To start with, it was for the first time that the Government of India, Ministry of Home Affairs constituted a Committee to suggest reforms in our criminal justice system which has been facing repeated criticism for its various drawbacks. This Committee was constituted under the chairmanship of Justice VS Malimath who is the former Chief Justice Justice of Karnataka and Kerala High Court, chairman of Central Administrative Tribunal and member of National Human Rights Commission. Apart from Justice Malimath, the members of the Committee included S Vardachary ( retd IPS ) formerly DGP Rajasthan, Prof ( Dr ) NR Madhava Menon, Vice-Chancellor West Bengal National University of Jurisdical Sciences Kolkata and DV Subba Rao, Advocate, Chairman Bar Council of India with Member Secretary Durgadas Gupta Joint Secretary, Ministry of Home Affairs, Government of India. The Committee after examining various aspects submitted its report ( Vol I ) in March 2003.

Let me for my readers benefit disclose here that the Committee has suggested major reforms in the administration of criminal justice system to put it on the right track. Amongst other things, it considered the tardy investigation, the absence of witnesses, the inordinate delays in the Court's hearings, the cumbersome procedures laid down in the Code of Criminal Procedure, 1973, the lengthy judgments, the paucity of criminal courts and the non-filling of a large number of vacancies of judges. It made a comprehensive and exhaustive review of all wings of criminal justice system. Let me also point out here that the Committee after completing its painstaking efforts submitted its two volume report containing 158 recommendations to the Deputy Prime Minister.

Recommendations

1. Need for reforms:
   It is the duty of the State to protect fundamental rights of the citizens as well as the right to property. The State has constituted the criminal justice system to protect the rights of the innocent and punish the guilty. The system devised more than a century back, has become ineffective ; a large number of guilty go unpunished in a large number of cases ; the system has taken years to bring the guilty to justice and has ceased to deter criminals. Crime is increasing rapidly everyday and various types of crimes are proliferating. The citizens live in constant fear. It is therefore that the Government of India, Ministry of Home Affairs constituted the Committee on Reforms of Criminal Justice System to make a comprehensive examination of all the functionaries of the criminal justice system, the fundamental principles and the relevant laws. The Committee, having given its utmost consideration to the grave problems facing the country, has made its recommendations in its final report, the salient features of which are given below
    
2. Adversarial System:
   The Committee has given its anxious consideration to the question as to whether this system is satisfactory or whether we should consider recommending any other system. The Committee examined in particular the inquisitorial system followed in France, Germany and other continental countries. The Inquisitorial System is certainly efficient in the sense that the investigation is supervised by the judicial magistrate which results in a high rate of conviction. The Committee on balance felt that a fair trial and in particular, fairness to the accused, are better protected in the Adversarial System.
   
   However, the Committee felt that some of the good features of the Inquisitorial System can be adopted to strengthen the Adversarial System and to make it more effective. This includes the duty of the Court to search for truth, to assign a pro-active role to the Judges, to give directions to the Investigating Officers and Prosecution agencies in the matter of investigation and leading evidence with the object of seeking the truth and focusing on justice to victims.
   
   Accordingly the Committee has made the following recommendations:
   1. A preamble shall be added to the Code on the following lines
      :Whereas it is expedient to constitute a Criminal Justice System. For punishing the guilty and protecting the innocent:.
      :Whereas quest for truth shall be the foundation of the Criminal Justice System:.
      Whereas it shall be the duty of every functionary of the Criminal Justice System and everyone associated with it in the administration of justice, to actively pursue the quest for truth:.
   2. A provision on the following lines be made and placed immediately above Section 311 of the Code. :Quest for truth shall be the fundamental duty of every Court.:
       
   3. Section 311 of the Code shall be substituted on the following lines:
      Any Court shall at any stage of any inquiry, trial or other proceeding under the Code, summon any person as witness or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined as it appears necessary for discovering truth in the case.
       
   4. Provision similar to Section 225 to the Code relating to summons trial procedure be made in respect of trial by warrant and sessions procedures, empowering such Court to take into consideration, the evidence received under Section 311 ( new ) of the Code in addition to the evidence produced by the prosecution.
       
   5. Section 482 of the Code be substituted by a provision on the following lines:
      :Every Court shall have inherent power to make such orders as may be necessary to discover truth or to give effect to any order under this Code or to prevent abuse of the process of Court or otherwise to secure the ends of justice.:
       
   6. A provision on the following lines be added immediately below Section 311 of the Code. Power to issue directions regarding investigation:
      :Any Court shall, at any stage of inquiry or trial under this Code, have such power to issue directions to the Investigating Officer to make further investigation or to direct the Supervisory Officer to take appropriate action for proper or adequate investigation so as to assist the Court in search for truth.
       
   7. Section 54 of the Evidence Act be substituted by a provision on the following lines:
      :In criminal proceeding the fact that the accused has a bad character is relevant.:
      Explanation – A previous conviction is relevant as evidence of bad character.
       
3. Right to Silence:
   The right to silence is a fundamental right guaranteed to the citizen under Article 20 ( 3 ) of the Constitution which says that, :No person accused of any offence shall be compelled to be a witness against himself.: As the accused is in most cases the best source of information, the Committee felt that while respecting the right of the accused a way must be found to tap his critical source of information. The Committee feels that without subjecting the accused to any duress, the Court should have the freedom to question the accused to elicit the relevant information and if he refuses to answer, to draw adverse inference against the accused.
   
   At present the participation of the accused in the trial is minimal. He is not even required to disclose his stand and the benefit to special exception to any which he claims. This results in great prejudice to the Prosecution and impedes the search for truth. The Committee has therefore felt that the accused should be required to file a statement to the Prosecution disclosing his stand
   
    
4. Section 313 of the Code may be substituted by the following:
   1. 313-A – In every trial, the Court shall, immediately after the witnesses for the prosecution have been examined, question the accused generally, to explain personally any circumstances appearing in evidence against him
   2. 313-B (1 ) – Without previously warning the accused, the Court may at any stage of trial and shall, after the examination under Section 313-A and before he is called on his defence, put such questions to him as the Court considers necessary with the object of discovering the truth in the case. If the accused remains silent or refuses to answer, the Court may draw such appropriate inference including adverse inference as it considers proper in the circumstances.
   3. 313-C ( 1 ) – No oath shall be administered when the accused is examined under Section 313-A or Section 313-B and the accused shall not be liable to punishment for refusing to answer any question or by giving false answer to them. The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trials for, or any other offence, which such answers may tend to show he has committed.
       
5.  Suitable provisions shall be incorporated in the Code on the following lines:
   1. Requiring the Prosecution to prepare a :Statement of Prosecution: containing all relevant particulars including, date, time, place of the offence, part played by the accused, motive for the offence, the nature of the evidence, oral and documentary, name of witnesses, names and similar particulars or other involved in the commission of the crime, the offence alleged to have been committed and such other particulars as are necessary to fully disclose the prosecution case
   2. Prosecuting statement' shall be served on the accused.
   3. On the charge being framed the accused shall submit the 'Defence Statement' within two weeks. The Court may on sufficient cause being shown extend the time not beyond 4 weeks.
   4. In the defence statement the accused shall give specific reply to every material allegation made in the prosecution statement.
   5. If the accused pleads guilty he need not file the defence statement.
   6. If any reply is general, vague or devoid of material particulars, the Court may call upon the accused to rectify the same within 2 weeks, failing which it shall be deemed that the allegation is not denied.
   7. If the accused is claiming the benefit of any general or special exceptions or the benefit of any exception or proviso, or claims alibi, he shall specifically plead the same, failing which he shall be precluded from claiming benefit of the same.
   8. Form and particulars to be furnished in the prosecution statement and deference statement shall be prescribed.
   9. If in the light of the plea taken by the accused, it becomes necessary for the prosecution to investigate the case further, such investigation may be made with the leave of the court.
6.  
   1. On considering the prosecution statement and the defence statement the Court shall formulate the points of determination that arise for consideration.
   2. The points for determination shall indicate on whom the burden of proof lies.
   3. Allegations, which are admitted or are not denied need not be proved and the Court shall make a record of the same.

4. Rights of Accused
The accused has several rights guaranteed to him under the Constitution and relevant laws. They have been liberally extended by the decisions of the Supreme court. The accused has the right to know all the rights he has, how to enforce them and whom to approach when there is a denial of those rights. The Committee therefore felt that all the rights of the accused flowing from the laws and judicial decisions should be collected and put a schedule to the rights of the accused.
( 11 ) The rights of the accused recognized by the Supreme Court may be subject to the clarification in Chapter 4 and the manner of their protection be made statutory, incorporating the same in a schedule to the Criminal Procedure Code.
( 12 ) Specific provisions in the Code be made prescribing reasonable conditions to regulate handcuffing including provision for taking action for misuse of the power by the police officers.

5. Presumption of Innocence and Burden of Proof
There is no provision in the Indian Evidence Act prescribing a particular or a different standard of proof for criminal cases. However, the standard of proof laid down by our Courts following the English precedents is proof beyond reasonable doubt in criminal cases. In several countries following the Inquisitorial System, the standard is proof on :preponderance of probabilities.: There is a third standard of proof which is higher than :proof on preponderance of probabilities: and lower than :proof beyond reasonable doubt: described in different ways, one of them being :clear and convincing: standard. The Committee, after careful assessment of the standard of proof came to the conclusion that the standard of proof beyond reasonable doubt presently followed in criminal cases should be done away with and recommended in its place a standard to proof lower than that of :proof beyond reasonable doubt: and higher than the standard of :proof on preponderance of probabilities.: The Committee therefore favours a mid level standard of proof of :Courts conviction that it is true.:

Accordingly, the Committee has made the following recommendations:
( 13 ) ( i ) The Committee recommends that the standard of :proof beyond reasonable doubt: presently followed in criminal cases shall be done away with.
( ii ) The Committee recommends that the standard of proof in criminal cases should be higher than :preponderance of probabilities: and lower than :proof beyond reasonable doubt.:
( iii ) Accordingly the Committee recommends that a clause be added in Section 3 on the following lines:
:In criminal cases, unless otherwise provided, a fact is said to be proved when, after considering the matters before it, the Court is convinced that it is true.: ( The clause may be worded in any other way to incorporate the concept in para 2 above.
( iv ) The amendments shall have effect notwithstanding anything contained to the contrary in any judgment, order or decision of any Court.
6. Justice to Victims – An important object of the Criminal Justice System is to ensure justice to the victims, yet he has not been given any substantial right, not even to participate in the criminal proceedings. Therefore, the Committee feels that the system must focus on justice to victims and has, thus, made the following recommendations which include the rights of the victim to participate in cases involving serious crimes and to adequate compensation.
( 14 ) ( i ) The victim, and if he is dead, his legal representative shall have the right to be impleaded as a party in every criminal proceeding where the offence is punishable with 7 years imprisonment or more.
( ii ) In select cases notified by the appropriate government, with the permission of the Court an approved voluntary organization shall also have the right to implead in Court proceedings.
( iii ) The victim has a right to be represented by an advocate of his choice ; provided that an advocate shall be provided at the cost of the State if the victim is not in a position to afford a lawyer.
( iv ) The victim's right to participate in criminal trial shall, inter alia, include:
( a ) To produce evidence, oral or documentary, with leave of the Court and / or to seek directions for production of such evidence.
( b ) To ask questions to the witnesses or to suggest to the Court questions which may be put to witnesses.
( c ) To know the status of investigation and to move the Court to issue directions for further investigation on certain matter or to a supervisory officer to ensure effective and proper investigation to assist in the search for truth.
( d ) To be heard in respect of the grant or cancellation of bail.
( e ) To be heard whenever prosecution seeks to withdraw and to offer to continue the prosecution.
( f ) To advance arguments after the prosecution has submitted arguments.
( g ) To participate in negotiations leading to settlement of compoundable offences.
( v ) The victim shall have a right to prefer an appeal against any adverse order passed by the Court acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting, inadequate compensation. Such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.
( vi ) Legal services to victims in select crimes may be extended to include psychiatric and medical help, interim compensation and protection against secondary victimization.
( vii ) Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted. This is to be organized in a separate legislation by Parliament. The draft bill on the subject submitted to Government in 1995 by the Indian Society of Victimology provides a tentative framework for consideration.
( viii ) The Victim Compensation Law will provide for the creation of a Victim Compensation Fund to be administered possibly by the Legal Services Authority. The law should provide for the scale of compensation in different offences for the guidance of the Court. It may specify offences in which compensation may not be granted and conditions under which it may be awarded or withdrawn.
It is the considered view of the Committee that criminal justice administration will assume a new direction towards better and quicker justice once the rights of victims are recognized by law and restitution for loss of life, limb and property are provided for in the system. The cost for providing it is not exorbitant as sometimes made out to be with increase in quantum of fine recovered. Diversion of funds generated by the justice system and soliciting public contribution, the proposed victim compensation fund can be mobilized at least to meet the cost of compensating victims of violent crimes. Even if part of the assets confiscated and forfeited in organised crimes and financial frauds is made part in the fund and if it is managed efficiently, there will be no paucity of resources for this well conceived reform. In any case, dispensing justice to victims cannot any longer be ignored on grounds of scarcity of resources.
7. Investigation – The machinery of criminal justice system is put into gear when an offence is registered and then investigated. There can be no gainsaying that a prompt and quality investigation is therefore the foundation of the effective criminal justice system. Police are employed to perform multifarious duties and quite often the important work of expeditious investigation gets relegated in priority. A separate wing of investigation with clear mandate that it is accountable only to rule of law is the need of the day.

Most of the laws, both substantive as well as procedural, were enacted more than 100 years back. It is to be noted that criminality has undergone a tremendous change qualitatively as well as quantitatively. Therefore, the apparatus designed for investigation has to be equipped with laws and procedures to make it functional in the present context. If the existing challenges of crime are to be met effectively, not only does the mindset of investigators need a change, they also have to be trained in advanced technology, knowledge of changing economy, new dynamics of social engineering, efficacy and use of modern forensics etc. Investigation agency is understaffed, ill equipped and therefore the gross inadequacies in basic facilities and infrastructure also need attention on priority. There is need for the law and the society to trust the police and the police leadership to ensue improvement in their credibility.

In the above back drop following recommendations are made:
( 15 ) The Investigation Wing should be separated from the Law and Order Wing.
( 16 ) National Security Commission and the State Security Commissions at the State level should be constituted, as recommended by the National Police Commission.
( 17 ) To improve quality of investigation the following measures shall be taken:
( i ) The post of an Additional SP may be created exclusively for supervision of crime.
( ii ) Another Additional SP in each district should be made responsible for collection, collation and dissemination of criminal intelligence, maintenance, an analysis of crime data and investigation of important cases.
( iii ) Each State should have an officer of the IGP rank in the State Crime Branch exclusively to supervise the functioning of the Crime Police. The Crime Branch should have specialized squads for organized crime and other major crimes.
( iv ) Grave and sensational crimes having inter-state and transnational ramifications should be investigated by a team of officers and not by a single I.O.
( v ) The Sessions cases must be investigated by the senior most police officer posted at the police station.
( vi ) Fair and transparent mechanisms shall be set up in place where they do not exist and strengthened where they exist, at the District Police Range and State level for redressal of public grievances.
( vii ) Police Establishment Boards should be set up at the police headquarters for posting, transfer and promotion etc., of the District level officers.
( viii ) The existing system of Police Commissioner's officer which is found to be more efficient in the matter of crime control and management shall be introduced in the urban cities and towns.
( ix ) The burden of investigation placed by certain statutes on the Deputy SP level officers be reduced so that they can devote sufficient time to effectively supervise the investigation by subordinate officers.
( x ) Criminal cases should be registered promptly with utmost promptitude by the SHOs.
( xi ) Stringent punishment should be provided for false registration of cases and false complaints. Section 182 / 211 of IPC be suitably amended.
( xii ) Specialised Units / Squads should be set up at the State and District level for investigating specified category crimes.
( xiii ) A panel of experts be drawn from various disciplines such as auditing, computer science, banking, engineering and revenue matters etc., at the State level from whom assistance can be sought by the Investigating Officers.
( xiv ) With emphasis on compulsory registration of crime and removal of difference between non-cognizable and cognizable offences, the work load of investigation agencies would increase considerately. Additionally, some investigation would be required to be done by a team of investigators. For ending the existing pendency and for prompt and quality investigation increase in the number of Investigation Officers is of utmost importance. It is recommended that such number be increased at least two fold during the next three years.
( xv ) Similarly for ensuring effective and better quality of supervision of investigation, the number of supervisory officers ( additional SPs / Deputy SP ) should be doubled in next three years.
( xvi ) Infrastructure facilities available to the Investigating Officers specially in regard to accommodation, mobility, connectivity, use to technology, training facilities etc., are grossly inadequate and they need to be improved on top priority. It is recommended a five year rolling plan be prepared and adequate funds are made available to meet the basic requirements of personnel and infrastructure of the police.
( 18 ) The training infrastructure, both at the level of Central Government and State Governments, should be strengthened for imparting state-of-the-art training to the fresh recruits as also to the in-service personnel. Hard-picked officers must be posted in the training institutions and they should be given adequate monetary incentive.
( 19 ) Law should be amended to the effect that the literate witness signs the statement and illiterate one puts his thumb impression thereon. A copy of the statement should mandatorily be given to the witness.
( 20 ) Audio / video recording of statements of witnesses, dying declarations and confessions should be authorized by law.
( 21 ) Interrogation Centres should be set up at the District Headquarters in each District, where they do not exists, and strengthened where they exist, facilities like tape recording and / or videography and photography etc.
( 22 ) ( i ) Forensic Science and modern technology must be used in investigations right from the commencement of investigations. A cadre of Scene of Crime Officers should be created for preservation of scene of crime and collection of physical evidence therefrom.
( ii ) The network of CFSLs and ESLs in the country needs to be strengthened for providing optimal forensic cover to the investigating officers. Mini FSLs and Mobile Forensic Units should be set up at the District / Range level. The Finger Print Bureaux and the FSLs should be equipped with well trained manpower in adequate numbers and adequate financial resources.
( 23 ) Forensic Medico-Legal Services should be strengthened at the District and the State Central level, with adequate training facilities at the State / Central level for the experts doing medico-legal work. The State Government must prescribe time frame for submission of medico-legal reports.
( 24 ) A mechanism for coordination amongst investigators, forensic experts and prosecutors at the State and District level for effective investigations and prosecutions should be devised.
( 25 ) Preparation of Police Briefs in all grave crimes must be made mandatory. A certain number of experienced Public Prosecutors must be set a part in each District to act as Legal Advisors to the District Police for this purpose.
( 26 ) An apex Criminal Intelligence Bureau should be set up at the national level for collection, collation and dissemination of criminal intelligence. A similar mechanism may be devised at the State, District and police station level.
( 27 ) As the Indian Police Act, 1861, has become outdated a new Police Act must be enacted on the pattern of the draft prepared by the National Police Commission.
( 28 ) Section 167 ( 2 ) of the Code be amended to increase the maximum period of police custody to 30 days in respect of offences punishable with sentence of more than seven years.
( 29 ) Section 167 of the Code which fixes 90 days for filling charge sheet failing which the accused is entitled to be released on bail be amended empowering the Court to extend the same by a further period up to 90 days if the Court is satisfied that there was sufficient cause, in cases where the offence is punishable with imprisonment above seven years.
( 30 ) A suitable provision be made to enable the police take the accused in police custody remand even after the expiry of the first 15 days from the date of the arrest subject to the condition that the total period of police custody of the accused does not exceed 15 days.
( 31 ) A suitable provision be made to exclude the period during which the accused is not available for investigation on grounds of health etc., for computing the permissible period of police custody.
( 32 ) Section 438 to the Code regarding anticipatory bail be amended to the effect that such power be exercised only by the Court of competent jurisdiction only after giving the Public Prosecutor an opportunity of being heard.
( 33 ) Section 161 of the Code be amended to provide that the statements by any person to a Police Officer should be recorded in the narrative or question and answer form.
( 34 ) In cases of offences where sentence is more than seven years it may also be tape / video recorded.
( 35 ) Section 162 be amended to require that it should then be read over and got signed by the maker of the statement and a copy furnished to him.
( 36 ) Section 162 of the Code should also be amended to provide that such statements can be used for contradicting and corroborating the maker of the statements.
( 37 ) Section 25 of the Evidence Act may be suitably amended on the lines of Section 32 of POTA-2002 that a confession recorded by the Superintendent of Police or officer above him and simultaneously audio / video recording is admissible in evidence subject to the condition the accused was informed of his right to consult a lawyer.
( 38 ) Identification of Prisoners Act, 1920 be suitably amended to empower the Magistrate to authorize taking from the accused finger prints, foot prints, photographs, blood sample for DNA, Finger printing, hair, saliva or semen etc., on the lines of Section 27 of POTA-2002.
( 39 ) A suitable provision be made on the lines of Sections 36 to 48 of POTA-2002 for interception of wire, electric or oral communication for prevention or detection of crime.
( 40 ) Suitable amendments be made to remove the distinction between cognizable and non-cognizable offences in relation to the power of the police to investigate offences and to make it obligatory on the Police Officer to entertain complaints regarding commission of all offences and to investigate them.
( 41 ) Refusal to entertain complaints regarding commission of any offences shall be made punishable.
( 42 ) Similar amendments shall be made in respect of offences under special laws.
( 43 ) A provision in the Code be made to provide that no arrest shall be made in respect of offences punishable with fine as an alternative to sentence of imprisonment.
( 44 ) In the schedule to the Code for the expression :cognizable:, the expression :arrestable without warrant: and for the expression :arrestable with warrant or order: shall be substituted.
( 45 ) The Committee recommended for the review and re-enactment of the IPC, Cr PC and Evidence Act may take a holistic view in respect to punishment, arrestability and bailability.
( 46 ) Consequential amendments shall be made to the First Schedule in the column relating to bailability in respect of offences for which the Committee has recommended that no arrest shall be made.
( 47 ) Even in respect of offences which are not arrestable, the police should have power to arrest the person when he fails to give his name and address and other particulars to enable the police to ascertain the same. Section 42 of the Code be amended by substituting the word :any: for the words :of non-cognizable:.
( 48 ) As the Committee has recommended removal of distinction between cognizable and non-cognizable offences, consequential amendments shall be made.
( 49 ) The First Schedule to the Code be amended to provide only the following particulars –
( i ) Section
( ii ) Offence
( iii ) Punishment
( iv ) No arrest / arrestable with warrant or order / arrestable without warrant or order.
( v ) Bailable or non-bailable
( vi ) Compoundable or non-compoundable
( vii ) Triable by what Court
Consequential amendments shall be made to part II of the First Schedule in respect of offences against other laws.
( 50 ) Rights and duties of the complainant / informant, the victim, the accused, the witnesses and the authorities to whom they can approach with their grievances should be incorporated in separate Schedules to the Code. They should be translated in the respective regional language and made available free of cost to the citizens in the form of easily understandable pamphlets.
( 51 ) Presence of witnesses of the locality or other locality or neighbourhood is required under different provisions of the existing laws. The Committee recommends that such provisions be deleted and substituted by the words :the police should secure the presence of two independent witnesses.:
8. Prosecution – Prosecutors are the officers of the Court whose duty is to assist the Court in the search of truth which is the objective of the criminal justice system. Any amount of good investigation would not result in success unless the institution of prosecution has committed persons of merit with foundation of a well structured professional training. This important institution of the criminal justice system has been weak and some what neglected. Its recruitment, training and professionalism need special attention so as to make it synergetic with other institutions and effective in delivering good results. The following recommendations are made in this regard –
( 52 ) ( i ) In every State, the post of the Director of Prosecution should be created, if not already created, and should be filled up from among suitable police officers of the rank of DGP in consultation with the Advocate General of the State.
( ii ) In State where the term of the existing incumbents comes to an end, such appointments shall be made, after the expiry of the term.
( 53 ) The Assistant Public Prosecutors and Prosecutors ( other than the State Public Prosecutor in the High Court ) shall be subject to the administrative and disciplinary control of the Director of Prosecutions.
( 54 ) The duties of the Director, inter alia, are to facilitate effective coordination between the investigation and prosecuting officers and to review their work and meeting with the Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors from time to time for that purpose.
( 55 ) The Director must function under the guidance of the Advocate General.
( 56 ) ( i ) All appointments to APPs shall be through competitive examination held by the Public Service Commission having jurisdiction.
( ii ) 50 % of the vacancies in the posts of Public Prosecutors or Additional Public Prosecutors at District level in each State shall be filled up by selection and promotion on seniority- cum- merit from the APPs.
(iii ) Remaining 50 % of the posts of Public Prosecutors or Additional Public Prosecutor shall be filled by selection from a panel prepared in consultation with District Magistrates and District Judges.
( iv ) No person appointed as APP or promoted as Public Prosecutor shall be posted in the home district to which he belongs or where he was practicing.
( v ) Public Prosecutors appointed directly from the Bar shall hold office for a period of three years. However, the state may appoint as Special Public Prosecutor any member of the Bar for any class or cases for a specified period.
( vi ) In appointing to various offices of Public Prosecutors and Assistant Public Prosecutors sufficient representation shall be given to women.
( 57 ) Assistant Public Prosecutors should be given intensive training, both theoretical and practical. Persons in service should be given periodical in-service training.
( 58 ) To provide promotional avenues and to use their expertise, posts be created in institutions for training for Prosecutors and Police Officers.
( 59 ) To ensure accountability, the Director must call for reports in all cases that end in acquittal, from the Prosecutor who conducted the case and the Superintendent of Police of the District.
( 60 ) All prosecutors should work in close cooperation with the Police Department and assist in the speedy and efficient prosecution of criminal cases and render advice and assistance from time to time for efficient performance of their duties.
( 61 ) The Commissioner of Police / District Superintendent of Police may be empowered to hold monthly review meeting of PPs / Additional PPs and APPs for ensuring proper coordination and satisfactory functioning.
( 62 ) Provision may be made for posting Public Prosecutor / Senior Assistant Public Prosecutors at the Commissionerate / District Superintendent officer for rendering legal advice.
9. Courts and Judges – There is gross inadequacy of Judges to cope up with the enormous pendency and new inflow of cases. The existing judge-population ratio in India is 10.5: 13 per million population as against 50 judges per million population in the many parts of the world. The Supreme court has given direction to all the States to increase the Judge strength by five times in a phase manner within the next five years. The vacancies in the High Courts have remained unfilled for years. This must be remedied quickly.
The Committee is deeply concerned about the deterioration in the quality of Judge appointed to the Courts at all levels. The constitution of a National Judicial Commission being considered at the national level to deal with appointment of the Judges to the High Courts and the Supreme Court and to deal with complaints of misconduct against them. The mere entrustment of the power of appointment to the National Judicial Commission will not ensure appointment of competent and upright Judges. We need a process to ensure objectively and transparency in this behalf. This requires Judges. We need a precise qualification experience, qualities and attributes that are needed to in a good judge and also the prescription of objective criteria to apply to the overall background of the candidate. The analysis discussions preceding their recommendations should be recorded so as to ensure objectivity and transparency in the matter of selecting the candidates.
There are also complaints of serious aberrations in the conduct of the judges. Under Article 235 of the Constitution, the High Court can exercise supervision and control over the Subordinate Courts. There is no such power conferred either on the Chief Justice of the High Court or the Chief Justice of India, or the Supreme Court of India. The provisions regarding impeachment are quite difficult to implement. It is felt that the Chief Justice should be conferred certain powers to enforce discipline and to take some corrective or advisory measures against his colleagues whenever aberrations in their conduct come to notice.
The Committee also feels that criminal work is highly specialized and to improve the quality of justice only those who have expertise in criminal work should be appointed and posted to benches to deal exclusively with criminal work. As the available expertise at all levels found to be woefully inadequate the committee feels that suitably tailored intensive training, including practical programme should be devised and all the judges given training not only at the induction time but also in service at frequent intervals. To achieve these objectives, the following recommendations are made:
( 63 ) ( i ) Qualifications prescribed for appointment of Judges at different levels should be reviewed to ensure that highly competent Judges are inducted at different level.
( ii ) Special attention should be paid to enquire into the background and antecedent of the persons appointed to Judicial Officers to ensure that persons of proven integrity and character are appointed.
( 64 ) Intensive training should be imparted in theoretical, practical and in Court management to all the judges.
( 65 ) ( i ) In the Supreme Court and High Courts, the respective Chief Justice should constitute a separate criminal division consisting of such number of criminal benches as may be required consisting of Judges who have specialized in criminal law.
( ii ) Such judges should normally be continued to deal with criminal cases until they demit office.
( iii ) Vacancies in the criminal divisions should be filled up by appointing those who have specialized knowledge to criminal law.
( 66 ) In the subordinate Courts where there are more judges of the same cadre at the same place, as far as possible assigning of civil and criminal cases to the same Judge every day should be avoided.
( 67 ) In urban areas where there are several trial Courts some Courts should have lady judges who should be assigned as far as possible criminal cases relating to woman.
( 68 ) A high power should be constituted to lay down the qualifications, qualities and attributes regarding character and integrity that the candidate for the High Court Judgeship should possess and specify the evidence or material necessary to satisfy these requirement. Reasons should be recorded with reference to these criteria by the selecting authority.
( 69 ) The Chief Justice of the High Court may be empowered on the lines of US Judicial Councils Reforms and Judicial Conduct and Disabilities Act, 1980 to do the following:
( i ) Advice the judge suitably.
( ii ) Disable the judge hearing a particular class or cases.
( iii ) Withdrawing judicial work for a specified period.
( iv ) Censure the judge.
( v ) Advise the judge to seek voluntary retirement.
( vi ) Move the Chief Justice of India to advise the Judge or initiate action for impeachment.
( 70 ) The Chief Justice of the High Court may issue circulars:
A. That immediately below the cause title of the judgment order the following particulars shall be entered:
( i ) Date of conclusion of arguments.
( ii ) Date of reserving the judgment.
( iii ) Date of pronouncement of the judgment.
( iv ) At the bottom of the judgment the following particulars shall be entered –
( a ) Date when the dictation was completed.
( b ) Date when typing was completed and placed before the judge.
( c ) The date when the judge signed.
B. The Court Officer shall enter in a separate register:
( i ) The time when the judge assembled.
(ii ) The time when the judge rose.
( iii ) Copy of this record shall be sent to the chief Justice on the same day and put up on the notice board.
( 71 ) The Committee recommends that the law commission's consultation paper on case management be accepted and the proposals carried out without any delay.
10. Trial Procedure – The Committee is concerned with enormous delay in decision making particularly in Courts. At present, a large number of cases in which punishment is two years and less are tried as summons cases. The summary procedure prescribed by Section 262 to 264 of the Code if exercised properly, would quicken the pace of justice considerably. However, the number of cases which are presently tried summarily is quite small and maximum punishment that can be given after a summary trial is three months. In order to speed up the process, the Committee feels that all cases in which punishment is three years and below should be increased to three years. At present only specially empowered Magistrate can exercise summary powers which Committee feels should be given to all the Judicial Magistrates First Class.
Section 206 of the Code prescribed the procedure for dealing with 'petty offences'. This provision empowers the Magistrates to specify in the summons the fine which the accused should pay if he pleads guilty and to send the fine amount along with his reply to the Court. This procedure is simple and convenient to the accused, as he need not engage a lawyer nor appear before the Court if he is not interested in contesting the case. However, the definition of the expression 'petty offences' restricts to those offences punishable only with fine not exceeding Rs. 1,000. In order to give benefit of this provision to large number of accused the Committee has favoured suitable modification of the expression 'petty offences'. Hence the following recommendations are made:
( 72 ) ( i ) Section 260 of the Code be amended by substituting the word :shall: for the words :may if he think fit:.
( ii ) Section 260 ( 1 ) ( c ) of the code be amended empowering any Magistrate First Class to exercise the power to try the cases summarily without any special empowerment in this behalf by the High Court.
( iii ) The limit of Rs. 200 fixed for the value of property under Section 260 ( 1 ) ( c ) ( ii, iii, iv ) be enhanced to Rs. 5,000.
( 73 ) ( i ) Section 262 ( 2 ) be amended to enhance the power of sentence of imprisonment from three months to three years.
( ii ) Section 2 ( x ) be amended by substituting the word :three: for the word :two:.
( 74 ) That all Magistrates shall be given intensive practical training to try cases following the summary procedure.
( 75 ) Section 206 be amended to make it mandatory to deal with all petty cases in the manner prescribed in sub-section ( 1 0.
( 76 ) ( i ) In the proviso to sub-section ( 1 ) the fine amount to be specified in the summons shall be raised to Rs. 2,000.
( ii ) Notice to the accused under Section 206 shall be form No. 30-A and the reply of the accused shall be in form No. 30-B as per annexures.
( 77 ) In sub-section ( 2 ) of Section 206 the limit relating to fine be raised to Rs. 5,000.
( 78 ) ( i ) Sub-section ( 3 ) shall be suitably amended to empower every Magistrate to deal with cases under sub-section ( 1 ). Offences which are compoundable under Section 320 or any offence punishable with imprisonment for a term not exceeding one year or with fine or with both.
( ii ) ( a ) Section 62 of the Code be amended by deleting reference to the need for rules by State Government for alternate modes of service.
( b ) In Section 69 before the :witness: the words :accused or: be added wherever the word :witness: occurs.
11. Witnesses and Perjury – The Prosecution mainly relies on the oral evidence of the witnesses for proving the case against the accused. Unfortunately there is no dearth of witnesses who come to the Courts and give false evidence with impunity. This is a major cause of the failure of the system. The procedure prescribed for taking action against perjury is as cumbersome as it is unsatisfactory. Many witnesses give false evidence either because of inducement or because of the threats to him or his family members. There is no law to give protection to the witnesses subject to such threats, similar to witness protection laws available in other countries.
Unfortunately the witnesses are treated very shabbily by the system. There are no facilities for the witnesses when they come to the Court. They have to wait for long period often their cross-examination is unreasonable and occasionally rude. They are not given their TA / DA promptly. The witness are not treated with due courtesy and consideration, nor are they protected. Witnesses are required to come to the Court unnecessarily and repeatedly as a large number of cases posted and adjourned on frivolous grounds. To overcome the problems, the Committee has made the following recommendations:
( 79 ) ( i ) Witness who comes to assist the Court should be treated with dignity and shown due courtesy. an official should be assigned to provide assistance to him.
( ii ) Separate place should be provided with proper facilities such as seating, resting, toilet, drinking water etc., for the convenience of the witnesses in the Court premises.
( 80 ) Rates of travelling and other allowance to the witness should be reviewed so as to compensate him for the expenses that he incurs. Proper arrangements should be made for payment of the allowances due to the witness on the same day when the case is adjourned without examining the witness he should be paid TA and DA the same day.
( 81 ) A day should be enacted for giving protection to the witnesses and their family member on the lines of the laws in USA and other countries.
( 82 ) Courts should list the cases in such a manner as to avoid the witnesses being required to come again and again for giving evidence. The trial should proceed on day-to-day basis and granting of adjournments should be avoided. The Judge should be held accountable for any lapse in this behalf. High Court should ensure due compliance through training and supervision.
( 83 ) Evidence of experts falling under Sections 291, 292 and 293 of the Court may as far as possible received under affidavit.
( 84 ) DNA experts should be included in sub-section 4 of Section 293 of the Code.
( 85 ) The witness should be provided a seat for him to sit down and give evidence in Court.
( 86 ) The Judge should be vigilant and regulate cross-examination to prevent the witness being subjected to harassment, annoyance or indignity. This should be ensured through training and proper supervision by the High Courts.
( 87 ) (i ) Section 344 to the Code may be suitably amended to require the Court to try the case summarily once it forms the opinion that the witness has knowingly or willfully given false evidence or fabricated false evidence with the intention that such evidence should be used in such proceeding.The expedient in the interest of justice that the witnesses should be tried summarily for giving or fabricating as the case may be, false evidence shall be deleted.
( ii ) The Committee recommends that the punishment of three months or fine up to Rs 500 or both should be enhanced to imprisonment of two years or fine up to Rs. 1,000 or both.
( iii ) Sub-section 3 may be suitably amended to the effect that if the Court of Session or Magistrate of First Class disposing the judicial proceeding is, however, satisfied that it is necessary and expedient in the interest of justice that the witness should be tried and punished following the procedure prescribed under Section 340 of the Code, it shall record a finding to that effect and proceed to take further action under the said provision. Section 341 providing for appeal is unnecessary and shall be deleted.
( 88 ) As the oath or affirmation administered to the witnesses has become an empty formality and does not act as a deterrent against making false statements by the witnesses, it is recommended that a provision should be incorporated requiring the Judge administering the oath or affirmation to caution the witness that he is duty bound under section 8 of the Oaths Act to speak the truth and that if he makes a false statement in violation of the oath or affirmation that has been administered to him, the Court has power to punish him for the offence of perjury and also to inform him of the punishment prescribed for the said offence.
( 89 ) It is further recommended that the High Court may impress upon the subordinate Courts of their duty to resort to those provisions to curb the menace of perjury, through training and calling for periodic reports.
12. Vacation for Court – In view of the large pendency and mounting arrears of criminal cases, the long vacations for the High Courts and Supreme Court in the larger public interest, the Committee feel that there should be a reduction of the vacations. Hence, the following recommendations made:
( 90 ) ( i ) The working days of the Supreme Court be raised to 206 days.
( ii ) The working days of the High Courts be raised to 231 days.
( iii ) Consequently the Supreme Court and the High courts shall reduce vacations by 21 days on the increase in their working days.
13. Arrears Eradication Scheme – The recommendations made by the Committee in this report would help in reducing arrears and speeding up the trials ; but to tackle the huge arrears a complementary strategy is recommended. Government of India, Ministry of Law and Justice has created a :Fast Track Courts: scheme for dealing with sessions cases. Though the scheme is good it is beset with many practical problems besides being limited to dealing with sessions cases. The Committee is in favour of working out an :Arrears Eradication Scheme: for the purpose of tackling the cases that are pending for more than 2 years on the appointed day.
To carry out the scheme, the Committee feels that a retired Judge of a High Court who is known for effective and expeditious disposal of criminal cases, should be put in charge of the Arrears Eradication Scheme as the sitting Judges may not find the time for it. Hence the following recommendations are made:
( 91 ) Arrears Eradications scheme should be framed on lines suggested in the section :Arrears Eradication Scheme:.
( 92 ) There should be a cell in the High Court whose duty shall be to collect and collate information and particulars from all the subordinate Courts in regard to cases pending in the respective Courts for more than two years, so identify the cases among them which can be disposed of summarily under Section 262 of the Code or as per petty cases under Section 206 of the Code and cases which can be compounded with or the leave of the Court.
( 93 ) On the coming into the force of the scheme, arrangements shall be made for sending all the compoundable cases to the Legal Service Authority for settling those cases through Lok Adalats on priority basis.
( 94 ) The Courts constituted under the Arrears Eradication Scheme shall dispose off cases on priority basis. The arrears of cases triable under Section 262 and under section 206 shall be disposed off expeditiously.
( 95 ) The Courts constituted under the Arrears Eradication Scheme shall dispose of the cases expeditiously.
( 96 ) A case taken up for hearing should be heard on a day-to-day basis until conclusion. Only such number of cases as can be conveniently disposed of shall be posted for hearing every day as far as possible in consultation with the concerned lawyers.
( 97 ) Once the case is posted for hearing it shall not be adjourned. If under special circumstances a case is required to be adjourned, it should be done for reasons to be recorded in writing subject to payment of costs and also the amount of expenses of the witnesses. The Court in its discretion shall award costs to the other party or direct that the same shall be credited to the victim compensation fund if one is constituted.
( 98 ) The ( retired ) Judge in charge of the Arrears Eradication Scheme shall make an estimate of the number of additional Courts required to be constituted for eradication of the arrears at each place including the requirement of staff, number of Public Prosecutors and other infrastructure required and move the concerned authorities to appoint them.
( 99 ) The High Court shall take effective measures to ensure that the current cases are disposed of expeditiously and that no current cases would be pending for more than two years. Additional Courts, if needed for this purpose, should be sanctioned expeditiously.
14. Offences, Sentences, Sentencing and Compounding – Since the IPC was enacted in the year 1860, many developments have taken place, new forms of crimes have come into existence, punishments for some crimes are proving grossly inadequate and the need for imposing only fine as a sentence for smaller offences is felt. Variety of the punishments prescribed is limited. Thus, there is need to have new forms of punishments such as community service, disqualification from holding public offices, confiscation orders, imprisonment for life without commutation or remission etc. Hence the Committee is in favour of reviewing the IPC.
The IPC prescribes only the maximum punishments for the offences and in some cases minimum punishment is also prescribed. The Judge exercise wide discretion within the statutory limits. There are no statutory guidelines to regulate his discretion. Therefore in practice there is much variance in the matter of sentencing. There is no clear indication as to what are all factors that should be taken into account in the matter of assessing the sentences to be imposed. In many countries there are laws prescribing sentencing guidelines. The Committee is therefore in favour of a permanent Statutory Committee being constituted for the purpose of prescribing sentencing guidelines. As the fines were prescribed more than a century ago and value of the rupee has since gone up considerably, the Committee feels that it should be suitably enhanced.
The Committee feels the practice of jailing women pregnant or having child is cruel and most unreasonable. To virtually to put the innocent child in prison for no fault of the child will also affect his future life. Therefore pregnant women or women with child ( below 7 years ) should, instead of being sent to prison, be ordered to be under house arrest. This, the Committee feels is not a charity but the legitimate right of the unborn and young children.
The Committee feels that the law should lean in favour of settlement of cases without trial, where the interest of the society is not involved. The law commission has already made its recommendations on this. The implementation of the law commission recommendations with the inclusion of more offences in the category of cases can be compounded is recommended.
( 100 ) The Committee recommends that wherever fine is prescribed as one of the punishments, suitable amendments shall be made to increase the fine amount by fifty times.
( 101 ) In respect of offences for which death is a punishment, the sentences for :imprisonment for life without commutation or remission: be prescribed as an alternative sentences. Suitable amendments shall be made to make it clear that when such punishment is imposed, the Government is precluded from commuting or remitting the sentences.
( 102 ) When a pregnant woman or one having a child below 7 years of age is sentenced to any term of imprisonment, a provision shall be made to give effect to the sentence by directing that she shall remain under house arrest during that period. Similar provisions shall be made in respect of such women who are remanded to judicial custody.
( 103 ) IPC empowers the Court to prescribe the sentence of imprisonment when the accused commits default in payment of fine. The Committee recommends that a suitable provision should be made empowering the Court to prescribe, as an alternative to default sentence, community service for a specified time.
( 104 ) The Committee recommends that a statutory Committee be constituted to lay down sentencing guidelines to regulate the discretion of the Court in imposing sentences for various offences under the IPC and Special Local Laws under the Chairmanship of a former Judge of the Supreme Court or a retired Chief Justice of a High Court.
( 105 ) The Committee recommends review of the Indian Penal Code to consider enhancement, reduction or prescribing alternative modes of punishments, creating new offences in respect of new and emerging crimes and prescribing new forms of punishments wherever appropriate and including more offences in the category or compoundable offences and without leave of the Court.
( 106 ) The Committee recommends implementation of 142nd and 154th reports of the Law Commission of India in regard to settlement of cases without trial.
15. Reclassification of Offences – It is recommended that non-cognizable offences should be registered and investigated and arrestability shall not depend on cognizability. The present classification has further lost its relevance. However, the Committee feels that when reviewing the Indian Penal Code it may be examined whether it would be helpful to make a new classification into ( i ) The Social Welfare Code, ( ii ) The Correctional Code, ( iii ) The Criminal code and ( iv ) Economic and other offences Code. Hence, it made the following recommendations:
( 107 ) To remove the distinction between cognizable and non-cognizable offences and making it obligatory on the police officer to investigate all offences in respect of which a complaint is made. This is discussed in the chapter on :Investigation:.
( 108 ) Increasing the number of cases falling within the category of cases triable by following the summary procedure prescribed by Sections 262 to 264 of the Code in respect of which recommendations have been made in the section dealing with :Trial Procedure:.
( 109 ) Increasing the number of cases falling within the category of cases triable by following the summary procedure prescribed by Section 206 of the Code which has been discussed in the section dealing with :Trial Procedure:.
Report of the Committee on Reforms of Criminal Justice System
( 110 ) Increasing the number of offences for which no arrest shall be made, which has been discussed in the section dealing with :Investigation:.
( 111 ) Increasing the number of offences where arrest can be made only with the order of the Court and reducing the number of cases where arrest can be made without an order or warrant from the Magistrate, which has been discussed in the section dealing with :Investigation:.
( 112 ) Increasing the number of offences which are bailable and reducing the number of offences which are not bailable as discussed in the section dealing with :Investigation:.
( 113 ) Increasing the number of offences that can be brought within the category of compoundable / settlement category discussed in section dealing with :Sentences and Sentencing:.
( 114 ) The Committee recommends a comprehensive review of the Indian Penal Code, the Evidence Act and the Criminal Procedure Code by a broad based Committee representing the functionaries of the criminal justice system, eminent men and women representing different schools of thoughts, social scientists and vulnerable sections of the society and to make recommendations to the Parliament for stronger and progressive laws for the country.
16. Offences Against Women – There are several shortcomings or aberrations in dealing with the offences against women, which need to be addressed. The Committee feels that a man who marries for a second time during the subsistence of the first wife should not escape his liability to maintain his second wife under Section 125 of the Cr PC on the grounds that the second marriage is neither lawful nor valid.
The Supreme court has held that, for proving bigamy, it is to be established that the second marriage was performed in accordance with the customary rites of either parties under the personal laws, which is not easy to prove. Therefore, the Committee feels that evidence regarding a man and woman living together for a reasonably long period should be sufficient to draw the presumption that the marriage was performed according to the customary rites of the parties.
As a man can be punished under Section 497 of IPC for adultery, for having sexual intercourse with a wife of another man it stands to reason that a woman should likewise be punished if she has sexual intercourse with another married man.
There is a general complaint that Section 498A of the IPC regarding cruelty by the husband or his relatives is subjected to gross misuse and many times operates against the interest of the wife herself. This offence is non-bailable and non-compoundable. Hence husband and other members of the family are arrested and can be behind the bars, which may result in husband losing his job. Even if the wife is willing to condone and forgive the lapse of the husband and live in matrimony, this provision comes in the way of spouse returning to the matrimonial home. This hardship can be avoided by making the offence bailable and compoundable.
As instances of non-penile penetration are on the increase and they do not fall in the definition under the offence of rape under Section 375 of the IPC, the Committee feels that such non-penile penetration should be made an offence prescribing a heavier punishment. The Committee is not in favour of imposing death penalty for the offence of rape, for in its opinion the rapists may kill the victim. Instead the Committee recommends sentence of imprisonment for life without commutation or remission. The Committee, however, feels that investigation and trial of rape cases should be done with most expedition and with a high degree of sensitivity. The Committee therefore, makes the following recommendations:
( 115 ) Definition of the word 'wife' in Section 125 of the Code be amended to include a woman who was living with the man like his wife for reasonably long period.
( 116 ) Section 494 of the IPC be suitably amended to the effect that if the man and woman were living together as husband and wife for a reasonably long period the man shall be deemed to have married the woman according to the customary rites of either party.
( 117 ) Section 497 of the Indian Penal Code regarding offence of adultery be amended to include wife who has sexual intercourse with a married man, by substituting the words :whosoever has sexual intercourse with the spouse of any other person is guilty of adultery.:
( 118 ) The Code may be suitably amended to make the offence under Section 498A of the IPC, bailable and compoundable.
( 119 ) Forci