| Committee on Reforms of
Criminal Justice System Government of India, Ministry of Home Affairs
Report VOLUME I
INDIA
March 2003 Committee on Reforms of Criminal Justice System Government of India, Ministry of Home Affairs
CHAIRMAN Dr. Justice V.S. Malimath Formerly, Chief Justice of Karnataka and Kerala High Courts Chairman, Central Administrative Tribunal Member, National Human Rights Commission Bangalore 560 052
MEMBERS
S. Varadachary, IAS, (Retd.) Bangalore 560 076
Amitabh Gupta, IPS, (Retd.) Formerly, Director General of Police, RAjasthan Jaipur 302 015
Prof. (Dr.) N.R. Madhava Menon Vice-Chancellor West Bengal National University Of Juridical Sciences Kolkatta 700 098
D.V. Subba Rao Advocate Chairman, Bar Council of India Vishakhapatnam
MEMBER –SECRETARY
Durgadas Gupta Joint Secretary Ministry of Home Affairs, Government of India New Delhi 110 011
STAFF OF THE COMMITTEE Sri C.M. Basavarya Formerly, District & Sessions Judge, Registrar & Director of Training, High Court of Karnataka. Bangalore 560 094. Executive Director
Sri K. Girither Inspector Central Reserve Police Force Personal Assistant
Smt Binnu Menon Sub Inspector Central Reserve Police Force Stenographer
Sri S.M. Reddy Asst. Sub–Inspector Central Reserve Police Force Clerk
Sri V. Raja Constable Central Reserve Police Force Office Attender
Sri M.K. Uthaiah Constable Central Reserve Police Force Office Attender
Committee on Reforms of Criminal Justice System (Government of India, Ministry of Home Affairs) 12/A Diagonal Road Vasanthanagar Bangalore 560 052
“Everything has been said already, but as no one listens, we must always begin again.” Andre Gide French thinker and writer
CONTENTS PART – I FUNDAMENTAL PRINCIPLES 1. Need for Reform of the Criminal Justice System 3 2. Adversarial System 23 3. Right to Silence 39 4. Rights of the Accused 59 5. Presumption of Innocence and Burden of Proof 65 6. Justice to Victims 75 PART – II INVESTIGATION 7. Investigation 87 PROSECUTION 8. Prosecution 125 PART – III JUDICIARY 9. Courts and Judges 133 10. Trial Procedure 145 11. Witness and Perjury 151 12. Vacation for Court 157 13. Arrears Eradication Scheme 163 PART – IV CRIME & PUNISHMENT 14. Offences, Sentences, Sentencing & Compounding 169 15. Reclassification of Offences 181 16. Offences against Women 189 17. Organised Crime 195 18. Federal Law and Crimes 207 19. Terrorism 213 20. Economic Crimes 233 PART –V LOOKING AHEAD 21. Emerging Role of the Legal Profession 249 22. Training – A Strategy for Reform 253 23. Vision for Better Criminal Justice System 259 PART –VI RECOMMENDATIONS 24. Recommendations 265
ACKNOWLEDGEMENT The nation is grateful to Sri. L.K. Advani, Deputy Prime Minister and Home Minister, for his vision for comprehensive reforms of the entire Criminal Justice System including the fundamental principles and the relevant laws. Hitherto, efforts were made to reform only certain set of laws, or one particular functionary of the system in piecemeal. This type of compartmental examination missed the vital focus on justice to victims and national concern for peace and security. The commitment made by him and his distinguished colleague Sri. Arun Jaitley, Minister for Law and Justice, to implement the reforms, once the Committee makes its recommendations, is a fitting answer to the cynics that the Report on Reforms of Criminal Justice System will be one more addition to the several earlier reports that are gathering dust in the Archives of the Government.
The Committee is beholden to the then Chief Justice of India, Dr. A.S. Anand, for calling upon all the High Courts to provide all information and assistance the Committee needs. Our grateful thanks to former Chief Justice Sri. B.N. Kirpal for ensuring that all the High Courts send the reports sought by the Committee on the State of Health of Criminal Justice in their respective States. The Committee is grateful to Sri Justice V.N. Khare, the Chief Justice of India for avincing keen interest in the Committee’s work.
Justice P.V. Reddy, Judge Supreme Court, the then Chief Justice of Karnataka High Court, placed at the disposal of the Committee, the building for housing the Committee’s office in Bangalore. The Committee is grateful to him.
The Committee is grateful to all the State Governments, High Courts, Officers of the Police Departments, Prosecution Department, Law Departments and Home Department.
Our sincere thanks to the Bar Association of India, New Delhi, the Indira Gandhi Institute of Development Research at Mumbai and Asian College of Journalism, The Hindu in Chennai for collaborating with our Committee in organising seminars on different topics and to the National Law Universities at Bangalore and Kolkatta for rendering whatever assistance the Committee needed from time to time. Our thanks to Sri. Shivcharan Mathur, former Chief Minister Rajasthan, Sri. Justice N.L. Tibrewal, former Chief Justice of Rajasthan, Justice Dave, Sri. Rajendrashekhar, former Director CBI and DGP Rajasthan, Sri. K.P.S. Gill, former DGP Punjab and Assam, Sri. Rajath Sharma, Media personality and Prof. P.D. Sharma for assisting the Committee in organising the seminar at Jaipur.
Our sincere thanks to Chief Ministers, Ministers, Judges— present and former, distinguished lawyers, Police Officers, media personalities, politicians, social scientists, institutions and organisations and NGOs who have assisted the Committee in organising or participating in seminars, group discussions or meetings.
A word of special gratitude to the respected Dr. R. Venkataraman, former President of India, Sri. Bhairon Singh Shekhawat, Vice-President of India, Former Chief Justices Ranganath Misra, Ahmadi and Kania, Justice Jagannatha Rao, Chairman, Law Commission of India, Justice Jayachandra Reddy, Chairman Press Council of India, Justice K.T.Thomas, Sri. Soli Sorabjee, Attorney General for India, Sri. Fali Nariman, President, Bar Association of India, Senior Counsel Dr. L.M. Singhvi, Sri. Venugopal, Sri. Shanti Bhushan, Sri. Dipankumar Gupta, Sri. V.R. Reddi, Sri. K.N. Bhat, Sri. C. S. Vaidyanathan, Sri Lalit Bhasin, Lord Goldsmith, Attorney General of England, Sri Badri Bahadur Karki, Attorney General of Nepal and experts from USA, Judge Kevin Burke, Mr. Robert Litt, Mr. Ranganath Manthripragada, Ms. Dianne Post from the USA and Mme Maryvonne Callebotte, Mr.Jean Luis Nadal, Mr.Roussin, Mme. Claude Nocquet and Mr. Lothion from France.
The Committee appreciates the helpful gesture of the Governments of USA, France and UK in inviting the Committee to visit their States to acquaint the Committee with the functioning of their respective Criminal Justice Systems and the reforms they are undertaking. The Committee could not go to USA ad UK for want of time. The Chairman and Sri. D.V. Subba Rao could visit France. Our grateful thanks to USAID for bringing in four experts to Delhi to brief the Committee about the American System.
The Committee would like to record its deep sense of appreciation for the excellent dedicated service of Sri. C.M. Basavarya rendered as Executive Director of the Committee.
The Committee is thankful to the Director General of CRPF for lending the staff consisting of Inspector K. Girither, Sub-Inspectors Binnu Menon and G. Yamini Rekha, Asst. Sub Inspector S.M. Reddy, Constables V. Raja and M.K. Uthaiah to work for the Committee. The Committee records its appreciation and conveys its thanks to each one of them for excellent service and help to the Committee to complete its task on schedule.
PART – I FUNDAMENTAL PRINCIPLES NEED FOR REFORM OF CRIMINAL JUSTICE SYSTEM _ “Law should not sit limply, while those who defy it go free and those who seek its protection lose hope”. (Jennison v. Baker (1972) 1 All ER 997).
COMMITTEE AND ITS WORK 1.1. The Committee on Reforms of the Criminal Justice System was constituted by the Government of India, Ministry of Home Affairs by its order dated 24 November 2000, to consider measures for revamping the Criminal Justice System. (Annexure-1). The terms of reference for the Committee are:
i. To examine the fundamental principles of criminal jurisprudence, including the constitutional provisions relating to criminal jurisprudence and see if any modifications or amendments are required thereto; ii. To examine in the light of findings on fundamental principles and aspects of criminal jurisprudence as to whether there is a need to re-write the Code of Criminal Procedure, the Indian Penal Code and the Indian Evidence Act to bring them in tune with the demand of the times and in harmony with the aspirations of the people of India; iii. To make specific recommendations on simplifying judicial procedures and practices and making the delivery of justice to the common man closer, faster, uncomplicated and inexpensive; iv. To suggest ways and means of developing such synergy among the judiciary, the Prosecution and the Police as restores the confidence of the common man in the Criminal Justice System by protecting the innocent and the victim and by punishing unsparingly the guilty and the criminal; v. To suggest sound system of managing, on professional lines, the pendency of cases at investigation and trial stages and making the Police, the Prosecution and the Judiciary accountable for delays in their respective domains; vi. To examine the feasibility of introducing the concept of “Federal Crime” which can be put on List I in the Seventh Schedule to the Constitution.
1.2. The Committee was constituted under the Chairmanship of Justice V.S.Malimath, former Chief Justice of Karnataka and Kerala High Courts, Chairman, Central Administrative Tribunal and Member of the Human Rights Commission. The other members of the Committee are Sri S. Varadachary, IAS (Retd), former Advisor, Planning Commission of India and Sri Amitabh Gupta, former Director General of Police, Rajasthan. Sri Durgadas Gupta, Joint Secretary (Judicial), Ministry of Home Affairs was made the Secretary. On the recommendation of the Committee Justice Sri T.S. Arunachalam, former Judge of Madras High Court and Prof. N.R.Madhava Menon, Vice-Chancellor, West Bengal National University of Juridical Sciences were co-opted. Later, Justice Sri. T.S.Arunachalam tendered his resignation on personal grounds where-upon Sri D.V.Subba Rao, Advocate who also happens to be Chairman of the Bar Council of India was co-opted in his place. Sri Durgadas Gupta, Secretary of the Committee was made the Member Secretary of the Committee. Sri C.M.Basavarya, former District Judge and Registrar of the Karnataka High Court was appointed as Executive Director so that the Committee has the benefit of trial court experience in criminal matters. The term of the Committee, which was six months from the date of its first sitting, has been extended till 31 March 2003. Thus it may be noted that there is a wholesome combination of expertise of all the relevant fields — the Judiciary, the Bar, the Police, the legal academic and administrator.
1.3. The notification constituting the Committee does not expressly state the reasons for constituting the Committee, obviously for the reason that they are too well-known. The statement in the notification that the Committee has been constituted “to consider measures for revamping the Criminal Justice System” implies that the Criminal Justice System is in such a very bad state as to call for revamping. A former Chief Justice of India warned about a decade ago that the Criminal Justice System in India was about to collapse. It is common knowledge that the two major problems besieging the Criminal Justice System are huge pendency of criminal cases and the inordinate delay in disposal of criminal cases on the one hand and the very low rate of conviction in cases involving serious crimes on the other.
This has encouraged crime. Violent and organised crimes have become the order of the day. As chances of convictions are remote, crime has become a profitable business. Life has become unsafe and people live in constant fear. Law and order situation has deteriorated and the citizens have lost confidence in the Criminal Justice System.
1.4. The ultimate aim of criminal law is protection of right to personal liberty against invasion by others – protection of the weak against the strong law abiding against lawless, peaceful against the violent. To protect the rights of the citizens, the State prescribes the rules of conduct, sanctions for their violation, machinery to enforce sanctions and procedure to protect that machinery. It is utter selfishness, greed and intolerance that lead to deprivation of life, liberty and property of other citizens requiring the State to step in for protection of the citizens’ rights. James Madison writes in his book The Federalist that “if men were angels no government would be necessary”. It is the primary function of the government to protect the basic rights to life and property. The State has to give protection to persons against lawlessness, disorderly behaviour, violent acts and fraudulent deeds of others. Liberty cannot exist without protection of the basic rights of the citizens by the Government.
1.5. This is the first time that the State has constituted such a Committee for a thorough and comprehensive review of the entire Criminal Justice System so that necessary and effective systematic reforms can be made to improve the health of the system. Prison administration is one of the functionaries of the Criminal Justice System. However, it does not fall within the mandate of the Committee. All the earlier initiatives were of a limited character to bring about reforms in the relevant laws, substantive and procedural laws, judicial reforms or police reforms. The Committee is required to take into account the recommendations made by the Law Commission of India, the Conference of Chief Ministers on Internal Security, the Report of Task Force on Internal security and Padmanabhaiah Committee Report on Police Reforms.
1.6. The terms of reference are very wide and comprehensive. They require the Committee to examine the fundamental principles of criminal jurisprudence and relevant constitutional provisions and to suggest if any modifications or amendments are needed. If, on such review the Committee finds that any amendments to the Code of Criminal Procedure, the Indian Penal Code or the Indian Evidence Act are necessary to bring them in tune with the demands of time and the aspirations of the people, it can make necessary recommendations. The Committee is not called upon to take up a general review of all these three statutes. The mandate of the Committee is limited to recommending only such amendments to these statutes as may be necessary in the light of its findings on review of the fundamental principles of criminal jurisprudence. Therefore, the Committee has not undertaken any general review of these Statutes.
1.7. The well recognised fundamental principles of criminal jurisprudence are ‘presumption of innocence and right to silence of the accused’, ‘burden of proof on the Prosecution’ and the ‘right to fair trial’. Examination of ‘Adversarial System’ followed in India being an aspect of the concept of ‘fair trial’ falls within the purview of the Committee. Simplifying judicial procedures and practices, bringing about synergy among the judiciary, the Prosecution and Police, making the system simpler, faster, cheaper and people-friendly, and restoring the confidence of the common man are the other responsibilities of the Committee. This includes improving the investigation and trial procedures on professional lines for expeditious dispensation of justice and making the functionaries accountable. The Committee is also required to examine if the concept of ‘Federal Crimes’, can be put in List 1 of the Seventh Schedule of the Constitution so that it becomes the exclusive responsibility of the Central Government.
STRATEGIES ADOPTED BY THE COMMITTEE 1.8. Realizing the importance and magnitude of the task, the Committee decided to reach out to every section of the society, which has a stake in the system, directly or indirectly. Accordingly the Committee decided to: – (1) Prepare a questionnaire and obtain responses from all walks of society. (2) Organize seminars on important issues in different parts of the country. (3) Participate in seminars or meetings organised by others. (4) Meet citizens from different States hailing from different walks of life. (5) Obtain the views of the State Governments. (6) Obtain the views of the High Courts and the Judges. (7) Obtain the views of Central and State Bar Councils and members of the Bar. (8) Seek the views of Attorney General and Advocate Generals of the States. (9) Obtain the views of the Heads of Police Departments. (10) Obtain the views of the Heads of Prosecution Departments. (11) Obtain the views of the Forensic Scientists. (12) Obtain the views of the academics in law. (13) Obtain the views of the media persons. (14) Get research done by scholars on important topics. (15) Study the relevant reports of the Law Commission of India, Report of Dharmavira Committee, Report of Padmanabhaiah Committee, Report of Vohra Committee, Report of Task Force on internal security, Report of Chief Ministers conference on Internal Security and other Commissions on topics relevant to the Criminal Justice System. (16) Study the Criminal Justice Systems in U.K, Australia, France, USA and other countries and the reforms undertaken by them. (17) Make a comparative study of Criminal Justice Systems in 20 selected countries from different continents. (18) Interact with experts from different countries in the world. (19) Examine Reports of the National Crime Bureau upto 2000.
1.9. After an in-depth study of the problem facing the Criminal Justice System the questionnaire was prepared and sent to 3,164 persons enclosing a pre-paid envelope to enable them to respond without incurring any expenditure. The list includes the Prime Minister, Home Minister, Law Minister, Attorney General, Home Secretary, Law Secretary, Govt. of India, Law Commission of India and functionaries of the State Governments such as the Chief Ministers, Home Ministers, Law Ministers, Chief Secretaries, Law Secretaries, Home Secretaries, Advocate Generals, D.GsP, Director of Prosecution, the Chief Justices of the High Courts, Senior District Judges, different Bar Associations and State and Central Bar Councils, Bar Association Lawyers. However the number of responses received is only 284.
1.10. Views of all the High Courts and information relating to institutions, pendency, disposal and other relevant information were sought from all the High Courts. As the response was not encouraging, the Chief Justice of India, on being requested by the Chairman, called upon all the High Courts to send their responses. As a result of the initiative of the Chief Justice, all the High Courts have sent their reports. (Refer Appendix 5, Volume II). However some of them have not furnished all the information sought, in the pro forma in regard to filing, disposal, pendency of criminal cases etc.
1.11. Similarly all the State Governments were requested to send their views. But only the States of Arunachal Pradesh, Haryana, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh and Jammu & Kashmir have submitted their replies. Other States have not responded inspite of repeated requests. (Refer Appendix 6, Volume II).
1.12. Reports on the functioning of the prosecution system in all the States were sought from the respective heads of Police Departments. Reports have been received from the States of Arunachal Pradesh, Bihar, Goa, Himachal Pradesh, Karnataka, Madhya Pradesh, Orissa, Tamil Nadu, and Uttaranchal. Others have not responded. (Refer Appendix 7, Volume III).
1.13. The Committee organised seminars as follows: – Date Place Topic 9 February 2002 Chennai Media and Criminal Justice System 23/24 February2002 Jaipur Reforms of Criminal Justice System (Investigation, Sentencing and Prosecution) 22/23 March 2002 Mumbai Economic Crimes and Financial Frauds 26/27/28 April 2002 Delhi Fundamental Principles of Criminal Justice – A Fresh Look.
1.14. Several other seminars organised on the recommendations of the Committee by different organizations and many more seminars organised by different organisations on the topics concerning the Criminal Justice System in which the Chairman or members of the Committee actively participated are the following: –
1.15. It is heartening to know that many eminent personalities participated in these seminars. Notable among them are Dr. R.Venkataraman, former President of India, Sri Bhairon Singh Shekhawat (now Vice-President of India), Sri Arun Jaitley, Honourable Minister for Law, former Chief Justices Sri Ranganath Misra, Sri A.M. Ahmadi, Sri M.H. Kania, Dr. A.S. Anand, former Supreme Court Judges Sri. K.Jayachandra Reddy, Sri. Jaganadha Rao, Sri.K.T. Thomas and many Senior Advocates Sri. Fali Nariman, Sri Soli Sorabjee, Attorney General, Sri K.K.Venugopal, Sri Shantibhushan, Sri. P.P. Rao, Sri V.R. Reddy, Sri. Dipankar P.Gupta, Sri. K.N. Bhat.
1.16. The Chairman held discussions with Mr. Badri Bahadur Karki, Attorney General of Nepal who is engaged in reforming the criminal prosecution system in his country. The Chairman discussed with Lord Goldsmith, Attorney General of U.K and held discussion with particular reference to several reforms undertaken in that country. The Chairman and members Professor Madhava Menon and Mr. Subba Rao participated in a video conference on reforms with prominent criminal lawyers from U.K. The Chairman and member Mr. Subba Rao visited Paris on the invitation of the French Government to study the Inquisitorial System followed in that country. Similar invitation from USA Agency USAID could not be accepted for want of time. Therefore USAID was good enough to send four experts to New Delhi who enlightened the Committee about the salient features of the Criminal Justice System in USA.
1.17. The Committee made an in-depth study of the materials gathered in respect of all the 19 items mentioned in the earlier paragraph.
CRIMINAL JUSTICE SYSTEM – AN OVERVIEW:- Whatever views one holds about the penal law, no one will question its importance to society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instrument of safety is matched only by its power to destroy. Nowhere in the entire legal field is more at stake for the community or for the individual. Herbert Wechsler
1.18. There was no criminal law in uncivilized society. Every man was liable to be attacked on his person or property at any time by any one. The person attacked either succumbed or over-powered his opponent. “A tooth for a tooth, an eye for an eye, a life for a life” was the forerunner of criminal justice. As time advanced, the injured person agreed to accept compensation, instead of killing his adversary. Subsequently, a sliding scale of satisfying ordinary offences came into existence. Such a system gave birth to the archaic criminal law. For a long time, the application of these principles remained with the parties themselves, but gradually this function came to be performed by the State.
1.19. Since Independence and the promulgation of our Constitution rapid strides have been made in almost all fields. The communication revolution has opened the eyes, ears and minds of millions of people, resulting in increasing expectations of an ever growing population. The desire for quick, fair and affordable justice is universal. Protection of life and liberty have been given a pre-eminent position in our Constitution by enacting Article 21 as a fundamental right and imposing a duty on the State to protect life and personal liberty of every citizen. Any deprivation or breach of this valuable right is not permissible unless the procedure prescribed by law for that purpose is just, fair and reasonable. Has the State been able to keep up to this promise in a substantial measure? The ground reality, however, is that this precious fundamental right is turning out to be a mere pipe dream to many millions to whom justice is delayed, distorted or denied more than its delivery in accordance with the ideals enshrined in the Constitution. The entire existence of the orderly society depends upon sound and efficient functioning of the Criminal Justice System.
1.20. Latest report of the National Crime Record Bureau, 2000 (NCRB) published by the Ministry of Home Affairs, shows that in the year 1951 there were 6,49,728 cognizable crimes under the IPC. This has risen to 17,71,084 in the year 2000. In the year 1953 (figures for 1951 are not available) there were 49,578 violent crimes whereas in the year 2000 the number of violent crimes has increased to 2,38,381 (for the sake of illustration only figures of cognizable IPC crimes have been taken). These figures indicate an abnormal increase in the number of serious crimes. At the same time the population of the country which was 361.1 million in 1951 has increased to 1002.1 million in 2000.
Consolidated Statement of Cases Dealt with by the Courts in India from 1996 to 2000
TABLE-2
1.21. Out of every 100 cases (both IPC and SLL crimes) reported to and taken up by the Police for investigation, between 25 and 30 cases are IPC crimes and the balance is accounted for by SLL crimes. Of the IPC crimes taken up by police for investigation every year, investigation is completed by the police in 76% to 80% of these cases. The corresponding percentage in respect of SLL cases is between 85 and 95.
1.22. The above statistics suggest that as of January 2003, assuming that we have The above statistics suggest that as of January 2003, assuming that we have a crime free society with Police not having to take cognizance of and investigate any crime (either IPC or SLL) from now on and the strength of the trial courts remain at the present level numerically and efficiency wise, (an unrealistic assumption indeed!) it will take a minimum of another four years for the courts to dispose of all these cases.
1.23. These figures show that the courts have not been able to cope up with the number of cases that come before them for trial every year. According to Table 1 the total number of complaints received by the police and cases registered during the year 2000 in India is 56,62,773. It is a matter of common knowledge that several persons who are victims of crimes do not complain to the police. During the year 2000 the total number of cases charge-sheeted after investigation is 50,98,304. The total number of cases disposed of by the courts in the year 2000 is 9,32,774. So far as the cases under IPC are concerned, the analysis in the report on page 1 of the NCRB report shows that 79% of IPC cases were investigated in the year 2000, 78.4% of them were charge-sheeted, 18.3% of them were tried and 41.8% of them resulted in conviction. In many Countries like U.K., U.S.A, France, Japan and Singapore the rate of conviction is more than 90%.
1.24. Quality of justice suffers not only when an innocent person is punished or a guilty person is exonerated but when there is enormous delay in deciding the criminal cases. It is a trite saying that justice delayed is justice denied. Table 25(b) of the NCRB report, 2000 furnishes the duration of trial of cases during 2000. It is seen that 10,382 cases of the duration of 3 to 5 years, 6,503 cases of the duration of 5-10 years and 2,187 cases of the duration of over 10 years were disposed of by all the courts in India during 2000. Taking more than 3 years (sometimes even 10 years) amounts to denying fair trial. Speedy trial is a right of the accused that flows from Article 21 as held by the Supreme Court. If the accused is acquitted after such long delay one can imagine the unnecessary suffering he was subjected to. Many times such inordinate delay contributes to acquittal of guilty persons either because the evidence is lost or because of lapse of time, or the witnesses do not remember all the details or the witnesses do not come forward to give true evidence due to threats, inducement or sympathy. Whatever may be the reason it is justice that becomes a casualty.
1.25. Vulnerable sections of the society like women, children and other members of weaker sections of society like the Schedule Caste and Schedule Tribes suffer more when the Criminal Justice System fails to live up to expectations.
Crime Against Women
Table 3
Several disturbing features are seen from the figures given in this table. There is a 6.6% increase in the offence of rape from 1999 to 2000. So far as the percentage of sexual harassment during the same period is concerned, there is an increase of 24.5%. What is worst is the figures relating to importation of girls obviously for sex which has increased to 63% during 2000. This is quite shocking.
1.26. So far as offences against children are concerned, Table 4 furnishes information about the incidents of different types of offences against them between 1996 and 2000. Offences against Children
Table 4
The figures show a mixed trend during the last five years. There is an increase of 1.3% from 1999 to 2000.
1.27. So far as incidence of child rape is concerned, there were 744 victims below 10 years and 2,880 victims between of 10 and 16 years. This shows the extent of child abuse that is prevalent in India and the failure of the system to contain it. This is very disturbing.
1.28. So far as crime against other weaker sections of the society namely the SC and ST are concerned, the figures for the years 1998, 1999 and 2000 are furnished in the Tables 5 and 6.
TABLE-5
Table 6
In the year 2000 there was an increase of 1.4% of crimes against the members of SC. So far as the members of the ST are concerned the figures indicate that there was an increase in the number of crimes like murder, rape, kidnapping, dacoity during 2000 compared to the figures of the previous year.
1.29. Economic crimes like smuggling, money laundering, tax evasion, drug trafficking, corruption and serious economic frauds are eating the vitals of the nation in a very big way. Table 7 furnishes information about major frauds reported during 2000.
Major Frauds Reported During 2000.
Table 7
1.30. These figures show that there were 1,632 incidents of serious frauds during the year 2000 involving property worth several crores of rupees. The growing sophistication in the commission of serious economic crimes along with its complexities is a great challenge which the law enforcement agencies have not been able to effectively counter. The criminals adopt very special and sophisticated modus operandi. Normally individual persons are not the victims. It is the State that often suffers from such crimes. These offences are committed without being noticed by the high and the mighty, often taking advantage of deficiencies in the existing legal provisions. The system appears to be incompetent and impotent to deal with serious economic frauds like that of Harshad Mehta. Very little has been done to tackle economic frauds that have shaken the economy of the country.
1.31. Terrorism and organised crimes are growing menacingly in all parts of the world and India is no exception. To combat this problem the Government of India enacted the Terrorist and Disruptive Activities Act (TADA). After this statute lapsed, Prevention of Terrorist Activities Act (POTA) has been enacted by the Parliament. Similar laws have been enacted by Maharashtra and other States. These are very serious and complex crimes that transcend State boundaries. As many of these crimes are inter-State in character, it may be necessary to examine if some of these matters should be included in the Union list to enable the Govt. of India to meet this growing challenge in an effective manner.
1.32. The number of judges in India per million population is about 12-13 judges. Corresponding figures available for USA is 107, for U.K is 51, for Canada is 75 and for Australia was about 41 about 12 years ago. This shows how grossly inadequate is the judge strength per million of population in India. That is the reason why the Supreme Court has in its recent decision in (2002) 4, S.C.C.247, All India Judges Association & Others Vs. Union of India and Others directed that the existing judge population ratio of 10:5 or 13 judges per million people should be raised to 50 judges per million people in a phased manner within five years.
1.33. The foundation for the Criminal Justice System is the investigation by the police. When an offence committed is brought to the notice of the police, it is their responsibility to investigate into the matter to find out who has committed the offence, ascertain the facts and circumstances relevant to the crime and to collect the evidence, oral or circumstantial that is necessary to prove the case in the court. The success or failure of the case depends entirely on the work of the investigating officer. But unfortunately, the Criminal Justice System does not trust the Police. The courts view the police with suspicion and are not willing to repose confidence in them. Section 161 of the Code empowers the investigation officer to examine any person supposed to be acquainted with the facts and circumstances of the case and record the statement in writing. However section 162 of the Code provides that it is only the accused that can make use of such a statement. So far as the prosecution is concerned, the statement can be used only to contradict the maker of the statement in accordance with Section 145 of the Evidence Act. Any confession made by the accused before the Police officer is not admissible and cannot be made use of during the trial of the case. The statement of the accused recorded by the police can be used as provided under Section 27 of the Evidence Act to the limited extent that led to the discovery of any fact. The valuable material collected by the investigating officer during investigation can not be used by the prosecution. This makes it possible for the witnesses to make a contradictory statement during trial with impunity as it does not constitute perjury. The accused now-a-days are more educated and well informed and use sophisticated weapons and advance techniques to commit the offences without leaving any trace of evidence. Unfortunately, the investigating officers are not given training in interrogation techniques and sophisticated investigation skills. All these factors seriously affect the prosecution. This is a major cause for the failure of the system.
1.34. So far as the system of prosecution is concerned, it is often seen that best legal talent is not availed of for placing its case before the court. The accused is normally represented by a very competent lawyer of his choice. There is a mismatch in that, an equally competent lawyer is not there to represent the prosecution. The burden of proof being very heavy on the prosecution, it is all the more necessary for the prosecution to be represented by a very able and competent lawyer. Lack of co-ordination between the investigation and the prosecution is another problem. This makes things worse.
1.35. Apart from the main functionaries of the Criminal Justice System, others who have a stake in the system are the victims, the society and the accused. Other players are the witnesses and the members of the general public.
1.36. The victim whose rights are invaded by the accused is not accorded any right to participate except as a witness. The system does not afford him any opportunity to assist the court such as adducing evidence or putting questions to the witnesses. The system is thus utterly insensitive to the rights of the victim. The focus is all on the accused and none on the victim. The system has denied itself the benefit of this important source.
1.37. Criminal cases largely depend upon the testimony of witnesses. Witnesses come to the court, take oath and quite often give false evidence with impunity. Procedure for taking action for perjury is not simple and the judges seldom make use of them. Witnesses turning hostile is a common feature. Delay in disposal of cases affords greater opportunity for the accused to win over the witnesses to his side by threats, or inducements. There is no law to protect the witnesses. The treatment given to the witnesses is very shabby. Even the basic amenities like shelter, seating, drinking water, toilets etc. are not provided. He is not promptly paid TA/DA. He is often paid much less than what he spends and nobody bothers about it. The cases are adjourned again and again making the witnesses to come to court several times leaving aside all his work. Witnesses who are treated in this manner become an easy prey to the machinations of the accused and his family.
1.38. These are some of the major problems that have contributed to the failure of the Criminal Justice System.
1.39. Justice V.R. Krishna Iyer has expressed his anguish about the failure of the system in his article in the Hindu of May 25, 1999.
“The glory and greatness of Bharat notwithstanding, do we not, even after the braggartly semicentennial noises, behave as a lawless brood, tribal and casteist, meek and submissive when political goons and mafia gangs commit crimes in cold blood, and canny corruption and economic offences ubiquitous? The criminal culture among the higher rungs and creamy layers of society, even when nakedly exposed, does not produce the public outrage one should expect, with no burst of rage from those who must speak… … …
Sans the punitive rule of law, democracy becomes a rope of sand… .. India is not a soft State, a sick society, a pathologically submissive polity. In this darkling national milieu, the penal law and its merciless enforcement need strong emphasis. Alas the criminals are on the triumph, the police suffer from “dependencia syndrome” and integrity is on the decadence and the judges themselves are activists in acquittals of anti-social felons. Less than ten percent of crimes finally end in conviction and societal demoralization is inevitable”.
1.40. Nowhere have the broad objectives of the Criminal Justice System been codified, though these can be inferred from different statutes, including the Constitution and judicial pronouncements. As in every democratic civilized society, our Criminal Justice System is expected to provide the maximum sense of security to the people at large by dealing with crimes and criminals effectively, quickly and legally. More specifically, the aim is to reduce the level of criminality in society by ensuring maximum detection of reported crimes, conviction of the accused persons without delay, awarding appropriate punishments to the convicted to meet the ends of justice and to prevent recidivism.
1.41. The above survey of the status of the Criminal Justice system throws many challenges to the Criminal Justice System. The fundamental principles of criminal jurisprudence and the relevant laws have to be critically examined to bring out reforms in the following among other areas. i. To set an inspiring ideal and a common purpose for all the functionaries. ii. To instill a sense of urgency, commitment and accountability. iii. To improve professionalism, efficiency, expedition and transparency in all the functionaries. iv. Quickening the quality of justice by streamlining the procedures. v. To enhance the level of professional competence and to take measures to enhance credibility, reliability and impartiality in the investigation agency. vi. To improve the level of professional competence of the prosecutors and to ensure their function in co-ordination with the investigation agency. vii. To focus on the role of the accused in contributing to better administration of criminal justice. viii. To focus on justice to victims. ix. To tackle the problems of perjury and to ensure protection and better treatment to witnesses. x. To find effective response to the menacing challenges of terrorism, organised crime and economic crime. xi. Restoring the confidence of the people in the Criminal Justice System.
1.42. The task of the Committee is to find ways and means to reform the system to ensure that every innocent person is protected and every guilty person is punished with utmost expedition. As Sri. Fali Nariman put it ‘this is the last bus to catch’.
ADVERSARIAL SYSTEM 2.1. The primary responsibility of the State is to maintain law and order so that citizens can enjoy peace and security. Life and personal liberty being very precious rights, their protection is guaranteed to the citizens as a fundamental right under Article 21 of our Constitution. This right is internationally recognised as a Human Right. Right to property which once had the status of a fundamental right in our Constitution is now relegated to a constitutional right under Article 300A of the Constitution. Many times deprivation of right to property leads to invasion of personal liberty. The State discharges the obligation to protect life, liberty and property of the citizens by taking suitable preventive and punitive measures which also serve the object of preventing private retribution so essential for maintenance of peace and law and order in the society. Substantive penal laws are enacted prescribing punishment for the invasion of the rights. When there is an invasion of these rights of the citizens it becomes the duty of the State to apprehend the person guilty for such invasion, subject him to fair trial and if found guilty to punish him. Substantive penal laws can be effective only when the procedural laws for enforcing them are efficient. This in essence is the function of the criminal justice system.
2.2. The system followed in India for dispensation of criminal justice is the adversarial system of common law inherited from the British Colonial Rulers. The accused is presumed to be innocent and the burden is on the prosecution to prove beyond reasonable doubt that he is guilty. The accused also enjoys the right to silence and cannot be compelled to reply. The aim of the Criminal Justice System is to punish the guilty and protect the innocent. In the adversarial system truth is supposed to emerge from the respective versions of the facts presented by the prosecution and the defence before a neutral judge. The judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt and gives the benefit of doubt to the accused. It is the parties that determine the scope of dispute and decide largely, autonomously and in a selective manner on the evidence that they decide to present to the court. The trial is oral, continuous and confrontational. The parties use cross-examination of witnesses to undermine the opposing case and to discover information the other side has not brought out. The judge in his anxiety to maintain his position of neutrality never takes any initiative to discover truth. He does not correct the aberrations in the investigation or in the matter of production of evidence before court. As the adversarial system does not impose a positive duty on the judge to discover truth he plays a passive role. The system is heavily loaded in favour of the accused and is insensitive to the victims’ plight and rights.
2.3. Over the years taking advantage of several lacunae in the adversarial system large number of criminals are escaping convictions. This has seriously eroded the confidence of the people in the efficacy of the System. Therefore it is necessary to examine how to plug the escape routes and to block the possible new ones.
2.4. There are two major systems in the world. There are adversarial systems which have borrowed from the inquisitorial system and vice versa. One school of thought is that the Inquisitorial system followed in France, Germany, Italy and other Continental countries is more efficient and therefore a better alternative to the adversarial system. This takes us to the examination of the distinguishing features of the inquisitorial system.
INQUISITORIAL SYSTEM
2.5. In the inquisitorial system, power to investigate offences rests primarily with the judicial police officers (Police/ Judiciare). They investigate and draw the documents on the basis of their investigation. The Judicial police officer has to notify in writing of every offence which he has taken notice of and submit the dossier prepared after investigation, to the concerned prosecutor. If the prosecutor finds that no case is made out, he can close the case. If, however he feels that further investigation is called for, he can instruct the judicial police to undertake further investigation. The judicial police are required to gather evidence for and against the accused in a neutral and objective manner as it is their duty to assist the investigation and the prosecution in discovering truth. Exclusionary rules of evidence hardly exist. Hearsay rules are unknown in this System. If the prosecutor feels that the case involves serious offences or offences of complex nature or politically sensitive matters, he can move the judge of instructions to take over the responsibility of supervising the investigation of such cases.
2.6. To enable the Judge of instructions to properly investigate the case, he is empowered to issue warrants, direct search, arrest the accused and examine witnesses. The accused has the right to be heard and to engage a counsel in the investigation proceedings before the judge of instructions and to make suggestions in regard to proper investigation of the case. It is the duty of the judge of instructions to collect evidence for and against the accused, prepare a dossier and then forward it to the trial judge. The accused is presumed to be innocent and it is the responsibility of the judge to discover the truth. The statements of witnesses recorded during investigation by the judge of instructions are admissible and form the basis for the prosecution case during final trial. Before the trial judge the accused and the victim are entitled to participate in the hearing. However the role of the parties is restricted to suggesting the questions that may be put to the witnesses. It is the Judge who puts the questions to the witnesses and there is no cross-examination as such. Evidence regarding character and antecedents of the accused such as previous conduct or convictions are relevant for proving the guilt or innocence of the accused.
2.7. The standard of proof required is the inner satisfaction or conviction of the Judge and not proof beyond reasonable doubt as in the Adversarial System.
2.8. Another important feature of the Inquisitorial System is that in respect of serious and complex offences investigation is done under the supervision of an independent judicial officer__ the Judge of Instructions__ who for the purpose of discovering truth collects evidence for and against the accused.
2.9. In evaluating the two systems we should not forget the basic requirement of fairness of trial. In the inquisitorial system the Judge of instructions combines to some extent the roles of the investigator and the Judge. Defence lacks adequate opportunity to test the evidence of the prosecution by cross-examination. The defence has only a limited right of suggesting questions to the Judge. It is left to the discretion of the Judge whether to accept the suggestions or not. Thus, the accused does not get a fair opportunity of testing the evidence tendered against him which is one of the essential requirements of fair trial.
2.10. In the Inquisitorial System followed in France the positions of Magistrates and Prosecutors are interchangeable. A person appointed as a Magistrate for one term may be appointed as a Prosecutor for the next term. It is by common selection that Prosecutors and Magistrates are selected and are subjected to a common training programme. It is one of the cardinal principles of justice that justice should not only be done but should appear to be done. The Judge who had functioned earlier as a prosecutor is likely to carry unconsciously a bias in favour of the prosecution. At any rate it is likely to cause an apprehension in the mind of the accused that he may not get a fair trial at the hands of such a Judge.
2.11. In the Adversarial System, fairness of trial is adequately assured by the Judge maintaining a position of neutrality and the parties getting full opportunity of adducing evidence and cross-examining the witnesses. Thus it is seen that fairness of trial is better assured in the Adversarial System.
WORLD SCENARIO 2.12.1. So far as world scenario is concerned it is enough to quote by Prof. Abraham S.Goldstein “It is becoming increasingly apparent to criminal justice scholars that single theory models of criminal procedure – whether termed inquisitorial or adversarial – are being stretched beyond their capacity by the phenomena they are designed to control. Virtually everywhere, formal systems of charge and adjudication cannot possibly be enforced in accordance with the premises underlying them. There are simply too many offenses, too many offenders and too few resources to deal with them all. One result has been a steady movement towards a convergence of legal systems – towards borrowing from others those institutions and practices that offer some home of relief”. Israel Law Review, Vol.41-1997
2.12.2. United Kingdom and Australia who are engaged in the reform process do not favour switch over from the Adversarial System to theInquisitorial System. However they have not hesitated to borrow some of the features of the Inquisitorial System.
VIEWS OF HIGH COURTS
2.13. The High Courts of Gauhati, Gujarat, Jammu & Kashmir, Karnataka, Patna, Rajasthan and Sikkim have not expressed any views. The High Courts of Allahabad, Andhra Pradesh, Kerala, and Punjab & Haryana have said that the present system is satisfactory. The High Courts of Jarkhand and Uttaranchal have opined that the Adversarial System has failed. The High Courts of Bombay, Chattisgarh, Delhi, Himachal Pradesh, Kolkata, Madras, Madhya Pradesh and Orissa have expressed that the present system is not satisfactory. Some of them say that there is scope for improving the Adversarial System by adopting some of the useful features of the Inquisitorial System.
VIEWS OF SOME STATE GOVERNMENTS
2.14. Governments of Arunachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Haryana, Himachal Pradesh and Jammu & Kashimir are in favour of continuing the Adversarial System followed in India. Other Governments have not responded.
THE NEED FOR REFORM
2.15. The Adversarial System lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover truth as in the Inquisitorial System. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the Judges do not bother if relevant evidence is not produced and plays a passive role as he has no duty to search for truth. As the prosecution has to prove the case beyond reasonable doubt, the system appears to be skewed in favour of the accused. It is therefore necessary to strengthen the Adversarial System by adopting with suitable modifications some of the good and useful features of the Inquisitorial System.
TRUTH AND JUSTICE “Truth does not pay homage to any society ancient or modern. But society has to pay homage to truth or perish” Swami Vivekananda.
2.16.1. The Indian ethos accords the highest importance to truth. The motto Satyameva Jayate (Truth alone succeeds) is inscribed in our National Emblem “Ashoka Sthambha”. Our epics extol the virtue of truth. Gandhiji gave us truth – as the righteous means to achieve independence by launching the movement of Satyagraha.
2.16.2. For the common man truth and justice are synonymous. So when truth fails, justice fails.
2.16.3. What is the place accorded to ‘truth’ in the Criminal Justice System in India?
2.16.4. It is worthwhile to recall the following observations of Dr. R.Venkataraman, former President of India.
“The Adversarial System is the opposite of our ancient ethos. In the panchayat justice, they were seeking the truth, while in adversarial procedure, the Judge does not seek the truth, but only decides whether the charge has been proved by the prosecution. The Judge is not concerned with the truth; he is only concerned with the proof. Those who know that the acquitted accused was in fact the offender, lose faith in the system”.
2.16.5. The Supreme Court has criticised the passive role played by the Judges and emphasized the importance of finding truth in several cases.
2.16.6. In the case of Ram Chandra vs. State of Haryana, AIR 1981. SC 1036, the Supreme Court has said: …there is an unfortunate tendency for a Judge presiding over a trial to assume the role of referee or umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortion flowing from combative and competitive elements entering the trial procedure.
2.16.7. In the case of Mohanlal vs. Union of India, where best available evidence was not brought by the prosecution before the court, the Supreme Court observed as follows: In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions- whether discretionary or obligatory – according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done.
2.16.8. In practice however we find that the Judge, in his anxiety to demonstrate his neutrality opts to remain passive and truth often becomes a casualty. Failure to ascertain truth may be on account of errors or omissions on the part of the investigation agency, the prosecution or the faulty attitude of the parties, the witnesses or inadequacies in the principles and laws regulating the system. There is no provision in the Code which expressly imposes a duty on the court to search for truth. It is a general feeling that it is falsehood that often succeeds in courts.
2.16.9. Truth being the cherished ideal and ethos of India, pursuit of truth should be the guiding star of the Criminal Justice System. For justice to be done truth must prevail. It is truth that must protect the innocent and it is truth that must be the basis to punish the guilty. Truth is the very soul of justice. Therefore truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the courts to become active seekers of truth. It is of seminal importance to inject vitality into our system if we have to regain the lost confidence of the people. Concern for and duty to seek truth should not become the limited concern of the courts. It should become the paramount duty of everyone to assist the court in its quest for truth.
2.16.10. Many countries which have Inquisitorial model have inscribed in their Parliamentary Acts a duty to find the truth in the case. In Germany Section 139 of the so called ‘Majna Charta’, a breach of the Judges’ duty to actively discover truth would promulgate a procedural error which may provide grounds for an appeal. Nothing great and worthy can be achieved without a great vision and an inspiring ideal. For courts of justice there cannot be any better or higher ideal than quest for truth. Preamble is the right place to incorporate the goal or ideal to pursue which the law is enacted. It may look rather unusual that the ideal for the law is being introduced in the preamble long after the law is enacted. But then, it is never too late to do the right thing for the right cause. The Committee therefore favours incorporating an inspiring ideal of ‘quest for truth’ in the Preamble and a specific provision in the Code imposing a fundamental duty to seek truth.
INHERENT POWERS
2.17.1 The Code which speaks in Section 482 of the inherent power of the High Court says that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give affect to any order under the Code or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. In essence it speaks of the residuary power to do justice. As all the Criminal Courts are courts of justice there is no good reason to limit the exercise of inherent powers to the High Court. Limited conferring of inherent powers to the High Court has contributed to unnecessary litigation and delay. The inherent powers in civil matters are conferred by Section 151 of the Civil Procedure Code on all courts and are not limited to the High Court. Now that every criminal court is enjoined the duty to seek truth there is no good reason why it should not be empowered to exercise inherent powers for seeking truth or to prevent abuse of the process of any court or otherwise to secure the ends of justice. Inherent powers can be exercised in the interest of justice, in the absence of a statutory provision to meet the situation. The lower courts can be trusted to exercise inherent powers in accordance with settled principles.
2.17.2 The Law Commission in its 14th report (Paras 828 & 830) has also recommended conferment of inherent power but on the sessions courts. There is no good reason to deny inherent powers to other subordinate criminal courts.
COURTS’ POWER TO SECURE EVIDENCE
2.18.1 Section 165 of the Evidence Act, invests the Court with the power to ask any question it pleases, in any form, at any time, of any witness, or the parties about any fact, relevant or irrelevant, and also to order the production of any document or thing. This power can be exercised by the Court, “in order to discover or to obtain proper proof of relevant facts”. This Section does not expressly confer a power on the Court to summon witnesses, to give evidence.It can summon a witness only to produce any document or a thing.
2.18.2 Wide power has been conferred on the court by Section 311 of the Code to summon material witnesses or examine the persons present in the Court. It reads: Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
2.18.3 First part of Section 311 gives discretion to the court to summon any person as a witness; the second part makes it obligatory to examine witness if it is essential for the just decision of the case. It does not say that the power should be exercised when it appears to the court that it is necessary to discover truth. The requirement of “just decision of the case” occurring in the latter part of the Section is not synonymous with the duty to discover truth.
2.18.4 The provisions discussed above do not cast a positive duty on the court to exercise the power to summon witnesses “in order to seek the truth” but only for “proof of relevant facts” or for “just decision” in the case. In practice it is seen that when the witnesses are examined the courts rarely ask any questions to the witnesses, fearing that their neutrality may be doubted.
2.18.5 Witnesses examined at the instance of the court are liable to be cross-examined by the rival parties to the proceedings. Aggrieved parties often challenge such intervention on grounds of bias and denial of fair trial. The trend of judicial decisions is also that this power should be exercised with utmost circumspection and not to supplement the evidence for the prosecution or to fill up the gaps in the prosecution case. Thus the power underSection 311 is virtually rendered nugatory.
2.18.6 Furthermore, the other provisions in the Code also appear to curtail this power, may be unintentional. So far as summons trial procedure is concerned Section 255 entitles the court to take into account in addition to the evidence produced by the prosecution, such further evidence as the court on its own motion causes to be produced. But there is no similar provision in respect of warrant (Section 238 to 250) and sessions (Section 225 to 232) trials. The court can consider only the evidence produced by the prosecution and not other evidence collected by invoking courts’ power under Section 311. These restrictions should be removed and a provision similar to Section 255 should be made in respect of warrant and session’s trial procedure also.
2.18.7 In England the court has power to cause production of evidence for elucidating truth as can be seen from the following observation of Lord Esher in Coulson vs Disborough, 1894, 2 Q.B, 316. If there be a person whom neither party to an action chooses to call as witness, and the Judge thinks that the person is able to elucidate the truth, the Judge in my opinion is entitled to call him; and I cannot agree that such a course has never been taken by a Judge before.
2.18.8 It is therefore necessary to amend Section 311 imposing a duty on every court to suo motu cause production of evidence for the purpose of discovering truth and requiring every court to take into account the evidence so collected in addition to the evidence produced by the Prosecution.
COURTS’ POWER TO REGULATE INVESTIGATION
2.19.1 Quite often the Judge acquits the accused after recording a finding that the prosecution has miserably failed to prove its case against the accused attributing the failure to defective, incompetent or dishonest investigation. The courts rarely direct further or proper investigation by the same or other competent agency for discovering truth though they have the power as can be seen from Section 173(8) of the code which reads
Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections(2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section(2).
2.19.2 This provision was invoked by the Supreme Court in AIR 1988 SC 1323 between Kashmiri Devi vs. Delhi Administration and others and the relevant observations are as follows:
(5) “After hearing learned counsel for the parties and on perusal of the record we are satisfied that prima facie the police have not acted in a forthright manner in investigating the case, registered on the complaint of Sudesh Kumar. The circumstances available on record prima facie show that effort has been made to protect and shield the guilty officers of the police who are alleged to have perpetrated the barbaric offence of murdering Gopi Ram by beating and torturing. The appellant has been crying hoarse to get the investigation done by an independent authority but none responded to her complaint. The Additional Sessions Judge while considering the bail application of Jagmal Singh, Constable, considered the autopsy report and observed that Doctor had postponed giving his opinion regarding the cause of death although the injuries were ante mortom. The learned Sessions Judge referring to a number of circumstances observed that the investigating officer had converted the case from S.302/IPC to S.304/IPC on flimsy grounds within hours of the registration of the case even without waiting for the post-mortem report. The learned Sessions Judge further observed that it was a prima facie case of deliberate murder of an innocent illiterate poor citizen of Delhi in Police custody and investigation was partisan.
6) … … … … … … … … … ..Prima facie the police has acted in partisan manner to shield the real culprits and the investigation of the case has not been done in a proper and objective manner. We are therefore of the opinion that in the interest of justice it is necessary to get a fresh investigation made through an independent authority so that truth may be known.
2.19.3 Technical or non-fulfillment of any procedural requirement or inadequacies of evidence or nonexamination of material witnesses, mistakes in investigation and similar other factors have quite often contributed to acquittals. This amounts to failure of the courts’ to search for truth to do justice. Therefore the Committee is of the view, that in such situations, the court concerned should not be allowed the shortcut of acquitting the accused. A statutory obligation should be placed on the court to take such steps as may be necessary, or to issue such directions as may be required, to remove the deficiencies. This may include examining witnesses and directing fresh or proper investigation by any appropriate agency.
2.19.4 Quality of investigation needs substantial improvements, more so when it is charged with the responsibility of discovering truth. These aspects are discussed in a separate chapter on investigation.
2.19.5 In the present system, the Directorate of Prosecution is expected to guide the investigation. In practice however this has not worked satisfactorily. The Committee has examined the question of improving the functioning of the Directorate of Prosecution, in a separate chapter devoted to Prosecution.
VICTIM’S PARTICIPATION
2.20.1. In the Inquisitorial System the Judge of instructions is a part of the investigating machinery charged with the responsibility of ascertaining truth. In the Adversarial System, the Judge is not a part of the investigating machinery. As it is proposed to cast a duty on the court to discover truth we have to find ways and means of achieving this object without the Judge becoming a part of the investigating machinery.
2.20.2. Ordinarily the prosecution places such evidence as it considers necessary during the trial of the case. The court has no means to know if there is any other evidence which can throw light on truth of the case. The victim not being a party has no role to play in the trial except giving evidence as a witness. The victim may have information about the evidence available in regard to commission of the crime. He would also be very much interested in the vindication of justice by securing conviction of the person who has committed the offence. He would be eager to assist the prosecution. Therefore the victim may be made a party to assist the court in discovering truth. He may be permitted to put questions or suggest questions to be put by the court to the witnesses produced by the parties. He can also point out the availability of other evidence that would assist the court in discovering truth. On the victim furnishing such information the court may cause production of such evidence as it considers necessary to discover truth.
2.20.3. Active participation of the victim during investigation would be helpful in discovering truth. He can assist investigation in finding out the real offender and in collecting evidence to prove the commission of the offence by the assailant. He can also offer suggestions for proper investigation of the case. When the investigation proceeds on wrong lines the victim can move the court for appropriate directions to ensure proper investigation of the case.
2.20.4. In this way, the Judge does not become part of the investigation machinery as in the Inquisitorial System. He would maintain his position as a neutral judge and objectively consider the request of the victim for directions regarding investigation or production of evidence during trial.
2.20.5. Participation of the victim will also assist the court in exercising its discretion in regard to grant or cancellation of bail. The victim will also have opportunity to adduce evidence in regard to his loss, pain and suffering and assist the court in determining the quantum of compensation. In cases where prosecution seeks to withdraw from the case, the victim would be in a position to assist the court in proper exercise of its discretion and may even offer to take the responsibility of continuing the prosecution. Presence of the victim before the court would also facilitate in the matter of compounding or settlement of the case.
2.20.6. In cases where the victim is dead or otherwise not available, his dependent or next of kin or a recognized NGO permitted by the Court may be impleaded as a party.
2.20.7. The victim should have the right to be represented by a lawyer. If the victim is an indigent person and is not in a position to engage a lawyer, the State should provide him a lawyer. When the State has an obligation to provide a lawyer to the accused, there is no good reason why the victim should not be provided a lawyer at the cost of the State.
2.20.8. When the victim is arrayed as a party to the criminal proceedings he should take his turn after the prosecution or at such other stage as may be permitted by the court.
VICTIM’S RIGHT TO APPEAL
2.21. The victim or his representative who is a party to the trial should have a right to prefer an appeal against any adverse order passed by the trial court. In such an appeal he could challenge the acquittal, or conviction for a lesser offence or inadequacy of sentence, or in regard to compensation payable to the victim. The appellate court should have the same powers as the trial court in regard to assessment of evidence and awarding of sentence. The appellate court should have the same powers as the trial court in regard to assessment of evidence and awarding of sentence.
EVIDENCE REGARDING CHARACTER
2.22.1. Section 54 of the Indian Evidence Act provides that evidence regarding bad character is irrelevant except in cases where evidence has been led to show that the accused is of good character. Under Section 53 evidence regarding good character of the accused is relevant in criminal cases. Evidence regarding good character of the accused may show that he is not likely to have committed the offence. Logically it follows that evidence of bad character of the accused may show that he is more likely to commit the offence. At present the law in this behalf is heavily loaded in favour of the accused and against the prosecution. Just as evidence of good character of the accused is relevant, evidence regarding bad character of the accused should also be relevant. There is no good reason why evidence regarding bad character of the accused should be made relevant only when evidence is led about his good character. This is quite illogical and irrational. By the exclusionary rule of evidence prescribed by Section 54, the Court is denied of the benefit of a very valuable piece of evidence that would assist in the search for truth. In the inquisitorial system character and antecedents of the accused are relevant both in regard to determination of guilt and awarding of sentence. The Committee therefore recommends that Section 54 of the Evidence Act be substituted by a provision to the effect that in criminal cases evidence of bad character and antecedents is relevant.
2.22.2. Relevant recommendations regarding rights of the victim to participation, right to prefer an appeal against acquittals and right to compensation are incorporated in the separate chapter on ‘justice to victims’.
RIGHT TO SILENCE _ 3.1 The right not to be compelled to testify against himself is a universally recognised right of the accused under Art 14 of the International convention on civil and political rights and is a fundamental right conferred by Art 20 (3) of the Constitution. It says that “No person accused of any offence shall be compelled to be a witness against himself”. This is often described as right to silence. History of mankind is replete with instances where under every type of regime the accused in custody was tortured within the four corners of the cell for forcing him to confess or disclose information, when there is none to hear his cries or to come to his rescue. That is why compulsion is prohibited by of Article 20(3). In AIR 1992 SC 1795, the Supreme Court has pointed out that compulsion in the present context means “Duress”. It does not prohibit admission or confession which is made without any inducement, threat or promise. It also does not bar the accused from voluntarily offering himself to be examined as a witness. Any confession made under compulsion is rendered inadmissible in evidence by virtue of S.24 of the Evidence Act. It cannot be disputed that accused is good source of information about the commission of the offence. But unfortunately this source is not fully tapped may be for the fear of infringing the accused’s right to silence granted by Article 20(3). To ascertain if there is any scope for tapping this source and to find out ways and means of enhancing contribution of the accused for better quality of criminal justice it is necessary to examine the true scope and limits of the Right to silence. It cannot be disputed that accused is good source of information about the commission of the offence. But unfortunately this source is not fully tapped may be for the fear of infringing the accused’s right to silence granted by Article 20(3). To ascertain if there is any scope for tapping this source and to find out ways and means of enhancing contribution of the accused for better quality of criminal justice it is necessary to examine the true scope and limits of the Right to silence.
3.2 Art. 20(3) does not prohibit the accused being questioned during investigation or trial. When questioned the accused may deny or make a confession. When the accused is asked during trial whether he pleads guilty to the charge he may confess and plead guilty. If the accused is willing during investigation to make a confession, it can be got recorded by the Magistrate under section 164 of the Code. A voluntary statement by the accused leading to discovery of any incriminating fact is admissible under S-27 of the Evidence Act. Sections 306 and 307 of the Code empower the court to tender pardon to the approver who was a privy or an abettor in the commission of the offence, subject to the condition that he makes a full and complete disclosure of all the facts including his own involvement in the commission of the crime. If the person after accepting tender of pardon gives false evidence or willfully conceals any essential fact he can be deprived of the privilege of pardon and tried for the offences he is alleged to have committed as also for the offence of giving false evidence.
3.3 Section 313 of the Code confers power on the court to examine the accused only to explain any circumstances appearing in the evidence against him. Whereas Clause (a) of Sub-Section (1) of Section 313 empowers the court to put questions at any stage to the accused as it considers necessary, Clause (b) of Sub- Section (1) requires the court to question the accused generally on the case after the witnesses for the prosecution have been examined. Sub-Section (2) of 313 provides that no oath shall be administered to the accused when he is examined under Sub-Section (1). Sub-Section (3) provides that the accused shall not be liable for punishment for refusing to answer the questions put to him or for any false answers.
3.4 Sub-section(4) provides that the answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, or any other offence which such answers may tend to show he has committed. It does not empower the court to draw any inference when the accused remains silent or refuses to answer the question put to him.
3.5 If, in answer to the question put to the accused under Section 313 he voluntarily makes a self-incriminatory statement it can be taken into consideration for or against him as provided in Section 313(4). As no compulsion is involved Article 20(3) is not violated. If any incriminatory statement is voluntarily made by the accused in answer to the question put by a police officer, it cannot be regarded as one made under compulsion, vide AIR 1962 SC 1831, R.K. Dalmia Vs. Delhi Administration. In AIR 1965 SC 1251, State of Gujarat Vs. Shyamlal Mohanlal Choksi the Supreme Court has upheld the validity of Section 27 of the Evidence Act which renders the portion of the statement of the accused that leads to the discovery of any fact admissible in evidence.
3.6 Burden of Proof in Criminal cases is on the Prosecution as provided in section 101 of the Evidence Act. However, there are several statutory provisions which provide that the court may presume certain facts, place the burden on the accused of rebutting such presumption. If the accused fails to rebut the presumption the court can proceed to give its verdict on the basis of the presumption. For the sake of convenience we shall limit our examination to only a few statutory provisions which provide for raising certain rebuttable presumptions.
3.7.1 Section 114 of the Evidence Act gives several illustrations where the Court may presume existence of certain facts. S.114 illustration (a) reads: The court may presume (a) that a man who is in possession of stolen goods soon after theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession”.
3.7.2 If the accused remains silent and fails to account for possession of the goods the court may convict the accused on the basis of the statutory presumption for the offence of theft or offence of receiver of the stolen goods.
Illustration (h) to section 114 reads: – “The court may presume (h) that if a man refuses to answer a question which he is not compelled to answer, by law, the answer, if given, would be unfavourable to him”;
3.8 The expression “man” used herein is in a generic sense and does not exclude the accused. If the accused refuses to answer the questions put to him an unfavourable inference can be drawn against him.
3.9 Section 113 A of the Evidence Act provides for a presumption that the husband has abetted suicide of his wife if suicide took place within seven years of marriage and the wife was earlier subjected to cruelty. Likewise Section 113 B raises a presumption of dowry death if it is shown that prior to her death she was harassed etc in connection with demand of dowry. Again Section 114 A provides for presumption as to absence of consent in certain prosecutions for rape.
3.10 Similarly there are several special statutes which provide for raising certain presumptions placing the burden of rebutting them on the accused. Section 4 of Public Gambling Act 1867 provides that “Any person found in any common gambling house or in gambling or playing there-in shall be presumed until the contrary be proved to have been there for the purpose of Gambling”. Section 12 of the Protection of Civil Rights Act 1955 provides “where any act constituting an offence under this Act is committed in relation to a member of the Scheduled Caste as defined in clause (24) of Article 366 of the Constitution, the court shall presume, unless the contrary is proved that such act was committed on the ground of untouchability”. Certain presumptions are drawn under Section 3, 5 and 6 of Immoral Traffic (Prevention) Act 1956. In order to avoid such presumption taking effect the accused has to break his silence to rebut the presumption. This type of pressure on the accused is not regarded as compelling him to be a witness against himself in contravention of Article 20(3). The Supreme Court has held in AIR 1971 SC 2346 that no compulsion is involved in enacting a rule of absolute liability or conclusive evidence against the accused or to disclose his defence failing which an adverse inference may be drawn against the accused.
3.11 The common features discernible from the analysis of some of the statues in India in the previous paragraphs may be summarized as follows: i. Article 20(3) does not prohibit the Investigating Officer from putting questions to the accused to elicit information about the commission of the crime and his involvement. ii. The court can put any questions to the accused during trial to give him an opportunity to explain the circumstances appearing against him in the evidence. iii. The accused has a right to answer or refuse to answer any question put to him during investigation or trial. iv. The court can draw appropriate inferences from the answers given by the accused when examined under Section 313 of the Code. v. There is no express provision empowering the court to draw an adverse inference against the accused on his failure to answer the questions put to him. vi. On the accused failing to rebut the statutory presumption the court can proceed to treat the presumption as absolute.
3.12 In the separate chapter on ‘Investigation’ the Committee has inter-alia made the following recommendations to improve the competence and credibility of the investigating agency: – i. To provide a separate, independent, honest, competent and efficient investigation agency free from political and other pressures. ii. To ensure that during investigation the accused and witnesses are not subjected to any torture, threats or inducements and that only the voluntary statements made by them are recorded faithfully and accurately. iii. To suitably amend Sections 161 and 162 of the Code to provide for recording and signing the statements made by any person to the Police Officer and to render them admissible evidence. iv. To delete Sections 25 to 29 of the Indian Evidence Act.
3.13 Further discussion shall be on the basis of these recommendations.
3.14 We shall now examine how refusal of the accused to answer the questions put to him is dealt with in different countries.
3.15 In United States of America right to silence has been granted by the 5th amendment to the Constitution. No adverse inference of guilt can be drawn from the failure of the accused to testify. However some of the American Courts have held that adverse inference can be drawn from the silence of the accused for the limited purpose of determining the quantum of punishment. Professor Ingraham holds the view that: Every citizen has a duty to give frank answers to relevant questions concerning the crime to the Police. An obdurate silence in the face of an accusation of involvement must be capable of leading to whatever reasonable inferences can be drawn there-from. One of those is concealment of guilt.
3.16 He further points out that common sense expects one who is accused of the crime to reply, explain, admit or exonerate himself and that this does not threaten the privilege from self-incrimination.
3.17 In Canada right to silence is recognised by Section 11(c) of the Canadian Charter of Rights and Freedom. Section 4(6) of the Canadian Evidence Act 1985 provides that failure to testify shall not entitle the court to draw an adverse inference against him.
3.18 In Italy, adverse inference is drawn against the accused for failure to testify. In Japan the accused has the right to silence and no adverse inference can be drawn on his refusal to testify. In South Africa, right to silence is enshrined in Section 35 of the Bill of Rights and no adverse inference can be drawn against the accused for failure to answer any question during investigation or trial.
3.19 So far as Australia is concerned, in New South Wales, the accused has the right to silence and Section 20 provides that adverse inference can be drawn against the accused for failure to testify only when a comment is made by another accused in the case. The position is slightly different in the State of Queensland. In the Case of Weissensteiner vs. Queen (1993 178, Common Law Report 217) the majority has held that adverse inference can be drawn on the failure of the accused to testify where the evidence establishes a prima-facie case.
3.20 The Law Commission of North South Wales has in its recent report No.95 recommended that legislation based on Sections 34, 36 and 37 of the United Kingdom Criminal Justice and Public Order Act 1994 should not be introduced in South Wales. However they have made recommendations No.5 (a), 5(b) and No.10 to require the accused to disclose his defence in several respects and upon failure to do so to draw adverse inference and also to draw adverse inference on the refusal of the accused to testify.
3.21 United Kingdom has during last few years undertaken several measures to reform the Criminal Justice System. The reforms which have a bearing on the right to silence of the accused are contained in Sections 34, 35, 36 and 37 of the Criminal Justice and Public Order Act 1994. These provisions permit “proper inferences” being drawn from the silence of the accused to the questions put to him during investigation or trial.
3.22 In Northern Ireland there are similar provisions in the Criminal Evidence (Northern Ireland) Order 1988. In that Country the cases are tried with the help of the Jury. A case arising from Northern Ireland where silence of the accused was taken into account, came up for consideration in the House of Lords in the case of Murray vs. DPP (1993 Cr.APP.REP.151). In that case Lord Mustill observed that no finding of guilt can be arrived at merely on the basis of the silence of the accused unless the prosecution makes out a prima-facie case. On appeal, the European Court of Human Rights in Murray Vs. United Kingdom (1996) 22 EHRR-29 upheld the validity of the Irish Law holding that they did not have the effect of denying the right of the accused to a fair trial or of rebutting the presumption of innocence flowing from Article 6 of the European Convention. The Court however held that two conditions should be satisfied for drawing appropriate inferences from the silence of the accused, namely (i) that the prosecution must firstly establish prima-facie case and (ii) that the accused should be given an opportunity to call his Attorney when he is interrogated during investigation or questioned during the trial. In the light of this decision of the European Court of Human Rights, the Criminal Justice and Public Order Act 1994 applicable to England and Wales was amended to bring it in conformity with the view taken by the European Court of Human Rights and a provision requiring the accused to be informed of his rights to call an Attorney was added.
3.23 Shortly thereafter a case arose from the United Kingdom in which the provisions of the English Act permitting appropriate inferences being drawn from the silence of the accused were challenged. The matter ultimately reached the European Court on Human Rights which rendered its judgment in Condron Vs. United Kingdom on the 2nd of May 2000. The European Court of Human Rights did not dissent from the view taken by it earlier in Murray’s case. However the Court set aside the conviction of Condron on the ground that there was misdirection by the Court to the jury in the context of the stand taken by the accused that he remained silent on the advice of his Solicitor. The provisions of law which permit appropriate inferences being drawn against the accused on his silence were up-held following its earlier decision in Murray’s case.
VIEWS OF EMINENT JURISTS
3.24 Eminent lawyer Sri Fali Nariman has said “It is time that we recognise the right of silence during a trial is not really a right, but a privilege and although every accused has a right to be presumed innocent till he is proved guilty, in terrorist related and other grave crimes the accused has an obligation to assist the discovery of truth”. Former Chief Justice Ahmadi is in favour of drawing an adverse inference on the silence of the accused only in relation matters which are within the special knowledge and not in other cases. Former Chief Justice Ranganath Misra says that requiring the accused to disclose his defence once the prosecution case/charge leveled against him is made known to him will not offend Article 20(3). He, however, says that no adverse inference should be drawn if the accused remains silent.
VIEWS OF THE HIGH COURTS
3.25 The High Courts of Guwahati, Jammu & Kashimir, Karnataka, Madras, Patna, Rajasthan, Sikkim and Uttaranchal have not expressed any views on the question of drawing adverse inference against the accused on his refusal to answer the questions put to him. They have also not expressed any opinion on the question whether the accused should be required to disclose his defence once the prosecution case/charge levelled is made known to him. The High Courts of Andhra Pradesh, Bombay, Chattisgarh, Delhi, Gujarat, Himachal Pradesh, Jarkhand, Kolkata, Orissa and Punjab & Chandigarh are in favour of adverse inference being drawn on the accused refusing to answer the question put to him. They are also in favour of requiring the accused to disclose his defence.
VIEWS OF THE STATE GOVERNMENTS
3.26 Only the Governments of the States of Arunachal Pradesh, Karnataka, Kerala, Haryana, Himachal Pradesh and Jammu & Kashmir have offered their views on the ‘Right to Silence’. The other States have exercised their Right to silence. The Governments of Arunachal Pradesh, Karnataka and Himachal Pradesh favour adverse inference being drawn against the accused on his silence. Kerala Govt. is not in favour of a general provision to draw adverse inference against the accused on his refusing to answer the questions put to him. Similar is the view of the Government of Jammu & Kashmir. The Governments of Karnataka, Haryana and Jammu & Kashmir are in favour of a provision being made requiring the accused to state his case in defence immediately after the charge is framed against him. Governments of Karnataka and Jammu & Kashmir favour issues being raised in regard to matters in dispute. Allegations which are admitted or not specifically denied need not be proved. It is further pointed out that the Supreme Court has held in AIR 1998 SC 6 between Sampath Kumar Vs. Enforcement Directorate that the disclosure of the defence by the accused is not violative of Article 20(3).
RESPONSES TO THE QUESTIONNAIRE
3.27 Substantial majority of those who have responded to the questionnaire sent by the Committee favour adverse inference being drawn if the accused remains silent when questions are put to him. They are also in favour of requiring the accused to disclose his defence once the prosecution case/charge leveled is made known to him.
VIEWS OF THE LAW COMMISSION
3.28 However the Law Commission of India has in its 180th Report on “Article 20 of the Constitution of India and the Right to silence” recommended to the Government of India that no changes in the law relating to the right to silence of the accused are necessary on the ground they would be violative of Article 20(3) and Article 21 of the Constitution of India. The Committee would therefore like to examine the reasons that persuaded the Law Commission to make such recommendations. The main reasons assigned by the Law Commission in support of their recommendations are as follows: – i. That though the validity of Sections 34 to 37 of the United Kingdom Criminal Justice and Public Order Act 1994 has been up-held by the European Human Rights Court in the Condron’s case, these laws have yet to be tested with reference to the U.K. Human Rights Act1998. ii. That the implementation of the two conditions laid down by the European Human Rights Court firstly that prima-facie case should be made out by the prosecution and secondly that the accused should be given an opportunity to call his Attorney when he is questioned are likely to create several difficulties and problems in their implementation. iii. So far as the position in Australia is concerned the Law Commission has noticed that there are provisions in North South Wales and other States which permit the Court to draw appropriate inferences against the accused from his silence subject to certain conditions which have been upheld in the decision in Weissensteiner Vs. Queen (1993 178 COMLAWREP 217). The Law Commission has also adverted to the recommendations of Law Reforms Commission Report No.95 of North South Wales in which it has recommended that no legislation based on Sections 34, 36 and 37 of the United Kingdom Criminal Justice and Public Order Act 1994 should be introduced in North South Wales. Alongside the Law Reforms Commission has made recommendations No 5(a), 5(b) and 10 which require the accused to disclose his defence in several respects and upon failure to do so to draw adverse inferences. The Law Commission says that these recommendations amount to compelling the accused to disclose various facts relating to defence failing which an adverse inference can be drawn against the accused. These, in the view of the Law Commission would violate the right against self-incrimination. iv. The Commission feels the view taken by American and Canadian courts which prohibit silence of the accused being taken into consideration before arriving at the finding of guilt beyond reasonable doubt is sound and must be accepted. It says that the accused should be questioned to seek his explanation only after the court has found the guilt of the accused beyond reasonable doubt. v. The Law Commission says that it would be impracticable to introduce changes on the United Kingdom pattern and further that any modifications would offend Article 20(3) and Article 21 of the Constitution.
3.29 The important question that requires serious examination is whether the provisions which permit the court to draw an adverse inference against the accused on his refusal to answer the question put to him during investigation or trial violate Article 20(3).
3.30 At the outset let us understand the true scope and limits of the right to silence.
The common man’s common sense approach to the doctrine of Right to Silence is beautifully portrayed in the following extract: It is normal for a child who has stolen a cookie to be questioned by his parent on its disappearance. It would be absurd if the child’s defence is that he may not be questioned and in any event cannot be expected to reply as this might incriminate him. Yet when he has stolen a bicycle this is the accepted situation vis a vis police and court, entrenched in our Constitution. He does not even have to raise this defence, the constitution does it for him. And we don’t find it absurd! We don’t consider whether the legal walls which we erect that impede society’s search for the truth are warranted. And we have no inkling of the cost of our strange procedure in monetary terms and in wasted judicial, prosecutorial and police man hours. Those that know are silent. K van Dijkhorst.
3.31 The origin of the right to silence according to Wigmore is as follows: In 1637 John Lilburn was charged with printing or importing seditious and heretical books. He denied the charges and was interrogated thereon by the Council of the Star Chamber and furnished answers. When the interrogation shifted to matters outside the scope of the charges he refused to answer as the interrogators were attempting to ensnare him in order to find other charges against him. He was whipped and pilloried for this refusal. He did not let the matter rest and petitioned parliament and eventually in 1641 the Star Chamber and the Court of High Commission for Ecclesiastical Cases were abolished, mainly as a result of his protests. This affair gave rise to the privilege against self-incrimination. It was essentially the right to refuse to answer and incriminate oneself in the absence of a proper charge. Not initially, the right to refuse to reply to a proper charge. And certainly not the right not to be questioned. From this developed a philosophy that the culprit may not be required to assist his adversary, the state, in giving him his just desserts – due punishment for his crimes. That would be unfair. It would be an unequal contest.
3.32 Bentham called the rule “one of the most pernicious and most irrational notions that ever found its way into the human mind”.
3.33 Professor Glanville Williams in The Proof of Guilt (p.50-53) calls it an irrational psychological reaction to past barbarism to refuse questioning of an accused and observes as follows: The rule cannot, if dispassionately regarded, be supported by an argument referring to torture. No one supposes that in present-day England a permission to question an accused person, if accompanied, as it would be, by safeguards, would result in any ill treatment of him. The risk, if there is one, is just the opposite: that if dangerous criminals cannot be questioned before a magistrate or Judge, the frustrated police may resort to illegal questioning and brutal ‘third degree’ methods in order to obtain convictions”. Historically regarded, the rule against questioning the defendant is one example of the indifference of society to the need for securing the conviction of the guilty. Those who seek to alter the accused’s freedom from interrogation ask only that the prosecution should be permitted, in court, to put questions to be accused person, whether (since 1898) he elects to give evidence or not. There would be no direct compulsion on the accused to answer the questions if he preferred to maintain a stolid silence; though of course this silence would almost certainly have a most serious effect upon his defence. The crux of the matter is that immunity from being questioned is a rule which from its nature can protect the guilty only. It is not a rule that may operate to acquit some guilty for fear of convicting some innocent. To quote Bentley’s words, ‘If all criminals of every class had assembled, and framed a system after their own wishes, is not this rule the very first they would have established for their security? Innocence never takes advantage of it; innocence claims the right of speaking, as guilt invokes the privilege of silence.
3.34 Professor Salmond states in his treatise on Jurisprudence (11th edition p.178): The most curious and interesting of all these rules of exclusion is the maxim Nemo tenetur se ipsum accusare… … it seems impossible to resist Bentham’s conclusion that the rule is destitute of any rational foundation, and that the compulsory examination of the accused is an essential feature of sound criminal procedure.
3.35 These great jurists have expressed very firmly and eloquently in favour of the right to question the accused to elicit relevant information. Drawing an adverse inference on the silence of the accused is a corollary that flows from the right to put questions to the accused.
3.36 Right granted by Article 20(3) is in reality an immunity to the accused from compulsion to speak against himself. Even when the accused is not compelled to speak, he has the discretion to speak or not to speak. If he choses to speak, the court can draw appropriate inferences from his statement. Article 20(3) does not in terms speak of any immunity from drawal of appropriate inference when the accused refuses to answer. It is difficult to infer how immunity from drawal of appropriate inference including adverse inference flows from or is a part of the immunity against testimonial compulsions. If the court can draw an adverse inference against the accused from his silence there would be less incentive for the police to resort to compulsion or trickery to obtain a confession. If drawing of such adverse inference is not permissible it would tend to encourage such behaviour. Immunity from compulsion to be a witness against himself is a concept of ancient origin long before the time of the Star Chamber. The concept of immunity from adverse inference however is of the 20th century. This would suggest that immunity from adverse inference on silence of the accused would not flow from immunity against compulsion. It may not be right to say that adverse inference should always be drawn from the silence of the accused. Adverse inference should be drawn only where an answer is reasonably expected from the accused and not mechanically in every case. That adverse inference would be drawn by a trained judicial mind is sufficient to guarantee that it would be exercised reasonably and on irrelevant considerations.
3.37 Validity of the provision of Sections 34 to 37 of the United Kingdom Criminal Justice and Public Order Act 1994 has been up-held by the European Human Rights Court in Condron’s case. A view similar to the one taken in Condron and Murray’s cases has also been taken in Australia in Weissensteiner Vs. the Queen (1993 178 COMLAWREP 217). They have held that adverse inference can be drawn from the accused’s refusal to testify when the evidence establishes prima-facie case. The Law Reforms Commission of North South Wales which has recommended that no legislation should be enacted based on Sections 34, 36 and 37 the United Kingdom Criminal Justice and Public Order Act 1994 has itself made recommendations in paragraphs 5 (a), 5 (b) and 10 which provide that the accused should disclose his defence and upon his failure to do so, adverse inferences can be drawn. It however seems to restrict drawing of adverse inference only by the courts.
3.38 The Law Commission of India has pointed out that the United States of America and Canada do not permit adverse inference being drawn against the accused on his silence. It must be pointed out that many countries such as United Kingdom, Northern Ireland, Australia, France and Italy provide for adverse inference being drawn on the silence of the accused. The Law Commission has not been able to point out any decision of any superior court which has dissented from the view taken in the cases of Condron and Murray.
3.39 The paragraph from Glanville Williams book The Proof of Guilt (p.60) which quotes a passage from Mr. Justice Swift’s charge to the jury has a convincing answer to those who oppose drawing of adverse inference from the silence of the accused. It reads: ‘Members of the jury, there is one person in this court who could tell you a great deal about the disappearance of this little child. A great deal! For it is admitted that he was with her on the evening and during the afternoon of the day on which she was last seen. He could tell you much, and, members of the jury, he sits before you in the dock. But he has never been there [pointing to the witness-box]. Would you not think that he would be willing-nay,eager to go into the box, and on his oath tell you all he knows? But he stays where he is. Nobody has ever seen that little girl since twelve o’clock on January 6th. Nobody knows what has become of her…
There is one person in this court who knows, and he is silent. He says nothing to you at all.
The witness-box is there open and free. Whey did he not come and tell you something of that strange journey beginning in the Guildhall Street, Newark, when she inquired: ‘How is Auntie? I should like to see Peter’?
There is one person in this world who could have made it all plain to you. There is one man in the world who knows the whole story, and when you are trying to elicit that which is true he sits there and never tells you a word.
When [counsel for the defendant] says there is no evidence of what happened on January 5th and 6th I venture to ask: ‘Whose fault is that?’
You are not to speculate, but you are entitled to ask yourselves: ‘Why does he give us no information? Why is he silent when we are wondering and considering what has happened to that little girl?’… The position is, therefore, that the accused will normally give evidence; or if he does not, the Judge will comment on the fact and the jury will probably convict’.
3.40 In the considered view of the Committee, drawing of adverse inference against the accused on his silence or refusing to answer will not offend the fundamental right granted by Article 20(3) of the Constitution as it does not involve any testimonial compulsion. Therefore the Committee is in favour of amending the Code to provide for drawing appropriate inferences from the silence of the accused.
3.41 The English Law permits adverse inference being drawn when the accused remains silent both at the stage of investigation and at the stage of trial. The European Human Rights Court has held that adverse inference from the silence of the accused can be drawn subject to two conditions (i) that there is prima-facie case against the accused and (ii) the accused has access to a lawyer. It is not easy to ensure access to lawyer during investigation in every case and difficulties may arise in regard to due compliance with this condition in the present Indian context. It is also difficult to expect a prima facie case being established before the investigation is complete. The Law Commission of India has said that it is not easy to ensure compliance with the second condition namely of providing access to the lawyer at the stage of investigation. The procedure established by law must be just, fair and reasonable to conform to Article 21 of the Constitution. Fulfillment of the above two conditions is necessary to render the drawal of adverse inference just, fair and reasonable. As it is not reasonably possible to satisfy these two conditions the Committee is not in favour of drawing adverse inference against the accused on his silence when interrogated during investigation. This does not mean that the accused should not be questioned during investigation or that the answers given by him should not be taken into consideration at the appropriate stage by the court. The Committee is therefore not in favour of making provisions on the lines of Sections 34 and 36 of the United Kingdom Criminal Justice and Public Order Act 1994. Section 35 of that act deals with similar situation arising during trial before the court.
3.42 However such problems will not arise if the accused is questioned during trial after the charge is framed. It is after investigation is complete and the statements of witnesses and other relevant materials are collected the court on being satisfied that there is a prima facie case frames the charge. Thus the court would be examining the accused only after prima-facie is made out by the prosecution. So far as access to the lawyer is concerned, it does not confront any difficulty for the simple reason that the accused is entitled to take the assistance of a lawyer of his choice and if he cannot afford one, at the cost of the State. Therefore both the conditions are satisfied when the accused is examined during trial. As it is, Section 313 (1)(a) of the Code provides for the accused being examined without any previous warning for the limited purpose of giving an opportunity to the accused to explain the circumstances brought out by the prosecution in its evidence against him. Now without affecting that right it is proposed to empower the court to put questions to the accused for the purpose of discovering truth. This power must be liberally used by the courts to discover truth. If the accused does not answer one or few questions the court should put other questions to the accused and try to elicit as much information as possible. Much depends on the tact of the Judge and the attitude of the accused. The court is expected to use the new power of questioning the accused vigorously and proactively inspired by the new objective of seeking truth. However this does not give any right to the parties to ask questions to the accused. If they have any questions they may suggest them to the court which will put the questions to the accused if it is satisfied that it will assist in discovering truth or otherwise advance the cause of justice. Power to put questions includes the power not to ask questions if it is found that it is unnecessary. As no amendments to subsections 2 and 3 are proposed, the accused will not be administered oath and he will not be liable for punishment for refusing to answer the questions or for giving false answers. The Committee recommends a provision being made in the Code on the lines of Section 35 of the United Kingdom Criminal Justice and Public Order Act 1994 to authorize the court to ask questions to the accused for discovering truth and to draw adverse inference against the accused on his silence or refusal to answer the questions put to him. No modification is called for to Section 315 of the Code under which the accused can volunteer to be a witness and give evidence on oath.
3.43 The Committee feels that examination of the accused during trial should be done as at present after all the witnesses of the prosecution have been examined and before he is called upon his defence, to elicit his explanation.
3.44 Another aspect that needs examination is the use of the courts power under Section 313 (1)(b) of the Code to examine the accused to give him an opportunity to explain the circumstances in evidence against him. There is a catena of judicial decisions which have held that it is the duty of the court to invite the attention of the accused to every circumstance that has come in evidence against him. If there is any omission to bring any material circumstance to the attention of the accused, it often leads the higher court setting aside the conviction. In the considered view of the Committee such elaborate examination is an unnecessary and avoidable exercise. As the accused is furnished with all the copies of the statements of witnesses recorded during investigation and the copies of documents on which the prosecution relies, the witnesses for the prosecution are examined during trial in the presence of the accused, he would be well aware of all the evidence and circumstances brought out against him. Besides he is assisted by a lawyer. In cases where there are more than one accused this would consume considerable amount of court time. It is common experience that the accused rarely comes forward with any explanation. His response is mostly one of bare denial. Even at the appeal stage lot of time is spent in arguing that a particular question was not put to the accused and therefore the trial is vitiated. Almost every trial Judge with whom we interacted conveyed to us in unequivocal terms that this is an unnecessary exercise and waste of precious time of the court. In these circumstances it is unnecessary waste of time of the court to invite the attention of the accused to every circumstance against him. It is enough to ask if the accused has any explanation to offer in respect of the evidence produced by the prosecution against him. Therefore it is felt necessary to amend Section 313 of the Code to provide for questioning the accused only generally inviting him to offer his explanation. It is after this mandatory questioning that the court may put such questions to the accused as it considers necessary to discover truth about the commission of the offence and his involvement.
3.45.1 The United Kingdom Criminal Justice and Public Order Act, 1994 has made several other reforms relating to investigation and trial. They have introduced the concept of disclosure of their respective cases by the prosecution as well as the accused. Relevant provisions are found in Chapter-25 of the Criminal Procedure and Investigation Act, 1996. Brief summary of the relevant provisions is as follows:
3.45.2 Part I (“DISCLOSURE”) contains 21 sections. Sections 3 and 4 make it obligatory for the prosecution, to disclose to the accused any material, it may have withheld on the ground that it may affect the prosecution or a statement that no such material is withheld. This disclosure must conform to the Code of Practice enumerated in Section 24. In addition, the accused must be also given copies of documents containing the evidence.
3.45.3 After such compliance by the prosecution, it becomes compulsory for the accused under Section 5, “to give a defence statement to the court and the Prosecutor,” within a time frame stipulated under Section. 12. The Defence Statement [Section 5(6)] should: i. Set out in general terms the nature of the accused’s defence. ii. Indicate the matters on which he takes issue with the Prosecution. iii. Set out in the case of each such matter, the reason why he takes issue with the prosecution.
3.45.4 Sub-Section (6) stipulates, that in case of a defence of alibi, the accused must also furnish the names and address of witnesses believed to be able to give evidence in support of the alibi and any information in accused’s possession which might be of material assistance, in finding such witnesses.
3.46 Section 6 enables the accused to make a similar voluntary disclosure. Under S.7, it becomes the duty of the prosecutor, to disclose to the accused any prosecution material which has not been previously disclosed, but which might be reasonably expected to assist the defence. However, such material need not be disclosed, if it is the result of interception under Interception of Communications Act, 1985. Section 8 enables an accused to apply for the production of material envisaged in section 6. Section 9 casts a further obligation on the prosecutor, to continue to keep these matters under a review, till the final stages of the trial. Failure to comply with these provisions may either result in stay of the proceedings, for abuse of process, and if it involves delay, it may amount to denial of fair trial.
3.47 Faults in disclosure by accused (section 11), such as inconsistent stands, or the examination of witnesses different from the ones cited or a different defence altogether, would invest the Court or any other party, with the leave of the court, to make such comment as appears appropriate, and to draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned.
3.48 Part III, section 29 enumerates the purpose of preparatory hearings such as: i. Identifying issues which are likely to be material to the verdict of the jury; ii. Assisting their comprehension of any such issues; iii. Expediting the proceedings before the jury; iv. Assisting the Judge’s management of the trial.
3.49 The procedure introduced by these provisions is very useful in reducing unnecessary waste of time and focusing attention to the real issues in controversy. It casts responsibility on the parties to disclose their stand so that none of the parties is taken by surprise and the cause of justice is advanced.
3.50 In our system it is the prosecution that furnishes to the accused copy of the allegations and the supportive materials collected during investigation. The accused is not required to disclose what his defence is going to be. He may spring a surprise at any stage. This is not fair and hampers dispensation of justice. So far as documents produced by the prosecution or the accused are concerned, section 294 of the Code provides that the opposite party can be called upon to admit or deny the genuineness of each document and if not disputed, to admit the same without proof. Logically the same principle can be extended to the allegations making out the case of the prosecution.
3.51 In criminal cases the onus of proving everything essential to the establishment of the charge against the accused lies upon the prosecution because the accused is presumed to be innocent until the guilt is established by the prosecution. Section 105 of the Evidence Act is an exception to this general rule and provides that when a person is accused of any offence, the burden of proving the existence of circumstances bringing his case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. It releases the prosecution of the burden and necessity of proving the absence of facts which might bring the case within the general or specific exception, or exempted or proviso under the IPC or other criminal law. This Section involves both (i) the presumption and (ii) a rule as to the burden of proof following it. As the court is required to presume the non-existence of circumstances bringing the case within the exception, the accused who relies on its existence, has to prove the same. There is no law requiring the accused to plead before he can claim the benefit of any general or special exceptions in the Penal Law. At present he may take such a plea after the conclusion of the prosecution evidence, when he is examined under section 313 of the Code. If at that stage the benefit of exception is claimed the prosecution will be prejudiced as it would be deprived an opportunity of leading evidence to negate the claim of the accused. As quest for truth shall be the guiding star of the Criminal Justice System any impediments to discovery of truth have to be eliminated. Therefore it is necessary to require the accused to specifically plead at the earliest stage of the trial of the case and disclose the general or special exception he claims. After the charge is framed and supporting allegations called the ‘Prosecution Statement’ are served on the accused, he should be required to file his reply called the ‘Defence Statement’ in which he should state as to which of the allegations he accepts and which he does not. He should specifically plead the general exceptions in the IPC or any special exception or proviso contained in any other part of the Code or any law defining the offence which he claims, failing which he shall not be entitled to claim the benefit of such exceptions. Along with the defence statement the accused should file the documents on which he relies and the list of witnesses whom he proposes to examine.
3.52 In the light of the stand taken in the ‘Prosecution Statement’ and the ‘Defence Statement’, the court should frame the points for determination indicating the party on whom the burden of proof lies. Allegations which are admitted or not denied shall not be required to be proved by the prosecution. The allegations which are denied or not admitted will give rise to a point of determination. Burden of proving the conditions for claiming the benefit of the exceptions claimed shall be on the accused. However a provision may be made giving discretion to the court to allow a belated plea being raised on the accused showing sufficient cause.
3.53 If, in the light of the plea taken by the accused in his defence statement, it becomes necessary for the Prosecution to investigate the case further, it may do so with the leave of the court. The copies of the materials collected during further investigation and relied upon by the Prosecution shall be furnished to the accused.
3.54 As the accused is represented by a lawyer and as all the parties are before the court it cannot be said that the suggested procedure is, in any manner unfair or unjust or likely to cause prejudice to the accused. The amendments proposed are necessary to conduct a fair trial with focus on the quest for truth a shared responsibility of all the functionaries of the Criminal Justice System.
RIGHTS OF ACCUSED _ ______________________________
4.1 The overarching aim of the Criminal Justice System should be to find out the truth. The person who is most likely to know the truth of an offence which has been committed, is the offender himself. It must be emphasised that the suspect/accused like the other players in the Criminal Justice System can also contribute to the search for truth. It is true that except where there has been a voluntary confession, the suspect/accused is unlikely to incriminate himself; to which in a democracy, he is entitled to under the rights guaranteed to him by the Constitution.
4.2 The rights of the accused include the obligation on the part of the State to follow the due processes of law, a quick and impartial trial, restraint from torture and forced testimony, access to legal aid etc.
4.3 The present day approach of the Courts – in their attempt to find out whether or not there is evidence “beyond reasonable doubt” that the accused has committed a particular offence – is only to look at the evidence for or against the accused and balance the evidence rather than seek the truth. In attempting to get away from a situation of such balancing of evidence and the Judge acting as an umpire, the Committee feels that it would be useful to put in place the search for truth as the basis.
4.4 Accused has a right not to be convicted for any offence for the commission of an act which was not an offence at the time of the commission of the act nor to be subjected to a penalty greater than the one prescribed at the time of commission of the Act. [Art 20 (1)]. The rights of the accused under the Constitution and laid down by the Supreme Court in A.I.R. 1994 S.C. 1349, Joginder Kumar vs. State of Uttar Pradesh and A.I.R. 1997 S.C. 610 D.K. Basu vs. State of West Bengal are as follows: 1. Accused has a right against double jeopardy. [Art 20 (2)]. 2. Accused has a right not to be compelled to be a witness against himself. [Art 20 (3)]. 3. No accused shall be deprived of his life or personal liberty except in accordance with procedure established law which is just, fair and reasonable. [Art 21]. 4. Accused has a right to fair and speedy trial. [Art 21]. 5. Accused has a right to assistance of a Counsel. [Art 22 (1)]. 6. Right to be produced before the Magistrate within 24 hours of arrest excluding the time for travel. [Art 22 (2)]. 7. Right not to be detained in custody beyond 24 hours after arrest excluding the time for travel without the order of the Magistrate. [Art 22 (2)]. Arrest and Rights of Accused 8. An arrested person being held in custody is entitled, if he desires, to have one friend, relative or other person, who is known to him or likely to take an interest in his welfare, told as far as practicable that he has been arrested and where he is being detained. 9. The police officer shall inform the arrested person when he is brought to the police station of this right. 10. The entry shall be required to be made in the diary as to who was informed of the arrest. Obligation of Police Officers after arrest: 11. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tag with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. 12. That the Police Officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. 13. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. 14. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. 15. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. 16. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. 17. It has been pointed out that in grave crimes such as those relating terrorism, organised crime etc. investigation may be frustrated if compliance with the directions contained in paras 14, 15 and 16 regarding the opportunity to be given to the arrestee to communicate with a friend or advocate are insisted upon. Verification of information revealed during interrogation is a time consuming process specially when several co-accused and conspirators are involved. Compliance with the directions may lead to alerting the co-accused or the accomplices who may not only evade arrest but also destroy or shift materials and evidence and defeat the timely recovery of crucial evidence. Deviation from this rule may be permitted for a reasonable period in public interest. If an Investigating Officer has reasonable ground to believe that compliance with such directions would adversely affect the investigation, he may, with the permission of the supervisory officer, dispense with compliance with the direction for the reasons to be recorded in writing. He shall forward a copy of the same to the court concerned at the earliest. 18. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. 19. The arrestee should be subjected to medical examination by a trained doctor every 48 hours of his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State of Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well. 20. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record. 21. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. 22. A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
4.5 DUTY OF THE MAGISTRATE WHEN THE ACCUSED IS PRODUCED When the arrested person is produced before the Magistrate, he has a duty to enquire with the accused as to when he was arrested and the treatment meted out to him including subjecting him to third degree methods, and about the injuries if any on his body. 4.6 HANDCUFFING OF ACCUSED (i) As a rule handcuffs or other fetters shall not be forced on prisoners convicted or under-trial –while lodged in a Jail anywhere in the country or while transporting or in transit from one Jail to another or from Jail to Court or back. The Police and the Jail authorities, on their own, shall have no authority to direct the handcuffing of any inmate of the Jail in the country or during transport from one Jail to another or from Jail to Court or back. (ii) Where the Police or the Jail authorities have well grounded basis for drawing a strong inference that a particular prisoner is likely to jump Jail or break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate. In rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being too dangerous / desperate and finding no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner. (iii) In all the cases where a person arrested by Police, is produced before the Magistrate and remand—judicial or non-judicial— is given by the Magistrate, the person concerned shall not be handcuffed unless special orders in that respect is obtained from the Magistrate at the time of the grant of the remand. (iv) When the Police arrests a person in execution of a warrant of arrest obtained from a Magistrate, the person arrested shall not be handcuffed unless the police has also obtained orders from the Magistrate for the handcuffing of the person to be so arrested. (v) Where a person is arrested by the Police without warrant, the Police Officer concerned may if he is satisfied, on the basis of the guidelines given by the Supreme Court in para above, that it is necessary to handcuff such person, he may do so till the time he is taken to the Police Station and thereafter his production before the Magistrate.
4.7 In most of the countries handcuffing is permitted as a rule. The above restrictions on the right of the police to handcuff the accused have created lot of practical difficulties. It is not always easy to prevent the accused from escaping. At the same time it is necessary to ensure that this power is not misused. As now-a-days accused are becoming more daring and are even prepared to risk their life to escape, it may be necessary in larger public interest to remove the onerous restrictions now placed on the right of the Police Officer to handcuff the suspect. Therefore, the Committee is of the view that appropriate provision in the Code should be made prescribing the conditions for handcuffing and providing an in-house mechanism to correct the aberrations including punishing the Officer for misusing the power. Seeking review of the decision of the Supreme Court may also be considered.
4.8 Interrogation: The suspect has a right to counsel during interrogation and should be allowed to meet his counsel; but the counsel need not be present throughout the interrogation; where necessary, he is entitled to free legal aid and enjoys the right to remain silent. A woman or a child below 16 years of age cannot be taken to a police station for interrogation. This should apply equally to those who have serious physical or mental problems. Though this does not apply to the suspect/accused, it may be necessary to introduce this change.
4.9 Torture, violence, rape etc.: If tortured, an accused should have the freedom to apprise the Magistrate of the incident, when produced before him. In such cases, the magistrate can remand him to judicial custody. This should be true of any violence or sexual offence perpetrated against an accused person in custody. In all such cases, there must be a detailed enquiry.
4.10 BAIL 4.10.1 A person accused of a bailable offence is entitled to bail as a matter of right. Similarly, persons accused of non-bailable offence may be granted bail at the discretion of Court, on application. The main purpose behind the denial of bail is that the person can help the police during investigation and not tamper evidence, threaten the witness or impede the course of justice. The bail may be granted at the discretion of the Court depending on the charge against the person and progress of the case. A person seeking bail must furnish bond of necessary value before he is released. He is granted bail on the condition that he presents himself as and when required by the investigating authority and not leave the Country till the trial is complete. The amount of bail should be reasonable and not excessive.
4.10.2 A person who has reason to believe that he may be arrested in future for a non bailable offence, may apply to the competent Court for grant of anticipatory bail. The Court considering the circumstances of the case may grant anticipatory bail so that in the event of arrest, he shall be released on bail.
4.10.3 Bail may be cancelled depending on the behaviour of the person after the grant of bail. If there is sufficient reason to believe that the accused may abscond, repeat the offence, tamper with evidence, threaten witnesses, then the Court may cancel bail on obtaining sufficient proof regarding the involvement of the accused in crime.
PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF
5.1 Every man is presumed to be innocent until he is proved guilty. This is the cardinal principal of criminal law. In recognition of this right of the accused the burden of establishing the charge against the accused is placed on the prosecution. The concept of burden of proof is one of the most important contributions of Roman law to the criminal law jurisprudence. This principle is based on fairness, good-sense and practical utility and accepted in the English Common Law. In the case of Woolmington vs. Director of Public Prisons 1935 AC 462 the law has been lucidly restated by Viscount Sankey, LC as follows: Throughout the web of the English criminal law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt, subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of, and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention the prosecution has not made out the case, and the prisoner is entitled to acquittal.
5.2 This principle has been followed in India vide decision of the Supreme Court in Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat AIR 1964 SC 1563. This is a universally recognised right and Article 14(2) of the International Covenant on Civil and Political Rights, 1966 provides “Every one charged with a criminal offence shall have the right to be presumed innocent until he is proved guilty according to law”. It is left to the law making authority to prescribe the procedure for proof.
5.3 Section 101 of the Evidence Act provides that the party who seeks a Judgment from the court about any legal right or liability dependent on the existence of certain facts must prove that those facts exist. Section 102 provides that the burden of proof lies on that person who fails, if no evidence at all is given on either side. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless otherwise provided by law. Section 105 provides that burden of proving that the case of the accused comes within any of the exceptions lies on him.
5.4 Section 106 provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Section 3 defines the expression “proved” as follows: A fact is said to be proved when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
5.5 Section 3, while adopting the standard of the prudent man as an appropriate concrete standard by which to measure ‘proof’ also contemplates of giving full effect to the circumstances or condition of probability or improbability. Section 3 does not speak of proof beyond reasonable doubt. The Supreme Court has in AIR 1974 SC 859 Collector of Customs, Madras vs. D.Bhoormall, held: All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man’s estimate as to the probabilities of the case.
5.6 However, the cardinal principle of criminal law jurisprudence that the burden rests on the Prosecution of proving its case has been deviated in several statutes. Under Sections 105 to 114(A) of the Indian Evidence Act, burden of proof is shifted to the accused. As an example we may advert to illustration (b) to Section 106 which says that when “A” is charged with traveling on railway without a ticket, the burden of proving that he had a ticket is on him. There are other provisions where burden of proof shifts to the accused after the Prosecution establishes certain facts, e.g. sections 107, 108, 109, 110, 111-A, 112, 113-A, 113- B, 114-A. By way of illustration we may advert to Section 114-A which says that where sexual intercourse by the accused is proved and the victim states in her evidence that she did not consent, the court shall presume that she did not consent and the burden shifts to the accused to prove that she had given her consent. Similar provisions are found in several special statutes.
5.7 Presumptions are legal devices whereby courts are entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Presumptions may be either of fact or of law. It may be either conclusive or rebuttable. But presumptions of facts are always rebuttable. The Supreme Court of India has in several cases up-held the constitutionality of statues providing for such presumptions. In 1991 SCC (Cri) 734 K.Veeraswamy Vs. Union of India, the Supreme Court has up-held the validity of Section 5(1)(e) and Section 5(3) of the Prevention of Corruption Act which place the burden on the accused to rebut the statutory presumption. It is held that this law is just, fair and reasonable and does not contravene Article 21 of the Constitution. In (1986) 2 SCC 486 Sodhi Transport Co. vs. State of U.P, the Supreme Court has held: – A rebuttable presumption which is clearly a rule of evidence has the effect of shifting the burden of proof and it is hard to see how it is unconstitutional when the person concerned has the opportunity to displace the presumption by leading evidence.
5.8 It is therefore clear that “proof beyond reasonable doubt” is not an absolute principle of universal application and deviations can be made by the legislature. Deviations can take different forms such as shifting the burden of proof to the prosecution or prescribing a standard of proof lower than “proof beyond reasonable doubt”. As long as the accused has the opportunity to adduce evidence to nullify the adverse effect such deviation will not offend Article 14 or 21 of the Constitution. Even in England the principle in Woolmington case would apply only in the absence of a statutory provision to the contrary.
5.9 While the concept of “presumption of innocence” maintains its pivotal position in the criminal law jurisprudence, there is a steady shifting of burden of proof to tackle the new problems such as growing socio-economic problems, emergence of new and graver crimes, terrorism, organised crimes, poor rate of conviction, practical difficulties in securing the evidence etc.
5.10 What is meant by “proof beyond reasonable doubt”? It is not defined and is not easy to define. Prof. Wigmore in his classic treatise on Evidence points out the difficulty in ascertaining how convinced one must be to be convinced beyond a reasonable doubt. He says: The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief. Hence there can be as yet no successful method of communicating intelligibly a sound method of self-analysis for one’s belief. And yet the choice of the standard of proof makes a difference.
5.11 Judge Harlan of the US Supreme Court has explained in 397 US 358, 25 L.ED how this principle will more often set guilty free than send the innocent to prison.
5.12 Whereas the civil cases are governed by the standard of proof prescribed by section 3 of the Indian Evidence Act namely, preponderance of probabilities, the criminal cases are governed by a higher standard of “proof beyond reasonable doubt” laid down by judicial decisions.
5.13 The protagonists of reforms contend that there is no justification for applying a higher standard of proof than the one prescribed by the law made by Parliament, in criminal cases. They argue that “proof beyond reasonable doubt” is a vague, unreasonable, unfair, unjust and impractical standard which has done more harm than good to the society. They want that the lower standard of “preponderance of probabilities” should govern criminal cases. We should examine the arguments against the higher standard of ‘proof beyond reasonable doubt’ in the context of the new ethos of quest for truth.
5.14 The standard “proof beyond reasonable doubt” places a very heavy burden proof on the Prosecution. It is vague and not easy to define. Professor Glanville Williams in his book The Proof of Guilt says: To say that the burden of proving a crime is generally on the prosecution does not conclude all questions. What degree or quantum of proof is needed: is it mere likelihood, or certainty, or something in between these two extremes? This question in turn raises a fundamental issue of penal policy: how far is it permissible, for the purpose of securing the conviction of the guilty, to run the risk of innocent persons being convicted?
5.15 The courts believe that it is better that ten guilty persons escape rather than one innocent person suffer. It is from such concern of the courts to safeguard personal liberty of the citizens that flows the standard of ‘proof beyond reasonable doubt’. This fails to take into account that it is as much as a miscarriage of justice to acquit a guilty person as it is to convict an innocent. Professor Glanville Williams has narrated the adverse affects flowing from acquittal of the guilty persons in the following words: The evil of acquitting a guilty person goes much beyond the simple fact that one guilty person has gone unpunished. It frustrates the arduous and costly work of the police, who, if this tendency goes too far, may either become daunted or resort to improper methods of obtaining convictions. If unmerited acquittals become general, they tend to lead to a disregard of the law, and this in turn leads to a public demand for more severe punishment of those who are found guilty. Thus the acquittal of the guilty leads to a ferocious penal law. An acquittal is, of course particularly serious when it is of a dangerous criminal who is likely to find a new victim.
5.16 Courts have quite often observed that though they are convinced that the accused is guilty they have to acquit him because there is some reasonable doubt. Chief Justice Ahmadi says that in actual practice, in a large number of cases “proof beyond reasonable doubt” virtually becomes “proof beyond doubt”. There is considerable subjective element involved in coming to the conclusion that the doubt is a reasonable one. In the process, instead of focusing on discovering truth, attention is drawn to the doubts and about their reasonableness. It is common knowledge that most of the acquittals flow from the finding of the court that the prosecution has failed to prove its case beyond reasonable doubt and that therefore the accused is entitled to the benefit of doubt. Very grave consequences flow from the large percentage of acquittals of guilty persons. More the number of acquittals of the guilty, more are the criminals that are let loose on the society to commit more crimes. This they would do with greater daring for they know by their own experience that there is no chance of their being punished. If the loopholes are not tightened, there will in course time be more criminals in the society to cause more harm to innocent citizens. Such criminals may occupy important and sensitive position in public life. If criminals start ruling the country one can imagine the consequences. If crimes go unchecked anarchy will not be a matter of distant future. Peace and law & order situation depend to a large extent on the efficacy of the Criminal Justice System. There is therefore an imperative need to provide a fair procedure that does not allow easy escape for the guilty. In (1973) Cri.L.J. 1783 Shivaji vs. State of Maharashtra, Justice Krishna Iyer while criticizing the view that it is better that several guilty persons should escape than making one innocent person to suffer said that public accountability is one of the most important responsibilities of the judiciary. Therefore, if the accused is acquitted on the basis of every suspicion or doubt, the judicial system will lose its credibility with the community. Proof beyond reasonable doubt clearly imposes an onerous task on the prosecution to anticipate every possible defence of the accused and to establish that each such defence could not be made out.
5.17 Realisation of these problems has contributed to a steady watering down the rigour of this standard. Justice K.T.Thomas, former Supreme Court Judge has in his ‘Justice Sir Sayed Mahmood Memorial Lecture’ has observed the following: Even regarding the pristine doctrine of proof beyond reasonable doubt, the pre-independence approach was one of strict adherence to that doctrine. In some cases, even that extreme view was crossed by saying what is meant by it is to prove beyond a shadow of doubt. But the caselaw which developed during the post-independence period relaxed the rigor of the doctrine and reached the level of making it as “proof with reasonable certainty will tantamount to proof beyond reasonable doubt”. The case law further advanced by narrowing down the meaning of the word “doubt” as something much higher than a hunch or hesitancy. They said that reasonable doubt is what a conscientious mind judicially entertains with a good level of reasonableness.
5.18 The standard of proof is becoming flexible. In (1994) 1 S.C.C. 73, State of West Bengal vs. Orilal Jaiswal, the Supreme Court said “… ..there is no absolute standard of proof in a criminal trial and the question… … must depend upon the facts and circumstances of the case… … The doubt must be of reasonable man and the standard adopted must be a standard adopted by a reasonable and just man… … .”
5.19 Following the observations of Lord Denning in (1950) All ER 458, Justice Sabyasachi Mukharji observed “reasonableness of doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts… … . Letting guilty escape is not doing justice according to law.”
5.20 Thus, it is seen that there is no strict adherence to “proof beyond reasonable doubt” and the courts have not hesitated to modify the standard depending upon the needs of justice.
5.21 In USA, the standard of proof adopted in criminal cases is “proof beyond reasonable doubt”. But in cases of fraud some of the States in USA have adopted a lower standard called the “clear and convincing standard”. This demonstrates that depending upon the local conditions and the requirements of the situation, the law-makers have prescribed standards lower than “proof beyond reasonable doubt”.
5.22 “Proof beyond reasonable doubt” is not a standard of universal application. France has not adopted this standard. The French standard is “in time conviction” or inner conviction, the same as “proof on preponderance of probabilities”. International Convention on Civil and Political Rights has recognised in Article 14(2) the right of the accused ‘to be presumed innocent until proved guilty according to law’. In other words though presumption of innocent is universally recognised the mode of proof which includes the standard of proof is a matter which is left to be regulated by law made at the discretion of the respective States. Therefore, the Indian Parliament is entitled to prescribe any other standard of proof which it considers appropriate.
5.23 “Proof beyond reasonable doubt” is understood by different Judges differently. How this principle actually operates in the minds of the decision maker is not easy to gather. In England the responsibility of assessing the evidence produced by the prosecution and to decide whether the accused is guilty or not rests with the jury which consists of common citizens in the locality. After the evidence for the prosecution is adduced and the time for the jury to make its decision arrives, the Judge, trying the case has to address the jury and tell them that they have to decide whether the accused is guilty or not bearing in mind that the burden is on the prosecution of proving the case beyond reasonable doubt. Thus if they entertain any reasonable doubt in their minds, the benefit of that doubt must be given to the accused and he be pronounced not guilty. Judges have to explain to the jury what the expression “proof beyond reasonable doubt” means. In the Woolmington’s case, the House of Lords approved the explanation of the trial Judge to the jury that “proof beyond reasonable doubt” required “a clear conviction of guilt and not merely a suspicion, even a strong suspicion, though on the other hand a mere fanciful doubt where it was not in the least likely to be true would not prevent conviction”. Shortly thereafter in Summer’s case (1952) 36 C.A.R.14, the Court of Appeal ruled that the expression “reasonable doubt’ ought to be abandoned because it could not be satisfactorily defined. Instead, the court said that the jury should have been directed that they must be “satisfied” of guilt or “satisfied so that they can feel sure” of it. In a later case in which the Judge told the jury that they should be satisfied of guilt the court of appeal held that it is not an adequate way of informing the jury that the accused is entitled to the benefit of doubt if there is one. This only demonstrates the practical difficulties in understanding and explaining what ‘proof beyond reasonable doubt’ means. It is of essence that the law affecting the rights of the citizens should be clear and certain. Different meanings contribute to uncertainty and confusion.
5.24 In the case of Brown vs. Stott 2001 (2) All ER 17 PC it was observed that “there was need therefore to maintain a fair balance between the general interest of the community and the personal right of the individual”.
5.25 The principle “proof beyond reasonable doubt” was evolved in the context of the system of jury trial in the UK. The verdict on the guilt of the accused was the responsibility of the jury. The jury consisted of ordinary citizens in the locality. As they are not trained Judges they may jump to conclusions without due care and concern for the rights of the accused. Therefore standard of “proof beyond reasonable doubt” appears to have been evolved for the guidance of the jury. That principle which was originally meant for the guidance of the jury is being followed by all the courts of the countries which follow common law.
5.26 Though the trial Judge in the jury system asks the jury to take a decision bearing in mind that the burden is on the prosecution of proving the case beyond reasonable doubt, it is doubtful whether in practice the members of the jury would make a conscious effort to apply this principle in deciding the case. As the jury consists of laymen who are not used to the judicial ways of assessing evidence, they would decide the matter in the same manner they take decisions in their day to day affairs and not following the un-common way of looking for reasonable doubt. That standard which a prudent man would apply is of “preponderance of probabilities”. But so far as Judges are concerned they being trained in the art of decision making try to apply the ‘proof beyond reasonable doubt’ standard.
5.27 The legislative practice of prescribing statutory presumptions indicates how the legislature has been prescribing a lower standard of proof. For example under section 4 of the Public Gambling Act 1867, “any person found in a common gambling house… … .shall be presumed until the contrary be proved to have been there for the purpose of gambling”. The mere fact that the person is found in the common gambling house does not mean that he is necessarily there for the purpose of gambling. He may be there for any innocent purpose. In the absence of this presumption, the prosecution had to prove not only that the accused was found in the common gambling house but also that he was there for the purpose of gambling. As a result of the presumption under section 4 the prosecution is absolved of the burden of proving that the presence of the accused was for the purpose of gambling. If such taking away the burden of proof of the prosecution can be done by enacting a law for that purpose, there is no good reason why a law cannot be made to prescribe a lower standard of proof than “proof beyond reasonable doubt”.
5.28 Requirement of “proof beyond reasonable doubt” was laid down long back with regard to the prevailing circumstances of the time. At that time offences were few, ways and habits of the people were simple, people were more honest, by and large witnesses readily came forward to give truthful evidence before the court. The modes adopted for committing the offences were simple. Now there is a sea change in all these aspects. People now-a -days are better informed. The Press, the radio, the T.V, films and various types of literature have enormous influence in educating and enlightening people of different ways of committing crimes. They use sophisticated weapons and employ techniques so as not to leave any trace of evidence that may implicate them. The accused are becoming more daring and reckless. The level of morality has gone down and regard for truth is waning. Witnesses do not come forward to give evidence on account of threats or inducements and those who come, quite often turn hostile. It looks as though the criminals are emerging stronger than the law enforcing agency. The existing laws and procedures are proving inadequate to meet the new challenges. The changing scenario has to be taken into account to evaluate the efficacy of the present standard and to find suitable solutions to meet the new challenges.
5.29 While proof on “preponderance of probabilities” followed in civil cases provides a lower standard of proof, “proof beyond reasonable doubt” followed in criminal cases provides a higher standard of proof bordering on certainty. The cherished object of the Criminal Justice System is to ensure that every guilty person is punished and every innocent person is protected. Our experience shows that operation of the standard “proof beyond reasonable doubt” has contributed to large number of guilty persons escaping punishment. This standard followed all these years has failed to achieve the main object of ensuring that the guilty are punished. What then is the answer and what are the options available to remedy the mischief? Should we opt for the standard of “proof on preponderance of probabilities” that is applied in civil cases? On a careful examination the Committee is of the view that this standard is not adequate to lend assurance that the innocent will be protected. Therefore, we have to find standard of proof which, while protecting the innocent is adequate to prevent the guilty escaping punishment. A standard in between these two standards seems to be the answer.
5.30 In this connection it is useful to advert to the following observation in Riley Hill General Contractor vs. Tandy Corp, 737 P.2d 595 (Or.1987): There are three standards of proof: “a preponderance”, “clear and convincing” and “beyond a reasonable doubt”.
5.31 The middle course, in our opinion, makes a proper balance between the rights of the accused on one hand and public interest and rights of the victim on the other. This standard is just, fair and reasonable. It is operated not by layman but by Judges who are sensitive to the rights of the accused and recognised in criminal jurisprudence. Safety lies in the fact that the accused is assisted by a lawyer and the Judge is required to give reasons for his findings. This will promote public confidence and contribute to better quality of justice to victims. It is time for realm of doubts to pave way for search for truth and justice.
VIEWS OF EMINENT JURISTS
5.32 Mr. Fali Nariman favours modification of the principle of “proof beyond reasonable doubt” and says that there is a need to maintain a proper balance of justice for the victims as well as fairness to the accused. Former Chief Justice Sri Ranganatha Mishra however feels that proof beyond reasonable doubt is a better alternative to proof on preponderance of probabilities. Former Chief Justice A.M.Ahmadi favours the removal of the extraordinary burden of “proof beyond reasonable doubt” subject to the safeguards available to the accused under the Evidence Act and the Code.
VIEWS OF THE HIGH COURTS 5.33 The High Courts of Allahabad, Bombay, Himachal Pradesh, Jarkhand, Karnataka and Punjab and Haryana are not in favour of proof on the basis of preponderance of probabilities in criminal cases. The High Courts of Delhi, Gujarat, Kolkata, Madras, Orissa and Uttaranchal are in favour of proof on preponderance of probabilities. The High Courts of Andhra Pradesh and Madhya Pradesh are in favour of middle course which they describe as ‘strict proof’. The High Court of Chattisgarh says that proof beyond reasonable doubt should be restricted to cases that hinge upon circumstantial evidence.
VIEWS OF STATE GOVERNMENTS
5.34 The State Governments of Arunachal Pradesh, Haryana, Kerala and Madhya Pradesh are not in favour of proof on preponderance of probabilities and do not favour any modification of the principle of proof beyond reasonable doubt. The State Governments of Karnataka and Jammu & Kashmir favour proof on preponderance of probabilities. The State Government of Himachal Pradesh favours proof on preponderance of probabilities except in cases which provide deterrent punishment. The other State Governments have not responded.
JUSTICE TO VICTIMS
INTRODUCTION 6.1 Referring to the state of criminal justice in India today, the Government Notification constituting the Criminal Justice Reforms committee observed: … … ..People by and large have lost confidence in the Criminal Justice System … .. Victims feel ignored and are crying for attention and justice … .. there is need for developing a cohesive system, in which, all parts work in co-ordination to achieve the common goal.
6.2 Very early in the deliberations of the Committee, it was recognized that victims do not get at present the legal rights and protection they deserve to play their just role in criminal proceedings which tend to result in disinterestedness in the proceedings and consequent distortions in criminal justice administration. In every interaction the Committee had with the police, the Judges, the prosecution and defense lawyers, jail officials and the general public, this concern for victims was quite pronounced and a view was canvassed that unless justice to the victim is put as one of the focal points of criminal proceedings, the system is unlikely to restore the balance as a fair procedure in the pursuit of truth. Furthermore, it was pointed out that support and co-operation of witnesses will not be forthcoming unless their status is considerably improved along with justice to victims. This perception was strengthened while the Committee examined the systems prevalent in other jurisdictions. The U. N. system also wanted member countries to guarantee rights of victims of crime through their respective legal systems. In the circumstances, the Committee resolved to give adequate importance to the idea of justice to victims of crime in the scheme of reform to be recommended. This chapter of the report is specifically addressed to rights of victims with a view to solicit their maximum support to criminal proceedings and to restore the confidence of people in Criminal Justice System.
6.3 Basically two types of rights are recognized in many jurisdictions particularly in continental countries in respect of victims of crime. They are, firstly, the victim’s right to participate in criminal proceedings (right to be impleaded, right to know, right to be heard and right to assist the court in the pursuit of truth) and secondly, the right to seek and receive compensation from the criminal court itself for injuries suffered as well as appropriate interim reliefs in the course of proceedings.
6.4 It is interesting to find that the European system assigned a very active role assigned to the victim or his representative in criminal proceedings. For example, in France, all those who suffer damage on account of the commission of an offence are entitled to become parties to the proceedings from the investigation stage itself. He can assist investigation on proper lines and move the court for appropriate directions when the investigation gets delayed or distorted for whatever reasons. His active participation during trial will be of great help in the search for truth without inconveniencing the prosecution. He may suggest questions to the court to be put to witnesses produced in court. He may conduct the proceedings if the public prosecutor does not show due diligence. He can supplement the evidence adduced by the prosecution and put forth his own arguments. He would be of help to the court in the matter of deciding the grant or cancellation of trial. He will adduce evidence in the matter of loss, pain and suffering to decide on his entitlement of interim reliefs and compensation by way of restitution. Wrongful attempts to withdraw or close the prosecution due to extraneous factors can be resisted if the court were to have the continued assistance of the victim. For all these reasons and more, it is clear that if the criminal proceedings have to be fair to both the parties and if the court were to be properly assisted in its search for truth, the law has to recognize the right of victim’s participation in investigation, prosecution and trial. If the victim is dead, or otherwise not available this right should vest in the next of kin. It should be possible even for Government Welfare bodies and voluntary organizations registered for welfare of victims of sexual offences, child victims, those in charge of the care of aged and handicapped persons to implead themselves as parties whenever the court finds it appropriate for a just disposal of the case.
6.5 The right of the victim should extend to prefer an appeal against any adverse order passed by the trial court. The appellate court should have the same powers to hear appeals against acquittal as it now has to entertain appeal against conviction. There is no credible and fair reason why appeals against acquittals should lie only to the High Court.
6.6 The right of representation by lawyer is a constitutional right of every accused and there is no reason why it should not be available to the victim as well. If the victim is an indigent person, the Legal Services Authority should be directed by the Court to provide a lawyer at State expense.
VICTIMS UNDER THE EXISTING CRIMINAL JUSTICE SYSTEM
6.7.1 Historically speaking, Criminal Justice System seems to exist to protect the power, the privilege and the values of the elite sections in society. The way crimes are defined and the system is administered demonstrate that there is an element of truth in the above perception even in modern times. However, over the years the dominant function of criminal justice is projected to be protecting all citizens from harm to either their person or property, the assumption being that it is the primary duty of a State under rule of law. The State does this by depriving individuals of the power to take law into their own hands and using its power to satisfy the sense of revenge through appropriate sanctions. The State (and society), it was argued, is itself the victim when a citizen commits a crime and thereby questions its norms and authority. In the process of this transformation of torts to crimes, the focus of attention of the system shifted from the real victim who suffered the injury (as a result of the failure of the State) to the offender and how he is dealt with by the State. Criminal justice came to comprehend all about crime, the criminal, the way he is dealt with, the process of proving his guilt and the ultimate punishment given to him. The civil law was supposed to take care of the monetary and other losses suffered by the victim. Victims were marginalized and the State stood forth as the victim to prosecute and punish the accused.
6.7.2 What happens to the right of the victim to get justice to the harm suffered? Well, he can be satisfied if the State successfully gets the criminal punished to death, a prison sentence or fine. How does he get justice if the State does not succeed in so doing? Can he ask the State to compensate him for the injury? In principle, that should be the logical consequence in such a situation; but the State which makes the law absolves itself of such liability. Not only the victim’s right to compensation was ignored except a token provision under the Criminal Procedure Code but also the right to participate as the dominant stakeholder in criminal proceedings was taken away from him. He has no right to lead evidence, he cannot challenge the evidence through cross-examination of witnesses nor can he advance arguments to influence decision-making.
6.7.3 What is the present role that victim is assigned under the existing criminal law? When a person who has been the victim of a cognizable offence gives information to the police regarding the same, the police is required to reduce the information into writing and read it over to the informant. The informant is required to sign it and get a copy of the FIR [section 154 (1) & (2) of Cr.P.C.]. If the police refuses to record the information, the victim – informant is allowed to send it in writing and by post to the S. P. concerned [Section 154 (3)]. If the police refuses to investigate the case for whatever reason, the police officer is required to notify the informant of that fact [Section 157 (2)].
6.7.4 Alternatively, victims are enabled by Section 190 of the Cr. P. C. to avoid going to the Police Station for redress and directly approach the Magistrate with his complaint.
6.7.5 Complainants say that they are treated indifferently by police and sometimes harassed when they go to them with their grievances. There are complaints that the police do not truthfully record the information but distort facts as found convenient to them. Cognizable cases are made non-cognizable and viceversa. Complainants are sometimes made the accused and investigations initiated accordingly. Though these are unauthorized by the law and are rare, yet whenever it happens the victim gets disillusioned and alienated from the system itself.
6.7.6 The investigation process is exclusively a police function and the victim has a role only if the police consider it necessary. There are administrative instructions given by police departments of certain States to give information on progress of investigation to the victim when asked for. Otherwise till police report (charge sheet) is filed under Section 173 Cr. P. C., the victim’s plight is pitiable. This is the time victims need assistance the most and the law is silent on it. After the police report is taken cognizance of by the Magistrate, if he decides to drop the proceedings, it is required of him to hear the victim-informant by issuing notice to him [1997 Cr. L. J. 4636 (S.C.)] The Court seems to have recognized a gap in the statutory provision and enjoined the court not to drop proceedings without giving an opportunity to the victim to ventilate his grievance.
6.7.7 Pending investigation and prosecution, there are several things that a victim-friendly Criminal Justice System needs to address on an urgent basis. For example, victims of rape and domestic violence etc. require trauma counseling, psychiatric and rehabilitative services apart from legal aid. The object is to avoid secondary victimization and provide hope in the justice system. At the police station level, with or without the assistance of voluntary organizations, victim support services need to be organised systematically if the system were to redeem its credibility in society.
6.7.8 The existing law only envisages the prosecutor appointed by the State to be the proper authority to plead on behalf of the victim. However, the Code does not completely prohibit a victim from participating in the prosecution. A counsel engaged by the victim may be given a limited role in the conduct of prosecution, that too only with the permission of the court. The counsel so engaged is to act under the directions of the public prosecutor. The only other privilege a victim might exercise is to submit again with the permission of the court, written arguments after the closure of evidence in the trial. This requires change on the lines proposed above.
6.7.9 In the granting and cancellation of bail, victims have substantial interests though not fully recognized by law. Section 439 (2) may allow a victim to move the Court for cancellation of bail; but the action thereon depends very much on the stand taken by the prosecution. Similarly prosecution can seek withdrawal at any time during trial without consulting the victim (Section 321 Cr. P. C.). Of course, the victim may proceed to prosecute the case as a private complainant; but he seems to have no right to challenge the prosecution decision at the trial stage itself. This is another change the Committee would recommend for justice to victims.
6.7.10 Victims have a right to testify as prosecution witness. However, victims often fall prey to intimidation and harassment by offenders which tend to dissuade them from testifying freely and truthfully. Though it is the duty of the State to prevent such things, the situation according to available evidence is disturbing. There is no victim protection law as such and police is not in a position to protect every victim. Such conduct, of course, is prohibited under the IPC (Section 504 IPC).
6.7.11 The situation is alarming in respect of victimwitnesses who belong to vulnerable sections of society. The adversarial trial built around cross- examination of witnesses often result in adding insult to injury against which even the Court may not be of much help. In several offences the experience may be a nightmare to victims acknowledging this predicament, Government has adopted recently an amendment preventing character assassination during trial of sexual offences.
6.7.12 There is need for an officer equivalent to Probation Officer to take care of victim interests in investigation and trial. He may be called Victim Support Service Co-ordinator who may work closely with the police and Courts to monitor, co-ordinate and ensure delivery of justice during the pendency of the case.
6.7.13 Compounding is a process through which the offender and the victim come to an agreement to put an end to the tension arising out of the criminal action. Offences which are compoundable and the persons by whom they could be compounded are indicated in Section 320 of the Cr. P. C. The Section specifies two lists of offences: one, compoundable without the permission of the Court, and the other, relatively more grave offences, which are compoundable with the permission of the Court. Sometimes the requirement of permission of the Court before compounding is got over by making the complainant and other prosecution witnesses retract their statements given to police and to depose favourably to the accused. The Committee is in favour of giving a role to the victim in the negotiation leading to settlement of criminal cases either through courts, Lok Adalats or Plea-bargaining.
6.8 COMPENSATION FOR VICTIM
6.8.1 The principle of compensating victims of crime has for long been recognized by the law though it is recognized more as a token relief rather than part of a punishment or substantial remedy. When the sentence of fine is imposed as the sole punishment or an additional punishment, the whole or part of it may be directed to be paid to the person having suffered loss or injury as per the discretion of the Court (Section 357 Cr.P.C.). Compensation can be awarded only if the offender has been convicted of the offence with which he is charged.
6.8.2 While Section 357 (i)(c) provides for the payment of compensation out of the fine imposed, Section 357 (3) makes way for the payment of compensation even if fine does not form part of the punishment. The amount of compensation which the Court can thus order is flexible enough to make it real and truly compensatory. It may be paid directly to the beneficiary before the court on a fixed date and if not so paid, may be reconsidered as a fine.
6.8.3 Compensation may also be ordered even in case the convicted person is released after due admonition or on probation of good conduct (Sections 3 & 4 of Probation of Offenders Act, 1958). Costs can also be made payable under such circumstances.
6.8.4 The payment of compensation by the offender is not possible where there is acquittal or where the offender is not apprehended. Further, the payment remains suspended till the limitation period for the appeal expires or if an appeal is filed, till the appeal is disposed of (Section 357(2) Cr. P. C.) The delay in the realization of the amount often adds to the woes of the victim.
6.8.5 In 1992 the U. P. Government through an amendment to Section 357 provided that where the victim is a member of a scheduled caste or scheduled tribe and the person convicted is not such a member, then it shall be obligatory for the Court to order compensation to the victim of crime.
6.8.6 A person who fails to pay the fine/compensation is normally required to undergo imprisonment in default of the said payment. There are many cases of default for a variety of reasons. The result is again denial of compensation for the victim even in those few cases which end in conviction. The hopeless victim is indeed a cipher in modern Indian criminal law and its administration.
6.8.7 Sympathizing with the plight of victims under Criminal Justice administration and taking advantage of the obligation to do complete justice under the Indian Constitution in defense of human rights, the Supreme Court and High Courts in India have of late evolved the practice of awarding compensatory remedies not only in terms of money but also in terms of other appropriate reliefs and remedies. Medical justice for the Bhagalpur blinded victims, rehabilitative justice to the communal violence victims and compensatory justice to the Union Carbide victims are examples of this liberal package of reliefs and remedies forged by the apex Court. The recent decisions in Nilahati Behera V. State of Orissa [ (1993) 2 SCC 746] and in Chairman, Railway Board V. Chandrima Das are illustrative of this new trend of using Constitutional jurisdiction to do justice to victims of crime. Substantial monetary compensations have been awarded against the instrumentalities of the State for failure to protect the rights of the victim.
6.8.8 These decisions have clearly acknowledged the need for compensating victims of violent crimes irrespective of the fact whether offenders are apprehended or punished. The principle invoked is the obligation of the State to protect basic rights and to deliver justice to victims of crimes fairly and quickly. It is time that the Criminal Justice System takes note of these principles of Indian Constitution and legislate on the subject suitably.
6.8.9 In 1995 the Indian Society of Victimology based in Chennai prepared a bill for Victim compensation and submitted to the Government which the Committee feels is an appropriate draft for initiating action.
6.9 VICTIM RIGHTS INTERNATIONALLY AND IN CRIMINAL JUSTICE SYSTEM ELSEWHERE
6.9.1 Victims of crime are important players in criminal justice administration both as complainant/informant and as witness for the police/prosecution. Despite the system being heavily dependent on the victim, criminal justice has been concerned with the offender and his interests almost subordinating or disregarding the interests of victim. In the civil law systems generally, the victims enjoyed a better status in administration of criminal justice. Towards the last quarter of the twentieth century, the common law world realized the adverse consequences arising from this inequitable situation and enacted laws giving rights of participation and compensation to the victims. “Victims” mean the person or persons who have suffered financial, social, psychological or physical harm as a result of an offense, and includes, in the case of any homicide, an appropriate member of the immediate family of any such person. In the Constitutions of certain countries, rights of victims have been recognized thereby forcing changes in criminal justice goals and procedures. In the United States the Supreme Court ruled that consideration of Victim Impact Statements during sentence hearing was Constitutionally permissible [Payne V Tennesse, III S. Ct. 2597 (1991)] This enabled victims to describe the extent of any physical, emotional, or psychological effects caused by the crime. Eventually in U.S., Victim Impact Statements became part of plea bargains and parole hearings.
6.9.2 According to some studies, victim’s participation in plea bargain negotiations has been shown to contain their vengeful instincts, decrease their assessment of the system being too lenient on criminals and inculcate of feeling of fairness in the whole process. Increased victim satisfaction will, in effect, enhance the efficiency of the Criminal Justice System by ensuring his future support to the system.
6.9.3 In 1985 the United Nations General Assembly adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The Declaration recognized the following rights of victims of crime :- i. Access to justice and fair treatment – This right includes access to the mechanisms of justice and to prompt redress, right to be informed of victim’s rights, right to proper assistance throughout the legal process and right to protection of privacy and safety. ii. Restitution – including return of property or payment for the harm or loss suffered; where public officials or other agents have violated criminal laws, the victims should receive restitution from the State. iii. Compensation – when compensation is not fully available from the offender or other sources, State should provide financial compensation at least in violent crimes, resulting in bodily injury for which national funds should be established. iv. Assistance – victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary and community-based means. Police, justice, health and social service personnel should receive training in this regard. The Declaration specially ask States to provide by law the above rights for victims of abuse of political or economic power.
6.9.4 In Europe, the Convention on the Compensation of Victims of Violent Crimes (1983) do incorporate the essential rights of victims as stipulated in the U. N. Declaration. The Council of Europe has recommended the revamping of criminal justice incorporating victim’s rights in every stage of criminal proceeding. Following it many States in Europe and elsewhere enacted laws aimed at providing increased participation and more substantive rights to victims of crime. Illustrative of this legislative trend are the Criminal Injuries Compensation Act, 1995 of the United Kingdom, The Victims of Crime Assistance Act, 1996 of Victoria, The Victims and Witnesses Protection Act, 1982 of U.S.A., The Victims Rights and Restitution Act, 1999 of U.S.A. etc.
6.9.5 In an informative report on “Criminal Justice: The Way Ahead” presented to the British Parliament (February, 2001) the Home Department found that despite having a fairly advanced Criminal Injuries Compensation Scheme, victim satisfaction with the police has gone down in U. K. and many victims felt “that the rights of these accused of a crime take precedence over theirs”. Every time a case collapses, or the verdict is perceived to be unjust, a victim’s suffering is made worse. One of the key recommendations which formed the foundation for criminal justice reform according to the U. K. report was :
“We will put the needs of victims and witnesses at the heart of the Criminal Justice System and ensure they see justice done more often and more quickly. We will support and inform them, and empower them to give them best evidence in the most secure environment possible”.
6.9.6 Among the many steps proposed to translate this principle into practice, the U. K. White Paper promised to do the following : (a) legislate to entitle victims with information about release and management of the offenders and progress of their cases; (b) enable victims to submit a “victim personal statement” to the courts and other criminal justice agencies setting out the effect of the crime on their lives. (c) Introduce measures for vulnerable and intimidated witnesses, such as screens, pre-recorded video evidence and TV links; (d) extend specialized support for victims of road traffic incidents and their families; (e) establish a Victim’s Commissioner (Ombudsman) (f) enable victims to report minor crime online and to track the progress of their case online; (g) legislate to produce a Victim’s Code of Practice setting out what protection, practical support and information every victim of a crime has a right to expect from the criminal justice agencies.
6.9.7 The above strategies being introduced in the United Kingdom for reforming the Criminal Justice System to give a better deal for victims should be considered for adoption in India, of course, with suitable modification for effective implementation. This is over and above the victim compensation scheme which has been in operation in Britain for a fairly long period. Of course, victim support strategies depend for their effectiveness on the reform steps undertaken in the overall structure and policies in criminal law and criminal justice administration. The idea is to reduce victimization in the first place by reducing crime itself. The idea also is to ensure that the victim gets as much justice out of the system as the accused. The recommendations that follow are made keeping these objects in view in the Indian context. |
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