple and easy cases speedily and with a view to estahish judicial bodies at Mandal level, integrating the age old concept of village elders sett- ling disputes with the II'l0Ll-"Ill principles of natural justice, for hearing and deciding upon petty litigatiovns without involving cumbersome legal process. the Government have decided to, undertake a suitable legislation for establishment of "Nyaya Panchayat" at Mandal Level.

The salient features of the proposed legislation are;---» (I (2) the Nyaya Panchayat shall consist of ﬁve members nominated by the District Magistrate in consultation with the District Judge. of whom one shall be a member belonging to Scheduled Castes/Sche- duled Tribes or Backward Classes or Minorities or one shall be a woman;

there will be a Mandala Nyaya Panchayat in every Manda];

(3) for nomination as member one should be a law graduate or gradu- ate or well known social worker or a person having good reputa-

tion;

(4) there shall be a Nyayadhyaksha who shall be nominated by the District Magistrate. He shall be a retired judicial oﬂicer or must have held a post in Government and had exercised magisterial powers etc. (5) one of the members will be nominated as Nyayadhyaksha and if the woman member is nominated she shall be called as Mahila Nyaya- dhyaksha. The Nyayadhyaksha or Mahila Nyayadhyaksha as the case may be will preside over and conduct the proceedings;

(6) all offices will be hono'rary offices.

(7) the Nyaya Panchayats will try on the Civil side mainly suits of the value which does not exceed rupees 50,000/-, suits relating to non payment of wages, disputes between landlord and lessee, suits rela- ting to water rights, boundary disputes, right of way, purchase and sale of lands, matrimonial disputes which can be 'resolved by con- cilation, maintenance disputes etc. which are of a trivial nature.

(8) the Nyaya Panchayat will try on the criminal side mainly offences punishable mostly with imprisonment not exceeding six months or with ﬁne, oﬂfences relating to theft of property not exceeding rupees ﬁfty thousands in value, certain offences under the A.P. Prohibition Act, all Offences under the A.P. Panchayat Raj Act, etc. 112 H3 (9) while trying both civil and criminal cases, the Nyaya Panchayat_will follow a simple pmcetiure and not the elaborate procedure either under the code of Civil Procedure 1908 or under the Criminal ProCe~ (lure Code. 1973, Strict rules of evidence under the Indian Evidence Act. i872 are also not made applicable:

(10) Provisions are made for quick disposal of the Cases; (ll) the Nyayapala will assist the Nyaya Panchayat in important civil case and in criminal cases where it is considered that the punishment of imprisonment should be imposed. An appeal will lie to the Dis~ trict Judge from a decision of the Nyaya Panchayat; (12) Police will assist the Nyaya Panchayat in exercise of its powers;

This Bill seeks to give eﬁect to the above decisions.

(T. SEETHARAM) Minister for Services Courts and Justice.

MEMORANDUM REGARDING DELEGATED LEGISLATION Clauses 1(3), 2, 3, 4, 11, 12, 13, 15(I5), 20(A),20(B), 27, 42(1), 43(1) and 47 of the Bill authorise the Government to issue notiﬁcations or orders or to make rules in respect of matters speciﬁed therein. All such orders or rules which are inten- ded to cover matters mostly of procedural nature are to be laid on the Table of the Legislative Assembly of the State and will be subjected to any modiﬁ- cations made by the Legislative Assembly.

The above provisions of the Bill regarding delegated legislation are thus of a normal type and are mainly intended to cover matters of procedure.

(T. SEETHARAM) Minister for Services Courts and J ustiee.

114

MGIPGBB _s3..2 M of L & J 9-12-97--sm.

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