By Sushil Kumar Jain
The recent report on “How to ramp up Capacity in the Lower Judiciary (Chapter 5)” published in Economic Survey, 2019 shows that 3.53 crore cases are pending in Indian courts. More than 70% of these cases are criminal cases. As per the prevailing law in the case of Lalita Kumari vs Government Of Uttar Pradesh, criminal cases shall be registered merely on the basis of allegation made in the FIR or in the complaint supported by oral witness produced by complainant or recorded by police. FIR or criminal complaint are generally drafted by taking legal advice of lawyers. Registration of criminal cases therefore depends on — of lawyers. Sometimes criminal case are lodged as countercases. Example of the same was seen in Vijay Shekhar & Anr Union of India where there a false complaint case was filed by lawyer for just Rs 40,000 against the president of India, Chief Justice of India and others. The magistrate even took cognizance and also issued bailable warrant. The honorable Supreme Court quashed the FIR but subsequently did not remedy the initiation of proceedings on the basis of false FIR. Similar issues are faced by citizens of India and is contrary to article 21 of the constitution of India. Furthermore, the honorable high courts in view of honorable Supreme Court judgement are not exercising inherent power of quashing false complaint cases which leads to harassment of the accused.
This results in large number of false criminal prosecution.
In our country investigating agencies are also not adapting latest scientific investigation techniques and are still using old methods of investigation by recording and relying on oral statement and by interrogating accused in custodial interrogation and collecting material. The police on account of various reasons like public opinion, political pressure, lethargy, incompetency and malafide considerations does not consider or investigate possible defense of the accused at the stage of filling challan. There are cases where even the documents and material submitted by the defense are not included in challan papers.
The honorable supreme court in Union of India v. Prafulla Kumar Samal, has decided that for framing charges the prosecution has to show that there is grave suspicion on the basis of the material submitted by police in challan or the complainant in the complaint along with statement recorded under section 202 of Criminal Procedure Code, 1973. At present criminal litigation has taken over large number of civil disputes. The litigants in order to blackmail and even in time barred cases are resorting to criminal justice forum.
The criminal trial in our country is not only time consuming and hazardous but results in serious restrictions over life and liberty of the individual. As soon as FIR is registered harassment of the individual starts. The police normally arrest the accused in cognizable cases. The accused in such circumstances is always required to take certain steps such as:
- Application for grant of bail which in large number of cases is not granted, merely on account of serious allegations made in FIR/complaint or statement of witness, which may or may not be correct.
- The accused is required to arrange a good lawyer for grant of bail.
- He is required to attend the proceedings of the criminal trial on each date of hearing/proceedings unless seek exemption on reasonable grounds that too on each date hearing.
The honorableSupremeCourt in case of State of Orissa v. Debendra Nath Padhi has overruled the judgement of Satish Mehra v. Delhi Administration. The aforesaid judgement (Padhi) is based on State of Bihar v. Ramesh Singh delivered in 1977 which held “At the time of framing a charge the trial court can consider only the material placed before it by the investigating agency”. Further the judgement in Ramesh Singh has relied on Chandra Deo Singh v. Prakash Chandra Bose delivered in 1963 which held that “even though an accused may have a defenselike that inthe present case that the offence is committed bysome other person, or persons the matter has to be left to be decided by the appropriate forum“ on the basis of prevailing law i.e. Criminal Procedure Code, 1898. In my opinion the honorable Supreme Court by placing reliance on Chandra Deo judgement has ignored the basic difference between scheme and statutory provisions of the old Criminal Procedure Code, 1898 and new Criminal Procedure Code, 1973. In old procedure code, committal proceedings were provided under section 208 which allowed the defense to even lead evidence and to cross examine witness in appropriate cases at the committal stage (i.e. before trial has started). Section 208 reads as following:
208 (1) The magistrate shall, when the accused appears or is brought before him, proceed to hear thecomplainant (if any), and take in manner hereinprovided all such evidence as may be produced in support of the prosecution or in behalf of the accused, or as may be called for by the magistrate
(2) The accused shall be at liberty to cross-examme the Witnesses for the prosecution, and in such case the prosecutor may re-examine them ,
(3) If the complainant or officer conducting the prosecution or the accused, applies to the magistrate to issue process to compel the attendance of any witness or the production of any document or thing, the magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so
(4) Nothing in this section shall be deemed to require a Presidency magistrate to record his reasons
The Criminal Procedure Code, 1898 was preceded by the Criminal Procedure Code, 1882, this code was preceded by the Criminal Procedure Code, 1872 and this code was preceded by first Criminal Procedure Code, 1862. All these criminal procedure codes contained provisions for committal proceedings. Criminal procedure code retained the provisions with regard to committal proceedings from Bengal Code. The First Report Of Her Majesty’s Commissioners Appointed To Consider The Reform Of The Judicial Establishments, Judicial Procedure And Laws Of India. The said commission submitted its report and on page 188 of the said report under chapter “examination of parties and evidence” as part of the “Proposed Code of Procedure for the Courts of Criminal Judicature in Bengal” and observed:
“CXXXVIII. It shall be at the discretion of the magistrate to summon and examine any evidence that may be offered in behalf of the defendant to answer or disprove the evidence against him.
By the existing law of the Bengal Code, the committing officer has a discretion to take evidence on behalf of the accused. There may be cases in which to take the evidence offered by the defendant would be merely to anticipate the trial, while in others it may be required to prevent the unnecessary commitment of the accused. It is therefore proposed to retain the rule in its present form.”
The above article CXXXVIII has been verbatim included in Criminal Procedure Code as section 207.
While enacting the new Criminal Procedure Code, 1973, the parliament did not take care of the aforesaid object of keeping committal proceedingsand did not provide any provisions to safeguard an accused from torturous criminal proceedings even in a case which is ex-facie false. An accused who is not even present at the time of incidence on the spot has to face a criminal trial for years. By the time he gets an opportunity to lead defence which on account of huge pendency of criminal trial becomes meaning less after couple of year. The evidence which could have supported his plea of alibi on account of the gap of duration of time is diminished or lost. For example a person who at the time of incidence was not even present on the spot & was travelling in a train/plane or was travelling abroad, the facts can be proved by calling details of travel for the railways, airport, immigration or telephone calls.The accused on account of lapse of time loses all evidence and as burden lies on the accused to prove his alibi Such delay results in illegal and unfounded conviction. The provision for providing defence at the delayed and protracted trial is very seriously prejudice to the accused. Such procedure is therefore ex-facie unreasonable and contrary to the article 21 of constitution of India as held by the court in the case of Maneka Gandhi v. Union of India at page 283-284:
“7. ……… The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it .would be no procedure at all and the requirement of Article 21 would not be satisfied.”
In the aforesaid case of Maneka Gandhi on page 288the Honourable Supreme Court placed reliance on R.C. Cooper vs Union of India and held that “The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction.
In view of the above, the honourable Supreme Court in the case of Padhi has not considered the original object & reason for continuing committal proceedings in the old Criminal Procedure code which to reduce work in the courts was given removed, without providing safeguards to innocent accused from malicious and vicious trials was later removed in the new Criminal Procedure Code without protecting the rights of innocent accused while not continuing provisions like committal proceedings.
Further, relying on Chandra Deo Singh (which is based on old Criminal Procedure Code,1898) to interpret the new Criminal Procedure Code, 1973 should not have been a guiding factor.
In my view the law laid down in case of Padhi needs reconsideration as the aforesaid change in Criminal Procedure Code,1973 has resulted in denial of defence of the accused at the earliest possible time to save him from protracted and vicious trial. To save the provisions of the new Criminal Procedure Code, 1973, section 227 which contains words like “Hearing the Submissions of the Accused”should be widely interpreted to include even defence by the accused at the time of framing of charges itself. These words used in section 227 of Criminal Procedure Code, 1973 should be interpreted in a wider sense of giving opportunity to the accused even to submit defence documents at the time of framing charges itself. There is no reason why an accused is required to go to High Court under section 482 Criminal Procedure Code, 1973 if the same thing can be allowed at the time framing of charges stage. This procedure will not only help innocent accused from the harassment and financial burden but also result in curbing unnecessary criminal cases consuming courts valuable time upto the framing charges, quashing proceedings & trial in false cases or cases lodged for malafide reasons.
In Santa Singh the honourable court has interpreted the word “hear the accused” used in section 235 Criminal Procedure Code, 1973 in a wider way and allowed materials as part of it and held that Section 235 (2)obviously includes that accused must be given an opportunity of making his representation and for this purpose he may be allowed to place such materials as he may think fit.
Following the said interpretation, at the time of framing of charges the accused should be allowed present material.
The 41st law commission report which recommended the removal of the committal proceedings (chapter 18 of old CrPC), also recommended on page 152 that the public prosecutor to be of higher status with wider range of functions. Following was recommended in para 18.26:
“With the abolition of committal proceedings, it will be the responsibility of. The Public Prosecutor to scrutinise the police report (or “charge-sheet” as it is commonly called) before it is submitted to the Magistrate and to see that a case which, accordingly to the police is exclusively triable by court of sessions, so really so and that there is sufficient evidence to support it. “
The above recommendation has not been enforced with full intent because of which public prosecutor often works as an agent of the investigating agency rather than working independently, which will not only be beneficial to the innocent accused but also will save courts valuable time.
Section 311 of Criminal Procedure Code, 1973 “Power to summon material witness, or examine person present” is available even at the stage of inquiry or other proceedings.The word‘inquiry’used in section 319 Criminal Procedure Code has been interpreted by honourable Supreme Code in Hardeep Singh vs State of Punjab and held that Section 2(g) Code of Criminal Procedure. 1973 and the case laws discussed insaid case clearly envisage inquiry before the actual commencement of the trial, and is an act conducted under Criminal Procedure Code by the Magistrate or the court. Further in the said case it was held that the word ‘inquiry’ is, therefore,is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The Honourable Supreme Court further observed thatthe court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial.
In view of the above law laid down in Hardeep Singh section 311 of Criminal Procedure Code, 1973 should be interpreted to include additional evidence led by the accused even at the stage of framing of charges. Therefore if an accused wishes to lead defence without facing trial, the court should allow him by reading section 227 along with section 311 Criminal Procedure Code, 1973.
Similar to section 311 of current Criminal Procedure Code, 1973 in the old Criminal Procedure Code, 1898 section 540 was there. In this respect the Bombay High Court in the case of Arnunachalam Swami and Ors vs State of Bombay and Anr while considering similar provisions like section 540 read with 207(A) of Criminal Procedure Code, 1898 held thatEven though in the last amended committal proceeding section 207 A of Criminal Procedure Code, 1898 there is no provision giving the accused right to call evidence but said the power under section 540 can be used.“Therefore, it is obligatory upon the Court to summon a person if his evidence is necessary for the just decision of the case, and if the accused makes an application to call a particular witness and if that witness is a material witness and it would help the Magistrate to come to a just decision then undoubtedly under Section 540 not only the Magistrate would have the discretion to call him, but there would be a duty upon him to summon that witness and examine him.
If the aforesaid interpretation of section 227 read with section 311 of Criminal Procedure Code, 1973 is interpreted to include the right of the accused to lead defence then it will not only in large number of cases save the citizens from protracted and vicious trial but will also save valuable time of the court which could be utilized in trial of serious offences pending from years together. If the honourable Supreme Court does not reconsider Padi judgement then the appropriate remedy lies with parliament to suitably amend the law.
-The writer is a Senior Advocate