| PART – III
JUDICIARY
COURTS AND JUDGES
9.1 Huge pendency of cases and poor rate of convictions are the twin problems of the judiciary. The major area that needs attention for improving the situation is providing adequate number of Judges who are proficient in dealing with criminal cases.
9.2 APPOINTMENT TO SUBORDINATE COURTS
The statistics reflect gross inadequacy of the Judge strength at all levels. The Supreme Court has recently examined this issue and given directions to increase the Judge strength from the existing Judge population ratio of 10.5 or 13 Judges per million of people to 50 Judges per million people in a phased manner within five years in its decision in (2002)4.S.C.247, All India Judges Association and others Vs. Union of India. Right to speedy trial, as held by the Supreme Court flows from Article 21 of the Constitution. Therefore it is expected that the directions of the Supreme Court would be implemented within a reasonable time. Once that happens, problem of inadequacy of Judge strength will be solved. Hence it is not necessary for the Committee to examine the question of inadequacy of Judge strength. However, the Committee would like to observe that within the standard set for determining the number of Judges required, it may be necessary for each State to make an estimate of the number of Judges required to be appointed having regard to pendency and the inflow of fresh cases and nature of litigation etc.
9.3 APPOINTMENT TO HIGH COURTS It is unfortunate that large number of vacancies in the High Court remain unfilled for a long time inspite of the formula given by the “Arrears Committee” for determining the Judge strength and for expediting the appointment process. Now that the appointment process is mainly under the control of the judiciary the blame for this delay is largely on the judiciary. The Chief Justice of India and the Chief Justices of the High Courts must take immediate steps to curb this unconscionable delay in appointments.
9.4 QUALITY OF APPOINTMENT Quality of appointment has suffered enormously. Complaints are heard everywhere that judicial arbitrariness has replaced executive arbitrariness. Quality of Judges appointed, it is the general impression was much better before the judgment of the Supreme Court in AIR 1994 S.C P.268, Supreme Court Advocates on Record Association Vs. Union of India. Now a national debate is going-on on constituting a National Judicial Commission for this purpose. The Committee is more concerned in ensuring quality in appointment rather than who makes the appointment. This can be achieved by laying down the objective criteria for selection and the material needed to satisfy those criteria. Honesty, integrity, good moral character are regarded as basic requirements to discharge judicial functions. Similarly for assessing professional competence several criteria may be identified, such as knowledge of substantive laws, procedural laws, specialization in any branch of law, sound knowledge of fundamental principles of law and jurisprudence. The candidate must have a keen and analytical mind. He should have patience and must not easily lose temper. He should not be vindictive. He should be patient and at the same time must know when to stop waste of time. He should be above narrow considerations, religious, regional, linguistic, political etc, so also experience in conducting different types of cases. Fairness to the opponent, ability to concede untenable propositions, good and pleasant manners, good command over the language and power of expression have to be ascertained with reference to credible evidence or material. A dossier has to be prepared in respect of each candidate to help making an objective assessment. This will reduce arbitrariness and helps making the process more transparent. The Committee therefore recommends that a set of guidelines should be evolved prescribing the relevant qualifications, qualities, attributes, character and integrity that are necessary to be a good Judge and indicate the evidence or material from which these can be inferred. This would eschew considerably irrelevant considerations and favoritism playing a key role in appointment. The procedure of selection must be so devised as to ensure the most competent persons of highest level of integrity and character are appointed. It is only when we have competent and upright Judges that the citizen is assured of quality justice. The problem needs immediate attention at the highest level. It is the judiciary that must take the initiative and come out with credible solutions.
9.5 NEED FOR IMPROVING THE QUALITY OF JUSTICE
9.5.1 Though induction of more Judges may help in reducing the arrears it is the competence and proficiency of the Judges that contributes to better quality of justice. Unfortunately adequate attention is not paid to look for competent persons proficient to handle criminal cases.
9.5.2 Anybody who sits and watches the proceedings in the Courts will not fail to note that the level of competence of the Judges of the Subordinate courts at different levels is not adequate possibly because the training did not give emphasis on professional skills and case/court management. If the Judge is not competent he will take longer time to understand the facts and the law and to decide the case. This is one of the reasons which has contributed to enormous delay and huge pendency of cases. Any lawyer with experience will be able to tell you which Judge is competent and which Judge is not, which Judge is quick and which Judge is slow, which Judge’s decisions are by and large sound and which Judges decisions are not satisfactory. Even now there are many good Judges in the subordinate Courts but that number is declining. The quality of justice suffers when the Judge is not competent. People come to the Court complaining about the denial of rights by other individuals, institutions or the State itself. They expect the Judge to be experienced, knowing, competent, upright and possessing all the attributes required to render justice to the parties. It is a very onerous responsibility to sit in judgment over the conduct and affairs of other citizens. Deciding cases is a very complex exercise. It needs good knowledge of the substantive and procedural laws. It requires experience of men and matters, abundant commonsense, intelligence, logical and analytical mind. The Judge has to possess ability to do hard work and concentrate on the issues involved. Above all he must be a man of character having abiding faith in the values of life.
9.5.3 Two areas which need special attention for improving the quality of justice are prescribing required qualifications for the judges and the quality of training being imparted in the judicial academics. 1) Special attention should be paid in the matter of prescribing qualifications for recruitment of Judges at all levels and to improve the methodology for selecting the most competent persons with proven integrity, character, having regard to the nature of functions which a Judge is required to discharge. No other consideration other than merit and character should be taken into consideration in choosing the Judge for the Courts. 2) Those selected are promoted to different levels of subordinate judiciary should be given intensive training for reasonable period to improve their skills in hearing cases, taking decisions, writing judgments and in court management. There is a great need to improve the quality of training that is being imparted in different judicial academies.
9.6 NEED FOR SPECIALISATION
9.6.1 Cases under various laws such as civil, criminal, constitutional law, tax law, labour law, company law and service law come up for adjudication before the High Courts and Supreme Court. So far as courts subordinate to the High Courts are concerned they mainly deal with civil and criminal cases. Courts of JMFC and courts of Sessions deal only with criminal cases. The normal practice followed is to assign to the same Judge civil and criminal cases. In the High Courts and the Supreme Court the same Judges deal with cases under different laws by rotation. A Judge who deals with criminal cases for one term may deal with Tax cases during the next term. The question for consideration is whether this practice should continue or whether a Judge should be assigned that type of work in which he has acquired expertise.
9.6.2 Over the years all the branches of law have grown enormously. The laws have multiplied, judicial precedents have grown, and lot of literature and information is available for study in each of these branches. It is not easy for every Judge to be able to master all the branches. That is why in the legal profession many leading lawyers specialize in one field of law or the other. There are lawyers who specialize in labour laws, administrative laws, tax laws, civil laws, criminal laws, company laws, or constitutional laws etc. Similarly in the medical profession, the Doctors are required to specialise in different branches such as Cardiology, Neurology, Nephrology, Ophthalmology, Oncology, Urology etc. Scientific advances have thrown new challenges in the field of law such as Environmental laws, Telecommunication laws, Cyber laws, Space laws etc. There is therefore growing need for the lawyers, Judges to specialise in these emerging fields of law. A citizen, who wants to avail the best service, chooses a specialist in the particular branch. It is only when one specializes that he can give the best possible service in that field. A generalist may know all the branches but would not have deep knowledge or expertise in any particular branch of law. Realizing the importance of specialization, specialized tribunals have been established for dealing with tax matters, service matters, labour matters etc. This is a growing trend. The future is of specialisation.
9.6.3 Criminal law has special features and is different from the civil law in many respects. Some of the special features of criminal law are presumption of innocence of the accused, burden of proof on the prosecution and higher standard of proof than in civil cases namely “proof beyond reasonable doubt”. There are also special rules of evidence governing criminal cases. A Judge who deals with criminal cases consistently for a long time would acquire specialization in that branch. A Judge who has specialized in a particular branch of law will take less time to decide the case than a Judge who has not acquired such expertise. Specialization contributes to better quality of decisions, consistency and certainty. Speedy and quality justice being the need of the hour it is desirable to assign criminal cases to Judges who are specialized in that branch.
9.6.4 Judges who never did any criminal work before their elevation to the Supreme Court are often assigned criminal work. This does not contribute to efficient management of the work. Therefore, a separate criminal division should be constituted consisting of one or more criminal division benches as may be required depending upon the work load, to deal exclusively with criminal cases. Judges who have acquired good experience in criminal law and known for quick disposal should be assigned to sit on the criminal division. Once assigned to the criminal division they should sit in that division only. If among them there are any Judges, who in addition to expertise in criminal law, are proficient in any other branch of law may if necessary be assigned work in that branch of law. A vacancy in the criminal division should be filled up by appointing a High Court Judge or a lawyer who has specialized in criminal law.
9.6.5 On the same lines a criminal division should be constituted in the High Court. Judges who have specialized in criminal law should be assigned to sit on the criminal side till they demit office. Among them if there are any who have expertise in any other field may if necessary be assigned to do that work. Vacancies occurring in the criminal division should be filled up by appointing Session Judges or lawyers who are proficient in criminal law.
9.6.6 District and Session Judges on their elevation to the High Court often say that they have a right to sit on benches dealing with other branches of law as their appointment is to the High Court and not to any particular division like the criminal division. The practice now followed is to assign work in any branch of law irrespective of whether the Judge has expertise or experience in that branch of law or not. As District and Session Judges they would have normally acquired experience in civil and criminal law and not in other branches. They would not be very familiar with laws such as Constitutional, Tax and Company matters etc. If the Judges are assigned work in a branch of law in which they have enough experience they will be able to decide those case more efficiently and speedily. Besides the possibility of errors would be very low.
9.6.7 It must be remembered that the Supreme Court and the High Court have the power to lay down the law and their decisions are binding on all the subordinate courts. Therefore, a higher level of proficiency and expertise is called for. When a Judge is elevated to the superior courts it is not to give him an opportunity to learn and acquire expertise in new branches of law but to make use of the experience and expertise he has already acquired before his elevation. They are expected to come to the higher courts as experts and not as apprentices. Public time and money should be put to optimum use for providing speedy and quality justice. The Chief Justice who has the right to constitute benches and assign work among the Judges should constitute benches to deal with criminal cases consisting of Judges who have specialized in criminal law. A healthy convention should also be developed of making appointment of Judges specialized in criminal law that are required to sit on benches to deal with criminal matters.
9.6.8 So far as the subordinate courts are concerned in places where there is more than one Judge, as far as possible and subject to availability of work some Judges should be assigned only criminal work for a reasonable period. The practice of allocating to the same Judge both criminal and civil cases at the same time should be avoided. After a Judge sits continuously for a period of about one year on the criminal side he may be assigned to work on the civil side.
9.6.9 The above suggestions are not quite new or radical. Such practice is prevalent in other countries. In France even in the Supreme Court some Judges are assigned work only on the criminal side until their retirement.
9.7 VIEWS OF THE HIGH COURTS The High Courts of Allahabad, Bombay, Chattisgarh, Delhi, Kolkata, Madhya Pradesh, Madras, Punjab & Haryana, Gujarat, Himachal Pradesh and Jarkhand are in favour of the criminal courts being presided over by Judges who have specialized in criminal work and their working exclusively on the criminal side. It is their view that disposal of cases by specialized Judges can be better and faster. It is only the High Courts of Andhra Pradesh, Kerala, Orissa and Uttaranchal that are not in favour specialization. Karnataka High Court has not expressed any view in the matter. It is seen that majority of the High Courts are in favour of specialization.
9.8 VIEWS OF THE STATE GOVERNMENTS
9.8.1 The State Governments of Arunachal Pradesh, Haryana, Jammu & Kashmir, Karnataka and Madhya Pradesh are in favour of criminal courts being presided over by Judges who have specialized in criminal law. The State of Himachal Pradesh however says that Judges specialized in criminal law may be assigned criminal work only in bigger cities where the workload justifies. The State Government of Kerala is not in favour of Judges specialized in criminal law being posted to do criminal work. Other States have not responded. It is seen that majority of the State Governments are in favour of specialization.
9.9 ACCOUNTABILITY 9.9.1 Judicial credibility is enhanced when it is transparent and accountable. Sturdy independence is the basic virtue of the Judiciary. The Judiciary is independent in the sense that it is not answerable to any one. This does not give it license to function arbitrarily. It has to function in accordance with the Constitution and the relevant laws. The Judiciary is as much subject to rule of law as any one else. It has to discharge the judicial functions assigned to it in accordance with the mandate of the Constitution. In that sense it is accountable to fulfill the constitutional mandate.
9.9.2 The High Court is given power of control over subordinate courts by Article 235 of the Constitution. By and large this power if properly exercised is sufficient to ensure accountability of the subordinate courts. What is needed is greater vigilance and effective exercise of this power.
9.9.3 So far as High Courts are concerned no similar power of control has been conferred on any one and not even the Supreme Court. The High Courts in that sense are independent though their judgments can be reviewed by the Supreme Court. Under our Constitution, a Judge of a High Court or of the Supreme Court of India can be removed from his office by the President only for ‘proved misbehaviour’ or ‘incapacity’ and only in the manner provided for in Article 124(4); that is by an affirmative vote of at least half the total membership of each House of Parliament and a majority vote of two thirds of the members of each House present and voting on the motion for the removal of the Judge.
9.9.4 It is well known that impeachment motion against Justice Ramaswami failed even though the Committee on enquiry had held that serious charges of misconduct were proved warranting his removal. This indicates that impeachment provisions cannot be easily pressed into service to discipline the earring Judge. The recent incidents alleging serious aberrations in the conduct of Judges of some of the High Courts have shaken the confidence of the people in the judiciary. Common people feel very bad that if the Judges are guilty of serious misconduct nothing can be done about it. The problem is serious and needs urgent attention at the highest level. It is imperative that the judiciary itself takes the initiative to set its house in order and come forward with credible solutions without undermining the independence of the judiciary. Constitution of a National Judicial Commission and amending Article 124 to make impeachment less difficult are some of the alternatives which are being discussed at the national level.
9.9.5 The Committee however feels that the aberrations in the conduct of Judges can be checked or even corrected if the problem is noticed at the earliest and efforts made to correct them. In the High Court the Chief Justice is regarded as only first among the equals. Except constituting benches and assigning work he does not exercise any authority over his colleagues. This has considerably eroded discipline which is so necessary for any institution. Some Judges do not attend the court punctually; reserved judgments are not rendered for long time, sometimes for years; many cases are kept as part-heard for long period; complaints are received of some lawyers receiving favourable orders, there are complaints that some Judges act vindictively against some lawyers; there are complaints that lawyers are snubbed or insulted; sometimes complaints are also received about corruption and immoral conduct of Judges etc. The Chief Justices’ have no power to look into these problems and feel helpless. If the Chief Justice has the power to look into these complaints and takes immediate corrective action the problem can well be nipped in the bud. There is therefore urgent need to confer power on the Chief Justice to look into such grievances and take suitable corrective measures short of impeachment or pending impeachment process such as:- i) Advising the Judge suitably. ii) Disabling the Judge from hearing particular class of cases or cases in which a particular lawyer appears. iii) Withdraw the judicial work from the Judge for a specified period. iv) Censure the Judge. v) Advise the Judge to seek transfer vi) Advise the Judge to seek voluntary retirement.
9.9.6 There are other measures that can be taken to ensure accountability so far as proper discharge of judicial functions is concerned.
9.10 DELAY IN PRONOUNCING/SIGNING JUDGMENT/ORDER
9.10.1 Some Judges do not deliver Judgements for years. If there is delay the Judge may forget important aspects thereby contributing to failure of justice. There is also a complaint that the Judgements are not promptly signed after they are typed and read causing great hardship to the parties. To correct these aberrations the High Court should issue a circular to enter immediately below the cause title of the judgment / order, the following: (i) The date when the arguments concluded; (ii) The date when the judgment was reserved; (iii) The date when the judgment was pronounced; (iv) At the bottom of the judgment / order, the stenographer should enter the date on which he received the dictation, the date when he completed the typing and placed before the Judge and the date when the Judge signed it. This will bring about transparency and contribute to accountability.
9.11 PUNCTUALITY
9.11.1 As regards punctuality, apart from the Chief Justice advising the concerned Judge about his duty to be punctual and the adverse affect on the image of the court and the rights of parties, the Chief Justice may issue a circular requiring the court officer attached to every court to make a record of the time when the Judge assembles and the time when he rises and send a copy of the same at the end of each day to the Chief Justice and put it on the notice board for information of the public.
9.11.2 There were similar problems in USA where also the Judge can be removed only through impeachment process which is not easy to enforce. Therefore Judicial Councils Reform and Judicial Conduct and Disability Act 1980 was enacted. Under the Act there is a judicial council for each circuit and a National Judicial Conference at the Apex. They have been given power to censure a Judge, request him to seek retirement or direct that no cases be assigned to the Judge for a limited period. The Committee is in favour of conferring similar power on the Chief Justice of the High Court. If these corrective measures prove ineffective, the Chief Justice should have the power to move the Chief Justice of India who should have the power to suitably advise the erring Judge or transfer him or move for impeachment. This will go a long way in bringing better discipline in the High Court.
9.11.3 These measures would bring about transparency and act as a deterrent against such improper conduct of Judges.
9.12 COURT MANAGEMENT AND PRETRIAL HEARINGS
9.12.1 Public expects and deserves speedy trial and quick justice. Delay is a denial of justice. The courts must realize that it is their responsibility to take the initiative to eliminate delay. Delay is not inevitable and can be curtailed by adopting imaginative court management techniques. Unfortunately little attention has been paid to this.
9.13 COURT MANAGEMENT 9.13.1 There are two problems about which every one complains. The first is posting large number of cases which everyone knows cannot be dealt with on that day for sheer want of time. This leads to the Court wasting considerable time in calling the cases. The second problem relates to frequent adjournments.
9.14 ADJOURNMENTS 9.14.1 A notorious problem in the functioning of the courts, particularly in the trial courts is the granting of frequent adjournments, mostly on flimsy grounds. This malady has considerably eroded the confidence of the people in the judiciary. Adjournments contribute to delays in the disposal of cases. They also contribute to hardship, inconvenience and expense to the parties and the witnesses. The witness has no stake in the case and comes to assist the court to dispense justice. He sacrifices his time and convenience for this. If the case is adjourned he is required to go to the court repeatedly. He is bound to feel unhappy and frustrated. This also gives an opportunity to the opposite party to threaten or induce him not to speak the truth. The right to speedy trial is thwarted by repeated adjournments. Adjournment is a curse of the courts.
9.14.2 Section 309 of the Code which regulates adjournments provides that adjournment should be granted only when the court finds it necessary or advisable for reasons to be recorded. It also gives discretion to the court to grant adjournment subject to payment of costs. However these conditions are not strictly followed and the bad practice continues.
9.14.3 The Judges act with unfettered discretion. Some Judges believe that it is unreasonable and harsh to refuse an adjournment when the lawyers put forward some ground or the other for adjournment. Judges must realize that the arbitrary exercise of discretion causes delay and harms innocent persons like the witnesses. To regulate the discretion the High Court must lay down the exceptional circumstances when adjournment may be granted. Section 309 should be amended to make it obligatory toward costs against the party who obtains adjournment. The quantum of costs should include the expenses incurred by the opposite party as well as the Court, the expenses of the witnesses that have come for giving evidence. Costs may be awarded to the opposite party or to the State which may be credited to victim compensation fund if one exists. The number of cases should depend upon the time the cases are likely to take. Indiscriminate posting of a large number of cases should be avoided.
9.14.4 At the instance of the Supreme Court the Law Commission has produced a comprehensive consultation paper on case management, which appears to have been circulated to the High Courts for their response. This indeed is a welcome initiative and the Committee recommends its immediate implementation in its entirety. If this is done, the focus on key issues rather than every minor issue will save the court’s time and costs. But at the same time, to ensure that judicial time is not frittered away, resources should be made available for the provision of IT/Management specialists – including the equipment they require – to assist the court. If this is combined with the restructuring of the court offices, creation of property management agencies and redeploying of staff, the court can concentrate on and resolve even complex and grave cases quickly.
9.14.5 The advantages of this initiative would be:- i. Reduction in trial time and quick disposal of cases ii. Optimal use of court time iii. Establishment of trial standards iv. Monitoring of case load which will help in future planning v. Enhanced accessibility to courts vi. Ensuring Public Accountability 9.14.6 With the introduction of case management and use of scheduling techniques, unnecessary posting of too many cases and frequent adjournments can be avoided.
9.15 PRE-TRIAL HEARING
9.15.1 In our Country the concept of pretrial hearing has not taken deep roots. Sections 291 to 298 of Cr.P.C. provide for sorting out certain matters at the pre trial hearing. S. 294 envisages that the particulars of every document filed by the prosecution or the accused shall be included in a list, and the other party or its pleader “shall” be called upon to admit or deny the genuineness of each such document. Where the genuineness of such document is not disputed, the document may be treated as ‘proved’. This provision, unfortunately, is rarely utilized.
9.15.2 Lord Auld in his “Review” has observed: 7… … ., where there is a need for a pre-trial hearing the court and the parties should take full advantage of it to resolve all outstanding issues as to the conduct of the trial and to deal with any preliminary issues of law or fact that will assist that resolution. This calls for the court to adopt a more interventionist and authoritative role than has been traditional in identifying the issues for trial and in securing the proper preparation by both parties to deal efficiently with them. This in turn requires adequate preparation, not only by the parties and their advocates, but also by the Judge with the benefit of sufficient time out of court in which to do it.
9.15.3 Provisions for such pretrial sittings have been made in several countries. The Committee feels that express provisions should be made for holding pretrial sittings for dealing with, interalia the following matters: – i. Exploring the scope for settlement without trial, such as compounding ii. Admission and denial of documents as provided in S.294; iii. Calling for production of documents, if any, but not already filed. iv. Scope for the use of affidavits (S.295 & 296) v. Issues relating to proof and admissibility of documents vi. Questions of law relating to maintainability and Jurisdiction. vii. Probable duration of the trial, viii. Issues relating to summoning and order of examination of witnesses ix. Outlining broadly the scope of evidence; x. Settlement of issues xi. Fixing the date/s for different stages, including examination of witnesses and hearing of arguments. xii. Such other matters that need to be attended to ensure speedy trial.
9.15.4 Once these issues are settled at the pretrial sitting the stage would be set for trial without any hindrance or scope for adjournment. Court Management and pre trial can be regulated by the High Court by issuing suitable instructions and ensuring compliance with it. This too should be included in the training of Judges.
TRIAL PROCEDURES
10.1 Criminal cases are divided into two categories namely warrant cases and summons cases. A warrant case is a case relating to an offence punishable with death, imprisonment for life, or imprisonment for a term exceeding two years. Other offences come under the category of summons cases. By definition, a summons case is one where the upper limit of imprisonment that can be awarded is two years and/or fine. Cases punishable with death or imprisonment for life or imprisonment for 10 years and fine, are exclusively triable by the Court of Session. Other cases are triable by Magistrates.
10.2 In cases of conviction, the sentence that may be passed is limited by (a) the procedure adopted for purposes of trial: and (b) the limits placed by S.29 Cr.P.C. on different classes of Magistrates. If the case is tried by the Chief Judicial Magistrate (or the Chief Metropolitan Magistrate), the upper limit of sentencing would be any sentence authorized by law, “except a sentence of imprisonment for life or of imprisonment for a term exceeding seven years”. A Magistrate of the First Class (or a Metropolitan Magistrate) may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding Rs.5000 or of both.
10.3 All summons cases and a few enumerated warrant-cases are triable summarily, by all classes of Magistrates including Metropolitan Magistrates, (but not Magistrates of the First Class, unless they are duly empowered) as provided under Section 260 Cr.P.C. But the sentencing power is restricted under S.262 Cr.P.C to a term of imprisonment, not exceeding three months.
10.4 Section 355 which speaks of “Metropolitan Magistrate’s Judgment” substitutes almost the same proforma of the judgment prescribed under S.263 for summary trials, with the difference, that while under S.264, in cases tried summarily, the Magistrate is enjoined with the duty to “record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding,” whereas, S.355 (i) relating to regular trials by Metropolitan Magistrates provides that in all cases in which an appeal lies from the final order under S.373 or 374(3), “a brief statement of the reasons for the decision” shall also be recorded. The procedure that Metropolitan Magistrates can follow under S.355 is akin to summary procedure.
10.5 Sub-Section (2) of S.260, provides that if in the course of the summary trial, it appears to the Magistrate that the nature of the case is such that it is undesirable to try it summarily, he shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by the Code.
10.6 The procedure for recording evidence varies according to the form of trial. Section 274 Cr.P.C., prescribes that in summons cases and inquiries, “the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of the evidence in the language of the Court”. The proviso enables the Magistrate to cause such memorandum to be made in writing or from his dictation in open Court” where the Magistrate is unable to make such memorandum himself and records reasons for his inability.
10.7 S.376 (d)., provides that no appeal from a convicted person shall lie when a sentence of fine only is passed not exceeding Rs.200/- in a case tried summarily by the Magistrate empowered under section 260.
10.8 But it is a matter of lament that in response to the Question No.10.21 in the Questionnaire issued by the Committee, it has been brought out that S.260 and 355 are either unutilized or under-utilized.
10.9 Only those Magistrates (Other than CJMs and MMs) who are duly empowered, either by name, or by virtue of office, or under the statute creating the offence can try the cases summarily. But most of the Magistrates are not empowered. This is one among the many reasons why summary procedures is not fully utilized. As the Judge of the same status can deal with the case summarily when he is posted as a metropolitan Judge without any empowerment there is no reason why such empowerment is needed for other magistrates to deal with the cases summarily under Section 262 of the Code
10.10 Under Section 262 the maximum punishment that can be imposed is 3 months. Under the negotiable instruments Act, Prevention of food adulteration Act, the offences can be tried summarily under S.262 for which imprisonment of one year can be imposed as a sentence. The Judge of the same status sitting as Metropolitan Magistrate following the procedures similar to summary procedure prescribed by S.355 can impose a sentence up to three years imprisonment. There is therefore clear justification to enhance the limit prescribed by S.262 to three years, which is the same as the present limit of three years for the Metropolitan Magistrate.
10.11 The Law Commission has in its 154th report also recommended enhancement of the limit of Sentence prescribed in Section 262 of the Code to three years. It has also recommended some incidental amendments to Sections 2(x) and 2(w). The Committee is in favour of these recommendations. The Committee feels that Section 2(x) defining ‘warrant case’ be amended by substituting the word ‘three’ for the word ‘two’. Consequently all cases which are not warrant cases, relating to offences punishable with imprisonment lower than three years shall become Summons cases which shall be tried by following the summary procedure prescribed in Chapter XXI of the Code.
10.12 The ceiling of Rs.200/- fixed for the value of property under S. 262(1)(c)( i,ii,iii and iv) is also too low to and should be enhanced to Rs.5000/- having regard to declining value of the rupee. No prejudice would be caused to the accused by such enhancement.
10.13 Large number of cases which do not involve serious offences can be disposed of expeditiously. As the Magistrate has power under S. 260(2) to try the case regularly if he feels that it is desirable to do so in the interest of justice no prejudice would be caused. 10.14 However, the Committee is of the opinion that proper training should be given to all the Magistrates about trying the cases following the summary procedure. The training should include mock trails and writing of judgments in summary trials by the trainees.
10.15 PETTY OFFENCES
10.15.1 Section 206 of the Code which deals with “Petty Offence” reads as follows: (1) If, in the opinion of a Magistrate taking cognizance of a petty offence, the case may be summarily disposed of under Section 260, the Magistrate shall, except where he is, for reasons to be recorded in writing, of a contrary opinion, issue summons to the accused requiring him either to appear in person or by pleader before the Magistrate on a specified date, or if he desires to plead guilty to the charge without appearing before the Magistrate, to transmit before the specified date, by post or by messenger to the Magistrate, the said plea in writing and the amount of fine specified in the summons or if he desires to appear by pleader and to plead guilty to the charge through such pleader, to authorize, in writing, the pleader to plead guilty to the charge on his behalf and to pay the fine through such pleader: PROVIDED that the amount of the fine specified in such summons shall not exceed one hundred rupees. (2) For the purpose of this section “petty offence” means any offence punishable only with fine not exceeding one thousand rupees, but does not include any offence so punishable under the Motor Vehicles Act, 1939 (4 of 1939), or under any other law which provides for convicting the accused person in his absence on a plea of guilty. (3) The State Government, may, by notification, specially empower any Magistrate to exercise the powers conferred by sub-section (1) in relation to any offence which is compoundable under section 320 or any offence punishable with imprisonment for a term not exceeding three months, or with fine, or with both where the Magistrate is of opinion that, having regard to the facts and circumstances of the case, the imposition of fine only would meet the ends of justice.
10.15.2 This is an enabling provision for dealing with petty offences speedily and applies only to cases which can be tried summarily under Section 260 of the Code. ‘Petty Offence’ means offence punishable only with fine not exceeding one thousand rupees. However under sub-section (3) the State Government can specially empower the magistrate to exercise the power under sub-section (1) to any offence which is compoundable under Section 320 or any offence punishable with imprisonment not exceeding three months or with fine or with both where the magistrate is of opinion that imposition of fine only would meet the ends of justice.
10.15.3 In all such cases the magistrate can call upon the accused to exercise the option of pleading guilty and paying fine fixed by him within the specified time by money order or D.D or to appear before the court on the specified date if he chooses to contest the case. This is a very quick, convenient and speedy procedure prescribed for dealing with large number of petty offences. If the allegations against the accused are true he can plead guilty and pay the fine through post. He need not engage a lawyer and incur expenditure. He can save the time, trouble and expense of attending the court. Therefore it is good to encourage the accused to avail of this facility. It is also necessary to enlarge the limit prescribed particularly in the light of the amendments to Section 260 and 262 that the Committee has recommended. It would be convenient if the reply which the accused has to give is also prescribed so that he can reply without seeking assistance of the lawyer. Form 30 prescribed needs to be simplified.
10.15.4 Summary trial procedure and procedure for trying petty cases should be adopted with great advantage in dealing with offences under special local laws.
10.16 SERVICES OF SUMMONS One of the causes for delay even in the commencement of trial of a criminal case is service of summons on the accused. The Code of Criminal Procedure provides for various modes of service. Section 62 of the Code provides that summons shall be served by a Police Officer, or subject to such rules being framed by the State Government, by any officer of the Court or other public servant. Unfortunately rules have not been framed by many State Govts. To enable service otherwise than through police officers. Since the Criminal Procedure Code itself provides for other means of service namely through registered post in the case of witnesses, Section 62 should be amended to provide for service on accused through registered post with acknowledgement due and wherever facilities of courier service are available, the same should also be adopted. If fax facilities are available the same should be used. Any endorsement made by the postman that the summons has been “refused” should be deemed as sufficient service and warrant can be issued. As in civil cases service through court official can also be provided and in case of summons to the accused who is absconding, the summons can be served on any adult member of the family or affixed on a prominent place at his residence and the same shall be treated as sufficient service and in case of non appearance a warrant can be issued.
WITNESSES AND PERJURY
11.1 Witness is an important constituent of the administration of justice. By giving evidence relating to the commission of the offence he performs a sacred duty of assisting the court to discover truth. That is why before giving evidence he either takes oath in the name of God or makes a solemn affirmation that he will speak truth, the whole of truth and nothing but truth. The witness has no stake in the decision of the criminal court when he is neither the accused nor the victim. The witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He sacrifices his time and takes the trouble to travel all the way to the court to give evidence. He submits himself to cross-examination and can not refuse to answer questions on the ground that the answer will criminate him. He will incur the displeasure of persons against whom he gives evidence. He takes all this trouble and risk not for any personal benefit but to advance the cause of justice. The witness should be treated with great respect and consideration as a guest of honour. But unfortunately quite the reverse is happening in the courts. When the witness goes to the court for giving evidence there is hardly any officer of the court who will be there to receive him, provide a seat and tell him where the court he is to give evidence is located or to give him such other assistance as he may need. In most of the courts there is no designated place with proper arrangements for seating and resting while waiting for his turn to be examined as a witness in the court. Toilet facility, drinking water and other amenities like food and refreshment are not provided.
11.2 The witness is not adequately compensated for the amount of money he spends for his traveling and staying in the town where the court is located. Rates of allowance fixed long back are quite unrealistic and not adequate to meet the minimum needs of the witness. Steps should therefore be taken to review the scales of traveling and other allowances taking into account the prevailing cost in the area where the court is located. What is worse is that even the allowances fixed are not paid to the witness immediately on the ostensible ground that funds are not available. There are also complaints of corrupt officials of the administration who draw the allowances and do not pay them to the witnesses. This is an un-pardonable crime against the witnesses. Therefore effective steps have to be taken to ensure that payment of the allowances to the witness is neither denied nor delayed. Fool proof arrangements should be made to see that the allowances are paid immediately. An official should be designated to attend to the witnesses and be responsible for paying the allowances promptly.
11.3 Another major problem is about safety of witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of the threat depends upon the type of the case and the background of the accused and his family. Many times crucial witnesses are threatened or injured prior to their testifying in the court. If the witness is still not amenable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection or is guaranteed anonymity of some form of physical disguise. Some times holding of in-camera proceedings may be sufficient to protect the interest of the witness. If, however, the circumstances indicate that the life of any particular witness is in danger, the court must take such measures as are necessary to keep the identity of the witness secret and make arrangements to ensure protection to the witness without affecting the right of the accused to cross-examine him. The threat from the accused side may be before he gives his statement before the police officer or evidence before the court or after the conclusion of the trial. There is a growing tendency of subjecting the witness and his family members to serious threats to life, abduction or raping, or damaging the witnesses’ property or harming his image and interest in other ways. The witness has no protection whatsoever. Many countries in the world have enacted laws for witnesses’ protection. There is no such law in India. Time has come for a comprehensive law being enacted for protection of the witness and members of his family.
11.4 The witness also suffers in the court in various other ways. When he comes to the court to give evidence he is often told that the case has been adjourned and is asked to come back on another day. When a case is adjourned, the witnesses in attendance are quite often not paid the allowances. The witnesses should not be punished by denying him reimbursement of the expenses for no fault of his. Steps should therefore be taken to ensure that the witnesses are paid allowances on the same day if the case is adjourned. Quite often more than one witnesses is summoned to prove the same point, much of it being of a formal character. The prosecutor may pay attention to reduce duplication of evidence resulting in unnecessary waste of time of courts and expenses. The evidence of Medical witnesses, Government scientific experts and Officers of mint contemplated by Sections 291, 292 and 293 of the Code shall be tendered as evidence in the form of Affidavits and the challenge to the same by the opposite party shall be by means of a counter Affidavit. The Court may permit an Affidavit in reply being filed by these experts. If the Court is satisfied that in the interest of justice, examination of these witnesses is necessary, it shall as far as possible be done through Video Conferencing. It is only if it is practicable that the witnesses may be summoned for giving evidence before the Court. Evidence of such witnesses should be recorded on priority basis and summoning such experts again should be avoided. The DNA experts should be included in sub section 4 of section 293 of the Code. This repeats again and again. No concern is shown for the valuable time of the witness and the trouble he takes to come to the court again and again to give evidence. Therefore there is need to infuse sensitivity in the minds of the court and the lawyers about the hardship and inconvenience which the witness suffers when the case is adjourned. Therefore only such number of cases should be listed which can be taken on that particular day so that the witness is not required to return only to come again for giving evidence. The directions given from time to time that the trial should proceed on day to day basis are not being followed. Time has now come to hold the Judge accountable for such lapses. Appropriate remedial measures through training and supervision may have to be taken in this behalf by the respective High Courts.
11.5 The next aspect is about the way the witness is treated during trial. As already stated the witness is entitled to be treated with courtesy when he arrives for giving evidence. Similarly due courtesy should be shown to him when he enters the court hall for giving evidence. The present practice is to make the witness stand and give his evidence from the place designated for that purpose. Comfort, convenience and dignity of the witness should be the concern of the Judge. In the opinion of the Committee the present practice must be changed. A chair should be provided for the witness and requested to take his seat for giving evidence. The lawyer for the defence in order to demonstrate that the witness is not truthful or a reliable person would ask all sorts of questions to him. When the questions are likely to annoy, insult or threaten the witness, the Judge does not object and often sits as a mute spectator. It is high time the Judges are sensitized about the responsibility to regulate cross examination so as to ensure that the witness is not ill-treated affecting his dignity and honour. Therefore the High Courts should take measure through training and supervision to sensitize the Judges of their responsibility to protect the rights of the witnesses.
11.6 So far as witness is concerned, it is his primary duty to give true evidence of what he knows. Unfortunately this is not happening and the problem of perjury is growing.
11.7 PROBLEM OF PERJURY
11.7.1 One of the main reasons for the large percentage of acquittals in criminal cases is of witnesses’ turning hostile and giving false testimony in criminal cases. Several reasons are attributed to this malady such as inordinate delay in the trial of cases, threats or inducement from the accused etc. As in criminal cases the prosecution relies mainly on oral evidence the problem assumes critical importance. Witnesses give evidence in the Criminal Courts after they are administered oath or affirmation under the Oaths Act, 1969. Section 8 of the Oaths Act provides that the witness is legally bound to state the truth on the subject. The sanction behind the oath is supposed to be the fear of God and the fear of eventual punishment by God, the supernatural dispenser of justice. In practice however it is seen that the witnesses make false statements without any regard for the sanctity of the oath or affirmation that has been administered to them. One gets an impression that administration of oath or affirmation virtually gives license to the witness to make false statements before the Court with impunity.
11.7.2 There is no doubt there is a statutory sanction against the witnesses making false statements in the Court. Perjury is made a Penal offence under Sections 193 to 195 of the Indian Penal Code for which adequate punishment is prescribed.
11.7.3 Section 195 (1) (b) of the Code provides that no court shall take cognizance inter-alia of the offence of perjury under Sections 193 to 195 except on the complaint in writing of that court or of the court to which that court is subordinate. Section 340 prescribes the procedure to be followed for making a complaint contemplated by Section 195. It requires the Court to hold a preliminary enquiry to record a finding that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in Section 195 (1) (b).
Thereafter it has to make a complaint in writing and send it to the Magistrate I Class having jurisdiction. The order under Section 340 is appealable under Section 341 of the Code. Section 343 prescribes the procedure to be followed in dealing with the Case.
11.7.4 Section 344 however prescribes an alternate summary procedure. It provides that if the Court of Session or Magistrate of first class if at any time of delivery of judgment in the case expresses an opinion that the witness appearing in such proceeding had knowingly or willfully given false evidence or fabricated false evidence for use in the proceeding, the Court may if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily, take cognizance after giving reasonable opportunity of showing cause, try such offender summarily and sentence him to imprisonment which may extend upto to 3 months or to fine upto Rs.500/- or with both. This provision is rarely resorted to. Thus it is seen that the courts response to the serious problem of perjury is rather one of utter indifference.
11.7.5 Unfortunately these provisions are rarely resorted to and perjury has become a routine feature in courts where truth and justice must prevail.
11.7.6 Sub-section (4) further provides that if, after such action is initiated it appears that an appeal or revision has been preferred against the judgment or order, further proceedings regarding perjury shall be stayed until the appeal or revision is decided.
11.7.7 Perjury can contribute to the wrong person being convicted while the true criminal and a perjurer walk on the streets in freedom. Offering false testimony in a criminal trial is a serious offence that undermines the integrity of the Criminal Justice System. For justice to be done truth must prevail. Witness must be made to take his oath or solemn affirmation seriously. The sentence prescribed for perjury is quite lenient. In the State of New York the sentence for perjury was recently enhanced to 15 years. As the menace of perjury is shaking the very foundation of the Criminal Justice System it is necessary to curb this menace and the sentence prescribed should be enhanced.
VACATIONS FOR COURTS
12.1 None of the governmental organizations in the country have vacations except the courts and the educational institutions. Educational institutions where the children are educated stand altogether on a different footing. Wherever the Committee has gone one question which the common people have asked is as to why the courts should have such long vacations when there is such huge pendency of cases in all the courts waiting for decades for disposal. There are cases where the accused have been waiting for years for their cases to reach the hearing stage. When we told them that the Judges work very hard, that their work involves great intellectual exercise, that they have to study and research a lot, that they do not get time to keep themselves well-informed about the new trends of law and jurisprudence in the world which they can do during vacations, none of them carried any conviction to their minds. They said that there are many persons discharging even more onerous responsibilities who work day and night without any holidays or vacations. There is a great sense of unease in the minds of the people why such great and learned people who are charged with the responsibility of deciding the fate of others, whether it is between man and man, between man or State, or between State and State are not sensitive to the needs of the time to make as much time of theirs, available for redressing the grievances of the suffering people? Whether it is the fear of the law of contempt or the tradition of holding the Judges in great awe and respect that has prevented the people from making a public issue, it is difficult to say. In this context it is necessary to know that in most of the countries in the world the courts do not have any vacations. The Judges from the courts in France and USA who interacted with the Committee told us that their courts have no vacations and that the Judges can take leave according to their convenience without affecting the smooth functioning of the courts. What is the special justification for the courts in India to have this unique privilege of vacations? Even in India the subordinate criminal courts do not have any vacation. But the subordinate civil courts, High Courts and the Supreme Court have vacations.
12.2 It appears that vacation for the courts is a legacy of colonial rulers. Most of the higher courts were presided by Judges hailing from England. That was the time when the pressure of work in courts was not so great. Besides as rulers they were not very much concerned about the problem of delay in disposal of cases. English men coming from the cold country were finding summer in India unbearable. Therefore the vacation was evolved as an arrangement to enable them to go to England during summer and spend their time comfortably there. That was the time when travel was required to be made by sea which occupied several weeks. This appears to be the real reason for the introduction of vacations for courts in India. English men having gone we having become the masters of our own country, is there any justification to continue the legacy of vacations! Access to Justice and speedy trial being precious fundamental rights of the citizen, the courts ought to remain open round the year. The committee feels that the time has come for introspection and to respond to the just expectations of the litigant public who clamor for speedy justice and access to justice round the year.
12.3 The Committee would like to advert to the reasons given in the report by the Arrears Committee constituted by the Government of India on the recommendations of the Chief Justices’ Conference recommending not abolition but reduction of the vacation for the High courts by 21 days: When there is such tremendous pressure of work in all the High Courts and the problem has become so acute, we should explore every possible avenue of effectively tackling this problem. We are conscious of the fact that the Judges work very hard not only during court hours but outside the court hours, not only during working days of the High Court but also during holidays and vacations. We are also conscious of the fact that it is a highly taxing intellectual work which requires adequate time for relaxation. The Judges have to catch up with a lot of general reading, the progress and trends in law and jurisprudence in other countries in the world. They may be required to participate in seminars for updating their knowledge and for mutual exchange of views. These being the special requirements of the Judges, their working cannot be compared to the working of other administrative and executive branches. These special requirements of the Judges cannot be served without providing vacations for reasonable periods. At the same time, the Judges, who should be vitally concerned with the problem of arrears, particularly when the problem has reached such critical levels, should come forward to make some sacrifice for achieving the larger goal at least for the next couple of years, until the problem is brought under control. It is against this background that we feel that we should come forward to make some sacrifice in the larger interest. … … .This undoubtedly calls for hard work and sacrifice on the part of the Judges which we feel must be offered ungrudgingly and graciously for achieving the noble cause. We trust that the Bar will not be found wanting in making their own contribution by extending their full co-operation.
12.4 Unfortunately the recommendations of the Arrears Committee to reduce the vacations by 21 days have not been implemented so far.
12.5 Compared to the work load on courts in other countries in the world the Judges in India carry a much heavier load. So far as High Courts and Supreme Court are concerned apart from the large number of cases they have to dispose of, their responsibility is quite onerous as they have the power to strike down unconstitutional laws and to lay down the law that is binding on all subordinate courts. Some of the heavy and complicated cases require the Judges to do considerable research and reading. This, they may not be able to do during the week ends. They would be looking for the vacations to do this work. Besides they need time to participate in national and international seminars, workshops and conferences to interact with Judges, lawyers and scholars from other countries. They have also to catch up with lot of reading the latest books. Besides, the lawyers practicing in the courts at the higher levels need time for similar exercises. Therefore, the Committee feels that instead of abolishing the vacations altogether, they may be reduced by a reasonable period.
12.6 Sensitivity of the courts for the accused languishing in the jails for long period of time awaiting the decision of court is waning. There was a far greater sensitivity and concern about the accused who was affected by delay in disposal of criminal cases in the 50s and earlier. In the High Court of Bombay (may be in other High Courts also), there was a convention that before the court went on vacation all the criminal cases pending in the High Court where the accused were in custody should be disposed of. If all the cases were not disposed of the Judges could not take the vacation. Therefore when the vacation was approaching assessment of the criminal cases in which the accused were under custody would be made and additional benches constituted to ensure that all such cases are disposed before the commencement of the vacation. Another convention was that in serious cases involving offence of murder etc, if the accused was not able to engage his own lawyer and a lawyer was provided to him at the cost of the State, the High Court would request an eminent senior lawyer to appear and argue the case for the accused assisted by the lawyer provided at the cost of the State. The senior lawyer who argues the case on the request of the High Court would not receive any payment. This shows the sensitivity of the Judges to dispose of criminal cases expeditiously and to provide quality legal assistance to indigent persons. That sensitivity in the course of the years has dried up. It is time for introspection and for restoring sensitivity towards the plight of the accused whose cases are pending in the courts.
12.7 There is no vacation for subordinate criminal courts. In the High Courts and the Supreme Court there is substantial criminal work. So far as vacations of the High Court are concerned they have been fixed by each High Court according to their own convenience, bearing in mind the order of the President issued under Section 23(a) of the High Court Judges Conditions of Service Act, which requires the High Court to work for 210 days a year. The President has power to increase the number of working days which would automatically lead to reduction of vacations. All the High Courts have summer vacations. Some High Courts have winter vacations or Deepavali vacations or Puja vacations or Christmas vacations or Dussera vacations or Onam vacations depending upon the customs prevailing in the respective states. The total period of vacation of each High Court varies from 48 to 63 days. However, during vacations some Judges sit on the vacations benches only to transact urgent work.
12.8 There is a convention which enables the High Court Judges to take 14 days Casual Leave every year. In addition, there are more than two weeks of public holidays every year. High Court Judges do not sit on Saturdays and Sundays. Though the High Court is expected to work for 210 days, the Judges would be working for a much lesser number of days when they avail of different kinds of leave. The assessment of the reasonable period of reduction of period of vacation has to be made taking into consideration the work load on the Judges, pendency of cases for several years and the fresh inflow of cases everyday. Some amount of reasonable adjustment is called for. Bearing all these aspects in mind and the need to eradicate arrears and to provide speedy justice to the litigants, the Committee is of the opinion that the working days of the High Courts should be increased from 210 days to 231 days. This would result in reduction of the vacation by 21 days which is quite reasonable. This would contribute to substantial reduction of arrears.
12.9 The President has fixed 185 working days. The Supreme Court has summer vacation, Holi holidays, Daseera holidays, Deepavali holidays and New Year holidays. The working days of the Supreme Court are lesser than that of the High Courts by 25 days. The Registrar General of the Supreme Court has furnished the information to the Committee that the summer vacations for the Supreme Court is for 8 weeks and that the court is closed for Christmas and New Year holidays for 2 weeks. Few Judges sit during vacations to attend to urgent work. The reasons discussed earlier for increasing the working days of the High Courts by 3 weeks would apply equally to the Supreme Court. The same period of increase of 21 working days for the Supreme Court appears reasonable. In the circumstances the Committee recommends that the number of working days for the Supreme Court may be increased from 185 days to 206 days. Consequently, the vacation of the Supreme Court would be reduced by 3 weeks which is quite reasonable. This would contribute to substantial increase in disposal of cases and reduction of arrears.
ARREARS ERADICATION SCHEME
13.1 According to the Report on Crime in India, 2000 published by the National Crime Record Bureau, Ministry of Home Affairs, 49,21,710 criminal cases under the IPC were pending at the end of the year 2000. During the Year 2000 the number of cases under the IPC which were tried and disposed of were 9,33,181. So far as criminal cases under special local laws are concerned, 36,49,230 cases were pending at the end of 2000. Total of 25,18,475 cases were disposed of after trial in the year 2000. It is thus seen that there is a huge backlog of criminal cases in the country. Criminal cases including sessions’ cases have been pending in several States for more than 15 years. Many of the reforms suggested by the Committee in this report would help in reducing the arrears and improving the quality of justice. But so far as huge arrears of cases is concerned, unless concerted effort are made on a war-footing, the position will not improve and people will continue to suffer. Realizing the gravity of the problem Hon. Sri Arun Jaitley, Minister of Law and Justice, Govt. of India evolved Fast Track Courts scheme to deal with Sessions’ cases. The scheme also made provision for providing funds. The scheme has worked very well in some States and not too well in others. This is not due to any defects or inadequacies in the scheme. The problem really was in the matter of implementing the scheme. Under the scheme additional courts termed “fast track courts” were established. Senior in-service Judges or retired Judges were appointed to man such courts for a term of two years. Some courts have performed very well where they were manned by experienced Judges known for their ability for quick disposal. In many places suitable persons were not available for appointment to these courts. In some places there were problems of lack of accommodation and other infrastructural facilities. There were also problems of securing public prosecutors etc. Lack of co-ordination was another problem. The major problem undoubtedly was in the matter of finding suitable persons to be appointed as Judges and securing accommodation for the courts. This means that we should find ways and means for better and effective implementation of the scheme.
13.2 In the opinion of the Committee a scheme like the Fast Track Courts scheme with certain modifications is the right answer to tackle the problem of arrears in all the criminal courts. As the object of the proposed scheme is to eradicate arrears it would like to name the proposed scheme as “Arrears eradication scheme”.
13.3 The Arrears for the purpose of the scheme should mean cases which are pending for more than two years as on the date of coming of coming into force of the new scheme. Cases pending for less than two years shall be current cases. This shall be a one time temporary scheme for clearing the existing arrears of criminal cases in all the courts.
13.4 Some of the measures recommended by the Committee in this report would be useful in eradicating the back log of cases. The Committee has recommended increase in the number of offences that can be compounded. Benefit of this should be extended to the pending cases as well. Good many old cases can be disposed of by settlement.
13.5 The Committee has recommended that all the ‘Summons’ cases shall be tried summarily under section 262 of the Code. Pending cases falling under this category can also be disposed of expeditiously by following the summary procedure.
13.6 SCHEME FOR ERADICATING ARREARS
13.6.1 For the purpose of eradicating arrears a separate scheme shall be prepared on the lines of the ‘Fast Track Courts Scheme’ on the following lines:- 1. The scheme shall be called the ‘Arrears Eradication Scheme’. 2. The object of the scheme shall be to eradicate the arrears pending on appointed day, in about five year’s time. 3. Appointed day shall be fixed by the Chief Justice of the High Court for the Arrears Eradicating Scheme to come into force. That is the day when the courts shall start hearing the cases under this Scheme. Therefore all arrangements for that purpose should be completed before that day. 4. Arrears for the purpose of this Scheme shall be the cases pending for more than two years on the appointed day. 5. The Scheme will lapse once ‘Arrears’ are disposed of. 6. Current criminal cases are those that are pending for less than two years on the appointed day. Responsibility of disposing of these current cases within two years shall be on the regular courts. This scheme is recommended so that from here on at least the current criminal cases can be disposed of within a maximum period of two years. The High Court shall take steps to have enough regular courts for achieving this object. 7. Implementation of the Arrears eradication scheme requires coordination between the High Courts and the Government in the matter of finding suitable persons to be appointed as Judges and finding suitable accommodation and other infrastructure for the courts. The Committee recommends that a retired Judge of the High Court should be appointed for implementation of the Arrears eradication scheme. He should be appointed in consultation with the High Court. It is only persons with considerable experience in criminal cases who are known for quick disposal and ability to motivate others that should be selected for implementing the Scheme. The choice of the Judge for this purpose is of crucial importance. He should be given a free hand in the matter of suggesting the names of persons to be appointed to these courts, identifying accommodation and finding staff to do the work. The success of the scheme would depend upon the vision and dynamism of such person. Therefore great care should be taken in the matter of selecting and appointing a person for this important job. 8. His overall responsibility shall be to implement the scheme in the entire State. He shall co-ordinate with all the functionaries and take necessary steps in consultation with the Chief Justice to implement the Arrears Eradication Scheme. His services may also be utilized in the matter of compounding or settlement of cases. 9. Quick decisions and prompt action are the key for the success of this scheme. It is therefore suggested that at the State level there should be a coordination committee consisting of the Chief Justices, Chief Minister and Advocate General and at the Central level such Committee may consist of the Chief Justice of India, Minister for Law and Justice and the Attorney General of India. 10. The Judge appointed in each State for implementing the scheme should at the end of every year prepare a report about the implementation of the Scheme, giving all relevant information, about the problems if any that need to be solved and send it to the Co-ordination Committee for taking remedial measures. Copy of the report should be sent to the Chief Justice of India and the Minister for Law and Justice, Govt. of India. They may take such measures as are needed for smooth and effective operation of the Scheme. 11. Such number of additional courts of Magistrates First Class, Chief Judicial Magistrates and Session Judges as may be required to clear up arrear of cases pending for more than two years be established. 12. Adhoc or contractual appointment of Judges shall be made for these courts from among available retired Judges and members of the Bar. 13. Benefit of compounding of offences recommended by this Committee shall be extended to pending cases as well. A concerted effort should be made to dispose of the cases by compounding or settlement wherever that is permissible in law. 14. To meet the problem of accommodation, timings of the court may be so modified so as to have two shifts of courts to be able to use the same accommodation, say, from 9 am to 2 pm and 2.30 pm to 7.30 p.m. 15. It may also be examined if court can function on part time basis with part time Judges at the same premises with some adjustment of timing of the regular courts. The part time courts may also sit on holidays. Part time courts can conveniently be assigned compoundable cases for settlement. The Judge should make effort to settle the cases failing which they may be sent to the court doing regular hearing work. 16. Where there are large numbers of petty cases they may be posted exclusively before one Judge so that they can be expeditiously disposed of. 17. This scheme may mutatis mutandis be extended to the High Courts and the Supreme Court. The Chief Justices of the respective courts shall classify the criminal cases into two categories. Those which are pending for more than two years shall be treated as arrears cases and assigned to specially constituted benches for clearing the arrears. If necessary ad hoc Judges should be appointed until the old cases are disposed of. So far as cases pending for less than two years are concerned they shall be disposed of by regular benches. Such number of regular benches should be constituted as may be necessary to dispose of current case within two years. It shall be the responsibility of the concerned Governments to extend such assistance as is necessary. It is advisable for the Chief Justices to constitute special cells to be responsible for assisting the Chief Justice in achieving these objectives. 18. The Committee urges the Governments concerned to provide the funds required for successful implementation of the scheme. The Government of India may extend the requisite financial support in a generous way as it has done in respect of Fast Track Court scheme. 19. Commitment and aggressive pursuit at all levels is the key to solving the problems. Requisite finance, manpower and infrastructure should be made available without cringing. This is a very small price to pay to mete out justice to the people. Time has come to act, here and now. |