CRIMINAL JUSTICE SYSTEM IN INDIA- A CRITICAL

VIEW AND SUGGESTIONS FOR REFORM

By- J. K. Sharma, Public Prosecutor, CBI,
Mumbai

The Crime Scenario in the country is distressingly disturbing and has

shattered the genuine hopes of both the plebeian and intellectual society about the
possible rejuvenation of the value based society. The wisdom in the say 'crime never
pays' is belied by the factual realities. The malignancy of criminalisation has affected
every sphere of social, economic and political activity and there has been a
consistent accelerated growth of crime believed to be encouraged by political
patronage. The obvious and evident crime noticed and noticeable are flourishing
unchecked and undetected resulting in the criminals going unpunished. The
purported logic of salutary cannon that hundred guilty go unpunished rather than
one innocent is punished' is perverted by undue and unwarranted over cautious
implementation, which has resulted in allowing the obvious crimes and criminals
going scot-free. The concomitance of the deep-rooted criminalisation has manifested
a situation giving criminals and their abettors a hold over the reins of administration
directly or indirectly.
Charles Dickens noting the ills of English legal system lamented, "Law grinds
the poor, the rich rides on them". The ironical view aptly applies to the present day
Indian context. The majority of the accused who are hauled up in the courts by and
large belong to poorer strata of the society and especially the legislations relating to
economic offence are being used only against minions in the society. Only petty
offences are brought to book. We hardly see the crimes done by a mob action
getting punished. Sharks and the big fish in the criminal organised rackets are rarely
hauled up and brought to book, even if done they are hardly punished. The
underworld mafia, criminal gangsters runs a parallel administration. The present
infrastructure of the criminal justice system is hardly capable of controlling and
containing the endemic crimes scenario and the system is poorly rated in public
opinion. For the past three decades there has been a wild criticism levelled against
ineffective and inadequate legislations to tackle the prevalent crime situation. The
complexion, gravity and intensity of the crimes committed in the present day order
although may loosely fit into the generic definitions of the various offences, the
contours of the given definitions are hardly comprehensive enough to cover the
enlarged facets, range and intensity of the crimes. Synthesis of two or more distinct
offences combining into one offence or a crime has become a changing
phenomenon in the crime scenario. Exhaustive review of the definition of the crimes
is required, if need be. The definitions have to be remade to keep in tune with the
changed complexion and facets of the offences.

In India, the administration of Criminal Justice System follows the Anglo -

Saxon-adversarial pattern. It has four vital units, namely, the Police, Prosecution,
Judiciary and the correctional institutions. These components are supposed to work
in a harmonious and cohesive manner with close co -ordination and cooperation in
order to produce desired results more effectively, fairly and quickly. Moreover, the
success or failure of the administration of criminal justice depends upon the efficacy
of these allied units.

In this paper the grey areas in the penal legislations calling for the
reformation are critically taken up for analysis indicating the diction and direction of
the required reforms. The procedural rules relating to trial, reception and admission
of evidence may have to undergo a thorough change in order to have effective crime
control. The treatment of subjects dealt in this article is more intended with a view
to set an agenda for wide spread public debate to bring about consensus and
acceptable reformative and effective changes in the criminal justice system if not to
ensure a totally crime free society.

An Overview of the Indian Criminal Justice System:

The Criminal law in India is contained in a number of sources. The Indian

Penal Code of 1860, together with other Local and Special Laws such as the
Protection of Civil Rights Act, 1955, Dowry Prohibition Act, 1961 and the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 outline what
constitute Criminal offences under Indian law. The Indian Evidence Act sets forth the
rules under which the evidence is admissible in the Indian Courts. Moreover the Code
of Criminal Procedure,1973 (Cr.PC) outlines the Procedural Mechanisms for
prosecuting the criminal acts, providing for the constitution of criminal courts, the
procedure for conducting police investigations and arrests, and the procedure for
holding criminal trials and inquiries. Generally speaking, the Cr.PC and other Statutes
are exhaustive enough to cover most situations. However, the Criminal Justice system
in India is based on a complex web of legislations and common laws. The common
law system allows judges the freedom to interpret legislation applicable to a particular
case in a way that will bring about the most just and legal outcome. The Common
Law is shaped through successive judicial interpretations of legislation and the legal
Principles of ​Stare ​decisis ​(judicial adherence to prior case). Thus when a particular
piece of legislation fails to adequately protect or outline a certain topic, judges are free
to rely on common law to ascertain the most just and applicable rules. Yet, it should
be noted that the common law applies only in those areas where the legislature has not
spoken and it can therefore never be employed in direct contradiction of a particular
piece of legislation. The Criminal Justice System which adopted by India is based on
the British System partially. When Britishers prescribed the procedure, they did not
consider the needs of the society nor did they consider the practicality of the
procedure. Thus, what we have is a system which is drawn from different sources,
without having any bearing on the ground realities.

The criminal justice system viz- Adversarial and Inquisitorial Criminal Justice
System, in view of the ever-changing face of crime and its management by the justice
system. It is practically difficult to have a watertight compartment for the both system.
Since, the Indian Criminal Justice System is following the British pattern of CJS, the
onus lies on the prosecution to prove its case beyond reasonable doubt and that the
accused is relieved of his burden in the instances wherein he sets up with a defence
plea by showing preponderance of probability. In India, the Judiciary,
Police/Investigation Agency operate on different domains and fields, there is a little
scope to the courts to supervise the investigation and also the access committed by the
Police during investigation.

In case, we elect to incorporate the principles of Inquisitorial CJS whereby the

onus/burden cast upon the accused would be relieved only on proof but not by
showing mere preponderance of probability, this may lead to paradox and gives enlist
powers and the accused are virtually at the mercy of police as police can frame them
on false charges. Since, it is indispensable to cast a sizable quantum of onus on
accused in view of the changes in the nature and commission of offences, several
recent criminal legislation in India like- The Prevention of Corruption Act, 1988;
TADA; PMLA etc. have specifically cast burden upon the accused to prove his
innocence and the courts draw adverse presumption of law against them. Sine, in
Inquisitorial CJS, the Police/Investigation Agency function under the realm of Justice
Department, there is a little /no scope for Police accesses /abuse of powers by the
Police.

Therefore, it is suggested that a harmonious criminal justice system with

stringent accountability of the Police/Investigation Agency has to be evolved by
amalgamation the provisions of both Criminal Justice System.

Impediments in the Effecting Functioning of Criminal Justice

System: An Appraisal

Indian Criminal Justice system is infested with multiple problems; some of

them are being mentioned here. Today, the Indian Criminal Justice System is
suffering from several maladies; some of these could be diagnosed as- “​Huge
pendency / Arrears of ​Court Cases; ​Lengthy Procedure; Time Consuming and
Expensive Legal Process; Abnormal Delays in Litigation; Non-Accountable Bar;
Lack of Coordination between Police and Prosecution; Faulty and Slipshod
Investigation; Unnecessary Detentions Causing Overcrowding of Jails; Enormous
Workload on Courts; Alien Model; Lack of a Speedy Dispute Resolution
Mechanism; Lack of Judges with respect to population ratio; Delayed Trial; Low
Rate of conviction; Prolonged Incarceration of under trial prisoners; Judge
Neutrality Principle they never takes any initiatives to discover the truth; Judicial
Corruption; and Absence of checks and balances”.

Indian Penal Code

The Indian Penal Code (IPC) is the main criminal code of India. It is a
comprehensive code intended to cover all substantive aspects of criminal law. The
code was drafted in 1860 on the recommendations of first law commission of India
established in 1834 under the Charter Act of 1833 under the Chairmanship of
Thomas Macaulay. It came into force in British India during the early British Raj
period in 1862. However, it did not apply automatically in the Princely states, which
had their own courts and legal systems until the 1940s. T
​ he Code has since been
amended several times and is now supplemented by other criminal
provisions.
Indian Penal Code (herein after referred to as IPC) came into being in the
year 1860 which was postulated as a comprehensive legislation defining all the
conceivable penal offences existing in the political and social context prevalent. IPC
also prescribes sentence to be imposed for the various offences. It deals with
different offences, segmented chapter-wise. The offences covered are in variety
ranging from offences committed against the state, public justice, law and order,
currency, weights and measures, public corruption, offences against body, property,
social morals, etc. Each chapter defines the offence in its generic form, the varying
modes and varying degree of severity of the commission of the offence is dealt with,
it further prescribes the sentence in relation to the intensity and severity of the
offence. A century and two scores of years have passed after the advent of IPC.
There has been a thorough change in the crimes' scenario although most of the
offences committed in the present day order may loosely fit into the generic
definition, nonetheless, a time has come to have an overall exercise of reviewing the
definition of the offences to make it consistent with the changing features and
severity of the offences. Public corruption some of the offences dealt in the chapters
of IPC, when found to be inadequate to deal with the crime situation, an attempt
was made to bring about a comprehensive legislation to effectively control and
tackle the endemic offences. To illustrate this proposition, we have an example of
Prevention of Corruption Act, 1947. Although chapter IX of IPC deals with the
corruption by public servants, the provisions were found to be inadequate. The
Prevention of Corruption Act, 1947 was enacted and further amended by Prevention
of Corruption Act, 1988. Even the amended legislation is hardly potent enough to
deal with the rampant phenomenal corruption by the elected political executives.
The experience reveals that the present provisions are far from satisfactory to
effectively check and deal with all sorts of public corruption. Now a time has come to
review the provisions of Prevention of Corruption Act to make it more
comprehensive in its sweep and ambit. The existing provisions of Prevention of
Corruption Act are more oriented to deal basically with the bureaucratic corruption.
In order to obtain accountable conduct of public servants, be it bureaucratic
executives or political executives, the provisions of Prevention of Corruption Act have
to be suitably amended and this is essentially a thrust area requiring serious
attention calling for legislative surgery.
The contemplated amendment to the Prevention of Corruption Act in addition
to normal sentence of imprisonment should also make provision for attachment of
the properties of the accused who have amassed wealth disproportionate to the
known sources of income, during the pendency of trial and followed by forfeiture if
the guilt is proved. Although there is a legislation, Criminal Law Amendment
Ordinance of 1946, however its provisions are not effectively used and the said law
is hardly noticed by the functionaries in the system.

Election crimes
Free and fair elections are bedrock of democracy. The IPC in chapter ​IX-A
​ ave undergone a
deals with the election offences. The crimes relating to elections h
great deal of change. The provisions of IPC are i​ nadequate and insufficient to tackle
​ ffence dealt under Representation of Peoples Act
the crime outgrowth. So also the o
are not very effective t​ o tackle all sorts of unholy actions which are rampantly
 ​ olitical parties during elections. Imperative need has come to
practiced by the p
legally c​ ompel the political parties and its leaders to be more transparent in their
functioning relating to party funds, compulsory declaration of assets, ​expenses
during elections, and the legal code of conduct of the persons i​ nvolved in the
election process, the broader norms for disqualification to ​contest the election, etc.
In this regard new rules and provisions have to ​be evolved and infractions and
deviation of the rules and provisions s​ hould be made severely punishable with
consequent disqualification to​ ​contest elections.
There is a dire need for finding out legislative formulas to prevent the persons
with criminal antecedents contesting the elections. Persons facing criminal trial on
the charges of commission of heinous offences become prospective candidates to
contest the elections misusing the legal fiction of innocence until the charge is
proved. Insulated uniform legislative principles have to be evolved to debar a person
with criminal antecedents from contesting the elections until he is finally acquitted.
Some of the possible solutions are: (1) to categorically declare and disqualify by law
to debar the convict at trial from contesting elections. Pendency of an appeal and
grant of stay of sentence should not be permitted as a ruse to permit the contest;
(2) when a person charged of committing heinous offences or a convict whose
appeal is pending wishes to be a prospective candidate in ensuring elections,
necessary provisions are to be made in law to ensure right of speedy trial/hearing to
be made optional. Such a person seeking to contest election should have to invoke
the right of speedy trial/hearing and mandatorily the trial or hearing should be
completed and judgment to be pronounced before the declaration of calendar of
events; (3) in the case of pending investigation before filing of final report
depending upon the nature of incriminating material collected, the grant of
permission to contest the election should be invested in independent 'judicial
tribunal1 or the "election commission'; (4) after an election during the continuation
of the tenure of the elected office if a person is convicted, he should forfeit the
office. Crimes committed by the members of Parliament or assemblies (hereinafter
called House)
We find rampant criminal acts like assault, use of criminal force, mischief,
intimidation and abduction on the floor of the House or in relation to the
proceedings of the House. The said culpable actions under ordinary circumstances
done outside the House attract criminal prosecution. Parliamentary privileges of the
members are misunderstood as a cover to seek immunity from prosecution which
does not appear to be a proper legal position to immune the culpable actions. The
provisions of IPC have extra territorial operation. By declaration under section 3 of
IPC all the culpable actions committed beyond India shall be dealt with according to
the provisions of the code. In the same manner as if such act had been committed
within India. Section 4 declares that any offence committed by any citizen of India in
any place without and beyond India, on any ship or aircraft registered in India
wherever it may be the offender is liable for prosecution under the code. With given
legal propositions to exempt the culpable actions which are punishable under IPC if
committed on the floor of the House, the parliamentary privileges can hardly be a
legal excuse to seek immunity. In this regard, appropriate amendments to the
Constitution should be made. If necessary, separate adjudicatory machinery be
constituted for dealing with the offences committed on the floor of the House or in
relation to the proceedings of the House. The elected representative so convicted for
the offence, besides serving the sentence should also forfeit the office.
The suggestions offered are to be considered as a set agenda for detailed
deliberations to find out fool proof and comprehensive solutions to the problems. If
need be the concept of the privileges of the elected representative have to be
clarified to exclude unholy, unethical and criminal acts.

CYBER CRIME
The society is much confused and dreaded by the threat of the cybercrimes.
Computers and the Internet could be an aid for committing crime and they can also
​ ould be forgery, tampering
be a target of the crime. The possible cyber offences w
and fabrication of the records, mischief of ​damaging the data and information by the
cyber techniques, offences of criminal intimidation, slanders and porno
communications through cyber t​ echniques to annoy the persons are the possible
offences which can be identified as on now in the given experience. The Information
Technology Act of 2000 passed by the Parliament although deals with the aforesaid
offences in chapter XI, the penalties provided under IT Act appear to be ​grossly
insufficient. For the same offences, however, under IPC more ​severe punishments
are prescribed. Therefore, when the severity of the ​offences under the IT Act is
​ rescribed. The definitions of the aforesaid
graver, graver punishments have to be p
offences provided under the ​IPC have to be borrowed and incorporated with
improved version to suit t​ he varying degrees of the criminality and the punishment
to be prescribed ​proportionate to the propensity of the mischief. Only a skeleton
structure of the provisions is made for regulating and supervising the networks.
​ perators
Detailed legislative guidelines have to be laid down to make the network o
more accountable. The provisions of section 79 give unreasonably large area of
escape from the accountability.
In order to prevent the misuse of the system with criminal purpose detailed
statutory guidelines have to be laid down in the Act and Rules. In the present cyber
technology the identity of the computer used for the commission of the offence
could be identified and located. However, the difficulty is in detecting the person
who commits the offence. In the cyber language there is what is called Internet
Protocol Address with which the originating point of the computer used for
commission of the offence could be clearly detected. Therefore, in law it should be
made mandatory that all Internet networks and the computers connected with
Internet network should be made compulsorily registrable with a licence granted by
a competent monitoring authority like in the past we used to have a procedure for
registration of radios and transistors. In case of public network system, it should be
made mandatory that the address, identity and particulars of the customers using
Internet, the time and the destination point of the message have to be kept and
preserved as a record. However, the contents of the message can be permitted to
be kept secret and need not be disclosed to the network management. With the
postulated procedure of keeping the account of the customers using the public
network, it would in a large way help in identifying the accused. In case of private
computers connected with network, the owner of the computer in whose name the
licence stands should be fastened with strict liability and to be made vicariously
liable. The suggested regulated protocol of the procedure for proper use would in a
great way obviate the misuse of the system and would also help in detecting and
locating the offender.
 Special enactments
The Essential Commodities Act and the allied orders promulgated by state and
central governments have not made any purposeful impact in bringing about desired
objects of law in controlling and eliminating the crimes under the Act relating to
qualitative production, discipline and integrity in marketing to the end consumer.
Experience has shown that only a petty trader or a hawker dealing in food grains
and oils is hauled up in courts for deviation and infraction of the law under the Act.
The rich and the powerful sections of the business community have been
successfully avoiding the rigour of the implementation of the law against them.
Therefore, a thorough review of this branch of law is required. A rational
discriminative sentencing policy has to be evolved and prescribed proportionate to
the magnitude of infraction and measures of mischief it can cause to the public. The
penal statutes like Narcotic Drugs and Psychotropic Substances Act, Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, Trade Marks Act, Copy
Rights Act have to be reviewed taking into note the judicial pronouncements of the
high courts and the apex court to iron the legislative lacunas and equipping the
functionaries with necessary teeth to have effective crime control. Similar exercise
relating to different types of offences dealt chapter wise in the IPC has to be made,
reviewing thoroughly in the context of changed and changing scenario. Further
pragmatic sentencing policy has to be evolved prescribing appropriate measure of
sentence.

Domestic violence
Of late, there has been a vibrant debate and a public clamour for a suitable
and adequate legislation to tackle domestic violence. As of now, there is no
specialized legislation on this subject. None of the provisions of penal statutes or the
matrimonial statutes defines the concept of domestic violence. To consider the acts
and omissions which constitute or in common parlance understood as the facets of
domestic violence should not be equated as offence as defined under the IPC, even
though some of the acts or omissions pertaining to domestic violence may fit into
any of the definitions relating to offences against body under the IPC. Unless the
acts or omissions committed by a member of family against his spouse and children
is so grave and heinous, then the ordinary criminal law of IPC has to be applied. The
paramount object and intent of the law relating to domestic violence should be
viewed as a means to curb the acts of domestic violence and ensure amiable and
peaceful life. A thorough exercise has to be made to define the concept of domestic
violence. The possible acts and omissions should be identified to come within the
concept of domestic violence. The spirit and purport of the adjudicative forum and
the sentencing policy to be envisaged for the domestic violence should be exclusively
oriented with reformist tendency and a great caution should be taken not to give a
colour of retributive or retaliatory character in the sentencing policy. The whole
object of law relating to domestic violence is to ensure a happy home. Any
misadventure of equating the acts and omissions of domestic violence at par with
the penal offences under the IPC would only create a vulnerable social climate which
would have a tendency of turning the disturbed homes into broken homes. The law
on domestic violence should be quasi-criminal in nature (both in content and
procedure). If possible, the preventive treatment postulated in respect of acts and
omissions which have a tendency to create breach of peace and law and order
envisaged in chapter VIII of Criminal Procedure Code, 1973 (CrPC) should be taken
as analogous guide for formulating and constituting the adjudicatory machinery. The
subject should be allowed to be dealt by executive magistrates with the help of
social activists on the panel in resolving the disputes relating to domestic violence.
The nature of sentence, if at all to be imposed, should be of community service to
be rendered by the person found guilty.

​Indian Evidence Act

The rampant prevalence of unjust acquittal has eroded the confidence of
common man in the system. Invariably in the criticism levelled against the system,
the Indian Evidence Act (hereafter referred as Act in this section) appears to be the
first target. It was conceived as a complimentary legislation to the IPC. In its content
and form it is bifocal, applicable to both civil and criminal proceedings. The
provisions which are oriented to deal with the criminal proceedings by their tenor
indicate their distinct relevance and applicability to the criminal proceedings although
not separately segmented and categorized as such. The Act precisely and minutely
deals with the aspects of relevancy and admissibility of the facts and materials
receivable as evidence in criminal proceedings. All relevant facts are not necessarily
made admissible. Evidence, which is inadmissible despite being relevant, cannot be
used against the accused in the proceedings. The Act contemplates the proof by
direct evidence and by circumstantial evidence. In circumstantial evidence the law
insists that every chain of material circumstance linked in the crime transaction has
to be established to the hilt without missing a link of any of the material
circumstance in order to prove the transaction of crime. The direct evidence eschews
a hearsay evidence unless the second hand version comes within the definable
connote of ​res geste​ evidence.

Burden of proof – presumptions

The rigor of the rule of burden of proof in criminal trials insisting prosecution
to prove the guilt beyond reasonable doubt is a judge made law based on prudence.
However the legislative deviation has been made several times which are also held
to be constitutionally valid to prescribe presumptions in favour of the prosecution on
proof of certain prima facie facts, in which event the onus would shift on the
accused to refute the presumptions. The presumptions against the accused are
found only in special legislations. The need and relevance of the presumption
appears to be more warranted in cases where the prosecution is called upon to
prove the guilt by circumstantial evidence. When the prosecution proves only some
of the material circumstance alleged with irresistible inference of motive on the part
of the accused in committing the offence, in such situation for some of the offences
under IPC it requires that presumptions have to be made in favour of the
prosecution and the accused in such cases should be allowed to refute the
presumption, otherwise to be deemed guilty in law.

Confessional evidence
In the present structure of the Act, there is hardly any scope for the
confessions to play significant role to prove the commission of the offence. A
confession by the accused in order to be admissible and to be used as substantive
evidence should be made before a judicial magistrate and recorded by him. Rarely
do we find the use of these provisions in the investigations. There does not appear
to be encouraging response from the side of the accused to make use of the
provisions since honest U/s 164(1) Cr PC, 1973. Admission of guilt does not in return
provide any concession in the sentence as a reward. The law permits admissibility of
an extrajudicial confession made to any person other than a police officer or whilst
in police custody. Under section 27, to a limited extent, on the basis of confessional
statement of accused any discovery of a material object is made admissible only to
the extent of discovered material object to be used as a corroborative piece of
evidence to prove the guilt independently of the other confessional aspects in the
voluntary statement. Apart from the admissible confessions enumerated above, any
other confessional statements made by an accused are totally inadmissible in the
present legal settings of the Act, In practice we find confessional statement of
accused during the course of investigation made to the police officer or in police
custody are in fact the paramount clues for conducting effective investigation of the
crime. The exclusion of evidence of confessional statement made to the police
during investigation or whilst in police custody irrespective of the fact that the
confessional statements made by the accused are truthful and voluntary is an
irrational posture of laws and a travesty of truth.
Many a time in offences like dacoity or high way robbery, the investigations
are conducted only by clues given by the accused and only possible admissible
evidence that could be procured by the investigating agency would be by discovery
of the articles from the persons to whom the accused might have parted with or
sold. Accepting the possibility of such discovery evidence after exclusion of
confessional statements made by the accused before police there would not be any
other worthy material for the prosecution to prove the case. In cases of theft,
robbery and dacoity the persons in whose possession the incriminating articles are
discovered by and large would be in league with the criminal racket. To avoid police
harassment they would willingly yield to give the information before police knowing
full well the legal shortcomings of the inadmissibility of the evidence if they were to
turn hostile before the court without the risk of adverse consequence. Prevented by
the irrational exclusion of the truthful confessional statements on technical grounds
making the prosecution to base the case independently by vulnerable discovery
evidence would only lead to obvious result of witnesses to the discovery evidence
turning hostile and in the result the prosecution is left with no other worthy material
to prove the guilt. The rules of evidence excluding the voluntary confessional
statements to be tendered as evidence has done great dis-service to the system. We
have borrowed the rules of due process from the Anglo Saxon system. Even the
United States of America has a great respect for due procedure to ensure fair trial.
Likewise other Commonwealth countries do have a great respect and commitment
for fair trial and due process. The English people, by nature considered to be
conservative and bound by conventions and traditions, have restructured the system
after thorough overhauling. The Criminal Justice and Public Order Act, 1994 of
England to a great extent diluted the rules of exclusion and right of silence by
allowing the adverse inference to be drawn against the accused when he remains
without comment during interrogation. The structural changes effected in the
English legal system has not attracted any serious criticism or resistance by public
opinion. On the other hand, in the global opinion the aforesaid countries have a
better record of ensuring human rights on comparable analysis.
The criminal justice system in England permits the admissibility of the
confessional statement made by the accused prior to the commencement of
investigation, during investigation and whilst in police custody. It also allows the
interrogation of the accused with legal assistance to the accused.
The interrogations made are tape recorded, video graphed and all that
material is made admissible piece of evidence. Therefore, a thorough study into the
working of the criminal justice system in the UK, the USA, Canada and Australia has
to be gone into. The useful procedural practices and legal provisions have to be
adopted and incorporated in our penal and procedural enactments.
The Indian Evidence Act has to be suitably amended to cater the needs of
Criminal Justice System in India which follows the adversarial system of criminal
justice. Since, the Act is equally applicable for both civil and criminal proceedings.
Certain provisions which cast onus on accused can be discharged by showing mere
preponderance of probability and that need not prove his case to the hilt unlike
prosecution. These provisions ought to be amended accordingly subserve the
contemporary needs of criminal justice system. Since, it is practically difficult to
import and incorporate the principles of inquisitorial CJS into Adversarial CJS in
India. It os suggested that necessary need based provisions of Inquisitorial CJS may
be brought into the procedural and substantive laws of India whereby the accused
should also share the burden of proof to prove his case.

Right of silence
The concept of inviolable right of silence as understood and practiced in our
system appears to have been over eulogized and trumpeted as virtue and an
indispensable essential feature of fair trial. Exclusion of confessional statements and
other incriminating information given by the accused during investigation under the
garb or right of silence has made negative impact on the society. In the present
legal structure, the right of silence for the accused is ensured as an essential part of
due process from the stage of investigation. The constitutional provision ensures
complete protection of accused against self-incrimination. The moment the person is
considered as accused in the eye of law, he has a right to remain silent even during
investigation without answering any incriminating question. Any statement made by
the accused under section 24 of the Act to the police officer is made inadmissible.
The only exceptional situation to this rule is when during the course of investigation
on the voluntary statement of the accused any discovery of the material object if
made, the prosecution is permitted to produce the discovered object in the trial to
be used against the accused to prove the nexus of the material object with the crime
to a very limited extent independently without the aid of the rest of the confessional
material in the voluntary statement and the same is excluded as inadmissible.
The procedure of trial envisaged in the Cr PC confers absolute right of silence
on the accused. After conclusion of evidence, the provisions of section 313 Cr PC
obligates the court to put all the incriminating circumstance in the question form and
there is no obligation on the accused to answer the incriminating questions. He is
entitled to give indifferent answers or can remain silent. No adverse inference
against the accused could be drawn for non-answering the questions under section
313 of Cr PC. The given laxities in law in allowing the accused to remain totally silent
and burden the prosecution to prove the guilt beyond reasonable doubt appears to
have created uneven field, placing the investigation and prosecution to a great unfair
disadvantage. It does not appear to be immoral or irrational to insist the accused to
explain away the incriminating circumstances that are collected against him. The
trait of concept of absolute right of silence understood and conceived a century ago
does not appear to be relevant in the changed crime scenario. The English legal
system and the American legal system have tinkered with the concept giving new
facet and complexion to the concept without missing emphasis in ensuring due
process and fair trial in spirit and deed.
In English system the accused is obligated to answer all the material
questions during the course of investigation and the proceedings are tape-recorded
and video graphed and the said material is made admissible in evidence. To any of
the material question that the accused does not answer or remain silent, an adverse
inference is drawn and is prevented from improving his theory of defence during
trial. The accused is also provided legal assistance during interrogation. To
understand the functional working techniques prevalent in England or America, a
thorough study has to be made for assimilating their legal procedure in our system.
The possibilities of obligating the accused to furnish by way of reply to the charge
sheet analogous to a situation of filing of written statement in civil proceedings
should also be considered. Unconvincing explanations given by the accused to
incriminating material fairly established by the prosecution should permit invoking an
adverse inference against the accused.
The suggested changes may appear to be sweeping in the present day Indian
context and a section of protagonists of the traditional concept of absolute right of
silence and due process may not be able to digest the suggested changes. However,
a better rated and a successful performance of the criminal justice system in
England and America or in any other Commonwealth countries which have
satisfactorily achieved the effective crime control without any adverse reflections on
their human rights record should not be overlooked. After all the constitutional
mandate is to prevent compulsion of any sort on accused in giving the information
relating to crime. However, anything done voluntarily is not debarred.
Like the provisions of article 20(3) of the Indian Constitution, which protects
the accused from self-incrimination, the similar spirit of law is found in European
Convention of Human Rights to which England is a party (Art. 6, European
Convention of Human Rights). The right of silence had been interpreted as an
essential feature of fair trial. The English system was also confronted with the
rigorous rule of right of silence. However, in the English legal system legislative
changes are brought about by Criminal Justice Public Order Act of 1994 which has
diluted the rule of right of silence and permitted adverse inference to be invoked
against the accused when he remains silent or does not successfully explain the
incriminating circumstance in the course of investigation.
The basis of philosophical wisdom which advocates right of legal advice in the
custodial interrogation and right of silence conferred on the accused was critically
analysed in Alladice, Lord Chief Justice commented on the suspect's right to legal
advice in the following terms:
The result (of the right of legal advice) is that in many cases a detainee, who
would otherwise have answered proper questioning by the police, will be advised to
remain silent. Weeks later, at his trial, such a person not infrequently produces an
explanation of, or a defence to the charge, the truthfulness of which the police have
had no chance to check. It seems to us that the balance of fairness between
prosecution and defence cannot be maintained unless proper comment is permitted
on the defendant's silence in such circumstance.
Therefore, it has become imperative to borrow the pragmatic changes made
in the English legal system to the extent necessary for us.

The Prevention of Corruption Act

The said legislation is a special self-contained enactment with both the
provisions of substantive and procedural. The recent amendment to PCA in the
month of July, 2018 has to some extent diluted the intent and objective of the
legislature when new PC Act, 1988 had come into being on repealing the old PC Act,
1947. There are certain amended provisions under the new PC Act, 2018 are
retrogation to the objective of the PC Act. The new provision under 13 (1) (d)
diluted the very purpose and objective of the wisdom of legislation.
the procedural provision under Section-17A and Section-19 further weakened
the law on the premise that making it mandatory to obtain/seeking permission of
authority competent to remove the accused public servant before the lodging of FIR
may lead to anomalous situation of leaking confidential information to the accused
by unscrupulous insiders leaving the sanctity of confidentiality of FIR at naught.
Refusal permission under this provision by competent authority to register FIR would
fetter the investigation agency of its powers in filing a case under PC Act and they
would be constraint to file FIR under IPC offences sans PC Act offenses.
Similarly, the protection under Section-19 of PC Act to delinquent public
servants who seize to be in service at the time of taking cognizance that gives
additional undue privilege to such overt acts of public servants.
The explanatory part of Section 13 (1) (e) of the erstwhile amended Act,
1988 which is a thoughtful provision incorporated in 1988 in order to overcome the
difficulties encountered while dealing with the offences under Section-5 (1) (e) of
the PC Act, 1947. Deleting/repealing the explanatory part of Section-13 (1) (e) of PC
Act with regard to “​ known source of income” i​ n the recent amendment has made
Section 13 (1) (e) a vainness fang.

Hostile witness
The rampant crime growth has seriously damaged the moral fibre of the
society and corroded the ethical values. It has become characteristic tendency on
the part of the general public who witness a crime to avoid being cited as a witness
by the police fearing harassment by the police under the guise of interrogation.
Further the threat by the criminals also deter them to be cited as a witness. That
apart, the repeated adjournments of cases and delayed trials make the people sick
and unhappy when compelled to keep repeated attendance. Sometimes against all
the odds a witness is examined by the police and cited in the charge sheet, the
vitiated criminal atmosphere prevent the witness from speaking truth boldly in the
court due to the risk of harm to himself and to his family members. In the present
legal structure there is no effective protection provided to the witness.
The concept of independent witness has become a Utopian demand. It is not
uncommon to find in trials relating to very serious heinous offence like murder, the
close relative of the deceased turning hostile, sometimes prevented by the fear of
physical harm and sometimes tempted by expiation. The majority of the acquittals
are as a result of the material witnesses becoming hostile. The statement of the
accused recorded by the investigation officer has no substantive value. The
omissions and contradictions in the said statement when duly marked could only be
used by the accused for contradicting the witness and not for corroborating the
witness by the prosecution. The social climate heavily discourages any right-minded
men to be bold and truthful. Legal immunity given to the witness to turn hostile
whether for bona fide or oblique reasons by and large encourage the witness to turn
hostile. More than 60% of the acquittals in the trials relating to heinous offences are
as a result of the witness becoming hostile. Unless this problem of hostile witness is
overcome by proper legislative reforms, the situation which is already at the worst
level, may negate the very purpose of trial and may threaten the very existence of
the system. The provisions in Cr PC (S-164), although provide for recording the
statements of any person including the witnesses by a magistrate, the statement so
recorded does not have a substantive value. The precedent laid down by some of
the high court’s equate the statements recorded by a judicial magistrate under
section 164 Cr PC at par with the statements under section 161(3) of Cr PC recorded
by an investigation officer. In order to overcome the problem of witnesses becoming
hostile, it should be made mandatory that statements of all material witnesses like
eye witnesses, including discovery mahazar witness, seizure mahazar witness and all
other material witnesses should be made to be recorded by a judicial magistrate
immediately during the course of investigation and the statements so recorded have
to be given substantive value. Even if the witnesses were to turn hostile and retract
from the statements made on oath before a judicial magistrate the said statements
on oath should be permitted to be used as substantive evidence against the
accused. However the probative value of the statements should be left to the
discretion of the court for evaluation in the light of cross-examination and other
relevant material adduced.

Qualitative investigation
For a successful detection of a crime, honest and qualitative investigation is
an indispensable requirement. The reasons for bad investigations are many and
sometimes bucking under the political or bureaucratic pressures the integrity in the
investigation is diluted.
 Sometimes imprudence and lack of procedural skills and knowledge of law on
the part of investigation officer also results in bad investigations. Experience has
proved that the police in our country are normally accused of being identified itself
with the political executives, working hand in glove with them in perpetuating the
crimes.
The functional independence of an investigation officer is an essential
requirement for a free and fair investigation. In the present bureaucratic settings,
the officers of Indian Police Service do enjoy a better amount of functional freedom
than the non-IPS cadres. The institution of police should be bifurcated into crime
detection and law and order. The police station set up for crime detection are to be
headed only by IPS officers.
Law and order could be allowed to be managed by the non-IPS cadres. If
need be the cadre strength of IPS officers has to be increased in a great measure to
suit the requirements. For investigation of different types of crimes, protocol of
investigation is to be laid down to be made part of the statute, which invariably
compels the investigation officer to adhere to legal standards in investigation, which
ensures fair and qualitative investigation. The infraction of the protocol norms by the
investigation officer should be made severely accountable.
The absence of a time frame in Cr PC for completing investigation is being
unduly exploited by the investigation agency. Necessary reasonable time frames
have to be provided for completing investigation and filing the final reports. If for
any reason final report could not be filed within the time frame, the investigating
agency should file the report of the investigations so far done, and with permission
of the court further investigation should be continued.
During the investigation stage if there are allegations of mala fide conduct of
investigation, the effective judicial intervention at the instance of victim or any
person bona fide espousing the cause should be permitted by necessary statutory
provisions. That would ensure the fair participation of the victim in the process of
investigation. During searches and seizures the new scientific techniques of video
graphing have to be employed, in addition to the conventional practice of drawing
mahaars. Such a procedure would ensure a very truthful account of that part of
investigation recorded by scientific devices and the risk of rejection of such evidence
by the courts would almost go totally obviated. If need be the process of search and
seizures be made under compulsory supervision of magistrates who should draw up
the record of proceedings of search and seizures and such record of the proceedings
should bear a substantive value.

Sentencing policy
The sentencing policy envisaged in the IPC or in any other post-Constitution
criminal legislation is sadistic and feudalistic in approach. In the IPC the sentences
that could be imposed range from death penalty in the rarest of rare cases to
sentence of fine. For some of the heinous offences, the sentence of imprisonment
and fine both is prescribed and for some offence, sentence of imprisonment or fine
is prescribed. Whenever the word 'and' is used, necessarily the law intends that the
sentence of imprisonment as a must which could be followed by fine (S-354, Cr PC,
1973). The sentence to be imposed is alternative and consecutive in nature. The
appropriate measure of sentence in respect of each offence has to be levied in the
changed scenario. Some of the offences, which were considered as trivial like, the
offence relating to religion require serious reconsideration prescribing severe
sentence.
The sentence of imprisonment, as a rule, should be prescribed only for select
type of offences and misdemeanours and felonies of lesser degree should be made
punishable with severe fines and out of fine amount, as a rule, adequate
compensation should be granted to the victims. The court, which imposes fine,
should be empowered to proceed against the property, both moveable and
immovable, of the accused for realization of the fine amount if the accused were to
default in paying thefine voluntarily. Although on statute book there is Probation of
Offenders Act, rarely we see its implementation. To make the applicability of
provisions of Probation of Offenders Act more conspicuous, the first schedule of Cr
PC should be amended and additional column should be provided showing
compulsory application of benefit of probation in respect of offence where there is
desirability.
 The concept of plea-bargaining should be incorporated and accused, on the
admission of guilt, should be shown leniency in the matter of punishment, which in a
way boosts and encourages the honesty levels in human conduct of the accused.

The concept of culpable homicide as defined in IPC has only three categories: (i)
culpable homicide amounting to murder dealt in section 300; (ii) culpable homicide
of a lesser degree dealt in exception to section 300; and (iii) culpable homicide of a
still lesser degree dealt in second part of section 304. The analytical and meticulous
reading of the definition of these three categories presents a very confusing picture
and more so the lesser category of culpable homicide dealt in second part of section
304 appears to be very illusionary since section 300 also defines the acts covered by
second part of section 304 of IPC. In the present context of sentencing policy for an
offence of murder an inequitable and irrational sentence is evident and this can be
appreciated from the given illustration. For an offence of murder under section 302
IPC the punishment is death penalty or life imprisonment. The same measures of
punishment are also prescribed for offences like dacoity, high way robberies, etc.
Most of the times, we find in the offences of murder committed in a fit of passion,
the victim would be a neighbour or a relative. For trivial motives the offences takes
place. The accused in such type of murder cases is, generally a very good social
being except to the victim or to his or her family unlike in the offence relating to
dacoity or high way robbery. The motive of such accused is diabolical and anybody
in the society can be his or her target. Even for such offences, the punishment of life
imprisonment or death penalty is prescribed. To equate all the accused by same
measure of punishment is most inequitable. Time has come to make finer
categorization of the offence of murder. Keeping in view the motive of the accused a
lenient and adequate punishment should be prescribed. If his motives are not
harmful to the society at large, lesser period of imprisonment and heavier amounts
of fine should be provided so that an adequate compensation could be made
payable to the dependants of the victim out of the fine amount by explicit provisions
of law. Rational thinking demands that there should be more equitable and
discriminative sentences prescribed keeping in view the motives and impact of the
actions of the accused on the society at large. The sentences, which are presently
envisaged in IPC, appear to be very severe and disproportionate to some of the
offences. Sentence of compulsory community service can also be contemplated for
some of the misdemeanour and milder category of felony.

At this juncture, I would like to highlight that several countries have adopted for
prescribing fines / monetary penalties in criminal statutes. In Australia, this device is
called the "Penalty Unit" and in the United Kingdom, this device is called the
"Standard Scale". I suggest that the wisdom of parliament would do well to explore
the adoption of such legislative device in India too. This device will make it
extremely simple for Parliament to update the monetary penalties prescribed by it
for all offences on an ongoing basis. The Indian Penal Code, 1897 (the "​IPC​") and
several special criminal laws contain provisions prescribing punishments of fine only,
imprisonment or fine, and imprisonment and fine. In many of these prescriptions,
the quantum of fine is contained expressly in the statute in monetary rupee terms,
and these fines are not indexed to inflation. Since the fines are not indexed to
inflation, their deterrent effect becomes lesser with each passing year, due to
inflationary effects. As a result, with the substantial passage of time, the fines begin
to have no deterrent effect at all. In the cases of offences punishable only with fine,
people will no longer fear penal consequences if the fine becomes insignificant. In
the case of offences which are punishable with fine and/or imprisonment, since the
fine becomes too low, judges tend to impose stricter sentences of imprisonment
than what they otherwise may have, if they had the option of imposing more
stringent fines. This anomaly was noted by Justice R.V. Raveendran titled in a recent
article he wrote "​Some Anomalies in Law and J​ ustice" accessible​ ​here​. He lists four
the following four adverse consequences that flow from a failure to periodically
revise the quantum of fines prescribed in our criminal statutes or to index the fine to
inflation: (a) Encourages crime as fine has ceased to be an adequate punishment for
an offence or a deterrent against future offences; (b) Makes a mockery of the law in
question; (c) Compels courts to impose the punishment of imprisonment instead of
imposing the absurdly low fine, leading to overcrowding of prisons; (d) Depletes a
valuable source of funds to the State, which would have been available for
effectively compensating the victims and meeting the increasing cost of maintaining
courts."

Fortunately, there is an easy way out of this. That easy way is through the
adoption of a legislative device known as "penalty unit" in Australia or a device
called the "Standard Scale" as used in the United Kingdom. In Australia, federal and
state criminal legislation prescribe the fines for offences in "penalty units" instead of
Australian dollars. For instance, Section 11.5 of Australia's Criminal Code Act, 1995
prescribes that the offence of conspiracy shall be punishable with "​imprisonment for
more than 12 months, or by a fine of 200 penalty units or more". S
​ imilarly, Section
73.1 prescribes that the offence of "people smuggling" shall be punishable with
"​imprisonment for 10 years or 1,000 penalty units, or both.​" Many other criminal
legislations in Australia prescribe the fines in such "penalty units".

The "indexation factor" is then pegged to a relevant consumer price index to

adequately reflect inflation. Such a legislative device has two immediate
efficiencies. ​Firstly​, it ensures that all fines are pegged to inflation. S
​ econdly​, in case
one feels that fines prescribed across the board for all criminal offences require
updating, then by simply amending the definition of "penalty unit" the prescribed
fines across all statutes are revised appropriately. At the same time, it also retains
the flexibility of changing specific fines for particular offences by amending that
specific provision and changing the ​number o
​ f penalty units prescribed as
punishment.

Other statutes then define penalties by reference to the standard scale. This
method allows the standard scale to be revised from time to time, instead of
updating the fine for each individual offence. This allows benefits and efficiencies
similar to what is afforded by the "penalty unit" in Australia, but does not carry the
indexation to inflation benefits of the Australian "Penalty Unit”. In my view, the
Australian model of "penalty unit" seems the more flexible and effective device
compared to the United Kingdom's "Standard Scale".

Bails
 This branch of criminal law has greatly sullied the image of judiciary. The
public opinion is called a rider-less horse. In an incident of crime sensationalized by
the media if the accused is granted bail, the public views the judiciary with despise.
The basic reason for such misconceived public opinion is on account of the vague
provisions of law relating to bails (Envisaged under ss. 436, 437, 438 and 439, Cr
PC, 1973. The categorisation of majority of the offences as non-bailable appears to
be for name-sake only. The content and text of the provisions of section 437 on a
careful reading makes almost all offences bailable. If the offence is punishable with
imprisonment for more than seven years a discretion is endowed in the court to
grant bail on conditions, which by converse implication could be interpreted to mean
that rest of the offences are bailable without any conditions { S-437(5) }.
To categorise the majority of the offences as non-bailable in the present text
of legislations is very irrational. A thorough exercise has to be made. Keeping in view
the public and social interest, only graver and select offences have to be categorised
as non-bailable and rest of the offences to be precisely identified and made bailable
as a matter of right. And for some of the little more serious offences the grant of bail
should be in the discretion of the court. In the first category of non-bailable
offences, strictly as a rule no bail should be granted when there is prima facie
material. However, to ensure the liberties of individuals necessary and imperative
provisions should be made for speedy trial and possibly within three months from
the date of filing the final report the trials should be concluded and judgements be
pronounced.
The provision of anticipatory bail gives a very confusing projection of the
objectives of law. Before the incorporation of section 438 the absconding of an
accused was a serious negative point for obtaining bail. However, section 438 in its
practical use encourages the accused to abscond and keep him away from the
process of investigation. The guidelines and the test applicable in grant of bail
should be made invariable applicable for grant of bail under section 438 also. The
system on the sum of bails by and large functions by the precedent. There are
divergent conflicting precedents projecting confusing picture to the trial judiciary in
exercise of discretion. Therefore, to obviate the confusions, a legislative exercise is
very much necessary in this behalf as suggested above.
 Courts and its procedures
In the logical analysis it may not be very rational to insist the creation of
courts and the posts of judges proportionate to the population strength of the state
or nation. More scientific approach would be to create adequate number of courts
and judges proportionate to the volume of litigation in the area concerned. There is
no gainsaying that pendency of cases in the trial courts and the delayed trials have
become proverbial jokes. No scientific exercise is undertaken to find out an optimum
equation of judge strength to optimum load of the docket. As a result, there has
been no sincere effort on the part of executive in creating adequate number of
courts and judges to tackle the pendency within the reasonable time. The
Constitution should be amended mandating the state executives to consult with the
high courts for establishing additional courts with all defined infrastructure as and
when the volume of litigation increases.
And the suggestions of the high court regarding requirement of number of
additional courts should be binding on the state executive. The court procedure of
calling and hearing of cases is based on the convention. Every day heavy posting of
cases on unscientific basis results in futile exercise, which indeed is causing waste of
precious judicial working hours. There are no rules prescribing the manner in which
trial judge has to set his board for calling of cases and for hearing of cases. It is
constitutionally acknowledged that speedy trial is a fundamental right.
When the docket of judge is bursting with unmanageable volume of cases,
quite naturally the judge is placed in an unmanageable and uncomfortable position
resulting in delayed trials. In the present scheme of court practice, we evidently see
an outdated practice of posting of a case for evidence on tentative basis.
The author' experienced as a trial PP, confined to the conditions available in
Karantaka and Andhra Pradesh, shows that the trial judges (magistrate courts) every
day post more than a dozen cases for trial knowing full well that with adept case and
court management hardly 3 to 4 cases can be taken up for evidence. Invariably, the
cases posted for evidence on tentative basis would get adjourned. In the present
practice, the litigants, lawyers and the judges are functioning in an unpredictable
atmosphere not definitely knowing as to which case would be taken up for hearing
on the given day. Some trial judges fear that posting of few cases sometimes may
render a workless situation if all the posted cases get adjourned. However these
excuses and explanations are untenable.
In the scheme of trial of a criminal case, the appearance of the accused is the
first stage, the second stage is the framing of charge, third stage is recording of
evidence, fourth stage is examination of accused under section 313 Cr PC, fifth stage
is hearing of arguments and the last stage is the judgement. It is necessary that
short adjournments are given till the case reaches the stage of framing of charge.
After framing of charge, there is no point in recycling the case in calling once in a
month or two. Depending upon the volume of cases ripe for evidence, an average of
3 or 4 cases per day should be set with a very clear intention and signal of
conducting the evidence on the posted date. Sometimes with the given volume of
pendency of cases the posting of cases for evidence may spread for a year and
above. It does not matter. Since without serious intention of taking up the case for
evidence compelling unnecessary attendance of the accused would be an undue and
an avoidable harassment. In a way it affects the life and liberty and, impinges the
constitutional right (Art. 21).
Statutory rules have to be evolved prescribing the posting of cases on the
basis of month and year-wise seniority. The custody cases should be taken up for
evidence on priority basis. The experience has shown that in more than 50 to 60
percent of pending cases, the charge is not framed. On account of apathy in not
framing charge, the Supreme Court had to come down heavily to find a solution to
relieve the accused who are victims of harassment due to delayed trials in Common
Cause case and Rajdev Sharama's case.
Therefore, it should be made compulsory that in all the pending cases the
judges should be made to frame the charge with the assistance of the prosecutor
and the defence counsel and in all the pending cases the charges should be framed
and posted for evidence as indicated above. If the prosecutor should be obligated to
produce the draft of the charge since unlike civil proceeding, in the criminal trials the
accused and the prosecution have a right to say in framing charges. Therefore, it
would be more appropriate and facilitative if the practice of furnishing draft charge is
cultivated by legal rules.
 As a rule day-by-day one fresh session’s case should be taken up for evidence
and all witnesses to be summoned at a time and the case to be posted on
day-to-day basis until the trial is completed. The part heard matters should be
posted on day-to-day basis. With the suggested practice, easily about 15 sessions
cases a month could be disposed of by a session’s judge. In magisterial trials 3 to 4
cases should be posted every day and all witnesses should be summoned. If for any
reason some of the witnesses are not present, it should be carried forward for the
succeeding dates and by following such practice, about 40 to 50 contested cases
could be disposed of every month. The assumed optimum capacity of disposal by
the trial judge is based on the record of experience. Initially to comply the suggested
procedures, it demands a great dedication and strenuous effort on the part of
judicial officers for some time. Thereafter, the pressure of work would be eased out
and the optimum workload with a scientific board setting as suggested above could
be obtained. If the proposed suggested changes are taken note in the court
procedure, it would go a long way in relieving the accused and the witnesses by
avoiding unnecessary attendance. However, to facilitate the effective service of
summons to witnesses, a month before the date of evidence the office has to issue
summons to the witnesses to be sincerely and effectively served by the police and if
necessary a reminder could also be sent to the accused about the trial.
In order to make the people aware of court procedures regarding the posting
of cases for evidence and other stages, wide visual media publicity should be given
so that people also become aware of the significance of the posting of cases and the

importance of attending the proceedings at relevant stages.

Custodial Violence
As a safeguard against custodial violence, it is suggested that ​24 hours’ time for
production before Magistrate can be made shorter in these days of technological
development. Accused can be now produced within a few minutes​. ​"The state does
not have the right to take anyone's life without following the due process of law.
This is bestowed upon the beautiful document called the Constitution of India". I
would like to first reflected upon the horrific custodial killing of Jeyaraj and Bennicks
in Tamil Nadu, subsequently pointing out the existing legal implications of Custodial
Torture in India - the Indian Evidence Act and international obligations that India is
signatory to, specifically the Torture Declaration adopted by the United Nations on
December 9, 1975. In light of the above, it is incumbent upon the State to formulate
a legislation that subscribes to the tenets of International stipulations against
Custodial torture, which unfortunately never bore fruit.
​In 2017, a bill was introduced for this purpose and the matter came before the
SC by former union Minister Ashwini Kumar on account of death of GN Sai.
Ultimately this was dismissed, stating that the law commission was looking into it.
AG Mr. KK Venugopal had assured the top Court that he Law Commission was
adequately looking into this.

In this regard, it is to be mentioned that the Legislature, Executive and Judiciary

must find a way to curb the extra judicial killings, which run into 100's every year. It
can be done, if Section 102 of the Evidence Act is so interpreted, so as to include the
cases of custodial violence under the ambit of "​rarest of rare".​ Such police officers
must be brought to justice.

Highlighting to said aspect that a nexus indeed exists between Criminals, Cops &
Politicians, without which it would be impossible for Criminals to prosper, at least to
the extent that they currently do and the "​ Unholy Alliance" r​ uns across political
parties and agendas. These unholy alliances outnumber the good offices and the
good cops and good politicians that are also very much in existence and part of our
society.

Virtual breakdown of Rule of Law​ is a reality at this point in time,

the s​ car ​of this nexus runs so d
​ eeply​ in the precipice of our society that as adherents
of a civil society, we must take it upon ourselves that it is broken and done away
with. I​ n every society, there are different types of people. Many are unable to
defend themselves and state does not step in to do so. We as a civil society must
take it upon ourselves and ensure that this nexus is broken as fast as possible.
Creating a mechanism to train a recruit officials in the police who are well-suited as
constables is something important and the concept of Right to Life is alien to many
officials at the grass root level. The Constitution should be of paramount importance
to everyone and must be as important as any other holy book - The Gita, Quran,
Bible or Guru Granth Sahib. ​"Everyone in public life must worship it”.

The importance of instilling a fear of Rule of Law in every person and official
in the police, it is required that deterrence must be effectuated by imposing severe
punishments for carrying out extra-judicial killings. It is also mentioned that an
overwhelming majority of India continues to remain downtrodden and caste is a
huge facet in the lives of many. This, needs to be addressed. “We need dedicated
teachers, sociologists, human rights activists and lawyers who will stand up for these
people"​. Crony Capitalism needs to be weeded out and indigenous people need to
be given a voice with a stronghold system of legal aid, which was failing.

​Legal Aid Committee's do not engage good lawyers resultantly people do not
get good representation, particularly poor people who are not having means to get
justice. In this regard, there should be a change in the system and focus on this
criteria with a competency view at the time of empanelled the counsels.

Witness protection

It is also suggested that a comprehensive legislation for protection of

witnesses is need of the hour in the lines of USA, Britain etc.. The witnesses in the
criminal case in India who are relatively vulnerable and due to prolong investigation
and trial process. There is every scope of the accused to woo/entise/threaten and
dissuade them from testifying against them. There are number of reported instances
wherein the witnesses have faced brunt/wrath of the accused who are facing trial
specifically when the witnesses are from unprivileged classes and the accused are
from powerful segment of the society.

Recently, the Hon’ble Supreme Court approved the Witness Protection

Scheme, 2018, prepared by Union of India and has directed it and all states and
union territories to enforce the same in letter and spirit. The bench comprising
Justice AK Sikri and Justice S Abdul Nazeer held that the said scheme shall be the
‘law’ under Article 141/142 of the Constitution till the enactment of suitable
parliamentary and/or state legislations on the subject and also directed that
vulnerable witness deposition complexes shall be set up by the states and union
territories within a period of one year, i.e., by the end of the year 2019. The Union
of India had placed on record this scheme in response to a public interest litigation
seeking protection for witnesses in rape cases involving self-styled preacher Asaram
Bapu. The bench noted that the essential features of the Witness Protection
Scheme, 2018, include identifying categories of threat perceptions, preparation of a
“Threat Analysis Report” by the head of the police, types of protection measures like
ensuring that the witness and accused do not come face to face during investigation
etc. protection of identity, change of identity, relocation of witness, witnesses to be
apprised of the scheme, confidentiality and preservation of records, recovery of
expenses etc. The scheme formulated by the Home Ministry categorizes witnesses
into three types:

1) Where the threat extends to life of witness or his family members, during
investigation/trial or thereafter.

2) Where the threat extends to safety, reputation or property of the witness

or his family members, during the investigation/trial or thereafter.

3) Where the threat is moderate and extends to harassment or intimidation of

the witness or his family member's, reputation or property, during the
investigation/trial or thereafter.

These witnesses can file application for seeking protection order before the
competent authority of the concerned district where the offence is committed. This
competent authority will be chaired by District and Sessions Judge, with head of the
police in the district as member and head of the prosecution in the district as its
member secretary. The authority, when it receives an application, has to call for a
Threat Analysis Report from the ACP/DSP in charge of the concerned Police
Sub-Division. The scheme also mentions about types of protection measures that
can be ordered, based on the Threat Analysis Report and hearing conducted in this
regard by the competent authority. The authority is also empowered to order
identity protection, change of identity and relocation of witnesses. The entire
scheme has been reproduced in the judgment {Mahendra Chawala & Ors.
versus Union of India; decided on December05, 2018 at Page 23-36}.
Beneficial and benevolent scheme which is aimed at strengthening criminal justice
system in this country

Giving its imprimatur to the scheme, the court said: “Since it is beneficial and
benevolent scheme which is aimed at strengthening the criminal justice system in
this country, which shall in turn ensure not only access to justice but also advance
the cause the justice itself, all the States and Union Territories also accepted that
suitable directions can be passed by the court to enforce the said Scheme as a
mandate of the court till the enactment of a statute by the Legislatures.” The bench
also observed that there is a paramount need to have witness protection regime, in
a statutory form. It also emphasized on the need to create Vulnerable Witness
Deposition Complexes. “One of the main reasons behind establishing these
Vulnerable Witness Deposition Complexes was that a large percentage of acquittals
in criminal cases is due to witnesses turning hostile and giving false testimonies,
mostly due to lack of protection for them and their families, especially in case of
women and children,” it added.

Conclusion

In fact there are various lapses in criminal laws, starting from "sluggish
investigations" to "street trials", eroding public confidence in the Police, the existing
Police model is "incapable" to render speedy and fair justice, and therefore it is
necessary to introduce substantial Police reforms. ​Legislations governing criminal
justice system in India such as IPC, Cr.PC or Evidence Act are either of colonial
origin or a replication of British laws. Since then while the society has undergone
massive changes by recognising new rights and values, these legislations have not
changed significantly to accommodate these developments. Further, there has been
reluctance on the part of various stakeholders as well to implement certain changes
which have been brought. Due to these reasons, the criminal justice system has
become largely ineffective which is evident from poor records be it pitiful conviction
rates or massive backlogs. The need for reforms in the criminal justice has always
been felt and recommendations have been made by committees constituted by
government, however these recommendations never saw the light of the day. In this
regard, the recently constituted five-member committee for suggesting criminal law
reforms brings some hope with regards to modifications in the system.

In this paper I have discussed certain aspects which even though are not
exhaustive but should be major focus of the same while recommending reforms. We
have emphasised on the need of having gender neutral laws in matters pertaining to
sexual offences in order to include victimisation of transgender as well as men. This
issue has become significant in light of recent developments whereby the Supreme
Court recognised transgender as third gender and also decriminalised consensual
adult gay sex. Further, we have dealt with scope of arbitrariness and discretion in
sentencing which has led to inconsistent sentences even in similar crimes.
Furthermore, I have discussed the poor state of conviction in criminal cases which
can largely be attributed to the methods on investigation adopted by our agencies
and the need to accept, develop and promote use of forensic investigation.

Lastly, I have elaborated upon the immense backlog of cases and poor standards
of justice delivery and suggestions to tackle this through specialisation as well as
ensuring implementation of plea bargaining. The provisions under Chapter-XXIA of
Code of Criminal Procedure pertaining of Plea Bargaining (PB) ought to be further
fortify giving further scope to bring more offences under the scope of PB whereby
the investigation agency ought to be encouraged to come up with such pleas to
lessen the pendency at trial front so that the trial court would concentrate more on
cases of importance have bearing on the social order. While strengthening the
provisions pf PB, necessary amendments are to be made to Section-320 of Cr.PC
also in curtailing the pendency by compounding the offences. The central
Government and State Governments/ UTs should take a positive stands in
withdrawing prosecution cases U/s 321 of Cr.PC in deserving cases on merits and
evaluation of such cases are to be made objectively free from administrative and
bureaucratic bottleneck.
 Unfortunately, apathy and ineffective governance have created barriers in
accessing justice, which has resulted in granting certain sections of society only
limited access to the full range of socio-economic and civil-political rights available.
There are three immediately obvious barriers to access. First, there are ‘external
factors’ such as monetary, cultural or geographical barriers, which exclude or “fence
out” certain sections of society by preventing their access to courts. Geographical
barriers or distances from courts can cause great difficulty to litigants, accused,
witnesses, if they have to undertake day long trips to reach the courts, only for the
matter to be adjourned. Distance also determines the probability of appealing the
decision of a lower Court to a State High Court or to the Supreme Court. Nick
Robinson, in an excellent analysis of the Supreme Court’s docket found that while
nationally, there was a 2.5 percent chance of a High Court decision being appealed
to the Supreme Court, there was great disparity in the appeal rates based on the
proximity of the State High Court to the Supreme Court in Delhi. Thus, while the
appeal rate in Delhi in 2018 was 15 percent (around 4 times the national average),
in Tamil Nadu it was 1.5 percent.
Second, are ‘internal factors’ such as delays or convoluted procedures and
technicalities, which affect everyone in the system, but disproportionately impact
those with fewer resources? This raises the question of whether every individual who
approaches the legal system or is made to participate in it – as a Defendant in a civil
suit or an accused in a criminal trial – can expect an expeditious hearing, as well as
a fair outcome.
Third, there are ‘quality factors’, which are caused by the uncertain and
inconsistent application of law and arbitrary sentencing and affect the substantive
judgment of the case on merits. This tends to have a disproportionate impact on the
poor, whether in cases related to bail, or the death penalty. ​Reforms in each of
these areas will significantly improve the lives of our citizens by creating equal
opportunities to enforce the law and more generally, improve social cohesion.
This piece focuses on delays in the legal system, looking at both, the scope of
the problem, and its implication on the criminal justice system. For the law to
govern, the system through which it is administered must measure up adequately
when mapped against the speed of disposing cases. Unfortunately, delays illustrate
the impediments to accessing justice in India. Currently, there are more 2.8 crore
cases pending in various courts across India, with more than 60,000 matters before
the Supreme Court. The problem however, is not of too many cases coming into the
system; it is of too few coming out. This is best demonstrated by the Supreme
Court’s own data on the national picture of the pendency of the cases in the
subordinate courts. These undue delays, often occasioned by judicial vacancies and
improper case management, are burdening the system and frustrating the average
citizen’s hopes for effective redressal. Although subordinate courts are usually adept
at handling the flow of fresh cases, they fail when it comes to reducing the
pendency or backlog of cases.
It is a matter of great worry that even in 2019, more than 29.8 percent of all
cases before subordinate courts are more than five years old; and of this, 15.8
percent are criminal cases, where the life and liberty of individuals is at stake. Such
delay in criminal matters adversely affects the rights of the victim and creates future
disincentives from filing or pursuing cases, the accused who might be in prison, or
have his liberty and free movement constrained, or at the very least, be living under
the fear of an eventual conviction.

The Inquisitorial system of investigation​ practised in countries such as

Germany and France should be followed. Power for the court to summon any
person, whether or not listed as a witness if it felt necessary- ​Right to silence​: A
modification to Article 20 (3) of the Constitution that protects the accused from
being compelled to be a witness against himself/herself. The court should be given
freedom to question the accused to elicit information and draw an adverse inference
against the accused in case the latter refuses to answer; ​The right of accused​: A
schedule to the Code is brought out in all regional languages to make accused aware
of his/her rights, as well as how to enforce them; ​Presumption of Innocence​:
The courts follow “proof beyond a reasonable doubt” as the basis to convict an
accused in criminal cases which is an unreasonable burden on the prosecution and
hence a fact should be considered as proven “if the court is convinced that it is true”
after evaluating the matters before it. The victim should be allowed to participate in
cases involving serious crimes and also be given adequate compensation; ​Victim
Compensation Fund​: A Victim Compensation Fund can be created under the
victim compensation law and the assets confiscated from organised crimes can be
made part of the fund.

Re-classification of criminal offences​: Criminal offences covered by the

Indian Penal Code (IPC) ought to be re-classified into four comprehensive codes on
the basis of severity and appropriate response for better management of the
criminal justice system-​Social welfare offences code​: Its focus is on reparation
and restitution rather than punishment; ​Correctional offences code​ covering
crimes punishable with up to three years’ imprisonment and/or a fine; ​Penal code
for graver offences​ punishable with jail term beyond three years and even
death; ​An economic offences code​ for select crimes that endanger economic
security under the IPC and other relevant economic laws. ​Each of the proposed
four codes will incorporate the rules of procedure, the nature of trial and
evidence and the types of punishment. The four-fold scheme of reorganising
criminal law and procedure is aimed at better management of the crime scenario.”

Furthermore making confessions made to a senior police officer (SP

rank or above) admissible as evidence. Confessions to police have
repeatedly come under scrutiny because of allegations of custodial
torture, instances of custodial deaths, fake encounters and tampering with
evidence.

Diluting the standard of proof lower than the current ‘beyond reasonable doubt’
standard. Such a measure would have adverse implications on suspects and requires
considerable deliberation. ​Appointing​ more judges and police personnel; ​Improve
investigative skills​: Diluting the proof beyond reasonable doubt precept will prove
to be counterproductive. The onus must be on improving the investigative skills of
police officers, improving the quality of documentation and separating criminal
investigation responsibilities from law and order duties; ​Deploying​ scientific
techniques, beefing up forensic labs, and other infrastructure investments are need
of the hour; ​Audio-visual recording mandatory​:- It can be argued that
audio-visual recordings reduce the space for accused and witnesses to backtrack and
also gives judges the benefit of seeing whether the witness/accused is under duress.

“​ओम ् ​नमो भ
​ गवते ​वासद
ु े वाय”

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