A CRITICAL ANYALYSIS OF THE CRIMINAL

JUSTIC SYETEM IN INDIA”

A Dissertation Submitted to Kurukshetra University, Kurukshetra in

Partial Fulfillment of the Requirement for the Degree of

MASTER OF LAW
(LL.M)

Under the Supervision of: Submitted by:

DR. DHARMINDER KUMAR JYOTI RANI
Dean, LLM. (4th semester)
Geeta Institute of Law, Samalkha Reg. No.: 11GTP259

KURUKSHETRA UNIVERSITY, KURUKSHETRA

HARYANA-136119

Session: 2017-2019

i
Dr. Dharminder Kumar
(LL.M, Ph.D. )
Dean,
Geeta Institute of Law, Karhans
Affiliated to Kurukshetra University,Kurukshetra)
(March 2019)

CERTIFICATE

It is certified that Ms. JYOTI RANI, (Reg. No.:11GTP259), a Student of Geeta

Institute of Law, (LL.M. 4th Semester) Session 2017-2019 has completed her
dissertation entitled “A CRITICAL ANYALYSIS OF THE CRIMINAL

JUSTIC SYETEM IN INDIA”, as partial fulfillment of the requirement of LL.M

degree of Kurukshetra University under my supervision and guidance. The
dissertation is fit for submission and evaluation for the above purpose.

Supervisor:

Dr. Dharminder Kumar

Dean, Geeta Institute of Law,
Karhans

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 DECLARATION

I, JYOTI RANI, pursuing LL.M. at Geeta Institute of Law affiliated to Kurushhetra

University, Kurushhetra with Reg. No.: .11GTP259 hereby declare that the present
dissertation titled “A CRITICAL ANYALYSIS OF THE CRIMINAL JUSTIC
SYETEM IN INDIA.” Is a work in original, and it has not been submitted, either in
part or in full, anywhere else for any purpose, academic or otherwise.

Date: 25.03.2019 JYOTI RANI

LLM. (4th Semester)

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 ACKNOWLEDGEMENT

It gives me immense pleasure and sense of gratitude to acknowledge indebtedness

towards my Hon'ble teacher and Research supervisor Dr. Dharminder Kumar (Dean),
Geeta Institute of Law. It is due to his unstinted guidance and attention towards the
work that I have been able to complete this work. His sympathetic attitude, scholarly
guidance and keen interest in the work have inspired me at every stage of my effort. I
place on record my indebtedness to other teachers of the department whose sincere
encouragement was a tremendously welcoming moral support for me.

I am thankful to my family members who shared with me their precious time and
encouraged me to complete this work.

JYOTI RANI

LLM. (4th semester)

Reg. No.: 11GTP259

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 TABLE OF CONTENTS

Chapterization Contents Pages No.

Chapter-1: INTRODUCTION
1.1 Introduction
1.2 Statement of the Problem
1.3 Scope an Object of Study
1.4 Research Methodology
1.5 Objective of the study
1.6 Significance of Study
1.7 Hypothesis
1.8 Literature Review
1.9 Summary of Chapter

Chapter-2:THE ACCUSED UNDER THE ADVERSARIAL SYSTEM

2.1 Arrest of a person
2.2 Section46 of the Cr.P.C. lays down that: Arrest
2.3 Arrest Memo
2.4 Presumption of Innocence
2.5 The presumption of innocence may also literally be construed
2.6 Magistracy: Arrest & detention of a Judge, Magistrate or Judicial officer
2.7 Bail in anticipation of a possible arrest
2.8 The Commission, in its 42’ report, had further observed that
2.9 Bail & Bonds

Chapter-3: CONCEPT OF BAIL- A CRUCIAL PART OF CRIMINAL

JUSTICE SYSTEM
3.1 Introduction
3.2 Definition of Bail
3.3 Meaning of Bail
3.4 Definition of bail under Indian Law
3.5 Philosophy & Rationale behind Granting Bail
3.6 The Importance of Instrument of Bail

v|Page
 3.7 Bail Not Jail
3.8 Factors Contributing Towards Development of Laws Relating To Bail in India
3.9 Release of under-trial prisoners on bail
310 The factors behind the delays in justice delivery system in India
3.10.1 Factors behind delay in the disposal of cases
3.10.2 Procedural Factors
3.10.3 Delay in investigation
3.10.4 Delay in service of Summons
3.10.5 Delay in filing of written submissions and documents
3.10.6 Delay in framing issues / charges
3.11 Delay during trial
3.11.1 Provision for Adjournment
3.11.2 Non attendance of witnesses
3.11.3 Lengthy oral arguments
3.11.4 Absence of lawyers/Pleader
3.11.5 Application at any Stage
3.11.6 Delayed pronouncement of judgment
3.11.7Delay during the appellate proceeding
3.11.8 Delay during execution proceedings
3.12 Substantive factors
3.12.1 Judicial vacancies / Delay in appointment of judges
3.13 Lack of Accountability of judges
3.14 Too Many Vacations in Courts
3.15 Misuse of PIL
3.16 Hostile Witnesses
3.16.1 Writ petitions
3.16.2 Delay by the Judges
3.16.3 empirical study of delay in the disposal of cases

Chapter-4: SENTENCING POWER OF CRIMINAL COURTS

4.1 Introduction
4.2 Sentencing procedure in India & the disparity in sentencing practice
4.3 Constitutional validity of death sentence
4.4 Rarest of rare cases
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 4.5 Mercy Petition
4.6 Sentencing Practice in India: An Analysis
4.7 Certain important aspects of the sentencing process in India
4.7.1 Aggravating & mitigating circumstances
4.7.2 Minimum Mandatory Sentences
4.7.3 Disparity in Sentencing
4.7.4 Judicial Orientation
4.8 Judicial Discretion in the Sentencing Procedure
4.9 Discretion of the Trial Court in awarding Sentence
4.10 When Appellate Courts Can Interfere With Sentence
4.11 Principles Stated in Various Cases
4.12 Conclusion

CHAPTER-5: THE CONSTITUTION OF INDIA AND SPEEDY TRIAL

5.1 Life & liberty under article 21 of the constitution
5.2 Constitutional philosophy of personal liberty
5.3 Protection of personal liberty under Article 21
5.4 Deprivation of personal liberty if accused involved in a number of cases
5.5 Personal liberty & due process of law
5.6 Purpose of criminal trial
5.7 Illegal Incarceration & Compensation
5.8 Rights To Speedy & Expeditious Criminal Trial
5.8.1 Speedy trial
5.9 154th report of the Law Commission of India
5.9.1 Fair Trial

CHAPTER-6: JUSTICE TO VICTIMS OF CRIMES & COMPENSATION TO

THE VICTIMS OF CRIMES
6.1 Victim Compensation Scheme
6.2 Section 357A, Victim compensation scheme
6.3 Section 357B
6.4 Section 357C: Treatment of victims

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CHAPTER-7: CRITICAL ANANLYSIS OF CRIMINAL JUSTICE SYSTEM
IN INDIA
7.1 Unequal treatment of the police to the victims of crime
7.2 Oppressive Bail System
7.3 Disparity in Sentencing Procedure & judicial Discretion
7.3.1 Excessive discretion given to the Trial Court in awarding sentences
7.3.2 No uniformity followed by the Judges while awarding sentence
7.8 Victim compensation scheme
7.9 Presumption of innocence & burden of proof
7.10 Conclusion

Chapter-8: CONCLUSION

BIBLIOGRAPHY

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 TABLE OF CASES

Ambika Prasad V. State of Delhi, 1997 CriLJ 2853

Ankur Shivaji Gaikwad V. State of Maharashtra,(2013) 6SCC 770

Bachan Singh V. Stae of Punjab, AIR 1980 SC

Baich & Join V. State of M.P, AIR 1977 SC 399

Common Cause V. Union of India, 1996 AIR 1619, SCC (4)33

D.KBasu V. State of West Bengal, AIR 1997 SC 610

Deena V. Union of India (1983)45CC

Delhi Judicial Service V. State of Gujarat & others 1991 AIR 2176, 1991 SCR (3)
936

Directorate of Enforcement V. Deepak Mahajan, 1994 (3) SCC, AIR 1994 SC 1775

Ediga Anamma’s case, AIR 1974 SC 799

Gurbaksh Singh V. State of Punjab, AIR 1980 SC 1632

Harijana Thirupala & others V. Public Prosecutor, High Court of A.P., 2002 (5) SC
551

Hussainara Khatoon & OTHERS V. State of Bihar, 1980 SCC, AIR 1369

Santa Singh V. The State of Punjab, AIR 1996 SC 2386

Veera Ibrahim V. State of Maharashtra, 1976 SCAIR 1976 SC 1167

Zahira Habibulla Sheikh & others V. State of Gujarat, (2006)3 5CC 374; AIR 2006
SC 1367

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 Chapter-1
EVOLUTION OF CRIMINAL
JUSTICE SYSTEM IN INDIA

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1 1
 EVOLUTION OF CRIMINAL JUSTICE SYSTEM IN
INDIA
The ideal of our ancient jurisprudence was to punish every culprit & no one else than
culprits. Manu’ says in emphatic terms that when the king punishes an innocent his
guilt is considered as grave as when he sets free a guilty man. 1 But, it is not always
possible to reach his deal. Detecting offences, finding out the culprit & proving his
guilt are no easy tasks, because the offender, naturally, hides his action. The first
impulse of the society was to extract the truth from the offender himself by all means.
But, the impulse was curtailed, in the course of history because it hurts human
conscience to subject a human being to torture of some sort or other. Even otherwise,
it may lead to an innocent man to accept the responsibility of an offence not
committed by him, in order to avoid further unbearable pain 2.

Criminal jurisprudence as concept originated during the reign of Manu assault, theft,
robbery, false evidence, slander, criminal breach of trust, cheating, adultery & rape
are some of the crimes which was recognized by Manu. The subject of the king was
protected by him & they in return owed him allegiance& paid revenue to him. Justice
was administered by the king himself & incase of his non availability, the task of
administration of justice was performed by the judge. In case a criminal was given the
punishment of giving fine, the said fine went to king treasury instead of being given
as compensation to the injured party/victim.

In western jurisprudence, the real notion of crime percolated from the Roman law. In
modem times, crimes have multiplied in an extraordinary degree. It has revolutionized
the concept of criminal law.

The very purpose establishment of criminal justice system is to layout a frame work
for punishment for the offenders, & to provide for & acceptable degree of social
order. Criminal laws & there execution provide safety to each individuals person,
property &family & provide protection from intentional violation by others. Attached
to that declaration will be a system of enforcement & sentencing which operates by &
large to influence people not to violate these laws. Even those who adopt a

1
In Hindu mythology, the gods created Manu, the first man, who gave life to all humans.
2
Adjudication in trial courts- A Benchbook for judicial officers (chapter 10:- Approach and principles
of criminal justice administration, page 107) by NR MadhavaMenon, David Annoussamy & DK
Sampath, a publication of Lexis Nexis, Butterworths Wadha, Nagpur (2012).

2|P a g e
1 1
retributivist or rights based approach to criminal liability & punishment surely cannot
maintain a general indifference towards the frequency with which these more serious
rights & duties are breached. A major part of the reason for having a system of
criminal law & punishment is surely to reduce the frequency of those violations 3.

The system of Criminal Justice system was established by the state to safeguard life &
liberty of its citizens. It aims at safeguarding public as well as private properties .the
cardinal; principles of criminal jurisprudence is that every person shall be presumed
innocent till his guilt is proved beyond a reasonable doubt. So law requires providing
legal protection to the accused from the very stage of securing his arrest till the
completion of the trial. The constitution of India has enshrined the concept of right to
silence under article 20 ( 3). It has been recognized as fundamental right of every
accused person. Right of silence means that no person accused of any offence shall be
compelled to be a witness against himself. The system of criminal justice aims at
providing substantial justice to the victims of crime.

At the same time, a prompt & quality investigation by the police is a must to regulate
the system effectively. There is a need for the law & the society to trust the police to
ensure improvement in their credibility. As we have seen in the recent past, the
approach to the system of criminal justice administration has changed. 4

1.1 INTRODUCTION

The ideal of our ancient jurisprudence was to punish every culprit & no one else than
culprits. Manu’ says in emphatic terms that when the king punishes an innocent his
guilt is considered as grave as when he sets free a guilty man. 5 But, it is not always
possible to reach his deal. Detecting offences, finding out the culprit & proving his
guilt are no easy tasks, because the offender, naturally, hides his action. The first
impulse of the society was to extract the truth from the offender himself by all means.
But, the impulse was curtailed, in the course of history because it hurts human
conscience to subject a human being to torture of some sort or other. Even otherwise,

3
Elliot and Word’s cases and material on criminal law, 8th Edn. Page 5 & 6, quoted in
Ratanlal&Dhirajlal’s The Indian Penal Code, updated 32m1 enlarge edition (pagel), published by Lexis
Nexis2013.
4
(2000)2 SCC 646 at 653, 2000 Cr.L.J 810(SC)
5
In Hindu mythology, the gods created Manu, the first man, who gave life to all humans.

3|P a g e
1 1
it may lead to an innocent man to accept the responsibility of an offence not
committed by him, in order to avoid further unbearable pain 6.

The very purpose establishment of criminal justice system is to layout a frame work
for punishment for the offenders, & to provide for & acceptable degree of social
order. Criminal laws & there execution provide safety to each individuals person,
property &family & provide protection from intentional violation by others. Attached
to that declaration will be a system of enforcement & sentencing which operates by &
large to influence people not to violate these laws. Even those who adopt a
retributivist or rights based approach to criminal liability & punishment surely cannot
maintain a general indifference towards the frequency with which these more serious
rights & duties are breached. A major part of the reason for having a system of
criminal law & punishment is surely to reduce the frequency of those violations 7.

The system of Criminal Justice system was established by the state to safeguard life &
liberty of its citizens. It aims at safeguarding public as well as private properties .the
cardinal; principles of criminal jurisprudence is that every person shall be presumed
innocent till his guilt is proved beyond a reasonable doubt. So law requires providing
legal protection to the accused from the very stage of securing his arrest till the
completion of the trial. The constitution of India has enshrined the concept of right to
silence under article 20 ( 3). It has been recognized as fundamental right of every
accused person. Right of silence means that no person accused of any offence shall be
compelled to be a witness against himself. The system of criminal justice aims at
providing substantial justice to the victims of crime.

1.2 Statement of the Problem

Justice that comes too late has no meaning to the person it is meant for. During a
prolonged and unending trial, the priorities of an accused person towards life change
along with the circumstances. The person can also lose everything on account of the
pending proceedings.

6
Adjudication in trial courts- A Benchbook for judicial officers (chapter 10:- Approach and principles
of criminal justice administration, page 107) by NR MadhavaMenon, David Annoussamy & DK
Sampath, a publication of Lexis Nexis, Butterworths Wadha, Nagpur (2012).
7
Elliot and Word’s cases and material on criminal law, 8th Edn. Page 5 & 6, quoted in
Ratanlal&Dhirajlal’s The Indian Penal Code, updated 32m1 enlarge edition (pagel), published by Lexis
Nexis2013.

4|P a g e
1 1
This issue has many angles in the era of humanitarian approach and democratic sense
and set up of criminal justice system. The justice to the victim from the criminal
justice point of view is an area of utmost important. As this being one of the neglected
issue which needs topmost attention and consideration. This is the thing which
prompts the researcher to peep into this unattended area. As a law on paper is much
more different than law in execution because of many difficulties so is a case with
justice to the victim. Considering the various angles and vast area the researcher want
to complete this research in meaningful and manageable time, the main focus will laid
down on Indian perspective only.

Administration of criminal justice is facing serious problems now a day. Although,

access to justice should normally mean taking recourse to an affordable, fair, speedy
and satisfactory settlement of dispute through a court of law, yet the agony associated
with it is so unending and prolonged that the number of people who resort to litigation
is much less, than those who prefer to forgo their claim, howsoever genuine their
claims might be, for the sake of maintaining peace in their life. After all, no person
would like a major part of his life to be consumed in unending litigation. In cases,
where the accused is the head of a family and is the only bread earner, his
responsibility is also towards the large family left behind him. It is not only the
accused but also his other members of the family who suffer because of delays in trial.
As estimated 66 percent of all prison inmates are under-trials, but in some States the
proportion goes up to as high as 80 percent.

The total prison population as on December 2006 for all categories of inmates was
3,73,271 of these 2,43,244 were under-trials. An overwhelming 96 percent of these
are men. Uttar Pradesh reports the highest number of under-trials followed by Bihar.
The lack of a speedy dispute settlement mechanism has a direct impact on the level or
lawlessness in our society.

1.3 Scope an Object of Study

The present study although limited in scope, also endeavours to ascertain the material
facts that have paralised the criminal justice system. For instance, the study reveals
that justice today is shut out to most in India. Most citizens, especially the
disadvantaged sections, have limited access to justice, due to unclear laws and high
costs that act as effective barriers. Unfortunately, those who do venture forth are also,

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1 1
often denied of their right to justice. One of the major causes for this is known to be
'delays in the dispensation of justice.'

The scope of counsel’s participation in the pre trial process, particularly before the
commencement of judicial screenings is however the focal point of a strong
controversy. The conflict between the individual rights and demand of society for
security, which administration of criminal justice aims to resolve, is perhaps more
apparent at this period than at any other stage in criminal process.

The above definition limits the scope of the functioning of NHRC and the act set up a
National Human Rights Commission and the state Human Rights Commission in the
state and the Human Rights Courts in the districts.

1.4 RESEARCH METHODOLOGY

1.5 Objective of the study

 To expound the concept of speedy trial in criminal justice system and

underline the basic feature of the systems obtaining in India;

 To make an enquiry in regards to basic violations of human rights of victim

and its concern in present criminal justice system.

 To scrutinize the issue from various social, legal and psychological dimension
so as to provide justice to the victims.

 To probe the changing facet and scenario of criminal justice system and its
attitude towards the victim.

 To make an enquiry from international perspective and accordingly suggest

the changes / modification / alteration in Indian criminal justice system.

 To trace out the hurdles, loopholes and pitfalls if any in available legal
framework and criminal justice system protecting the interest of victims and
suggest suitable changes wherever necessary.

 To fathom the reasons for the unwillingness of the victims to report to the
police.

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1 1
  To suggest remedies on the basis of research which would make the existing
1 1 1 1 1 1 1 1 1 1 1 1 1

criminal justice system more effective. 1 1 1 1 1

1.6 Research design

1 1 1

Keeping in view the nature of research problem and the hypotheses formulated in this
1 1 1 1 1 1 1 1 1 1 1 1 1 1

regard, research has been carried out on the subject by following the Doctrinal and
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Analytical Methods of Research where various Books, Articles, Reports, Journals and
1 1 1 1 1 1 1 1 1 1 1

Web-sites have been referred to for the same purpose. The problem is selected with great
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

interest keeping the significance and impending needs in the societal conditions on the
1 1 1 1 1 1 1 1 1 1 1 1 1

role and protection of victim in the present criminal justice system. The topic selected by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

researcher to study in systematic way and which is relevant under social, political and
1 1 1 1 1 1 1 1 1 1 1 1 1 1

economical in general and legal in particular. The nature of the study is being socio-legal
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

it is not possible to do empirical way. However doctrinal research methodology used in

1 1 1 1 1 1 1 1 1 1 1 1 1 1

order to critically analyse the Indian legislative framework including the laws, policies
1 1 1 1 1 1 1 1 1 1 1 1

and the role of Indian judiciary with reference to protection of victims of crime.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1.7 Significance of Study

1 1 1 1

The significance of criminal justice system in public administration is that it has the aim
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of establishing such condition in society in which there is law and order, and there is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

protection to the rights of the individuals. This system gives sustenance to Rule of law
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

and the meaning and significance to the idea of speedy justice. The administration of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

justice does not deal with the punishment of the guilty alone, almost means acquittal of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the innocent. Fairness and speed are equally important in the administration of justice.
1 1 1 1 1 1 1 1 1 1 1 1 1

Speedy justice serves the best interests of the accused, the survivors and the society at
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

large. An efficient system acts as a deterrent to any potential violator of law.

1 1 1 1 1 1 1 1 1 1 1 1 1 1

However, in our country criminal justice has come in for serious criticism. Almost every
1 1 1 1 1 1 1 1 1 1 1 1 1 1

component of this system is finding it difficult to get along. The problem of delay and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

backlog is rather acute in criminal cases, as compared to civil cases. The Indian criminal
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

justice process appears to be on the verge of collapse due to diverse reasons for delayed
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

dispensation of justice. Therefore, speedy trial in criminal justice system is an urgent

1 1 1 1 1 1 1 1 1 1 1 1 1

need of the present judicial system in order to decide the fate of lakh of litigants.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1.8 Hypothesis
1 1

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1 1
1) The criminal justice system requires due consideration and new outlook towards
1 1 1 1 1 1 1 1 1 1 1

victim to mitigate the ends of justice.

1 1 1 1 1 1 1

2) Whether the Indian criminal justice system and implementing machinery is effective
1 1 1 1 1 1 1 1 1 1 1

enough to deliver justice to the victim?

1 1 1 1 1 1 1

3) Criminal justice system is suffering from several pernicious defects such as delayed
1 1 1 1 1 1 1 1 1 1 1 1

disposal of cases and huge pendency. 1 1 1 1 1 1

4) Seedy trial is the essence of criminal justice system and there can be no doubt the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

delay in trial by itself constitutes denial of justice.

1 1 1 1 1 1 1 1 1

5) The worry, anxiety, expense and disturbance to prisoner's vocation and peace
1 1 1 1 1 1 1 1 1 1 1

resulting from an unduly prolonged investigation, inquiry and trial should be

1 1 1 1 1 1 1 1 1 1 1

minimal. 1

6) A new jurisprudence is evolving the world over particularly with the help of judicial
1 1 1 1 1 1 1 1 1 1 1 1 1 1

decisions, whereby prisoners are treated as human beings and speedy trial as their
1 1 1 1 1 1 1 1 1 1 1 1 1

human right. 1 1

7) The state is under a Constitutional mandate to ensure speedy trial and whatever is
1 1 1 1 1 1 1 1 1 1 1 1 1 1

necessary for this purpose has to be done by the state. 1 1 1 1 1 1 1 1 1 1 1

8) Most of the provisions of the Procedural Laws are vague and highly technical
1 1 1 1 1 1 1 1 1 1 1 1 1

making it difficult to enforce them towards the end of speedy justice.

1 1 1 1 1 1 1 1 1 1 1 1

9) The state cannot avoid its Constitutional obligation to provide speedy trial to the
1 1 1 1 1 1 1 1 1 1 1 1 1

accused persons by pleading financial and administrative inability.

1 1 1 1 1 1 1 1

10) Effective case management system needs to be put in place for growing number of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

new cases and the courts should reach to the people through local venue hearing.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

11) There appears an urgent need to bring punishment for absconding witnesses and
1 1 1 1 1 1 1 1 1 1 1 1

strict enforcement of deadline for duration of trial and length of argument.

1 1 1 1 1 1 1 1 1 1 1 1

12) Concrete steps to implement the recommendations of various committees on

1 1 1 1 1 1 1 1 1 1

reforms in criminal justice system needs to be taken, if we are to achieve the precious
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

right to speedy trial.

1 1 1

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This hypothesis is based on the neglected position of victim in criminal justice system
1 1 1 1 1 1 1 1 1 1 1 1 1 1

and consideration and re-consideration and formulation of new policies with this object.
1 1 1 1 1 1 1 1 1 1 1 1

1.9 Literature Review1 1 1

Justice V. S. Malimath Committee on Reforms of Criminal Justice System, Volume

1 1 1 1 1 1 1 1 1 1 1

1 1 India (March 2003)- This report is also called as Malimath Committee Report, in this
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

report various committee members recommended suggestions on reforms of criminal

1 1 1 1 1 1 1 1 1 1

justice system and tried to make criminal justice system more effective. The committee
1 1 1 1 1 1 1 1 1 1 1 1 1

also focuses on the role of victim in the criminal justice system and gives effective
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sugesstions to improve the status of victim. Researcher agrees with this report because 1 1 1 1 1 1 1 1 1 1 1 1 1

―justice given to victim as well as critical analysis on loopholes of the system are neatly
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

observed by the committee. Investigation process, role of judiciary, the difference

1 1 1 1 1 1 1 1 1 1 1

between adversarial and inquisitorial model of criminal justice system etc. classically
1 1 1 1 1 1 1 1 1 1 1

compiled. The vision for better criminal justice system is useful to review the status and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

position of victim under present criminal justice system. 1 1 1 1 1 1 1

Prakash Talwar "Victimlogy" ISHA publishing house, New Dehli, 2006 In this book
1 1 1 1 1 1 1 1 1 1 1

1 the basic concept and development of science of Victimology has been explained and
1 1 1 1 1 1 1 1 1 1 1 1 1

also helpful to clear idea about what is victimological science.

1 1 1 1 1 1 1 1 1

Mohammad Farajiha Ghazvini, “Police Protection to Victims of Crime” -Deep and 1 1 1 1 1 1 1 1 1 1

1 Deep publication Private limited, 2000 The Concept and definition of victim, who is
1 1 1 1 1 1 1 1 1 1 1 1 1

victim of crime, origin and history of victim, classification of victims is sort out from this
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 book. Author says about how victim is originated and how it suffered from different
1 1 1 1 1 1 1 1 1 1 1 1 1 1

types of offences. That's why this book is useful to understand the meaning of victim and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

at the same time it is useful to trace out the history regarding development of position and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 status of victim. 1 1

G. S. Bajpai, Victim in the Criminal Justice Process: Perspectives on Police and

1 1 1 1 1 1 1 1 1 1 1 1 1

Judiciary, Uppal Publishing House (1997), New Delhi. The author gives emphasis on 1 1 1 1 1 1 1 1 1 1 1 1

process of victimization, postvictimization effect of violent crimes, nature of problems

1 1 1 1 1 1 1 1 1 1 1

of crime victims in justice process and the need for assistance to them. This text book is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

useful to understand the role of victim in the criminal justice system.

1 1 1 1 1 1 1 1 1 1 1

K. D. Gour Textbook on Indian Penal Code, III Edition, 2004 Universal Law
1 1 1 1 1 1 1 1 1 1 1 1 1

Publishing Company Private Limited. In this book Prof.Gaur included the article on- 1 1 1 1 1 1 1 1 1 1 1

9|P a g e 1 1
justice to victim which stressed upon the weakness of our criminal jurisprudence. Also
1 1 1 1 1 1 1 1 1 1 1 1 1

in this article one quotation by Hon‘ble Justice Krishna Iyer is very much inspires the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

reader. So this book is very helpful to start introductory part of research.

1 1 1 1 1 1 1 1 1 1 1 1

K. I. Vibhute, Criminal Justice, Eastern Book Company, Lucknow, First Edition,

1 1 1 1 1 1 1 1 1 1 1

2004. This is a great compilation of different essays written by scholars from India and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

abroad which are edited by Prof. K. I. Vibhute. Nodoubt these essays are thought
1 1 1 1 1 1 1 1 1 1 1 1 1 1

provoking to understand the ‘human rights 8 perspective’ of individuals – accused,

1 1 1 1 1 1 1 1 1 1 1 1

prisoner and victim of crime who come in contact with the State, vital State functionaries
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 which includes the police, prosecution and courts. From researchers point of view this
1 1 1 1 1 1 1 1 1 1 1 1 1

book will be helpful to him to undestand the problems in relation to victim of crime, how
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

victim struggled for getting justice as the author concentrated mainly on - approach of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

human rights towards justice to victim of crime. As per my opinion the book contributes
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

a great stuff for research.

1 1 1 1

N.V. Paranjape, Criminology and Penology, Central Law Publishing, 12th edition,
1 1 1 1 1 1 1 1 1 1

2005. In this book the concept of crime has been given and also researcher referred
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

various dimensions of Victimology from this book. 1 1 1 1 1 1

S. Venugopal Rao, Victims of Crime, Allied Publication Limited, (1989) New Delhi.
1 1 1 1 1 1 1 1 1 1 1 1

In this book the author tried to direct the focus on the position of victim in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

administration of criminal justice and makes a careful examination of the legal 1 1 1 1 1 1 1 1 1 1 1 1

provisions, which defines his status as one who is directly affected by the criminal act
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

and as one whose participation in the system’s functioning at various points is of vital
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

importance.

Bharat B. Das, Victims in the Criminal Justice System, APH Publication, (1997)
1 1 1 1 1 1 1 1 1 1 1 1

New Delhi. The author tries to study the victims position in the criminal justice system
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

and makes a critical study of the legal provisions dealing with compensation to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

victim and an attempt also has been made to critically study various problems faced by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the victim and ultimately he gives valuable suggestions to improve the condition of
1 1 1 1 1 1 1 1 1 1 1 1 1

victim and to make the criminal justice system more meaningful.

1 1 1 1 1 1 1 1 1

Jonathan Doak, Victims Rights, Human Rights and Criminal Justice, Hart 1 1 1 1 1 1 1 1 1 1

Publishing (2008), USA. This is a commentary on victims, in relation to the notion of 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

human rights and the rights of victim of crime. This book aims to unite this discourse by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

10 | P a g e 1 1
considering the prospects for realizing victims right within a human rights framework.
1 1 1 1 1 1 1 1 1 1 1 1

The author argues that the very concept of victims right rings hollow unless we
1 1 1 1 1 1 1 1 1 1 1 1 1 1

reconceptualise these rights as being human rights, fully protected and directly 1 1 1 1 1 1 1 1 1 1 1

applicable within both domestic and international legal orders. I think this book is
1 1 1 1 1 1 1 1 1 1 1 1 1

helpful to analyse the features of Adversarial and Inquisitorial criminal justice system.
1 1 1 1 1 1 1 1 1 1 1

Haevey Wallace, Victimology, Allyn and Bacon Publication (1998), USA Author
1 1 1 1 1 1 1 1 1 1

attempted to take a global perspective on the study of victimology which includes

1 1 1 1 1 1 1 1 1 1 1 1 1

traditional theories regarding victimology and he also makes a brief discussion about
1 1 1 1 1 1 1 1 1 1 1 1

responces to victimisation, consequences of victimisation and empowering of victim.

1 1 1 1 1 1 1 1 1

1.10 Scheme of study (Tentative Chapterization)

1 1 1 1 1

The thesis “A Critical Analysis of The Criminal Justice Delivery System in India” is
1 1 1 1 1 1 1 1 1 1 1 1 1 1

divided in following chapters.1 1 1 1

Chapter I. Introduction:- This chapter gives brief idea about origin and background of
1 1 1 1 1 1 1 1 1 1 1 1 1

the topic, theme of research its existing importance, objectives, significance, hypothesis
1 1 1 1 1 1 1 1 1 1 1

and methodology employed in the study.

1 1 1 1 1 1

Chapter II. Criminal Law and Human Rights Perspective of Victim Status:- In this
1 1 1 1 1 1 1 1 1 1 1 1 1

chapter emphasis will be given on jurisprudential aspect of the problem in view of

1 1 1 1 1 1 1 1 1 1 1 1 1 1

humanitarian approach and criminal justice system in India. The researcher tries to trace
1 1 1 1 1 1 1 1 1 1 1 1 1

the history to understand how the position and status of victim changed from ancient to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

modern period with the help of theories of victimology and its typology.
1 1 1 1 1 1 1 1 1 1 1 1

Chapter III. International Parameter and Framework on Justice to Victim:- The

1 1 1 1 1 1 1 1 1 1 1

researcher gives details about efforts taken by an International instrument such as U.N.,
1 1 1 1 1 1 1 1 1 1 1 1 1

European Union and International Criminal Court to protect the rights of victims of
1 1 1 1 1 1 1 1 1 1 1 1 1

crime. The researcher also gives details of various countries who take initiative to pass
1 1 1 1 1 1 1 1 1 1 1 1 1 1

special legislation or to make the necessary changes in their existing legislative

1 1 1 1 1 1 1 1 1 1 1 1

mechanism to strengthen the position and status of crime victims. 1 1 1 1 1 1 1 1 1 1

Chapter IV. Constitutional and Legislative Safeguards in India:- In this chapter the
1 1 1 1 1 1 1 1 1 1 1 1

researcher analyses and discusses in detail the Constitutional and legislative mechanism
1 1 1 1 1 1 1 1 1 1 1

to protect the rights of victims. This study is essential one to know various provisions
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

11 | P a g e 1 1
under these 19 legislative mechanisms to protect the rights of victim and try to know
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

whether these provisions are sufficient to protect the interest of crime victims.
1 1 1 1 1 1 1 1 1 1 1 1

Chapter V. Criminal Justice Delivery System in India: An Analytical Overview:- In this

1 1 1 1 1 1 1 1 1 1 1 1 1

chapter the researcher deal with implementing mechanism available in India along with
1 1 1 1 1 1 1 1 1 1 1 1

various difficulties in path while implementing the laws on paper. The researcher tries to
1 1 1 1 1 1 1 1 1 1 1 1 1 1

find out the loopholes in the existing criminal justice system which results into utter
1 1 1 1 1 1 1 1 1 1 1 1 1 1

violation of human rights of victim. 1 1 1 1 1 1

Chapter VI. Role of Judiciary to Protect the Rights of Victim:- The researcher gives the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

detail account of judicial pronouncement of various courts including Supreme Court and
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High Courts on the basic issues of justice to the victims in view of various principles,
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international conventions and law lay down by the courts. 1 1 1 1 1 1 1 1 1

Chapter VII. Conclusion and Suggestions:- The researcher gives concrete suggestions
1 1 1 1 1 1 1 1 1 1

on the basis of conclusion to strengthen the status and position of victim under Indian
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Criminal Justice System. 1 1 1

12 | P a g e 1 1
 Chapter-2
THE ACCUSED UNDER THE
1 1 1 1

ADVERSARIAL SYSTEM
1

13 | P a g e
1 1
 THE ACCUSED UNDER THE ADVERSARIAL SYSTEM
A person allegedly found involved in the commission of an offence is an accused.
The words “accused of any offence” has been subject of several decision of the
supreme court so that by now it is well settled that only a person against whom a
formal accusation relating to commission of an offence has been leveled which in the
normal course may result in his prosecution would fall within its ambit 8.

A person arrested by the police during the investigation after ascertaining his
complicity is an accused within the meaning of section 167 & 169 of the Cr.P.C.,
even his name is not mentioned in the First Information Report under section 154 of
the Cr.P.C.9

It is therefore, an accused person is not only the person arrested or detained either in
the custody of police or in jail but any other person who is suspected to have been
involved in the commission of a criminal offence or any other offence.

2.1 Arrest of a person:

It means restraining the liberty of a man’s person in order to compel his obedience to
the process of law.

The word ‘arrest’ is derived from the French word ‘Arretor’ which means to ‘stop or
stay’ & signifies a complete restraint of a person physically.

In Wharton’s Law Lexicon the meaning is given as:-

As unless such person is arrested, his presence in the court & the police officer shall
record while making such arrest, his reason in writing[provided that a police officer
shall, in all cases where the arrest of the person is not required under the provisions of
this sub-section, record the reasons in writing for making the arrest.]

(c) Who has been proclaimed as an offender either under this code or by order of
the state government;

Or
(d) In whose possession anything is found which may reasonably be suspected to
be stolen properly & who may reasonably be suspected of having committed
an offence with reference to such thing;
8
Veera Ibrahim V. State of Maharashtra, 1976 Cr.1.j. 860 S.C., A1R1976 SC 1167, (1976)2 S.C.C.
302.
9
AIR 1958 A.P. 37-41

14 | P a g e
1 1
Or

(e) Who obstruct a police officer while in the execution of his duty, or who has
escaped, or attempts to escape, from lawful custody;

Or

(f) Who is reasonably suspected of being a deserter from any of the Arm Forces
of the Union;

Or

(g) Who has been concerned in, or against whom a reasonable complaint has been
made, or credible information has been received, or a reasonable suspicion
exists, of his having been concerned in, any act committed at any place out of
India, would have been punishable as an offence, &for which he is, under any
law relating to extradition, or otherwise, liable to be apprehended r detained in
custody in India;

(h) Who, being a released convict, commits a breach of any rule made under
subsection (5) of section 356;

Or

(i) For whose arrest any requisition, whether written or oral, has been received
from another police officer, provided that the requisition specifies the person
to be arrested & the offence or other cause for which the arrest is to be made
& it appears there from that the person might lawfully be arrested without a
warrant by the officer who issued the requisition.

(2) Subject to the provision of section 42, no person concerned in non-cognizable

offence or against whom a complaint has been made or credible information
has been received or reasonable suspicion exists of his having so concerned,
shall be arrested except under a warrant or under the order of a Magistrate.

This section gives very wide powers to the police officers to make an arrest without
an order from a Magistrate & without warrant for purpose of investigating into that
case. The word “investigation” as defined in section 2(h) of the Cr.P.C. includes all
the proceedings under the said Code for the collection of the evidence conducted by a
police officer or by any person (other than a magistrate) who is authorized by a
magistrate in this behalf. All the investigation in criminal cases is to be conducted by

15 | P a g e
1 1
any of the competent authority or agency ordinarily in the manner prescribed by the
Code of Criminal Procedure & it shall consists of the following steps:

(1) Registration of the First Information Report;

1 1 1 1 1 1 1

(2) Proceeding to the place of occurrence;

1 1 1 1 1 1 1

(3) Ascertainment of facts & circumstances of the case;

1 1 1 1 1 1 1 1 1

(4) Discovery of the crime & arrest of the accused person;

1 1 1 1 1 1 1 1 1 1 1

(5)Collection of evidence relating to the commission of the offence & record statements
1 1 1 1 1 1 1 1 1 1 1 1 1

of the persons well acquainted with the facts & circumstances of the case. The
1 1 1 1 1 1 1 1 1 1 1 1 1 1

investigating agency shall also examine the accused with search & seizure of the articles
1 1 1 1 1 1 1 1 1 1 1 1 1 1

incriminating in nature; 1 1 1

(6) Formation of opinion by the competent authority as to whether on the materials

1 1 1 1 1 1 1 1 1 1 1 1 1 1

collected by them there is a fit case to forward the accused before the court for trial & if
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

so, submits the charge sheet before the Magistrate.

1 1 1 1 1 1 1

Any form of physical restraint of a person by a lawful authority amounts to arrest &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

imprisonment of the accused during the period of investigation is a continuing arrest. As 1 1 1 1 1 1 1 1 1 1 1 1 1 1

mentioned above, a police officer may arrest a person on suspicion of his involvement in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

a criminal case cognizable in nature. However, the police have no power to arrest &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

detain any person unless he is charged with a specified crime of which investigation is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

required. 1

2.2 Section46 of the Cr.P.C. lays down that: Arrest how made—
1 1 1 1 1 1 1 1 1 1 1

(1) In making an arrest the police officer or other person making the same shall actually
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

touch or confine the body of the person to be arrested, unless there be a submission to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

custody by word or action; 1 1 1 1 1

[Provided that where a woman is to be arrested, unless the circumstances indicate to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

contrary, her submission to custody on an oral intimation of arrest shall be presumed &,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

unless the circumstances otherwise require or unless the police officer is a female, the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

police officer shall not touch the person of the woman for making the arrest.]
1 1 1 1 1 1 1 1 1 1 1 1 1

(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

arrest, such police officer or other person may use all means necessary to affect the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

arrest. 1

16 | P a g e 1 1
(3) Nothing in this section gives a right to cause the death of a person who is not accused
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of an offence punishable with death or imprisonment for life.

1 1 1 1 1 1 1 1 1 1

(4) Save in exceptional circumstances, no woman shall be arrested after sunset & before
1 1 1 1 1 1 1 1 1 1 1 1 1 1

sunrise, & where such exceptional circumstances exist, the woman police officer shall,
1 1 1 1 1 1 1 1 1 1 1 1

by making a written report, obtain the prior permission of the Judicial Magistrate of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

first class within whose local jurisdiction the offence is committed or the arrest is to be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

made. 1

It is, therefore, arrest is the formal mode of taking a suspect to police in order to compel
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

his obedience to the order of a court of justice & also to ensure his regular attendance or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

participation in the process of trial. Section 46 of the Cr.P.C. is applicable to all forms of 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

arrest, whether made under a warrant or without a warrant. When a person is to be

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

arrested under a warrant issued by a competent court or a magistrate, the officer making
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

such arrest must have the warrant & shall also be made explained to the accused as to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

why the arrest is necessary; otherwise the arrest is illegal. Arrest of a person need not by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

handcuffing the person but can also be affected even by spoken words if he submits 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

voluntarily to the custody of the police or to any other competent authority. 10 1 1 1 1 1 1 1 1 1 1 1 1

It is sufficient if the arresting officer touches the body of the person to be arrested & even
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

this is unnecessary when the later submits to the arresting officer’s custody by word or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

action. It is by no means necessary that the arresting officer should, in arresting the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

person, immediately proceed to handcuff on him with cord or chain. Such articles are
1 1 1 1 1 1 1 1 1 1 1 1 1 1

used as a means to restraint &there can only be justified on the ground that they are
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

means necessary to affect the arrest. The words “all means” include taking of assistance
1 1 1 1 1 1 1 1 1 1 1 1 1 1

from others in affecting the arrest.

1 1 1 1 1 1

2.3 Arrest Memo 1 1

In the event of causing arrest of a person or while apprehending a suspect by the police or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

a any lawful authority, Arrest Memo is legally required to be issued in respect of such
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

arrest or apprehension in view of the observation made by the Supreme Court in D.K.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Basu V. State of West Bengal. 11 1 1 1 1 1

The Supreme Court in the said case, has directed that:

1 1 1 1 1 1 1 1 1 1

10
Directorate of Enforcement V. Deepak Mahajan, 1994(3) S.C.C.440. AIR 1994 S.C 1775 1 1 1 1 1 1 1 1 1 1 1

11
WY. Cril.No. 539 of 1986, W.P. Cril. No. 592 of 1987, AIR 1997 SC 610
1 1 1 1 1 1 1 1 1 1 1 1 1 1

17 | P a g e 1 1
I. The police personal carrying out the arrest & handling the interrogation of the arrestee
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

should bear accurate, visible & clear identification nametags with their
1 1 1 1 1 1 1 1 1 1

designations. The particulars of such police personal who handle interrogation of 1 1 1 1 1 1 1 1 1 1

1 the arrestee must be recorded in a register.

1 1 1 1 1 1 1 1

2. That the police officer carrying out the arrest of the arrestee shall prepare a Memo of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the arrest at the time of the arrest & such Memo shall be attested by at least one
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

witness, who may either a member of the family of the arrestee or a respectable
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

person the locality from where the arrest is made. It shall also be countersigned
1 1 1 1 1 1 1 1 1 1 1 1 1 1

by the arrestee & shall contain time & date of arrest.

1 1 1 1 1 1 1 1 1 1 1

3. A person who has been arrested or detained & is being held in custody in a police
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

station or interrogation centre or other lock-up, shall be entitled to have one

1 1 1 1 1 1 1 1 1 1 1 1 1

friend or relative or other person known to him or having interest in his welfare
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

being informed, as soon as practicable, that he has been arrested & is being
1 1 1 1 1 1 1 1 1 1 1 1 1 1

detained at a particular place, unless the attesting witness to the Memo of arrest is
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 himself such a friend or relative of the arrestee. 1 1 1 1 1 1 1 1 1

The time & place of arrest & venue of custody of the arrestee must be notified by the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

police where the next friend or relative of the arrestee lives & outside the district or town
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

through the legal aid organization in the district & police station of the area concern
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

telegraphic ally within the period of 8 to 12 hours after the arrest.1 1 1 1 1 1 1 1 1 1 1 1

The person arrested must be aware of his right to have someone informed of his arrest or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

detention as soon as he is put under arrest or is detained.

1 1 1 1 1 1 1 1 1 1 1

An entry must be made in the diary at the place of detention regarding the arrest of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

person which shall also disclose the name of the next friend of the person who has been
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

informed of the arrest & the names or particulars of the police officials in whose custody
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the arrestee is.

1 1 1

The arrestee should, where he is so requests, be so examined at the time of his arrest &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

major or minor injuries, if any present on his/her body, must be recorded at that time. The
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 “inspection Memo” must be made signed by both the arrestee & the police officer
1 1 1 1 1 1 1 1 1 1 1 1 1 1

affecting the arrest & the copy provided to the arrestee.

1 1 1 1 1 1 1 1 1 1

The arrestee should be subjected to medical examination by a trained doctor every 48

1 1 1 1 1 1 1 1 1 1 1 1 1 1

hours during his detention in custody by a doctor on the panel of approved doctors
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

18 | P a g e 1 1
appointed by director, Health Services of the concerned state or the union territory.
1 1 1 1 1 1 1 1 1 1 1 1 1

Director, Health Services should prepare such a panel for all Tehsils & Districts as well.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Copies of all documents including the Memo of arrest refer to above, should be sent to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the Ilaqa Magistrate for his record.

1 1 1 1 1 1

The arrestee must be permitted to meet his lawyer during interrogation, though not
1 1 1 1 1 1 1 1 1 1 1 1 1

throughout the interrogation. 1 1 1

The police control room should be provided at all districts & state headquarters, where
1 1 1 1 1 1 1 1 1 1 1 1 1 1

information regarding the arrest & place of custody of the arrestee shall be 1 1 1 1 1 1 1 1 1 1 1 1 1

communicated by the officer causing the arrest within 12 hours of effecting the arrest & 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

at the police control room it shall be displayed on a conspicuous place.

1 1 1 1 1 1 1 1 1 1 1 1 1

The Apex Court has also directed that failure to comply with the requirements
1 1 1 1 1 1 1 1 1 1 1 1 1

hereinabove mentioned shall apart from rendering the concerned official liable for 1 1 1 1 1 1 1 1 1 1 1

departmental action, also render him liable to be punished for contempt of court & the 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

proceedings for contempt of court may be instituted in any High Court of the country, 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

having territorial jurisdiction over the matter.

1 1 1 1 1 1

2.4 Presumption of Innocence:

1 1 1 1

Law presumes that a person is innocent of the charge leveled against him until a contrary
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

is proved beyond reasonable doubt. The Anglo-Saxon jurisprudence which is applicable

1 1 1 1 1 1 1 1 1 1 1

to our punishment system provides as better ten guilty persons escape rather than one
1 1 1 1 1 1 1 1 1 1 1 1 1 1

innocent person is made to suffer. 1 1 1 1 1 1

Generally speaking, a person who commits a criminal offence is legally liable to be

1 1 1 1 1 1 1 1 1 1 1 1 1 1

punished & in order to hold an accused penalty liable, two conditions shall be
1 1 1 1 1 1 1 1 1 1 1 1 1 1

satisfactorily proved by the prosecution that: 1 1 1 1 1 1

(a) He committed a wrongful act which amounts to be a criminal act, &

1 1 1 1 1 1 1 1 1 1 1 1 1

(b) He had guilty mind i.e., mensrea of committing the said act.
1 1 1 1 1 1 1 1 1 1 1 1

This is based on the principle that the act alone does not amount to guilt; it must be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accompanied by a guilty mind. It is only when these two elements are united in one 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

person & proved beyond reasonable doubt then the offender shall be convicted of a
1 1 1 1 1 1 1 1 1 1 1 1 1 1

crime of which he is charged. 1 1 1 1 1 1

19 | P a g e 1 1
The most fundamental principal of criminal justice administration system which has to
1 1 1 1 1 1 1 1 1 1 1 1

born in mind is that “a person accused of offence is to be presumed innocent until proven
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

guilty”. The presumption of innocence of accused has to be rebutted by the prosecution

1 1 1 1 1 1 1 1 1 1 1 1 1 1

by way of production of evidence against the accused & unless the prosecution rebuts the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 presumption to the satisfaction of the court, the court cannot record a finding to the guilt 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of the accused.
1 1

However in certain cases, the presumption are against the accused in number of cases
1 1 1 1 1 1 1 1 1 1 1 1 1 1

presumption is there regarding the guilt of the accused person. But in even in those cases 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

prosecutions is required to prove the existence of fact which is required to present before 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

having the adverse presumption against the accused. Once the prosecution is successful
1 1 1 1 1 1 1 1 1 1 1 1

in showing the existence of those facts the court can draw statutory presumption against
1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused where after burden is on the accused to rebut that presumption. However,
1 1 1 1 1 1 1 1 1 1 1 1 1

burden on prosecution to prove guilt of the accused in comparisons to the burden on the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused. If any evidence favoring the innocence is brought on record, the accused should
1 1 1 1 1 1 1 1 1 1 1 1 1

1 be acquitted.
1

2.5 The presumption of innocence may also literally be construed such as follows:
1 1 1 1 1 1 1 1 1 1 1 1 1

(I) The rule of the law discriminates none till the guilt of the accused is procedurally
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

established in a free & fair trial & therefore, only the accusation does not make a person a 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 lesser human throughout the period of investigation.

1 1 1 1 1 1 1

(2) Until a contrary is proved beyond reasonable doubt that the accused has committed a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

criminal offence, either voluntarily or even negligently, he is presumed to be innocent.

1 1 1 1 1 1 1 1 1 1 1 1

In criminal justice administration system, the presumption of innocence is in the favour

1 1 1 1 1 1 1 1 1 1 1 1 1

of the accused & it is the duty of the persecution to rebut such presumption by way of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

production of evidence showing the guilt of the accused & proofing the offence with 1 1 1 1 1 1 1 1 1 1 1 1 1 1

which is the accused charged. Further, if the evidence produced lays down to views , one
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

indicating the guilt of the accused & the other to his innocence, the view favorable to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused has to be accepted. 1 1 1 1

Incase where the court consider reasonable doubt regarding the guilt of the accused, the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

benefit of such doubt shall go in the favor of the accused. However, on the other h& court
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 must not out rightly reject the evidence produced by the persecution considering it as
1 1 1 1 1 1 1 1 1 1 1 1 1 1

vexatious, unreliable or fanciful or being based on conjectures & surmises. The entire 1 1 1 1 1 1 1 1 1 1 1 1 1

evidence has to be viewed in totality the approach of the court appreciating the evidence
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

20 | P a g e 1 1
must be integrated & not isolated. A balance has to be maintained in appreciating the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

evidence the approach of the court must be integrated, not truncated or isolated. In other
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

words, the impact of evidence in totality on the prosecution case or innocence of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the accused.12 1

8. In Kali Ram’s case 13 , it has further observed that it is no doubt true that wrongful
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

acquittals are undesirable & shake confidence of the people in the judicial system, much
1 1 1 1 1 1 1 1 1 1 1 1 1 1

worse, however, is the wrongful conviction of the innocent person are far more serious &
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 its reverberations cannot but be felt in a civilized society.

1 1 1 1 1 1 1 1 1 1

Suppose an innocent person is convicted of the offence of murder & is hanged, nothing
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

further can undo the mischief for the wrong resulting from unmerited conviction is
1 1 1 1 1 1 1 1 1 1 1 1 1

irretrievable. To take another instance, if an innocent person is sent to jail & undergoes 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the sentence, the scars left by the miscarriage of justice cannot be erased y any
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

subsequent act of expiation. Not many persons undergoing the pangs of wrongful 1 1 1 1 1 1 1 1 1 1 1 1

conviction are fortunate like dreyfus to have an emilezola to champion their cause &
1 1 1 1 1 1 1 1 1 1 1 1 1 1

succeed in getting the verdict of guilt annulled. All this highlights the importance of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

insuring, as far as possible, that there should be no wrongful conviction of innocent

1 1 1 1 1 1 1 1 1 1 1 1 1 1

person. Some risk of the conviction of the innocent, of course, is always there in any
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

system of administration of criminal justice. Such a risk can be minimized but not ruled
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

out altogether. 1 1

It is, therefore, till the guilt of the accused is satisfactorily established & proved the case
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

beyond any reasonable doubt, a conclusive presumption & proved the case beyond any
1 1 1 1 1 1 1 1 1 1 1 1 1

reasonable doubt, a conclusive presumption shall be made that the accused is innocent.
1 1 1 1 1 1 1 1 1 1 1 1 1

Such a presumption diminishes on the judgment day if the guilt is proved.

1 1 1 1 1 1 1 1 1 1 1 1 1

2.6 Magistracy: Arrest & detention of a Judge, Magistrate or Judicial officer—

1 1 1 1 1 1 1 1 1 1 1 1

Guidelines: 1

In the Delhi Judicial Services V. State of Gujarat & others14, the Supreme Court gave the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

following directions that no person whatever his rank or designation may, is above the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

law & he must face penal consequences of infraction of criminal law. A Magistrate,
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Judge or Judicial Office is liable to criminal prosecution for an offence like any other
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

citizen but in view of the paramount necessity of preserving the independence of

1 1 1 1 1 1 1 1 1 1 1 1 1

12
HarijanaThirupala and others V. Public Prosecutor, High Court of A.P., 2002 (5) SC 551 1 1 1 1 1 1 1 1 1 1 1 1 1

13
Kali Ram V. Himachal Pradesh, AIR, 1973,SC 2773
1 1 1 1 1 1 1

14
AIR 1991 SC406 1 1

21 | P a g e 1 1
judiciary & at the same time ensuring that infractions of law are properly investigated,
1 1 1 1 1 1 1 1 1 1 1 1 1 1

we think the following guidelines should be followed:

1 1 1 1 1 1 1 1

(a) If a judicial officer is to be arrested for some offence, it should be under intimidation
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

to the District Judge or High Court as the case may be.

1 1 1 1 1 1 1 1 1 1 1 1

(b) If facts & circumstances necessitate the immediate arrest of a judicial officer of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

subordinate judiciary, a technical or formal arrest may be affected. 1 1 1 1 1 1 1 1 1 1

(c) The fact of such arrest should be immediately communicated to the District &
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Session Judge or the High Court. 1 1 1 1 1 1

(d) The judicial officer so arrested shall not be taken to a police station without the prior
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

order or directions of the District & Sessions Judge of the concerned district, f
1 1 1 1 1 1 1 1 1 1 1 1 1 1

available. 1

(e) Immediate facility shall be provided to the judicial officer for communication with
1 1 1 1 1 1 1 1 1 1 1 1 1

his family members, legal advisors & judicial officers including the District &
1 1 1 1 1 1 1 1 1 1 1 1

Sessions Judge. 1

(f) No statement of the judicial officer who is under arrest be recorded nor any
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

panchanama be drawn up nor any medical test be conducted except in the 1 1 1 1 1 1 1 1 1 1 1 1 1

presence of the legal advisor of the judicial officer concerned or another judicial
1 1 1 1 1 1 1 1 1 1 1 1 1

officer of equal or higher rank, if available. 1 1 1 1 1 1 1 1

(g) There should be no handcuffing of the judicial officer. If, however, violent resistance
1 1 1 1 1 1 1 1 1 1 1 1 1 1

to arrest is offered or there is imminent danger need to affect physical arrest in

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

order to avert danger of life & limb, the person resisting arrest may be
1 1 1 1 1 1 1 1 1 1 1 1 1 1

overpowered & handcuffed. In such case, immediate report shall be made to the 1 1 1 1 1 1 1 1 1 1 1 1 1

District & Sessions Judge concerned & also to the Chief Justice of the High
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Court. But the burden would be on the police to establish the necessity for
1 1 1 1 1 1 1 1 1 1 1 1 1 1

effecting physical arrest & handcuffing the judicial officer if it established that
1 1 1 1 1 1 1 1 1 1 1 1

the physical arrest & handcuffing of the judicial officer was not justified.
1 1 1 1 1 1 1 1 1 1 1 1

The police officer causing or responsible for such arrest for such arrest & handcuffing
1 1 1 1 1 1 1 1 1 1 1 1 1 1

would be guilty of misconduct & would also personally liable for compensation or
1 1 1 1 1 1 1 1 1 1 1 1 1

damage as may be summarily determined by the High Court.

1 1 1 1 1 1 1 1 1 1

The above said guidelines, according to the Supreme Court, are not exhaustive but these
1 1 1 1 1 1 1 1 1 1 1 1 1 1

are minimum safeguards which must be observed in case of arrest & detention of a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

judicial officer. These guidelines should be implemented by the State Government as

1 1 1 1 1 1 1 1 1 1 1 1

well as by the High Courts.

1 1 1 1 1 1

22 | P a g e 1 1
However, the Apex Court has taken a series of view of a judicial officer’s visiting a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

police station on the invitation of the police & stated in this regard that no judicial officer
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

should visit a police station on his own except in connection with his official duties &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

functions. If it is necessary for a judicial officer or subordinate judicial officer to visit the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

police station in connection with his official duties, he must do so with prior information
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of his visit to the District & Sessions Judge.

1 1 1 1 1 1 1 1 1

2.7 Bail in anticipation of a possible arrest:

1 1 1 1 1 1 1 1

Section 438 of the Code of criminal Procedure, 1973 provides for anticipatory bail
1 1 1 1 1 1 1 1 1 1 1 1 1

whenever any person has an apprehension or reason to believe that he may be arrested on
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the accusation of having committed a non-bailableoffence, he may apply for grant of

1 1 1 1 1 1 1 1 1 1 1 1 1

anticipatory bail under section 438 Cr.p.c. to High court or the court of Session for a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

direction to release him in case he is arrested. The law commission in its 41st report
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

recommended the addition of this provision. Presently all the states of India except the 1 1 1 1 1 1 1 1 1 1 1 1 1 1

state of UP have the provision anticipatory bail. The apex court has given several
1 1 1 1 1 1 1 1 1 1 1 1 1 1

recommendation to the government of UP to bring back the provision of anticipatory 1 1 1 1 1 1 1 1 1 1 1 1 1

bail as it is causing the grave injustice to the person falsely accused of crimes.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

2.8 The Commission, in its 42’ report, had further observed that:
1 1 1 1 1 1 1 1 1 1 1

“We are further of the view that in order to insure that the provision is not to put to abuse
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

at the instance of the unscrupulous petitioners, the final order should be made only after
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

notice to the public prosecutor. The initial order should only be interim one. Further the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

relevant section should make it clear that the direction can be issued only for reasons or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

be recorded, & if the court is satisfied that such a direction is necessary.”

1 1 1 1 1 1 1 1 1 1 1 1 1

In this regard, two remarkable judgments of the Supreme Court passed in Baichand Jam
1 1 1 1 1 1 1 1 1 1 1 1 1 1

v. State of M.P.15& Gurbaksh Singh V. State of Punjab’16 may well be remembered.

1 1 1 1 1 1 1 1 1 1 1 1 1 1

Section 438 of Cr.P.C. which is available to an accused in respect of the offences under
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the penal code, is not available in respect of the offences under the ST & SC (prevention
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of atrocities) Act, 1989 but that is not violative of article 14 of the constitution. 17 Some of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 the relevant considerations for granting anticipatory bail are the nature & seriousness of
1 1 1 1 1 1 1 1 1 1 1 1 1

the proposed charges, the context of the events likely to lead to the making of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

charges, a reasonable possibility of the applicant’s presence not being secured at the
1 1 1 1 1 1 1 1 1 1 1 1 1

trial, a reasonable apprehension of the witness being tempered with & the larger interest
1 1 1 1 1 1 1 1 1 1 1 1 1 1

15
AIR 1977 SC 399 1 1 1

16
AIR 1980 SC 1632 1 1 1

17
AIR 1995 SC, 1198, 1995(3) SCC 211
1 1 1 1 1 1

23 | P a g e 1 1
of the public or the state. Status in life, affluence or otherwise, are hardly relevant
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

considerations in the matter of granting anticipatory bail. 18 1 1 1 1 1 1 1

An order of anticipatory bail does not ensure till the end of the trial but it must be of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

limited duration as the regular court cannot be bypassed. The limited duration must be
1 1 1 1 1 1 1 1 1 1 1 1 1 1

determined having regards to the facts of the case & the need to give the accused 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sufficient time to move the regular court for bail & to give the regular court sufficient
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

time to determine the bail application19.

1 1 1 1 1 1

2.9 Bail & Bonds:1 1 1 1

An accused person is said at common law to be admitted on bail when he is released from
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 the custody of competent lawful authority & is entrusted to the custody of persons
1 1 1 1 1 1 1 1 1 1 1 1 1 1

known as his sureties, who are bound to produce him to answer, at a specified time &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

place, the charge against him & who in default of so doing, are liable to forfeit such sum
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

as is specified when the bail is admitted.

1 1 1 1 1 1 1 1

It means a temporary released of a person awaiting trial on his furnishing the required
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

bonds either in the court or at the police station. It requires setting at liberty a person
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

arrested on security being taken for his appearance on a day & at a place & such security
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

is called bail because the person arrested is delivered into the hands of other person who
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

finds himself for re-appearance of the accused person when required.

1 1 1 1 1 1 1 1 1 1

The first schedule of the Code of Criminal Procedure, 1973, classifies offence under the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Indian Penal Code or against other laws either bail able or non-bail able. Since the code
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

makes a distinction between bail able& non-bail able offences, bail can be claimed as of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

right by an accused under section 436 in all bail able offences.

1 1 1 1 1 1 1 1 1 1 1 1

The nature of the offence is one of the bias consideration for the grant of bail, more
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

heinous is a crime, the greater is the chance of rejection of the bail, though however,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

dependent on the factual matrix of the matter. Apart from the above, certain other which
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

may be attributed to be relevant considerations may also the noticed at this juncture
1 1 1 1 1 1 1 1 1 1 1 1 1 1

though, however, the same are only illustrative & not exhaustive neither there can be
1 1 1 1 1 1 1 1 1 1 1 1 1 1

any.

The consideration being:

1 1 1

18
1990 Cr.L.J.,1024 1

19
(1998(9) SCC 348) 1 1

24 | P a g e 1 1
(a) While granting bail the court has to keep in mind not only the nature of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accusations, but the severity of the punishment, if the accusation entails a

1 1 1 1 1 1 1 1 1 1 1 1

conviction & the nature of the evidence in support of the accusations.

1 1 1 1 1 1 1 1 1 1 1 1

(b) Reasonable apprehension of the witness being tempered with or the apprehension of
1 1 1 1 1 1 1 1 1 1 1 1 1

their being a threat for the complainant should also weigh with by the court in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

matter of grant of bail. 1 1 1 1 1

(c) While it is not accepted to have the entire evidence establishing the guilt of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused beyond reasonable doubt but there ought always to be a prima facie
1 1 1 1 1 1 1 1 1 1 1 1 1

satisfaction of the court in support of the charge. 1 1 1 1 1 1 1 1 1

(d) Frivolity in prosecution should always be considered in the matter of grant of bail &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

in the event of there being some doubt as to the genuineness of the prosecution, in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 the normal course of events, the accused is entitled to an order of bail. 20

1 1 1 1 1 1 1 1 1 1 1 1 1

20
1998(9) SCC 348
1 1

25 | P a g e
1 1
 Chapter-3
CONCEPT OF BAIL- A CRUCIAL
1 1 1 1 1

PART OF CRIMINAL JUSTICE

1 1 1 1

SYSTEM

26 | P a g e
1 1
 CONCEPT OF BAIL- A CRUCIAL PART OF CRIMINAL
1 1 1 1 1 1 1 1

JUSTICE SYSTEM 1

“It is said that no one truly knows a nation until one has been inside its jails. A nation
should not be judged by how it treats its highest citizens, but its lowest ones.”
Nelson Mandela, 1995

3.1 Introduction

The principle of granting bail is an integral part of our criminal justice system being
as old as the English Law itself. When the development of criminal justice
administration system was in its initial stages, arrest for serious crime meant
imprisonment without preliminary hearing & it could take long periods of time before
the arrival of the decision of Court (King). Hence it became utmost important to an
arrested person to be able to obtain provisional release from the custody until the final
disposal of the case. A mere allegation does not make one guilty. There is a
presumption of innocence until the guilt is proved beyond reasonable doubt. This
means that an accused person is equally entitled, as any other person, to his right to
protection of life & liberty. Hence accused persons were provisionally released on
bail upon furnishing of bail bond with sureties & upon the condition that the bailee
would come back for trial as & when called & that he does not tamper with the
evidence or try to threaten or turn the witnesses hostile.

Conditional release of arrested person was preferred for many reasons. Firstly, it was
less expensive & troublesome. It was easy to escape from jail & under the then
prevailing law, if a prisoner escaped from jail, it was the jailor who was hanged. Also
the jails at that time were in a miserable state. There was no adequate provision for
food & sanitation. Apart from these reasons, the liberty of the accused was equally
important while striking a careful balance between both individual (interest of
accused) & societal interest of being safe from the criminals.

3.2 Definition of Bail

Wharton's Law Lexicon, defines "bail" as to set at liberty a person arrested or

imprisoned, on security being taken for his appearance on a day& at a place certain,
which security is called bail, because the party arrested or imprisoned is delivered into
the hands of those who bind themselves or become bail for his due appearance when

27 | P a g e
1 1
required, in order that he may be safely protected from prison, to which they have, if
they fear his escape, etc., the legal power to deliver him.

Black's Law Dictionary defines "bail" as a security such as cash or a bond, especially
security required by court for the release of a prisoner who must appear at a further
time.

Webster's Dictionary of Law defines "bail" as temporary release of a prisoner in

exchange for security given for the prisoner's appearance at a later hearing.

. 1

3.3 Meaning of Bail

1 1 1

The word Bail means the security for a prisoner’s appearance for trail. The effect of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

granting bail is, accordingly not to set the prisoner free from jail or custody, but to release
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 him from the custody of law & to entrust him to the custody of his sureties who are
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

bound to procedure him at his trial at a specified time & place. The necessary corollary is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

that it is open to the sureties to seize the prisoner at any time & may discharge them by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

handing him over to the custody of law & the result would be that he (the prisoner) would
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 be then imprisoned.
1 1 1

However, the bail is a generic term which means the judicial release from custody i.e.,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

prevention of unnecessary deprivation of personal liberty. It signifies a security for the

1 1 1 1 1 1 1 1 1 1 1 1 1

appearance of a prisoner for his release. It is a mode of release of a prisoner known as

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

"Zamanat" or "Muchalka." The former is a form of judicial release for a security with
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sureties. The latter is a penal bond. It is the duty & function of the community to secure
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the presence of the prisoner for incarceration. Thus the state involves participation of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

community in the administration of justice. Thus bail means that the accused is to be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

assured of the beneficial enjoyment of regulated freedom. The release of an accused on

1 1 1 1 1 1 1 1 1 1 1 1 1 1

bail in a criminal case after furnishing the required bond is recognized as the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

fundamental aspect of human rights. 1 1 1 1 1

3.4 Definition of bail under Indian Law

1 1 1 1 1 1

The Code of Criminal Procedure, 1973 lays down the norms of granting bail & bonds in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Section 436 to 450. 1 1 1 1

The word ‘bail’ has not been defined in the Code of Criminal Procedure although the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Codes of 1898 & 1973 have defined the expression ‘bail able offence’ & ‘non-bail able
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

28 | P a g e 1 1
offence’ respectively in s 4(b) & s 2(a). In the latter section the expression ‘bailable
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

offence’ has been defined to mean an offence which is shown as bail able in Schedule-I,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

or which is made bail able by any other law for the time being in force; & the expression
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

‘non-bail able’ has been defined to mean any other offence. 1 1 1 1 1 1 1 1 1

The concept of bail implies a form of previous restraint.5 So the meaning of the term
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

‘bail’ is to set free a person who is tinder arrest, detention or is under some kind of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

restraint by taking security to; his appearance. 1 1 1 1 1 1

3.5 Philosophy & Rationale behind Granting Bail

1 1 1 1 1 1

Understanding the rationale behind law relating to bails requires the study of various 1 1 1 1 1 1 1 1 1 1 1 1 1

stages of its development. In a primitive society bail has become the rule. The law of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

bails has become an important branch of the criminal justice administration system. The
1 1 1 1 1 1 1 1 1 1 1 1 1

concept of bail emerges from the conflict between the police power to restrict the liberty
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of a man who is alleged to have committed a crime & the presumption of innocence in his
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 favor. The police have been conferred with powers of arrest & custody of accused by the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

state for the protection of its citizens from the criminals. It would be grossly unjust to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

keep an accused person under arrest with the aim of punishing him on the presumption
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

that he is guilty, if he were eventually acquitted on trial.

1 1 1 1 1 1 1 1 1 1 1

Depriving a man of his personal liberty without authority of law, detaining him illegally,
1 1 1 1 1 1 1 1 1 1 1 1 1 1

absence of just, fair & reasonable procedure shakes the confidence of the individual in
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the legal system & is against the fundamental rights enshrined in the constitution.
1 1 1 1 1 1 1 1 1 1 1 1 1

Individual liberty, functioning of police force & executive authorities is not to be

1 1 1 1 1 1 1 1 1 1 1 1 1

weighed in scales; Freedom of an individual is guaranteed by the Indian constitution in

1 1 1 1 1 1 1 1 1 1 1 1 1 1

the form of fundamental rights.

1 1 1 1 1

Article 21 of the Constitution prohibits deprivation of liberty except in accordance with

1 1 1 1 1 1 1 1 1 1 1 1 1

due process of law. Clause 1 of art 22 provides the earliest opportunity to the arrested
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

person to remove any mistake, misapprehension or misunderstanding in the minds of the

1 1 1 1 1 1 1 1 1 1 1 1 1

arresting authority & also to be informed of the charges against him so that he can
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

exercise the right of appointing a legal practitioner of his choice to defend him. Clause 2
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of art 22 provides the next safeguard that the arrested person must be produced before a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

magistrate within 24 hours of such arrest. In MadhuLimaye'scase, the Supreme Court

1 1 1 1 1 1 1 1 1 1 1 1

released him for non-compliance of Art 22 of the Constitution.

1 1 1 1 1 1 1 1 1

The constitutions of all civilized countries guarantee the fundamental right to liberty.
1 1 1 1 1 1 1 1 1 1 1

29 | P a g e 1 1
The Indian constitution contains elaborated provisions relating to the fundamental
1 1 1 1 1 1 1 1 1 1

rights. Further, the Constitution reflects the tendency of modern civilization to shift the
1 1 1 1 1 1 1 1 1 1 1 1 1

emphasis from the individual to the community & at the same time it has struck a balance
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 between individual liberty & social control. 1 1 1 1 1

The deprivation of liberty is a matter of grave concern in the light of significance &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sweep of Article 21. It is only permissible when deprivation is reasonable & in the in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

interest of the state. The refusal of bail is not for punitive purposes but for the bifocal
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

interests of justice of the individual involved & society affected.

1 1 1 1 1 1 1 1 1 1

If a man is remanded in police custody, he will not be in a position to defend or prepare

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

his case. Hence he ought to be released on bail. The promotion of public justice requires
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

demotion of mechanical detention. Other important considerations include considerable

1 1 1 1 1 1 1 1 1

public expense in keeping in custody where there is no risk of disappearance as well as

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the deplorable conditions of our jails. The unrewarding cruelty & expensive custody of
1 1 1 1 1 1 1 1 1 1 1 1 1

avoidable incarceration makes refusal of bail unreasonable. 1 1 1 1 1 1 1

The Concept & rationale of bail be best understood by looking at the circumstances that
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

lead to the arrest & detention of a person. Lodging of F.I.R is the first step after
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

commission of an offence. The police for the purposes of investigations suspects & for 1 1 1 1 1 1 1 1 1 1 1 1 1 1

which it has a duty to bring the suspect before a magistrate within 24 hours of arrest.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

After that a copy of police observations about his probable guilt is forwarded to him
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

along with an application requesting further detention if investigations have not been
1 1 1 1 1 1 1 1 1 1 1 1

completed so far. The magistrate recommends custody in the latter case. Investigations1 1 1 1 1 1 1 1 1 1 1 1

into the crime from this point onwards begin to take the shape of "Forgotten under trial".
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

If investigations are still proceeding against him depending upon the zeal of the
1 1 1 1 1 1 1 1 1 1 1 1 1

concerned police officers or the nature of his crime & point to his guilt, a formal charge
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

or challan is put up against him in a court of law & a date for appearing in the court for
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

answering the charge against him is intimated. 1 1 1 1 1 1

From this date onwards his trial commences. Till the conclusion of the trial, the jailed
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

inmate uncertain about how long will he is in jail, the competence of his attorney,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

prosecutors & judges & the meaning of a hundred other factors related to his legal 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

predicament. That is, he is behind the bars when the file relating to his case moves from 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the state prosecutor's table to the reader's who puts a date for appearance of witnesses or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

another date for furnishing of evidence or another one for the scrutiny of the F.I.R. on
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

30 | P a g e 1 1
one such date, he is also transported from the jail to the courtroom, where oblivious of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

everything that has happened so far he stands dwarfed in front of the judge fumbling at 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

query directed at him. 1 1 1 1

In a country, where challans are not put up for months by way of practice & where trials
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

go on tirelessly for years, is it fair to keep a mere suspect behind bars? The most obvious
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

reason for such callousness seems to be a tradition of callousness. We may attribute it to

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

our history of servitude & the treatment meted out to an accused then, or to our ancient
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Police Act of 1861 which was enacted for the protection of the Establishment or to our
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Judiciary which remains smitten with the "English way of justice". Whatever be the
1 1 1 1 1 1 1 1 1 1 1 1 1

reason, it remains that the agencies involved in our criminal justice process are not
1 1 1 1 1 1 1 1 1 1 1 1 1 1

bothered by the psychological impact of imprisonment & the physical & mental 1 1 1 1 1 1 1 1 1 1 1 1

deprivation felt by a detenu. 1 1 1 1 1

To understand the effect of imprisonment upon the psychology of an accused, we must

1 1 1 1 1 1 1 1 1 1 1 1 1 1

examine the place of the prison system in the total social structure. Needless to say that
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

like mental institutions, it is an isolated social system. It is a structure of a ruling group

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

(the prison staff & line organizations) & a subordinate group (prisoners). The authority
1 1 1 1 1 1 1 1 1 1 1 1 1

of the ruling group is almost total. In a functional perspective, the total process of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

apprehension & adjudication of the criminal can be seen as a well regulated process of 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

status attribution. An individual is singled out & forcefully given the minority status by
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the representatives of the society. The prison not only segregates the inmates physically
1 1 1 1 1 1 1 1 1 1 1 1 1

but also systematically reinforces the ascribed low status of 'criminal' to them, even if
1 1 1 1 1 1 1 1 1 1 1 1 1 1

one be a mere under trial. Thus, for the protection of the society & its interests, the prison
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

downgrades the prisoner instead of protecting his social status. He automatically loses 1 1 1 1 1 1 1 1 1 1 1 1

his job, he cannot contribute effectively for the preparation of his defense & the burden
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of his detention falls heavily on the innocent members of his family. If upon the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

conclusion of his trial he is found not guilty, who will recompense him for the loss of 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

status, the stigma of jail & the adversity that befell his family member?
1 1 1 1 1 1 1 1 1 1 1 1

Despite these compelling arguments favoring release on bail of under trial prisoners' our
1 1 1 1 1 1 1 1 1 1 1 1 1

jails remain overcrowded with them. These under trial prisoners are made of principally
1 1 1 1 1 1 1 1 1 1 1 1 1

two categories: one representing those who were denied bail by the courts on account of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

their involvement in serious offences & the other consisting of those who could not
1 1 1 1 1 1 1 1 1 1 1 1 1 1

furnish bail for one reason or other. 1 1 1 1 1 1

31 | P a g e 1 1
3.6 The Importance of Instrument of Bail
1 1 1 1 1 1 1

The importance of the instrument of bail can be well imagined from the facts that from
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the initial stage of accusation at Police Level to Apex Court & right for direction for
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

anticipatory bail to special powers of High Court & Court of Session to grant bail & writ 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of Habeas Corpus & Certiorari have been provided to restore the liberty of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

individual. Instrument of bail is a counter to the interest of society & the individual
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

interest can be sacrificed for the interest of society. That is why the instrument of bail is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

cautiously granted by the authorities. It is Herculean task to keep the balance between
1 1 1 1 1 1 1 1 1 1 1 1 1 1

these two contrary rights & the Rule of Law is the only yardstick to perform this task
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

judiciously. Rule of law means to follow "Procedure established by law" which has its 1 1 1 1 1 1 1 1 1 1 1 1 1 1

roots to Phrase "Due process" found in the Fifth & Fourteenth Amendments to the U.S.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Constitution.

3.7 Bail Not Jail

1 1 1

Bail, not jail, has become a dominant principle of criminal law justice system in every
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

mature democracy & in India often in its breach.

1 1 1 1 1 1 1 1

The Supreme Court in its landmark judgment in the case GudikantiNarasimhulu v.

1 1 1 1 1 1 1 1 1 1 1 1

Public Prosecutor, High Court of A.P., 21 and dated December 6, 1977 propounded the
1 1 1 1 1 1 1 1 1 1 1 1 1

"bail not jail" philosophy, the foundation of which was laid by the celebrated Justice V R
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Krishna Iyer. He stated that: 1 1 1 1

"Questions like "bail or jail?" & "at the pre-trial stage or post-conviction stage?" 1 1 1 1 1 1 1 1 1 1 1 1 1

belonged to the blurred area of the criminal justice system & largely hinges on the hunch
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of the bench, otherwise called judicial discretion".

1 1 1 1 1 1

"It makes sense to assume that a man on bail has a better chance to prepare or present his
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

case than one rendered to custody. & if public justice is to be promoted, mechanical
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

detention should be demoted," he had said. 1 1 1 1 1 1

“Bail or jail” is a question that comes up before courts exercising judicial discretion in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

bail matters, time & again. This judicial discretion has to answer one of the most
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

important fundamental rights guaranteed under Article 21 of the Constitution, namely,

1 1 1 1 1 1 1 1 1 1 1

personal liberty. Refusal to grant bail would mean punishment before conviction &
1 1 1 1 1 1 1 1 1 1 1 1

deprivation of liberty of a person before his offence is proved. Also the court must give
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

21
2002(3) SCC598, AIR 2002 SC 1475 1 1 1 1 1

32 | P a g e 1 1
full consideration to the presumption that an accused is innocent until he is pronounced
1 1 1 1 1 1 1 1 1 1 1 1 1 1

guilty. 1

A bearing must be given both to the individual concerned as well as on the society in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

general, for, sending an innocent person to jail before conviction would amount to an
1 1 1 1 1 1 1 1 1 1 1 1 1 1

abridgement of one of the most important fundamental rights, whereas a dangerous & 1 1 1 1 1 1 1 1 1 1 1 1 1

hardened criminal released on bail can do more harm to the society by way of tampering
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

with the evidence, intimidating the witnesses, interfering with the judicial process or
1 1 1 1 1 1 1 1 1 1 1 1

may be by committing more offences.

1 1 1 1 1 1

"Bail not jail" jurisprudence got further developed in Gurbaksh Singh Sibbia judgment
1 1 1 1 1 1 1 1 1 1 1 1

delivered on April 9, 1980. 1 1 1 1 1

The importance of this judicial discretion cannot therefore be understated. Uncertainty

1 1 1 1 1 1 1 1 1 1 1

in judicial discretion in bail matters is due to the fact that without going into the full
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

details of the evidence, which in fact might not even have been collected till that time in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

many cases as the case concerned might still be under investigation, a Court has to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

decide whether a prima facie case exists which then becomes a grey area in which
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

different shades of opinion could be possible. 1 1 1 1 1 1 1

In recent times, the attitude of the trial courts in matters relating to bail has been really
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

uncallous towards the accused. Once a case becomes high profile case (Be it A Raja or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Kanimozhi in the 2G case, Suresh Kalmadi in the CWG case or Asaram, facing an 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

unproven sexual assault charge) courts are difficult to grant bail even if it goes against
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the express directions of the Apex Court. Not only the high profile cases that catch
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

media's attention, but even under-privilegedunder trials without resources are left to
1 1 1 1 1 1 1 1 1 1 1

languish in jails for years due to want of bail orders from courts. The police are reluctant
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

to grant bail even after the investigation is over & when there is no likelihood of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused absconding. The court must be sensitive in such matters.

1 1 1 1 1 1 1 1 1 1

Although bail, not jail, is the rule, there are two main considerations relevant in denial of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

bail, possibility of the accused fleeing & probability of interfering with the investigation
1 1 1 1 1 1 1 1 1 1 1 1 1

& witnesses. There are times when despite long pre-trial jail, the case may end with an
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

acquittal, which makes a mockery of justice. A court has to balance the valuable right of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

liberty & the interest of society. Where there is a danger of the accused absconding,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

courts can impose conditional bail. If a condition is violated, the bail can be cancelled.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Bail cannot be denied to teach a lesson to one whose offence is yet to be proved.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

33 | P a g e 1 1
In Moti Ram v State of M.P.Court ruled that the relevant bail provisions to rigorous
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

analysis& by a process of close legal reasoning, succeeded in expanding & liberalizing 1 1 1 1 1 1 1 1 1 1 1 1 1

the age old concept of bail so as to make them more responsive to the needy & poor. The
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Supreme Court of India address to three main issues in granting of bail more meaningful,
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 practical & more useful for each & every citizen. 1 1 1 1 1 1 1 1 1

(i) Whether a person charged with a bail able offence can be released on his own bond
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

without sureties? 1

(ii) In case the bail is granted with sureties, what should be the criteria for qualifying the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

amount of bail? 1 1

(iii) Whether a surety can be rejected simply because he or his estate is situated district or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

a State of the Country.

1 1 1 1 1

3.8 Factors Contributing Towards Development of Laws Relating To Bail in India

1 1 1 1 1 1 1 1 1 1 1 1

History is replete with innumerable examples of ordeals that an accused person had to go
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

through during his trial. It is only by accident that we can get a glimpse of the common
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

cause of business, by which the ordinary thieves or murders were brought to justice.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Ailvard’s case was a Crown & that in the struggle between the King & the suspected1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

man; all advices are to be secured to the King, whose safety is far more important to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

public than the life of such a questionable person as the prisoner.

1 1 1 1 1 1 1 1 1 1 1

(a) The Accusatorial system of trial: Discovery & punishment of crime has been treated
1 1 1 1 1 1 1 1 1 1 1 1 1 1

as pre-eminently the affair of the government & has all its stages been under the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

management of representatives of the government (inquisitorial system). In England it 1 1 1 1 1 1 1 1 1 1 1

has been left principally to individuals who consider them to have been wronged, the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

judge’s duty being to see fair play between the prisoner & the prosecution even if the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

prosecutor happened to be the crown (Accusatorial system). 1 1 1 1 1 1 1

(b) The development of physical sciences: the rapid growth of physical sciences &
1 1 1 1 1 1 1 1 1 1 1 1 1

indeed of every branch of knowledge which has been one great characteristic of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

history of the last two centuries naturally influenced the administrative of criminal
1 1 1 1 1 1 1 1 1 1 1 1

justice as well. In criminal trials, questions of fact came to be investigated in the same
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

spirit as other matters of fact. Prisoners were allowed to make their full defense by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

counsel.

34 | P a g e 1 1
(c) The tremendous empowerment of the state: a remarkable change in the configuration
1 1 1 1 1 1 1 1 1 1 1 1 1

of states marked the arrival of the eighteenth century. Countries began to have specific
1 1 1 1 1 1 1 1 1 1 1 1 1 1

configuration. They began to have a strong army & organized the police on which the 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

government could rely. The maltreatment of the individual at the hands of state agencies 1 1 1 1 1 1 1 1 1 1 1 1 1 1

in criminal matters became a common feature. It was realized that the state had become
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

capable of inflicting so much harm on an individual accused of a crime that the need to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

arm him with some presumptions in his favor justified on the grounds of humanity &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

liberty.

Principles of natural justice were revived & slowly a number of rights were bestowed
1 1 1 1 1 1 1 1 1 1 1 1 1 1

upon an accused person. Principle of presumption of innocence of an accused is of recent

1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 origin & is not much older than the 19th century. Prior to inception of nineteenth
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

century, there was a growing demand that circumstantial evidence should be preferred
1 1 1 1 1 1 1 1 1 1 1 1

with great caution & care when a man’s liberty was at stake. In the presumption of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

innocence prior to the proof of guilt, right to be informed of the grounds of arrest, right to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

release on bail before trial are some rights.

1 1 1 1 1 1 1

(d) Liberty & Equality in legal profession: People began to ask for legislation giving
1 1 1 1 1 1 1 1 1 1 1 1 1 1

them the right to vote or form unions etc., & they also began to press for reforms in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

legal system as well. Yet the position of the accused remained largely pathetic. He could
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

not rise above the myth of a pariah to be shunned & punished by the law of the l& before
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

his conviction.
1

3.9 Release of under-trial prisoners on bail:

1 1 1 1 1 1

A comprehensive view was adopted by the Supreme Court in the decisions of T.L.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Upadhyay v. State of Andhra Pradesh 22 , & “common cause”, a registered Society v.

1 1 1 1 1 1 1 1 1 1 1 1 1

Union of India. The former case dealt with under trial prisoners lodged in Tihar Jail. The
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Apex Court issued directions for the release of the prisoners on bail depending upon the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

type of the offence with which they had been charged upon the completion of the period
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

mentioned in the judgment. The latter case is of a general nature & dealt with under-trial
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

prisoners lodged in various jails of the country. The Court ordered their release on
1 1 1 1 1 1 1 1 1 1 1 1 1 1

conditions mentioned in the order & stated that the directions shall be valid in all the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

states & union territories of the Country & would be applicable to both pending cases as
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

well as future cases. 1 1 1

22
1979 AIR 1369: 1979 SCR (3) 532: 1980 SCC(1) 98
1 1 1 1 1 1 1 1 1

35 | P a g e 1 1
Even out of some of the under trials languishing in jails for years, some of them had been
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

ordered to be released on bail during the pendency of their trial by various courts on
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

certain conditions. But unfortunately they could not be released despite release orders by
1 1 1 1 1 1 1 1 1 1 1 1

1 the Courts due to non-fulfillment of the conditions mentioned in the bail order on
1 1 1 1 1 1 1 1 1 1 1 1 1 1

account of extreme poverty & ignorance. The Court in the larger interest of justice chose
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

to issue fresh bail order in all such cases & relaxed the conditions mentioned in the bail
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

order instead of only giving general directions so that these languishing under trials who
1 1 1 1 1 1 1 1 1 1 1 1 1 1

despite bail orders could not be released could be set free.

1 1 1 1 1 1 1 1 1 1 1

310 THE FACTORS BEHIND THE DELAYS IN JUSTICE DELIVERY

1 1 1 1 1 1 1 1 1

SYSTEM IN INDIA 1 1

3.10.1 Factors behind delay in the disposal of cases: 1 1 1 1 1 1 1 1

There is no one factor which is solely responsible for these arrears of cases. As is known
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

that accumulation of tiny drops of water results into a pond, similarly a combination of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

plethora of factors contribute to the huge back-log of cases. There are a number of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

factors responsible for the delay; so for carrying out reforms in the existing scenario, a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

number of elements must be considered. 1 1 1 1 1

The impediments in the expeditious delivery of justice can be discussed under two broad
1 1 1 1 1 1 1 1 1 1 1 1 1 1

headings: the procedural factors and the substantive factors: 1 1 1 1 1 1 1

3.10.2 Procedural Factors : 1 1 1 1

The Supreme Court has held that the right to speedy trial flowing from Article 21
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, 1 1 1 1 1 1 1 1 1 1 1 1

revision and retrial. 23 As far as the procedural factors behind the delay in disposal of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

cases are concerned, such delays may broadly be discussed under four headings: (a) Pre-
1 1 1 1 1 1 1 1 1 1 1 1 1

trial delays, (b) delay during trial, (c) delay during the appellate proceedings and (d)
1 1 1 1 1 1 1 1 1 1 1 1 1 1

delay during the execution proceedings.

1 1 1 1

(a) Pre-trial delays : - Pre-trial delays may be due to the following factors : 1 1 1 1 1 1 1 1 1 1 1 1 1

(i) Delay in investigation; 1 1 1

(ii) Delay in service of summons; 1 1 1 1

(iii) Delay in filing written submissions and documents; 1 1 1 1 1 1 1

23
1 A. R Antulay v. R.S. Nayak, (1992) 1 SCC 225
1 1 1 1 1 1 1 1 1

36 | P a g e 1 1
 (iv) Delay in framing issues/charges. 1 1 1 1

3.10.3 Delay in investigation 1 1 1

One principal object of criminal law is to protect the society from crime by punishing the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

offenders. However justice and fair play requires that no one can be punished without a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

fair trial. A person might be under a thick cloud of suspicion of guilt, he might even be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

caught red-handed and yet he is not to be punished unless and until he is tried and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

adjudged guilty by a competent Court. 24 Investigation is the first step on the basis of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

which prosecution files a case against the accused in the court which tries the accused for
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

alleged offence. It includes all proceedings under Criminal Procedure Code for the
1 1 1 1 1 1 1 1 1 1 1 1

collection of evidence by a police officer or by any person (other than a Magistrate) who
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

is authorized by a Magistrate in this behalf. 25 The Supreme Court hasheld the

1 1 1 1 1 1 1 1 1 1 1 1 1

investigation of an offence as generally consisting of: 1 1 1 1 1 1 1 1

 Proceeding to the spot; 1 1 1 1

 Ascertainment of facts and circumstances of the case; 1 1 1 1 1 1 1 1

 Discovery and arrest of the suspected offender; 1 1 1 1 1 1 1

 Collection of evidence relating to the commission of offence which may consists 1 1 1 1 1 1 1 1 1 1 1 1

of - 1 1

o The examination of various persons (including the accused) and the 1 1 1 1 1 1 1 1 1 1

recording of their statements into writing, if the officer thinks fit. 1 1 1 1 1 1 1 1 1 1

o 1 The search of places or seizure of things considered necessary for the

1 1 1 1 1 1 1 1 1 1 1 1

investigation or to be produced at the trial; and 1 1 1 1 1 1 1 1 1

 1 Formation of opinion as to whether on the material collected, the 1 1 1 1 1 1 1 1 1 1 1

accused can be put to trial before a magistrate and if so, taking 1 1 1 1 1 1 1 1 1 1 1 1 1

necessary steps for the same by filing of a charge sheet under 1 1 1 1 1 1 1 1 1 1 1 1

section 173.26 1

For the effective discharge of its duties, police has the power to arrest any person in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

certain circumstances. Arrest of an alleged offender even before summons or warrants

1 1 1 1 1 1 1 1 1 1 1 1

are issued against him by the magistrate is provided so as to secure his presence during
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

24
R.V.Kelkar ;Criminal Procrdure Code; 4th edition,2004; p.30
1 1 1 1 1 1 1

25
Section 2(h).The Code of Criminal Procedure
1 1 1 1 1 1

26
H.N.Rishbud v. State of Delhi ,AIR 1955 SC 196
1 1 1 1 1 1 1 1 1

37 | P a g e 1 1
the trial. Police may take long time for investigation into an offence and thus delaying
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the initiation of the process of trial, which begins on the filing of charge sheet by the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

prosecution in court. In order to check this, Criminal Procedure Code imposes certain
1 1 1 1 1 1 1 1 1 1 1 1 1

restrictions with respect to time to be taken by police for investigation by police and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

incarceration of the accused pending such investigation.27 1 1 1 1 1 1

Perusal of Section 167(1) of Criminal Procedure Code indicates that the investigation is
1 1 1 1 1 1 1 1 1 1 1 1 1

expected to be completed within 24 hours of arrest of the accused. In case it appears that
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the investigation cannot be completed within 24 hours and the allegation against the
1 1 1 1 1 1 1 1 1 1 1 1 1

accused is well founded, the investigation officer has to forward the diary entries along
1 1 1 1 1 1 1 1 1 1 1 1 1 1

with the accused to the magistrate in order to seek further custody of the accused. At this
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

stage, the magistrate can extend the period of detention of the accused by 15 days, which
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

can further be extended to 60 or 90 days depending upon the gravity of offence. The
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused becomes entitled to be released on bail on the expiry of the period of 60 or 90

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

days as the case may be. 28

1 1 1 1 1 1

1 The police officers are required to complete investigation without unnecessary delay. 29
1 1 1 1 1 1 1 1 1 1 1

On the completion of investigation if there is not sufficient evidence or reasonable

1 1 1 1 1 1 1 1 1 1 1 1 1

ground of suspicion, the accused is to be released on executing a bond to appear if and

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

when so required before a magistrate empowered to take cognizance 30 If there is

1 1 1 1 1 1 1 1 1 1 1 1 1

sufficient evidence or reasonable ground of suspicion then the officer in charge of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

police station forwards the accused under custody to a magistrate empowered to take
1 1 1 1 1 1 1 1 1 1 1 1 1

cognizance of the offence upon a police report and to try the accused or commit him for
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

trial. On completion of investigation,the officer in charge of the police station is also

1 1 1 1 1 1 1 1 1 1 1 1 1 1

required to send a report to a competent magistrate. Such a report is known as ‘police

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

report’31 popularly called “charge-sheet” or “Challan”. When a charge sheet is filed in a

1
1 1 1 1 1 1 1 1 1 1 1 1 1

case in respect of which there is sufficient evidence to forward the accused person to a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

magistrate, then along with the charge sheet all the documents or their extracts on which
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the prosecution proposes to rely (other than those already sent to the magistrate during
1 1 1 1 1 1 1 1 1 1 1 1 1 1

investigation) and statement of witnesses whom the persecution proposes to examine 1 1 1 1 1 1 1 1 1 1 1

have to be forwarded to the magistrate. Despite the mandate of all these provisions
1 1 1 1 1 1 1 1 1 1 1 1 1 1

requiring speedy investigation but hardly these are hardly followed and investigations
1 1 1 1 1 1 1 1 1 1 1

27
Abinandan Jha v.Dinesh Mishra, AIR 1968SC 117,120; 1968 Cri LJ 97
1 1 1 1 1 1 1 1 1 1 1

28
S. 167(2) Proviso, Criminal Procedure Code
1 1 1 1 1 1

29
S.173(1),Criminal Procedure Code,1973.
1 1 1

30
S.169,Criminal Procedure Code, 1973.
1 1 1 1

31
S.2(r), Criminal Procedure Code, 1973.
1 1 1 1 1

38 | P a g e 1 1
go on for months after month without filing any chargesheet. Such delay in the filing of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

chargesheet results into delay in the commencement of trial which ultimately causes 1 1 1 1 1 1 1 1 1 1 1 1

delay in the final disposal of cases.

1 1 1 1 1 1

3.10.4 Delay in service of Summons: - 1 1 1 1 1 1 1

Fair trial requires that trial proceedings are conducted in the presence of the accused and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

that he is given a fair chance to defend himself. Further, in case the accused is found
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

guilty at the conclusion of the trial, he must be available in person to receive the sentence
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

passed on him. The presence of the accused at the trial can well be ensured by simply
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

arresting and detaining him during the trial. However this course should not be resorted
1 1 1 1 1 1 1 1 1 1 1 1 1 1

to in every case on the broad principle that the liberty of a person should not be taken
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

away without just cause. Moreover the detention of the accused prior to the trial is likely
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

to cause direct or indirect obstruction in the preparation of his defence. Consequently,

1 1 1 1 1 1 1 1 1 1 1 1 1

the provisions regarding the issue of summons or of a warrant of arrest are aimed at
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

ensuring the presence of the accused at his trial. But it is a common sight that the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

summons are not served in time. Delay in the delivery of summons also contributes to 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

delay in the process of commencement of trial. A summon is an authoritative call to

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

appear in court for a certain purpose. The summons from the court may be to the accused
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

or to a witness to produce document or to a person to show cause.32

1 1 1 1 1 1 1 1 1 1 1 1 1

Every summon issued by a court under Criminal Procedure Code shall be issued in
1 1 1 1 1 1 1 1 1 1 1 1 1 1

writing, in duplicate, signed by the presiding officer of such court or by such other
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

officer as the High Court may from time to time by rule direct and shall bear the seal of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the Court.33 Every summon shall be served by a police officer or subject to such rules as
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the state Government may make in this behalf, by an officer of the Court issuing it or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

other public servant. 34 The summons shall, if practicable, be served personally on the
1 1 1 1 1 1 1 1 1 1 1 1 1

person summoned, by delivering or tendering to him one of the duplicates of the

1 1 1 1 1 1 1 1 1 1 1 1 1 1

summons.35 1

Sec. 91(1) provides that whenever any court or any officer in charge of a police station
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

considers that the production of any document or other thing is necessary or desirable for
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the purpose of any investigation, inquiry or other proceedings under this code by or
1 1 1 1 1 1 1 1 1 1 1 1 1 1

before such court or officer, such court may issue a summons or a written order to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

32
Supra note-4, at p.41
1 1 1 1

33
, S. 61, Criminal Procedure Code, 1973.
1 1 1 1 1 1 1

34
S.62(1), Criminal Procedure Code, 1973.
1 1 1 1 1 1

35
S.62(2) Criminal Procedure Code, 1973.
1 1 1 1 1

39 | P a g e 1 1
person in whose possession or power such document or thing is believed to be, requiring
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

him to attend and produce it, or to produce it, at the time and place stated in the summons
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

or order.1 1

14th Law Commission Report1 1 1 1

36
1 pointed out that the Magistrate generally sends a 1 1 1 1 1 1 1 1

packet containing summons by post to the concerned police station within whose
1 1 1 1 1 1 1 1 1 1 1 1

jurisdiction the witness resides. Generally no record is kept by the station house officer 1 1 1 1 1 1 1 1 1 1 1 1 1 1

to show the receipt of the packet of summons. Often the police officers allege that the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

summons were not received by them or did not reach them in time to effect service. 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

3.10.5 Delay in filing of written submissions and documents: -Written submissions

1 1 1 1 1 1 1 1 1 1 1

and documents submitted by parties in a case play a vital role in the decision of the case.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

But it is very common that the counsels for the parties donot submit these on time on one
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

pretext or the other. In such a situation, judges are handicapped and they have no option
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

but to postpone the hearing of the case.

1 1 1 1 1 1 1 1

3.10.6 Delay in framing issues / charges: - 1 1 1 1 1 1 1 1

Delay in framing issues (in civil matters) and charges (in criminal matters) also pave the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

way for delay. Issue means a point in question; an important subject of debate,
1 1 1 1 1 1 1 1 1 1 1 1 1 1

disagreement. Issues arise when a material proposition of fact or law is affirmed by one 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

party and denied by the other. Material proposition are those propositions of law or fact
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

which a plaintiff most allege in order to show a right to sue or a defendant must allege in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

order to constitute his defence.37 1 1 1 1 1

The machinery of a civil court is set in motion by the presentation of a plaint, which is the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 first stage of trial. The second stage is the filing of the written statement by the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

defendant. The third important stage in the suit is the framing and settlement of issues 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

and the day on which such issues are framed is the first hearing of the suit.38 But due to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

some reason or the other, the Court takes too much time in framing issues which
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

ultimately results in delay in the final disposal of the suit. 1 1 1 1 1 1 1 1 1 1 1

Under the present stage of civilization, it has been universally accepted as a human value
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

that a person accused of any offence should not be punished unless he has been given a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

fair trial and his guilt has been proved beyond reasonable doubt in such trial. The notion
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

36
Law Commission of India, 14th Report, Vol.II; p. 780
1 1 1 1 1 1 1 1 1

37
Order XIV, Rule 1-3, The Code of Civil Procedure.
1 1 1 1 1 1 1 1 1

38
Sangram Singh V. Election Tribunal, AIR 1955 SC 425
1 1 1 1 1 1 1 1 1

40 | P a g e 1 1
of fair trial, like all other concepts incorporating fairness or reasonableness, cannot be
1 1 1 1 1 1 1 1 1 1 1 1 1

explained in absolute terms. Fairness is a relative concept and therefore, fairness in

1 1 1 1 1 1 1 1 1 1 1 1 1

criminal trial could be measured only in relation to the gravity of the accusation, the time
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

and resources which the society can reasonably afford to spend, the quality of available
1 1 1 1 1 1 1 1 1 1 1 1 1 1

resources, the prevailing social values etc.39 1 1 1 1 1

One basic requirement of a fair trial in criminal cases is to give precise information to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused as to the accusation against him. This is vitally important to the accused in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

preparation of his defense. Charges serve the purpose of notice or intimation to the 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused, drawn up according to the specific language of law, giving clear and
1 1 1 1 1 1 1 1 1 1 1 1 1

unambiguous or precise notice of the nature of accusation that the accused is called upon 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

to meet in the course of trial. 40 So, unless charges are framed, the trial cannot begin and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

more often than not, the courts take too much time in framing charges either due to delay
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

in submitting charge sheet by the investigating police officer or due to some other reason
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

and the same result into delay in the commencement of the trial. For example, in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Uphaar Fire Tragedy Case, CBI filed chargesheets against the accused in 1997 but the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Court framed charges in 2001. 1 1 1 1

3.11 Delay during trial: -

1 1 1 1 1

Delay is also caused during the trial. Trial means the process undertaken for the judicial
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

determination as to guilt or innocence of any person accused of any offence and such 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

trial may be deemed to begin at the stage at which the court takes cognizance of an
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

offence. 1

1 Delay during trial may be discussed under the followings heads –

1 1 1 1 1 1 1 1 1 1 1

(i) Provisions for adjournment ; 1 1 1

(ii) Non attendance of witnesses; 1 1 1 1

(iii) Absence of lawyers; 1 1 1

(iv) Lengthy oral arguments; 1 1 1

(v) Application at any stage; 1 1 1

(vi) Delayed pronouncement of judgments. 1 1 1 1

3.11.1 Provision for Adjournment: - 1 1 1 1 1

39
1 Supra Note-4 , at p. 320 1 1 1 1 1

40
1 V.C Shukla V.State through CBI, 1980 Supp SCC 92: 1980 SCC (Cri) 695
1 1 1 1 1 1 1 1 1 1 1 1

41 | P a g e 1 1
One of the main reasons that have resulted into pending cases is the adjournments
1 1 1 1 1 1 1 1 1 1 1 1 1 1

granted by the court on flimsy grounds. Sec. 309 of the Code of Criminal Procedure41
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

and Rule I, Order. XVII of the Code of Civil Procedure deals with adjournment and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the power of the Court to postpone the hearing. Though the Code of Criminal Procedure
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

doesnot talk of the maximum number of adjournments which can be granted but the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Civil Procedure Code limits the same to three. Under the Code of Criminal Procedure the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 postponement or adjournment can be for such time as the court considers reasonable 1 1 1 1 1 1 1 1 1 1 1 1 1

.What is reasonable time in a given case will depend upon the facts and circumstances of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the case. The discretion to postpone or adjourn the case is to be exercised judicially and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

not arbitrarily. 1 1

Rule I, Order XVII of the Code of Civil Procedure provides that the court may, if
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

them and may, from time to time adjourn the hearing of the suit for reasons to be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

recorded in writing, provided that no such adjournments shall be granted more than
1 1 1 1 1 1 1 1 1 1 1 1 1

three times to a party during hearing of the suits. In every such case, the court shall fix a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

day for the further hearing of the suit and shall make such orders as to costs occasioned
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

by the adjournment or such higher costs as the court deems fit.

1 1 1 1 1 1 1 1 1 1 1

Provided that – 1 1 1

(a) When the hearing of the suit has commenced, it shall be continued from day 1 1 1 1 1 1 1 1 1 1 1 1 1 1

to day until all the witnesses in attendance have been examined, unless the
1 1 1 1 1 1 1 1 1 1 1 1 1

court finds that for exceptional reasons to be recorded by it, adjournment of

1 1 1 1 1 1 1 1 1 1 1 1 1

the hearing beyond the following day is necessary,

1 1 1 1 1 1 1 1

41
Sec 309(1) of Cr. P.C. provides that in every inquiry or trial the proceedings shall be held as
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

expeditiously as possible and in particular, when the examination of witnesses has once begun, the same
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

shall be continued from day to day until at witnesses in attendance heave been examined, unless the court
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Sec.309 (2) of Cr.P.C. provides that if the court after taking cognizance of an offence or commencement
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of trial, finds it necessary or advisable to postpone the commencement of or adjourn, any inquiry or trial,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

it may form time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

thinks fit for such time as it consider reasonable and may by warrant remand the accused if in custody.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Provided that when witnesses are in attendance, no adjournment or postponement shall be granted,
1 1 1 1 1 1 1 1 1 1 1 1 1 1

without examining them, except for special reasons to be recorded in writing.

1 1 1 1 1 1 1 1 1 1 1 1

Provided also that no adjournments shall be granted for the purpose only of enabling the accused person
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

to show cause against the sentence proposed to be imposed on him.

1 1 1 1 1 1 1 1 1 1 1

42 | P a g e 1 1
 (b) No adjournment shall be granted at the request of a party, except where the 1 1 1 1 1 1 1 1 1 1 1 1 1 1

circumstances are beyond the control of that party. 1 1 1 1 1 1 1 1

(c) The fact that pleader of a party is engaged in another court, shall not be a 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

ground for adjournment; 1 1 1

(d) Where the illness of a pleader or his inability to conduct the case for any 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

reason, other than his being engaged in another court, is put forward as a 1 1 1 1 1 1 1 1 1 1 1 1 1 1

reason for seeking adjournment, the court shall not grant adjournment
1 1 1 1 1 1 1 1 1 1

unless it is satisfied that the party applying for adjournment couldn’t have
1 1 1 1 1 1 1 1 1 1 1 1

engaged another pleader in time. 1 1 1 1 1

1 (e) Where a witness is present in court but a party or his pleader is not present or the party
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 or his pleader, though present in court, is not ready to examine or cross examine
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the witness, the court may, if it thinks fit, record the statement of the witness and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

pass such orders as it thinks fit.42 1 1 1 1 1 1

An adjournment may be granted by a court inter alia on the grounds of sickness of either
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

party, his witnesses, or his counsel ,non-service of summons ,reasonable time for the
1 1 1 1 1 1 1 1 1 1 1 1 1

preparation of the case, withdrawal of the counsels at the last moment, inability of a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

counsel to conduct the case, inability of a party to engage another counsel, etc. Again
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

adjournment may be refused by the court inter alia on the grounds of engagement of a 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

counsel in another court, dilatory conduct of the party, non-examination of a witness

1 1 1 1 1 1 1 1 1 1 1 1 1

present in the court, abuse of process of the court, undertaking by the party on earlier
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

occasion to proceed with the matter, inconvenience to the opposite party or his
1 1 1 1 1 1 1 1 1 1 1 1 1

witnesses, the case being very old, the arguments of the other side is already concluded,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

etc. But to grant or refuse adjournment is at the discretion of the court .The power to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

grant or not to grant adjournment is not subject to any definite rules ,but it should be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

exercised judicially and reasonably and after considering the facts and circumstances of
1 1 1 1 1 1 1 1 1 1 1 1

each case.43So the adjournments are to be granted by the court only when the court deem
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

necessary or advisable for reasons to be recorded. These provisions also give discretion
1 1 1 1 1 1 1 1 1 1 1 1 1

to the court to grant adjournment subject to payment of costs. However these conditions
1 1 1 1 1 1 1 1 1 1 1 1 1 1

are not strictly followed and the bad practice continues not only by litigant but by sitting
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

judges also. Such adjournment thwarts the right to speedy trial. By granting regular
1 1 1 1 1 1 1 1 1 1 1 1 1

adjournments, the value of time and importance of the remedy sought for the cause of 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

42
1 Ord.XVII, Rule 1, proviso , The Civil Procedure Code. 1 1 1 1 1 1 1 1

43
1 Sukhpal Singh V. Kalyan Singh, AIR 1983 SC 146
1 1 1 1 1 1 1 1

43 | P a g e 1 1
action get degraded. ‘Justice is called justice’ when it in the real sense delivers justice to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the victim within a reasonable time.

1 1 1 1 1 1

3.11.2 Non attendance of witnesses: 1 1 1 1

Non-attendance of witnesses also plays a part in the delay. The parties to the suit have to 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

present in court a list of witnesses whom they propose to call either to give evidence or to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

produce documents and to obtain summonses for their attendance in the court. Such list
1 1 1 1 1 1 1 1 1 1 1 1 1 1

must be filed on or before such date as the court may fix but not later than fifteen days
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

after the issues are framed. 44 The object underlying this provision is going to give notice
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

to the opposite party about the witnesses which his adversary is to examine in the case so
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

that he could be in a position to know the nature of evidence he has to meet. Delay occurs
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

firstly when the party or parties make unreasonable delay in presenting the list of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

witnesses and secondly, when the witnesses fail to comply with the summons and donot
1 1 1 1 1 1 1 1 1 1 1 1 1 1

attend the court or refuse to depose. 1 1 1 1 1 1

The court has power to enforce the attendance of any person to whom a summons has
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

been issued and for that purpose, may (a) issue a warrant for his arrest; (b) attach and sell
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

his property; (c) impose a fine upon him not exceeding five thousand rupees; and order
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

him to furnish security for his appearance and default commit him to the civil prison. 45
1 1 1 1 1 1 1 1 1 1 1 1 1 1

3.11.3 Lengthy oral arguments: - Oral arguments, though a necessity for submissions
1 1 1 1 1 1 1 1 1 1 1 1

before the Court, have been found to be unwieldy and time-consuming. Both Criminal
1 1 1 1 1 1 1 1 1 1 1 1 1

Procedure Code and Civil Procedure Code discourage lengthy oral arguments. Any 1 1 1 1 1 1 1 1 1 1 1

party to a proceeding may, as soon as may be , after the closure of his evidence ,address
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

concise oral arguments, and may , before he concludes the oral arguments ,if any ,submit
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

a memorandum of to the court setting forth concisely the arguments in support of his
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

case. 46 The court may, if it is of the opinion that the oral arguments are not concise or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

relevant, regulate such arguments.47 A court may permit a party or his pleader to argue a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

case orally .For such oral arguments, it is open to the court to fix time limit, as it thinks
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

fit.48

Although both Criminal Procedure Code and Civil Procedure Code empower the courts
1 1 1 1 1 1 1 1 1 1 1 1

to regulate the length of oral arguments, but it is seen that the judges donot usually fix
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

44
Ord.XVI, Rule1 (1), The Civil Procedure Code.
1 1 1 1 1 1 1

45
S.32, The Civil Procedure Code.
1 1 1 1 1 1

46
S. 314(1), Code of Criminal Procedure
1 1 1 1 1 1

47
S. 314(2),Code of Criminal Procedure .
1 1 1 1 1 1

48
Ord.XVI, Rr. 3A,3D ,Civil Procedure Code
1 1 1 1 1 1

44 | P a g e 1 1
time limit for such oral arguments and the unnecessary oral arguments go on consuming
1 1 1 1 1 1 1 1 1 1 1 1 1 1

precious time of the courts. So the judges should specify the time allocated to each side
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

in advance. No case should be heard for full working hours in a day .It is required that
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

written submissions including the case law to be relied upon, must be submitted to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Court. This will effectively reduce the length of oral arguments and considerably save
1 1 1 1 1 1 1 1 1 1 1 1 1

the time of Court so as to make it available for attending to large number of pending
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

cases. 49.

1 Further since the Counsel charges daily fees for appearance in the Court the cost of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

litigation mounts in direct proportion to the length of the oral arguments. If one
1 1 1 1 1 1 1 1 1 1 1 1 1 1

combines the fallout of oral arguments however reverential approach one may have to
1 1 1 1 1 1 1 1 1 1 1 1 1

the oral arguments, it is high time to curb and control the length of oral arguments
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

3.11.4 Absence of lawyers/Pleader: Absence of lawyers on the scheduled date of

1 1 1 1 1 1 1 1 1 1 1 1

hearing also adds to the cases getting prolonged. The lawyer of a party may remain
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

absent from the hearing of the case on one pretext or the other which are with in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

provisions of law like the death of his relative, or ill-health, but on the hindsight his
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

absence may be due to non-preparation of the case or his engagement in another Court.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

In such a situation, the judge is constrained to adjourn the case. The Code of Civil
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

procedure and Code of Criminal Procedure are based on a general principle that, as far as
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

possible, no proceeding in a court of law should be conducted to the detriment of any

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

party in his absence. Civil Procedure Code requires the parties to attend the court in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

person or by their pleaders on the day fixed in the summons for the defendant to appear.50
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 Where a plaintiff or a defendant, who has been ordered to appear in person, doesn’t
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

appear in person or show sufficient cause for non-appearance, the court may dismiss the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

suit, if he is the plaintiff, or proceed ex parte, if he is the defendant. Where the court has
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

appears and assigns good reasons for his previous non-appearance, the court may hear
1 1 1 1 1 1 1 1 1 1 1 1 1

him upon such terms as it directs as to cost or otherwise.

1 1 1 1 1 1 1 1 1 1 1 1

3.11.5 Application at any Stage: There is a practice among the counsels to file
1 1 1 1 1 1 1 1 1 1 1 1 1 1

applications at any stage of the proceedings of the case. They may do so in the guise of 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

submitting some documents or making some amendments in the pleadings which, what 1 1 1 1 1 1 1 1 1 1 1 1

they call, vital for the consideration of the court before disposal of the case. In this regard
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

49
1 Abdul Gaffur; Delay in Criminal Trial; Central India Law Quarterly;Vol.XV;2002; P No-90
1 1 1 1 1 1 1 1 1 1 1

50
1 Order- IX, Rule-1, Civil Procedure Code.
1 1 1 1 1 1

45 | P a g e 1 1
the existing laws also help them. For example, there is a provision in the Code of Civil
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Procedure which provides that the court may at any stage of the proceedings allow either 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

party to alter or amend his pleadings in such manner and on such terms as may be just,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

and all such amendments shall be made as may be necessary for the purpose of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

determining the real questions in controversy between the parties. 51 By way of 1 1 1 1 1 1 1 1 1 1 1 1

amendment, a rider has been imposed on the amendment of pleadings which provides 1 1 1 1 1 1 1 1 1 1 1 1 1

that no application for amendment shall be allowed after the trial has commenced, unless
1 1 1 1 1 1 1 1 1 1 1 1 1

1 the court comes to the conclusion that inspite of diligence, the party could not have
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

raised the matter before the commenced of trial. 52 But the effect remains the same
1 1 1 1 1 1 1 1 1 1 1 1 1 1

because all the counsels who want amendment in the pleadings take the plea that inspite
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of due diligence they failed to raise the matter before the commencement of the trial. But
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

as a matter of fact, most of the time they do so for buying time foreseeing that they might
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

loose the case. Such a practice causes substantial delay in the final disposal of cases
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

because the filing of applications and new documents have to go through the dilatory
1 1 1 1 1 1 1 1 1 1 1 1 1 1

process of filing ,notice to the opposite party, arguments, order, appeal etc..53
1 1 1 1 1 1 1 1 1 1 1 1

3.11.6 Delayed pronouncement of judgment: - Justice should not only be done but
1 1 1 1 1 1 1 1 1 1 1 1 1

should also appear to have been done. Similarly whereas justice delayed is justice
1 1 1 1 1 1 1 1 1 1 1 1 1

denied, justice withheld is even worse than that. The inordinate, unexplained and
1 1 1 1 1 1 1 1 1 1 1 1

negligent delay in pronouncing the judgment is alleged to have actually negatived the
1 1 1 1 1 1 1 1 1 1 1 1 1

right of appeal conferred upon the convicts under Criminal Procedure Code. A right of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

appeal to meet the requirement of Art 21 of the Constitution cannot be made a fraud by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

protracting the pronouncement of the judgment for reasons which are not attributable 1 1 1 1 1 1 1 1 1 1 1 1

either to the litigant or to the State or to the legal profession.54

1 1 1 1 1 1 1 1 1 1 1 1

The intention of the legislature regarding the pronouncement of judgment can be

1 1 1 1 1 1 1 1 1 1 1 1

inferred from the provisions of Criminal Procedure Code. Section 353(1) provides that
1 1 1 1 1 1 1 1 1 1 1 1

the judgment in every trial in any criminal court of original jurisdiction, shall be
1 1 1 1 1 1 1 1 1 1 1 1 1 1

pronounced in open court immediately after the conclusion of the trial or at a subsequent 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

time for which due notice shall be given to the parties or their pleaders. The words “
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

some subsequent time” mentioned in this section is very important because it

1 1 1 1 1 1 1 1 1 1 1 1

51
Order VI, Rule-17, The Code of Civil Procedure.
1 1 1 1 1 1 1 1

52
Rule- 17 ,Proviso(added by the amendment of the Code of Civil Procedure in 2002 )
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

53
G.M .Dinkar, “A Note On Laws Delay”, XXIII(1) Indian Bar Review at 75 (1996)
1 1 1 1 1 1 1 1 1 1 1 1 1 1

54
Supra note- 23 , at p. 91
1 1 1 1 1 1 1

46 | P a g e 1 1
contemplates the passing of the judgment without delay ,as delay in the pronouncement 1 1 1 1 1 1 1 1 1 1 1 1 1

of the judgment is opposed to the principles of law.55

1 1 1 1 1 1 1 1 1

It is true that for High Courts, no period for the pronouncement of judgment is provided
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

either under the Civil Procedure Code and Criminal Procedure Code but as
1 1 1 1 1 1 1 1 1 1 1 1

pronouncement of judgment is a part of the justice dispensing system, it has to be 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

without delay. In a country like ours where people consider the Judges only second to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

God, efforts should be made to strengthen that belief of the common people. Delay in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

disposal of cases cause the people to raise eyebrows. It is seen that some judges don’t
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

deliver judgments even after a lapse of several months after hearing This may be to buy
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

time for preparing the judgment . This not only causes delay but also shakes the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

confidence of the people in the judicial system. 56 1 1 1 1 1 1 1

3.11.7Delay during the appellate proceeding: -Human judgment is not infallible. 1 1 1 1 1 1 1 1 1 1

Despite all the provisions for ensuring a fair trial and a just decision, mistakes are
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

possible and errors cannot be ruled out. The Code therefore provides for “appeals” and
1 1 1 1 1 1 1 1 1 1 1 1 1 1

“revision” and thereby enables the superior Courts to review and correct the decisions of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the lower Courts. Apart from it being a corrective device, review procedure serves
1 1 1 1 1 1 1 1 1 1 1 1 1

another important purpose. The very fact that the decision of the lower Courts is duly
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

scrutinized by a superior court in “appeal” or “revision” gives satisfaction to the party

1 1 1 1 1 1 1 1 1 1 1 1 1 1

aggrieved by that decision. It assures the aggrieved party that all reasonable efforts have
1 1 1 1 1 1 1 1 1 1 1 1 1 1

been made to reach a just decision free from plausible errors, prejudices and mistakes.
1 1 1 1 1 1 1 1 1 1 1 1 1

Although this review procedure through “appeal or revision” is imperative for

1 1 1 1 1 1 1 1 1 1 1

correctional justice but too much recourse to such procedure is causing another problem,
1 1 1 1 1 1 1 1 1 1 1 1 1

that is, delay in final disposal of cases. The reason is that the superior Courts are busy in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

deciding appeals leaving the regular matters at bay. Further the Superior Courts take too
1 1 1 1 1 1 1 1 1 1 1 1 1 1

much time in deciding appeals which is partly due their workload and mostly due to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

delay in getting the files from the trial court whose decision is challenged. If the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

multiplicity of appeals are to be reduced and Higher Courts are to function burden less
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

and discharge effective judicial functioning in the direction of progressive evolution of

1 1 1 1 1 1 1 1 1 1 1 1

law , judicial officers at the District level have to discharge their functions diligently so
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

as to avoid shortcomings in their decisions.

1 1 1 1 1 1

55
1 Supra note -4 , at p.592 1 1 1 1 1

56
1 77th Report of Law Commission of India on ‘Delays in Trial’,Dec.1978
1 1 1 1 1 1 1 1 1 1

47 | P a g e 1 1
3.11.8 Delay during execution proceedings: - The duty of a Court is not over by the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

mere pronouncement of a decree or order. The Court has to see that fruits of the decree or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

order reach to the person in favour of whom the decision has been given. But
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

pronouncements of the Courts are not backed by administrative authority/machinery of 1 1 1 1 1 1 1 1 1 1 1

the State for effective execution. This keeps the Courts busy in ordering the
1 1 1 1 1 1 1 1 1 1 1 1 1

administrative authorities to carry out the execution of the Court’s order. Delay is also 1 1 1 1 1 1 1 1 1 1 1 1 1 1

caused when a decree is sent for execution to another court because such a court is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

required to supply to the executing court a copy of the decree along with some other
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

certificates. 57 But such documents are not provided in time to such executing Courts 1 1 1 1 1 1 1 1 1 1 1 1 1

which thereby cause delay in the execution of the decree. Further there is a provision for
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

stay of execution of the decision so as to enable the person against whom the decision has
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 been given to appeal against the decision. 58 These things results delay in the final
1 1 1 1 1 1 1 1 1 1 1 1 1 1

disposal of the cases, thereby adding to the huge backlog of cases.1 1 1 1 1 1 1 1 1 1 1 1

3.12 Substantive factors: - 1 1 1 1

It is not that the procedural factors are alone responsible for delay in disposal of cases;
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

there are a number of substantive factors which contribute to the piling up of pending
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

cases. These substantive factors may be discussed under the following heads: -
1 1 1 1 1 1 1 1 1 1 1

(a) Judicial vacancies/ Delay in appointment of judges. 1 1 1 1 1 1

(b) Lack of accountability of judges, 1 1 1 1 1

(c) Too many vacations in court, 1 1 1 1 1

(d) Misuse of PIL, 1 1 1

(e) Witnesses Turning hostile, 1 1 1

(f) Writ jurisdiction, 1

(g) Delay by the Judges. 1 1 1

3.12.1 Judicial vacancies / Delay in appointment of judges:

1 1 1 1 1 1 1 1

For clearing pending cases an adequate number of judges must be appointed and once
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the posts of judicial officers fall vacant, there shouldn’t be unreasonable delay in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

57
Ord.XXI, rule-6, Code of Civil Procedure.
1 1 1 1 1 1

58
Ord.XXI,rule-26(1) Code of Civil Procedure: The court to which he decree has been sent for execution
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

shall, upon sufficient cause being sown, stay the execution of such decree for a reasonable time to enable
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the judgment-debtor to apply to the court by which the decree was passed or to any other court having
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

or for any other order relating to the decree or execution which might have been made by such court of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

first instance or Appellate court.

1 1 1 1

48 | P a g e 1 1
appointment rather they should be filled on a priority basis. But in the Indian judicial 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

system, there are a number of vacancies existing which ultimately affects the efficiency
1 1 1 1 1 1 1 1 1 1 1 1 1

of rendering justice. The former chief Justice of India S.P. Bharocha on this account had
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

said that “It is only when we have far more trial courts functioning that we shall be able to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 dispose of more cases than are being filed and thus cut down on arrears.” In 2002, the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

total strength of judges in the High Courts was 669 out of which there were 163
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

vacancies which come out to be 25% of the total strength. It was also suggested by the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

127th Law commission Report, 1988 59 that the judge population ratio should be
1 1 1 1 1 1 1 1 1 1 1 1

increased from 10 judges per million populations (at that time) to 50 judges per million
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

populations within a period of five years. The Supreme Court in All India Judges’ 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Association Case 60 has directed the State and Central Governments to increase the 1 1 1 1 1 1 1 1 1 1 1 1

strength of judges five times over a period of next five years. Due to this low judge-
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

population ratio, the courts lack the requisite strength of judges to decide the pending 1 1 1 1 1 1 1 1 1 1 1 1 1 1

cases. But the Government has neither taken any interest nor any steps to implement the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

said recommendation. The view of the Government is that raising the strength of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

judges must be set on the basis of pendency of cases and the average rate of disposal of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

cases and not simply on the basis of population.

1 1 1 1 1 1 1 1 1

But filling the vacancy of judges is not the sole responsibility of the Government. The
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

judiciary also plays a crucial role in the appointment of judges. The Supreme Court
1 1 1 1 1 1 1 1 1 1 1 1 1 1

while interpreting Articles 124 and 217 of the Constitution of India in its judgment in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Advocates on Record Association v. Union of India and others 61 has held that a proposal
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

for the appointment of a judge in the Supreme Court must be initiated by the Chief
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Justice of India and in the case of a High Court by its Chief Justice of a High Court to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

another High Court, the proposal has to be initiated by the Chief Justice of India.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Therefore, the judiciary is also responsible for not performing its duty of proposing the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

name for appointing judges to the government, which in turn would be sent to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

President of India for approval. Also, according to norms, the process of filling up of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

vacancy should start 6 months before the actual date of retirement of a Judge, but this is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

hardly followed. 1 1

59
127TH Report of the Law Commission of India (1988),Vol-III
1 1 1 1 1 1 1 1 1

60
(2002) 4 SCC 247
1 1 1 1

61
(2005) 6 SCC 344
1 1 1 1

49 | P a g e 1 1
The present state of affairs regarding judicial vacancies has been aptly described by the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

President of Confederation of the Indian Bar Mr.Praveen H. Parekh. He said: “The 1 1 1 1 1 1 1 1 1 1 1 1 1

Indian Judiciary consists of one Supreme Court with 26 judges, twenty one (21) High
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Courts with a sanctioned strength of 725 judges but the working strength as on 1st March
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

2007 is 597 and 14,477 subordination Courts / Judges but the working strength is only
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

11767 as on 1 March 2007”.62 1 1 1 1 1 1

An immediate question one might ask from the above statistics is why such large number
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 of vacancies are allowed to remain particularly at the trial court level where the arrear of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

cases is constantly mounting. That takes us to the selection and appointment process
1 1 1 1 1 1 1 1 1 1 1 1 1

where the Government has a greater role to play than the judiciary. A way has to be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

found by the Government and the judiciary to address this problem in order to maintain a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

zero vacancy situation all the time. The Supreme Court through the Chief Justices
1 1 1 1 1 1 1 1 1 1 1 1 1

Annual conference has taken steps to implement such zero vacancy in the High Courts in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

this regard. This will certainly help to substantially increase the available judicial hours
1 1 1 1 1 1 1 1 1 1 1 1 1

to attend pending work and reduce delays in the process. 63

1 1 1 1 1 1 1 1 1

What are the minimum numbers of courts / judges required to deliver timely justice and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

to avoid pendency of cases for long periods. The judiciary has been conducting scientific
1 1 1 1 1 1 1 1 1 1 1 1 1

1 studies through expert committees and otherwise to reach an objective and acceptable
1 1 1 1 1 1 1 1 1 1 1 1

figure in this regard. One standard recommendation was to fix the maximum capacity a
1 1 1 1 1 1 1 1 1 1 1 1 1 1

judge can possibly take in a given year and decide the requirement of judge strength
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

based on average filing and accumulated years.

1 1 1 1 1 1 1

3.13 Lack of Accountability of judges: -

1 1 1 1 1 1 1

The Constitution of India talks about free and independent judiciary which not only
1 1 1 1 1 1 1 1 1 1 1 1 1

implies that the judicial organ of the state has been kept away from the intervention of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 executive and legislature. The existence of a fearless and independent judiciary is 1 1 1 1 1 1 1 1 1 1 1 1

founded in the constitutional structure of India. A notable feature of the Indian

1 1 1 1 1 1 1 1 1 1 1 1 1

Constitution is that it accords a dignified and crucial position to the judiciary in India. In 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the celebrated decision of the Supreme Court in S.P. Gupta v. Union of India, 64 it was
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

held that; “The concept of independent of the judiciary is a noble concept which inspires
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the constitutional scheme and constitutes the foundation on which rests the edifice of our
1 1 1 1 1 1 1 1 1 1 1 1 1 1

62
Figure was given by him while delivering lecture in the “ALL INDIA SEMINER ON ACCESS TO
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

JUSTICE” held on 6th- 8th April 2007. 1 1 1 1 1 1

63
Ibid
1

64
AIR 1982 SC 149
1 1 1 1

50 | P a g e 1 1
democratic polity. If there is one principle which runs through the entire fabric of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

constitution, it is the principle of the rule of law under the constitution and it is the 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

judiciary which is entrusted with the task of keeping every organ of the state within the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

limits of the law thereby making the rule of law meaningful and effective.” 65 This,
1 1 1 1 1 1 1 1 1 1 1 1 1 1

however, at no stage means that judiciary is not accountable to the nation. In a

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

democracy, the power lies with the people. The Supreme Court in a number of cases 66
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

held that Courts are accountable to the people of the country and so the judiciary must
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

concern itself with this fact while functioning. Contrary to what has been envisaged in
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the constitution, judges play at their own whims as far as their duties in the courts are
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

concerned and thereby adds to the delay in the disposal of cases. Under Art.235 67 of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

constitution of India, High Courts have the power of control over Subordinate Court but
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the Supreme Court has no such power over High Courts. The Chief Justice of India /
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

High Courts has no power to control or make accountable other judges of the court.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Judicial behaviour has been receiving attention especially since 1998 when a former
1 1 1 1 1 1 1 1 1 1 1 1

judge of the Supreme Court observed that: “everything was rotten about the Indian
1 1 1 1 1 1 1 1 1 1 1 1 1

judiciary.” To a query, why the judge did not say this while he was in office, the reply
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

was: “I was afraid of the safety of my life and children.” These statements conceal more
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

than what they reveal. If the power-holder in the judiciary has had to feel so badly and so
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

strongly, there obviously is some rot somewhere.68 1 1 1 1 1 1

The concept of judicial accountability has three stages. First, each member of the
1 1 1 1 1 1 1 1 1 1 1 1 1

judiciary has the accountability to himself. He has to do a soul searching and self-
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

introspection. He has to convince himself that what he has done is morally and more 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

importantly legally correct and his decision is not dictated by any extraneous 1 1 1 1 1 1 1 1 1 1 1 1

consideration. As Lord Donaldson, the former English Master of Rolls said; “Judges are 1 1 1 1 1 1 1 1 1 1 1 1 1

without constituency and answerable to no one except to their conscience and the law.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

The second stage of accountability is the accountability of the individual to the

1 1 1 1 1 1 1 1 1 1 1 1 1

institution. Here again, self-introspection and soul searching plays a vital role. The
1 1 1 1 1 1 1 1 1 1 1 1

individual judge has o ensure that what he has done would not bring disrespect or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

disrepute to the institution .On the contrary, even if it may not increase the respectability
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

65
Nyaya Deep ; Journal of NALSA; Extract from Speech delivered by Justice K. G. Balakrishnan at
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Society of Lincoln’s Inn, London, p.5

1 1 1 1 1

66
Uphaar Fire Tragedy Case.
1 1 1 1

67
Art. 235 inter alia provides that the control over district courts and courts subordinate thereto including
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a state
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

and inferior the post of a district judge shall be vested in the High Court
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

68
Journal of Indian Law Institute ; Vol- 48:1, 2006; P-94
1 1 1 1 1 1 1 1 1 1

51 | P a g e 1 1
and credibility of the institution, it shall not diminish it. The institution cannot be
1 1 1 1 1 1 1 1 1 1 1 1 1 1

segregated from the individuals. The credibility or lack of credibility would depend to a
1 1 1 1 1 1 1 1 1 1 1 1 1 1

compete measure on the individuals. The third stage is the most important one. It is the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accountability of the institution to the society. Judges have their accountability to the 1 1 1 1 1 1 1 1 1 1 1 1 1

society and their accountability must be judged from the conscience and oath to their
1 1 1 1 1 1 1 1 1 1 1 1 1 1

office, i.e., they have to defend and uphold the constitution and the laws without fear and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

favour. Any criticism about the judicial system or judges, which hampers the
1 1 1 1 1 1 1 1 1 1 1 1

administration of justice or erodes the faith on the system and brings it to ridicule must be 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 prevented. Every citizen has a responsibility to ensure that the line between measured
1 1 1 1 1 1 1 1 1 1 1 1 1

criticism of judgments and denigration of judges is not traversed. Constitutionalism is

1 1 1 1 1 1 1 1 1 1 1 1

not enhanced by hostility directed against the judiciary, which plays a pivotal role in
1 1 1 1 1 1 1 1 1 1 1 1 1 1

69
maintaining the rule of law. 1 1 1 1 1

Our Indian system of accountability is based on the basic premise that human beings are
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

not infallible and judges are not exception to that , and if the error is not ill-motivated
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

then the same can be corrected by the exercise of appellate or review powers and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

warrants no personal accountability of the judges. However the judges are accountable
1 1 1 1 1 1 1 1 1 1 1 1

for their conduct in public or private life if such conduct amounts to ‘misbehaviour’ or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

brings disrepute or dishonour to the judiciary. Mr. Somnath Chatterjee , the Speaker of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

present Lok Sabha , once said, “ We hold the judiciary in high esteem ……. Judges are
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

assumed to be men of honesty and integrity and discharge their duties and functions with
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

a sense of fairness and independence without fear or favour.” So judges are expected to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

show highest form of standards in their conduct. In India it is an undoubted fact that
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

corruption has infected the judiciary also. Corruption brings disrepute to the institution
1 1 1 1 1 1 1 1 1 1 1 1

of judiciary, reduces public confidence in courts, leads also to unpredictability of

1 1 1 1 1 1 1 1 1 1 1 1

judicial decision and thereby undermines the effectiveness of the institution.70

1 1 1 1 1 1 1 1 1 1

The Right to Information Act, 2005 was passed in India with the objective of promoting
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

transparency in governance. The Act provides that every public authority shall provide 1 1 1 1 1 1 1 1 1 1 1 1

access to its documents and proceedings.71 The Act defines ‘public authority’ as any and
1 1 1 1 1 1 1 1 1 1 1 1 1 1

everybody constituted under the constitution or any other law of the government.72 But,
1 1 1 1 1 1 1 1 1 1 1 1 1

unfortunately judiciary is seeking to effectively remove itself from the purview of the 1 1 1 1 1 1 1 1 1 1 1 1 1

Right to Information Act, 2005. The Right to Information Act, if implemented in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

69
Justice Arijit Prasayat,‘Judicial Independence and Accountability’;NYAYA DEEP, Journal of
1 1 1 1 1 1 1 1 1 1

NALSA; VOL- II, Oct, 2007; p-46 1 1 1 1 1 1

70
Justice B. N .Agarwal, “Judicial Accountability” AIR April 2008 (Journal Section ); p-50
1 1 1 1 1 1 1 1 1 1 1 1 1

71
Sec.4, Right to Information Act, 2005
1 1 1 1 1 1

72
Id Sec. 2(h)
1 1 1

52 | P a g e 1 1
judicial domain, it will provide right to information for judicial as well as administrative
1 1 1 1 1 1 1 1 1 1 1 1 1 1

functions of the court and will enhance judicial accountability in the system. 73
1 1 1 1 1 1 1 1 1 1 1 1

The WOOLF REPORT emphasized to make the judiciary accountable for their
1 1 1 1 1 1 1 1 1 1 1

functioning by generating accurate judicial statistics revised on daily basis. It was 1 1 1 1 1 1 1 1 1 1 1 1

observed by the committee that statistic report pertaining to the functioning of judges
1 1 1 1 1 1 1 1 1 1 1 1 1

and flow of such information ultimately make judges more accountable to the judiciary.
1 1 1 1 1 1 1 1 1 1 1 1 1

It was also suggested that it is more important and useful to tackle the arrears rather than
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

increasing financial and human resources. But these suggestions remain on paper and 1 1 1 1 1 1 1 1 1 1 1 1

have never been put into practice. 74 1 1 1 1 1 1

The Annual Report of Ministry of Law, Justice and company Affairs has given data
1 1 1 1 1 1 1 1 1 1 1 1 1 1

about judicial arrears and nothing about the nature of cases pending. So, it is not fruitful
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

to deal with the pendency of cases. There must be some judicial database that includes
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the details about the specific laws which deals with subject matter, sections, legal nature
1 1 1 1 1 1 1 1 1 1 1 1 1 1

of dispute, time taken to decide the case, interim relief in operation and number of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

adjournments granted etc.75 1 1 1

3.14 Too Many Vacations in Courts: 1 1 1 1 1

The most debated question relating to the causes of delay is the Court vacations. In India,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

long vacations in Courts are a unique feature. If courts in other countries can function
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

like any other business establishment, then why cannot, courts in India do so? The table
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

below makes a comparison between the working days and time of different courts and
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Government and private establishment: 76 1 1 1 1

S. Supreme Court High Court

1 1 1 District Other Govt. Private org / 1 1 1 1 1

No. Subordinate Establishment Non Govt. 1 1

courts
1

1. 185 days a year 1 1 1 1 210 days a 1 1 1 240 days a 1 1 1 245 days a year 255 days a
1
1 1 1 1 1 1

year 1 year 1 year 1

73
Supra note- 51 ; p- 52
1 1 1 1 1 1

74
Report was submitted in 1996
1 1 1 1 1

75
S.S. Siddiqi and Y .Abbasi “speeding up the justice Delivery System With Special Reference to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Procedural Reforms” Published in Souvenir on ‘All India Seminar on Judicial Reforms’

1 1 1 1 1 1 1 1 1 1 1

76
A. R. Qureshi; “Court Vacations and Court Delays”, published in AIR 1999(journal section) p. 43
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

53 | P a g e 1 1
 10.30 A.M. to 1 1 1 10.30 am to 1 1 1 10.30 am to 1 1 1 10.00 am to 1 1 1 9.30 am to 1 1 1

4.00 pm with 1 1 1 4.30 pm with 1 1 1 5.00 pm with 1 1 1 5.45 pm with 1 1 1 6.00 pm with 1 1

one hour lunch 1 1 1 one hour 1 1 45 minutes 1 1 45 minutes 1 1 130 minutes 1 1

2. i.e. Four hours 1 1 1 lunch i.e. 1 1 lunch i.e. 1 1 lunch i.e. 1 1 lunch i.e. 8 1 1 1

30 minutes each 1 1 1 Five Hours 1 1 Five Hours 1 1 Seven hours a 1 1 1 hours or 1 1

working each working 1 45 minutes 1 1 day. 1 more each 1 1

day
1 each 1 working day 1

working day 1 1

The system of vacations is a legacy of the colonial rule. In the pre-independence period,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the burden was not so great in comparison to the present situation. Also, the English
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

coming from cold climate found the summer in India unbearable. Therefore, vacations
1 1 1 1 1 1 1 1 1 1 1 1

were a kind of an arrangement to enable them to go to England during summer and spend
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the time comfortably. That was the time when traveling was done by sea which required
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

several weeks. This appears to be the real reason for the introduction of long vacations
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

for courts in India. 77 Now the situation has been changed drastically and the courts are
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

over burdened with pending cases. So, the situation demands that the courts should do
1 1 1 1 1 1 1 1 1 1 1 1 1 1

away with such long vacations and work as other Government establishment do.78
1 1 1 1 1 1 1 1 1 1 1

3.15 Misuse of PIL: - 1 1 1 1 1

The traditional rule is that right to move the courts is only available to those whose
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

fundamental rights are infringed. The power vested in the Supreme Court can only be 1 1 1 1 1 1 1 1 1 1 1 1 1 1

exercised for the enforcement of fundamental rights. But this traditional rule of locus
1 1 1 1 1 1 1 1 1 1 1 1 1

standi that a petition under Art. 32 can only be filed by a person whose fundamental
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

right is infringed has now been considerably relaxed by the Supreme Court. The Court
1 1 1 1 1 1 1 1 1 1 1 1 1 1

now permits public spirited citizens’ for the enforcement of constitutional or other legal
1 1 1 1 1 1 1 1 1 1 1 1 1

rights of any person or group of persons who because of their poverty or socially or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

economically disadvantaged position are unable to approach the court for relief. 1 1 1 1 1 1 1 1 1 1 1

79
In A.B.S.K Sangh (Rly) V. Union of India
1 1 1 1 1 1 1 1 1 the Supreme Court held that the Akhil
1 1 1 1 1 1 1

Bhartiya Sarkari Karmachari sangh (Railway) though an unregistered association could

1 1 1 1 1 1 1 1 1 1

maintain a writ petition under Art 32 for the redressal of a common grievance. Thus
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

77
Supra Note- 35, at p. 13
1 1 1 1 1 1

78
Ibid
1

79
AIR 1981 SC 298
1 1 1 1 1

54 | P a g e 1 1
Art.32 is not confined to protect only individual’s fundamental rights but is capable of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

doing justice wherever the society has an interest in it. Krishna Iyer J observed:
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 “Access to justice through ‘Class actions’, ‘public interest litigation’ and 1 1 1 1 1 1 1 1 1 1

‘representative proceeding’ is the present constitutional jurisprudence” 1 1 1 1 1 1

80
In the Judges Transfer case
1 1 1 1 1 1 a seven–judge Bench of the S.C. has set at rest the
1 1 1 1 1 1 1 1 1 1 1

controversy as to whether a person who is not directly involved in a case can move the 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

court for enforcement of constitutional or other legal rights of any person or group of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

persons who because of their poverty or socially or economically disadvantaged position

1 1 1 1 1 1 1 1 1 1 1

1 are unable to approach the court for relief. The court held that any member of the public
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

having ‘sufficient interest’ can approach the court for enforcing constitutional or legal
1 1 1 1 1 1 1 1 1 1 1 1

right of other persons and for redressal of a common grievance.

1 1 1 1 1 1 1 1 1 1 1

Bhagwati J observed: 1 1 1

1 “We would, therefore, held that any member of the public having sufficient interest can
1 1 1 1 1 1 1 1 1 1 1 1 1 1

maintain an action for judicial redress for public injury arising from breach of public
1 1 1 1 1 1 1 1 1 1 1 1 1 1

duty or from violation of some provision of the constitution or law and seek enforcement
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of such public duty and observance of such constitutional or legal provisions. This is
1 1 1 1 1 1 1 1 1 1 1 1 1 1

absolutely necessary for maintaining rule of law, furthering the cause of justice and1 1 1 1 1 1 1 1 1 1 1 1 1

accelerating the pace of realization of the constitutional objectives”. 1 1 1 1 1 1 1 1 1

Although PIL has been a revolutionary step in rendering justice to the poor but of late the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

same is filed for getting publicity, thereby increasing the workload of courts. This
1 1 1 1 1 1 1 1 1 1 1 1 1

ultimately cause delay in disposal of regular cases. While expanding the scope of the1 1 1 1 1 1 1 1 1 1 1 1 1 1

‘locus standi’ rules, his lordship Bhagwati J (as he then was) expressed a note of caution.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

He observed: 1

1 “But we must be careful to see that the members of the public, who approach the courts
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

in cases of this kind, is acting bonafide and not for personal gain or private profit or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

political motivation or other oblique considerations. The court must not allow its process
1 1 1 1 1 1 1 1 1 1 1 1

1 to be abused by politicians and others…….”

1 1 1 1 1 1

In Sachidanand Pandey v. State of West Bengal,81 Justice Khalid observed:

1 1 1 1 1 1 1 1 1 1 1

80
1 S.P .Gupta V.Union of India, AIR 1982 SC149
1 1 1 1 1 1 1

81
1 AIR 1987 SC 1109 1 1 1 1

55 | P a g e 1 1
1 “If the court do not restrict the free flow of such cases in the name of public interest
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

litigation, the traditional litigation will suffer and the courts of law, instead of
1 1 1 1 1 1 1 1 1 1 1 1 1

dispensing justice, will have to take upon themselves administrative and executive 1 1 1 1 1 1 1 1 1 1 1

functions”. 1

In Janta Dal v. H.S. Chaudhary 82 Justice Pandian made the following observation:
1 1 1 1 1 1 1 1 1 1 1 1

1 “……..only a person acting bonafide and having interest in the proceeding of PIL will 1 1 1 1 1 1 1 1 1 1 1 1 1 1

alone have a locus stands and can approach the court to wipeout the tears of the poor
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

and needy, suffering from violation of their fundamental rights, but not a person for
1 1 1 1 1 1 1 1 1 1 1 1 1 1

personal gain or private profit. Similarly, a vexatious petition under the colour of PIL
1 1 1 1 1 1 1 1 1 1 1 1 1 1

brought before the court for vindicating any personal grievance, deserve rejection at the
1 1 1 1 1 1 1 1 1 1 1 1 1

threshold”.

In spite of its beneficial effect, the PIL is subject to criticism mainly on the ground that
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the Courts are flooded with litigations resulting in delay in deciding many other
1 1 1 1 1 1 1 1 1 1 1 1 1

important cases and this criticism is not far from truth because the courts are finding it
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

difficult to handle the arrears of cases. 1 1 1 1 1 1 1

3.16 Hostile Witnesses: 1 1 1

The problem of witnesses turning hostile in important cases have become a major
1 1 1 1 1 1 1 1 1 1 1 1 1

problem in rendering due justice by our criminal justice system. Bentham said
1 1 1 1 1 1 1 1 1 1 1 1

“witnesses are the eyes and ears of justice. Their statements have a magic force to change
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 the entire case” Of the many things that plague the criminal justice system in India, and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

thereby increasing the backlog of cases in our country, the most overwhelming and
1 1 1 1 1 1 1 1 1 1 1 1 1

important one is the fact that our conviction rate is very low which is at about 6%. The
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

basic reason for such poor conviction rate is that it is difficult “to prove beyond
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

reasonable doubt” the fact that it was the accused and only the accused who committed
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the offence. So it requires witnesses to prove the guilt of the accused. In common
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

parlance, witness is understood as ‘a person who has some knowledge about the dispute’
1 1 1 1 1 1 1 1 1 1 1 1 1 1

and his duty is to appear in the court and testify truthfully. In Charan Singh v. State of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Punjab, Wadhwa J. observed: 1 1 1

“a criminal case is built on the edifice of evidence, that is admissible in law, for that
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

witnesses are required whether direct or indirect or circumstantial evidence. By giving

1 1 1 1 1 1 1 1 1 1 1 1

evidence, he performs sacred duty of assisting the court to discover the truth”
1 1 1 1 1 1 1 1 1 1 1 1 1

82
1 (1992) 4 SCC 305 1 1 1

56 | P a g e 1 1
(Emphasis supplied) 1 1

The procedural law envisages that administration of oath to the witness precedes the
1 1 1 1 1 1 1 1 1 1 1 1 1

recording of the testimony of the witness. He is not supposed to withdraw from the given
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

statement and the witness ought to sustain the legal sanctity and ethos of the evidence.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

But with the decline of moral values, the sanctity of Oath is completely bruised and so a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

witness resiling from the statement has become a common feature of the criminal trial
1 1 1 1 1 1 1 1 1 1 1 1 1 1

.People are accustomed to utter falsehood in Courts. Intimidation, subornation,

1 1 1 1 1 1 1 1 1 1

vengeance, or some expectation of benefits etc. may be the traditional causes of 1 1 1 1 1 1 1 1 1 1 1 1 1

deviation in witness testimony. Pain of repeated and numerous court visits may also
1 1 1 1 1 1 1 1 1 1 1 1 1

frustrate the witness to resort to casual attitude to the truth. In cases of faction feuds,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

rivalry between potential and powerful people, where there may be fear of life and
1 1 1 1 1 1 1 1 1 1 1 1 1 1

safety, witnesses lose their moral conviction before the dreadful scenario of factual
1 1 1 1 1 1 1 1 1 1 1 1

conditions. Whatever may be the reason, the courts cannot remain complacent and 1 1 1 1 1 1 1 1 1 1 1 1

passive listeners and recorders of witness version.83 1 1 1 1 1 1 1

1 The number of witnesses turning hostile is increasing in cases concerning grave

1 1 1 1 1 1 1 1 1 1 1 1

offences. Some such incidents are the famous BMW case, Jessica Lall murder case
1 1 1 1 1 1 1 1 1 1 1 1 1

and Best Bakery case. The first one was regarding the BMW car running over six
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

people in the early morning hours. The accused in this case was 22 years old, Sanjeev
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Nanda, grandson of former Naval Chief S.M. Nanda. The two key prosecution witnesses
1 1 1 1 1 1 1 1 1 1 1 1 1

subsequently changed their version and said that they saw a truck, and not a BMW 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

hitting the victims 1 1

The second case involved the murder of a model, Jessical Lall who was shot at point
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

blank range amidst a big party thrown at a Delhi restaurant. Here the accused was Manu
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Sharma who hails from an affluent family and had political connections. In this case, all
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the three witnesses have turned hostile one by one, thereby delaying the final disposal of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the case. Although finally Manu Sharma has been convicted but due to witnesses turning
1 1 1 1 1 1 1 1 1 1 1 1 1 1

hostile, final disposal of the case took a long time.1 1 1 1 1 1 1 1 1 1

In the landmark verdict in Best Bakery Case 84 the Supreme Court gave an enlightened
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

observation and sent the key witness Zahira Sheikh to the jail for playing fraud on the 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

court by turning hostile. Holding her in contempt, the Supreme Court Bench observed
1 1 1 1 1 1 1 1 1 1 1 1 1

that-

83
1 R. Madhavi, ‘Witness attack on Justice’; JUSTITIA , Osmania University Law Journal; p-86
1 1 1 1 1 1 1 1 1 1 1 1

84
1 Zahira Habibullah Sheikh and another V. State of Gujrat (AIR 2006 SC 1367)
1 1 1 1 1 1 1 1 1 1 1 1

57 | P a g e 1 1
“In a criminal case, the fate of the proceedings cannot always be left entirely in the hands
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of the parties, crime being public wrong in breach and violation of public rights and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

duties, which affect the whole community and are harmful to the society in general. The
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

concept of fair trial entails familiar triangulation of interests of the accused, the victim
1 1 1 1 1 1 1 1 1 1 1 1 1 1

and the society and therefore, it is the community that acts through the State and the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

prosecuting agencies. Interest of the society is not to be treated completely with disdain 1 1 1 1 1 1 1 1 1 1 1 1 1 1

and as persona non-grata. Courts have always been considered to have an overriding
1 1 1 1 1 1 1 1 1 1 1 1 1

duty to maintain public confidence in the administration of justice. Due administration

1 1 1 1 1 1 1 1 1 1 1 1

of justice has always been viewed as a continuous process , not confined to

1 1 1 1 1 1 1 1 1 1 1 1 1 1

determination of the particular case protecting its ability to function as a court of law in 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the future as in the case before it. If a criminal court is to be an effective instrument in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

dispensing justice, the presiding judge must cease to be a mere spectator and a mere 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

recording machine by becoming a participant in the trial evincing intelligent, active 1 1 1 1 1 1 1 1 1 1 1 1

interest and elicit all relevant material necessary for reaching the correct conclusion and
1 1 1 1 1 1 1 1 1 1 1 1 1

administer justice with fairness and impartially to the both parties of a particular case as 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

well as to the society at large. Courts administering criminal justice cannot turn a blind
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even
1 1 1 1 1 1 1 1 1 1 1 1 1 1

if a fair trial is still possible, except at the risk of undermining the fair name and standing
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of the judges as impartial and independent adjudicators.”

1 1 1 1 1 1 1

In most of the cases witnesses are purchased with the use of money. Generally those
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

people who are extremely rich, industrialists, bureaucrats or high profile public servants
1 1 1 1 1 1 1 1 1 1 1 1

or politicians who have committed the crime either accidentally or intentionally use this
1 1 1 1 1 1 1 1 1 1 1 1 1

method. They are of the belief that their purchasing power is very high and thus they can
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

afford to relax once the witness has been bought over. These types of cases occur all over
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

India, but are mostly prevalent in the Metropolitan cities of the country.85
1 1 1 1 1 1 1 1 1 1 1 1

Very often muscle power is also used. Where money fails, muscles work. Even an honest
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 law-abiding citizen would think hundred times before deposing against the accused if he 1 1 1 1 1 1 1 1 1 1 1 1

1 or any of his family members is threatened with dire consequences or death. They have
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

no option but to do so because most of them are habitual and crime is their profession.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

E.g. contract killers and men belonging to the underworld. 86

1 1 1 1 1 1 1 1 1

85
1 G. S Shekhar; ‘ Witness Protection in Criminal Cases’ ;The Frontline,September,2005; p. 76
1 1 1 1 1 1 1 1 1 1 1 1

86
1 Id , at p. 77 1 1 1 1

58 | P a g e 1 1
Apart from money and muscle power there are various other ways in which witnesses are
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 forced to turn hostile viz, political pressure, long winding Court procedures, the
1 1 1 1 1 1 1 1 1 1 1 1

psychological factor, self-generating fear etc. Whatever be the tactics applied by 1 1 1 1 1 1 1 1 1 1 1

powerful ones in turning the witnesses hostile that undoubtedly makes way for delay in
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the expeditious delivery of justice.

1 1 1 1 1

3.16.1 Writ petitions: 1 1

With the increase in the socio-economic and welfare activities of the State and growing
1 1 1 1 1 1 1 1 1 1 1 1 1 1

awareness of the citizen as to his rights, Article 32 and 226 of the Constitution assumed
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

singular importance in our system of administration of justice .It empowers the Supreme
1 1 1 1 1 1 1 1 1 1 1 1 1

Court and High Courts throughout the territories, in relation to which it exercises
1 1 1 1 1 1 1 1 1 1 1 1 1

jurisdiction , to issue to any person or authority directions or orders or writs including 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

writs in the nature of habeas corpus ,mandamus, prohibition, quo warranto, and
1 1 1 1 1 1 1 1 1 1 1 1

certiorari, whichever is appropriate.87 1 1 1

Writ Petitions are extra-ordinary constitutional remedies under the Constitution by

1 1 1 1 1 1 1 1 1 1

which the Judiciary reviews the executive and legislative acts. They don’t constitute the
1 1 1 1 1 1 1 1 1 1 1 1 1

normal judicial work of adjudicating disputes amongst citizens or between citizens and
1 1 1 1 1 1 1 1 1 1 1 1

governments etc .The situation has become increasingly serious even for the extra- 1 1 1 1 1 1 1 1 1 1 1

ordinary remedies of writ petitions. Priorities have to be set even amongst the extra-
1 1 1 1 1 1 1 1 1 1 1 1 1

ordinary remedies. Further, only the temporary, urgent, ad interim, or interim relief is
1 1 1 1 1 1 1 1 1 1 1 1 1

ordered in writ petitions and the real and main issues are relegated to the background and
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

may not be addressed for want of time. More often than not the writ petitions are filed to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

force the executive to do their duty and the Courts have to waste their precious time in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

giving direction to the executive to perform their constitutional duty due to which the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

disposal rate of cases is reduced substantially. Very often, a number of writ petition are
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

filed involving not only the same point of law but also the same or similar facts. The
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

grouping of these petitions by the Registry will help in the quick and satisfactory
1 1 1 1 1 1 1 1 1 1 1 1 1 1

disposal of cases. The co-operation of the various government departments would be

1 1 1 1 1 1 1 1 1 1 1 1

required for the expeditious disposal of writ cases. 1 1 1 1 1 1 1 1

3.16.2 Delay by the Judges: 1 1 1 1

87
The difference between Art.32 and 226 is that through art.32 Supreme court can be approached for the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

enforcement of Fundamental rights only, while through Art 226 High Courts can be approached not only
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

for the enforcement of Fundamental rights but also for the enforcement of any other rights.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

59 | P a g e 1 1
Some practices of our judiciary also cause delay and arrears. Writing of lengthy
1 1 1 1 1 1 1 1 1 1 1 1 1

judgments obscuring the ratio is not uncommon in India. A lot of time is consumed not
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

only by the judges but by others also in writing the judgment which ultimately results in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

delay in pronouncement of the judgment .Writing separate judgments even when they
1 1 1 1 1 1 1 1 1 1 1 1

are concurring makes the exercise time-consuming and confusing .It thereby becomes
1 1 1 1 1 1 1 1 1 1 1

difficult to find the ratio in quick time. 88 1 1 1 1 1 1 1 1

When judges give separate but concurring judgments they say that they want to give
1 1 1 1 1 1 1 1 1 1 1 1 1 1

reasons other than those mentioned in the judgment with which they concur. However
1 1 1 1 1 1 1 1 1 1 1 1 1

more often than not it is seen that the most of the separate judgment do add that all have
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

been discussed in the main judgment .The separate judgments may differ only in minor
1 1 1 1 1 1 1 1 1 1 1 1 1 1

details, still it is written and published. It is not known what benefit one gets from the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

practice. The dissenting judgments on the contrary display clarity; it helps the lawyers
1 1 1 1 1 1 1 1 1 1 1 1 1

and law students a lot in understanding the ratio as well as the unarticulated premises of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the conclusion. The dissenting judgments of some of our well-known judges are really
1 1 1 1 1 1 1 1 1 1 1 1 1

path-finders.89

The languages employed by the judges in writting judgments have also come for
1 1 1 1 1 1 1 1 1 1 1 1 1

criticism. At times the judges who have a flair for flowery languages indulge in
1 1 1 1 1 1 1 1 1 1 1 1 1 1

displaying good command over the language and in the process make others to miss the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

legal point discussed in the case. Such writings cause delay not only at the hands of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

judges but also for lawyers in finding out the ratio of the decisions.
1 1 1 1 1 1 1 1 1 1 1 1 1

3.17EMPIRICAL STUDY OF DELAY IN THE DISPOSAL OF CASES: 1 1 1 1 1 1 1 1

The main objective of the empirical study is to ascertain the impediments behind the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

speedy trial. In other words, through this empirical study the researcher endeavours to
1 1 1 1 1 1 1 1 1 1 1 1 1

find out the main reasons for delay in the disposal of cases.
1 1 1 1 1 1 1 1 1 1 1

The study is confined to Courts of Delhi only, so the viewpoint of some of the litigants,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

lawyers and judicial officers of Patiala House Court, Tis Hazari Court, Delhi High Court
1 1 1 1 1 1 1 1 1 1 1 1 1 1

and Supreme Court of India, have been taken on the basis of empirical investigation
1 1 1 1 1 1 1 1 1 1 1 1 1 1

which have been carried out through schedule and interview method.
1 1 1 1 1 1 1 1 1

88
1 The Academy Law Review; Vol. 17, p. 59
1 1 1 1 1 1 1

89
1 Id at p. 60
1 1 1

60 | P a g e 1 1
 Chapter-4
SENTENCING POWER OF
1 1 1

CRIMINAL COURTS
1 1

61 | P a g e
1 1
 SENTENCING POWER OF CRIMINAL COURTS 1 1 1 1 1

4.1 Introduction
1

Sentencing is the stage which considers as to what the criminal deserves. It is the stage of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

criminal justice system where the actual punishment of the convict is decided by the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

judge. Different legal systems have different yardsticks. Some apply deterrence model
1 1 1 1 1 1 1 1 1 1 1

giving exemplary punishment to mould the behavior of others while some believe in
1 1 1 1 1 1 1 1 1 1 1 1 1

proportionality. There are other methods like victimilogical method which takes into 1 1 1 1 1 1 1 1 1 1 1

account the harm suffered by the victim, the other method being correctional method
1 1 1 1 1 1 1 1 1 1 1 1 1

which considers that circumstances break the man & it is the changed circumstances
1 1 1 1 1 1 1 1 1 1 1 1 1

which can raise a fallen man. However, a consensus evades. This being said no further
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

explanation is required to understand how much attention needs to be paid to the 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sentencing stage & the consensus brought. 1 1 1 1 1 1

The sentencing stage is one of the most important stages of the Indian criminal justice
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

system where the accused is punished by the courts. The sentencing in India is governed
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

by the prime criminal law statutes i.e. the Indian Penal Code, 1860 & the Code of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Criminal Procedure, 1973. Though the statutes provide a sentencing procedure to be

1 1 1 1 1 1 1 1 1 1 1 1

followed, yet there are several issues relating to sentencing specifically in cases of
1 1 1 1 1 1 1 1 1 1 1 1 1

offences punishable with death & life imprisonment which are left unanswered. In
1 1 1 1 1 1 1 1 1 1 1 1

several cases it has been observed that there is a glaring need of a sentencing policy as
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

existing in other countries like U.S. & U.K. which should be followed by the judges
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

during the sentencing stage. It is also seen in India that there is no uniformity in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sentences imposed by the courts which results in the denial of justice to the offender as
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

well as the society. This was the main reason which motivated the researcher to do his
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

study on this topic & explore the present sentencing practice in India & the anomalies
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

related to it. 1 1 1

In India, the Code of Criminal Procedure, 1973 provides discretionary powers to the
1 1 1 1 1 1 1 1 1 1 1 1 1

judges in order to determine the conviction. The Code talks about sentencing in Sections
1 1 1 1 1 1 1 1 1 1 1 1 1 1

235, 248, 325, 360 & 361. The discretion for sentencing under the court is guided by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

vague terms such as ‘circumstances of the crime’ & ‘mental stage & age’. Various
1 1 1 1 1 1 1 1 1 1 1 1 1 1

judicial decisions have laid down the principle of ‘mitigating & aggravating
1 1 1 1 1 1 1 1 1 1 1

62 | P a g e 1 1
circumstances’, but, these circumstances are something which are left for the judges to 1 1 1 1 1 1 1 1 1 1 1 1 1

decide. 1

If one judge decides a particular circumstance as mitigating, this would not prevent
1 1 1 1 1 1 1 1 1 1 1 1 1

another judge from ignoring that aspect as irrelevant. 1 1 1 1 1 1 1 1

This lack of inconsistency has encouraged a few judges to misuse the discretion on the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

basis of personal prejudices. Another factor to be considered is the situation being the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Rarest of Rare. In many cases the courts have shockingly reduced death penalty to
1 1 1 1 1 1 1 1 1 1 1 1 1 1

rigorous imprisonment by not considering it to be Rarest of Rare. 1 1 1 1 1 1 1 1 1 1 1

In India except for mitigating & aggravating circumstances & rarest of rare situations
1 1 1 1 1 1 1 1 1 1 1 1 1

there are no specific factors or guidelines that are to be considered by the judges during
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the sentencing stage. The mitigating & aggravating circumstances & rarest of rare cases
1 1 1 1 1 1 1 1 1 1 1 1 1

are not yet codified & are given as the Obiter Dicta. In the above cases if a guideline is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

laid down it would have a primary rationale. The primary rationale would help the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

judges determine what exactly needs to be achieved of the punishment. The mitigating &
1 1 1 1 1 1 1 1 1 1 1 1 1

1 aggravating circumstances can also be easily determined if the primary rationale is 1 1 1 1 1 1 1 1 1 1 1 1

cleared. 1

4.2 SENTENCING PROCEDURE IN INDIA & THE DISPARITY IN

1 1 1 1 1 1 1 1 1

SENTENCING PRACTICE 1

Sentences under the Indian Penal Code, 1860 1 1 1 1 1 1

There are various types of Sentences given under more than two hundred Indian statutes.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

But the bulk of the offences are to be found in the Indian Penal Code. The Indian Penal
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Code has provided for a graded system of punishment to suit different categories of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

crime. 1

Section 53 of Indian Penal Code provides for five types of punishments that can be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

awarded to a person convicted under Indian Penal Code, namely: 1 1 1 1 1 1 1 1 1

1. Death;
1

2. Imprisonment for life;

1 1 1

3. Imprisonment, which is of two types:

1 1 1 1 1 1 1

(a) Rigorous, i.e., with hard labor;

1 1 1 1 1

63 | P a g e 1 1
(b) Simple;
1

4. Forfeiture of Property; &

1 1 1 1

5. Fine.
1

This Section is not too exhaustive as far as the kinds of punishments are concerned
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

because there are some other punishments also imposed by other statutes. The types of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

punishments provided under the Indian Penal Code are applicable to offences under this
1 1 1 1 1 1 1 1 1 1 1 1 1

code only.1

4.3 Constitutional validity of death sentence

Even after independence in 1947, India didn’t not abandon the code of 1861 i.e. India
penal code which exhaustively provides for the capital punishment which necessitates
the juror to give reasoning for imposing death sentence. When the Indian constitution
was in the process of being framed between 1947 & 1949 majority of the constituent
assembly was in favor of abrogation of Capital punishment, however it went in vain.
Several bills in favor of abolishing of capital punishment were tabled in both houses
of parliament, however the same were also not adopted.

In Jagmohan Singh v. State of U.P., it was argued that death penalty was
unconstitutional & hence invalid as a mode of punishment. It was contended that the
freedoms guaranteed under Article 19 of the Constitution cannot be co-extensive with
the Legislature prescribing the punishment of death as a restriction on the
fundamental freedoms. The right to live which is basic to the enjoyments of freedoms
within the permissible constitutional limits cannot be understood to co-exist with
thatlegislative injunction which has the character of destroying the life. Therefore, any
legislative attempt on the destruction of life cannot be deemed to be reasonable
restriction on the right to life implicitly found in the fundamental freedoms. Another
ground on attack was that discretion to impose death sentence was not based on any
standard of policy, & it thus suffered from the vice of excessive delegation of
legislative power. Since the courts have unguided discretion to impose death penalty
or even lesser punishment for the offence of murder, it violated the equal protection
clause embodied in Article 14 of the Constitution. Further in the absence of any
procedure established by law in the matter of sentence, the protection given in Article
21 of the Constitution was also violated.

64 | P a g e
1 1
The Supreme Court did not agree with any of the above contentions & held the death
penalty as valid. The deprivation of life is constitutionally permissible if that is done
according to the procedure established by the law. It would be difficult to say that
capital punishment per seis unreasonable or is not in the public interest.

Bachansingh V. state of Punjab is a landmark case, wherein the Apex Court was
moved to adjudicate upon the question of constitutionally validity of death
sentence.The Constitution bench upheld the validity of capital sentence. In this
judgment,the apex court emphasized upon the necessity of considering certain
aggravating & mitigating circumstancessuch as gravity of crime & antecedents of the
convict & suggested that capital punishment be given only in the case involving crime
of rarest of rare nature.

In Dina v. State of U.P., the Constitutional validity is challenged of death sentence

was challenged on the ground it violative Article 21 of the Constitution being
barbarous & inhuman in nature. The Supreme Court however rejected the contention
& held that hanging the condemned person by neck till he is dead was perhaps the
only convenient & relatively less painful mode of executing the death sentence.

4.4 Rarest of rare cases

1 1 1 1

Earlier it was solely the discretion of the Court if a particular case can be highlighted as a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

rarest of rare case but the Apex Court through various judgments proposed certain
1 1 1 1 1 1 1 1 1 1 1 1 1

principles which are to be considered by the Court such as gravity of crime &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

antecedents of the convict 1 1 1

There are some rarest of rare cases mentioned which indicates the guidelines for the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

principle of rarest of rare rule. 1 1 1 1 1

In Machhi Singh v. State of Punjab , in order to apply these guidelines inter alia the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

following questions maybe asked & answered:-

1 1 1 1 1

(a) “Is there something uncommon about the crime which renders sentence of
1 1 1 1 1 1 1 1 1 1 1 1

imprisonment for life inadequate & calls for a death sentence? 1 1 1 1 1 1 1 1 1

(b) Are there circumstances of the crime such that there is no alternative but to impose
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

death sentence even after according maximum weightage to the mitigating

1 1 1 1 1 1 1 1 1 1

circumstances which speak in favor of the offenders?” 1 1 1 1 1 1 1

65 | P a g e
1 1
The Supreme Court has also discussed such aggravating circumstances in which death
1 1 1 1 1 1 1 1 1 1 1 1

sentence is awarded in rarest of rarest cases. There are five circumstances include:-
1 1 1 1 1 1 1 1 1 1 1 1

1. The manner in which the offence of murder was committed. If it was committed with
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

extreme brutality such as burning the victim alive or cutting the body into pieces, 1 1 1 1 1 1 1 1 1 1 1 1 1 1

it would be a fit case to be considered as rarest of rare case.

1 1 1 1 1 1 1 1 1 1 1 1 1

2. When the motive reveals depravity & meanness of the murderer e.g. crime being
1 1 1 1 1 1 1 1 1 1 1 1 1 1

committed for material gain. 1 1 1

3. When the murder is socially abhorrent such as bride burning or killing of a Harijan.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

4. When the magnitude of the offence is enormous as in case of multiple murders.

1 1 1 1 1 1 1 1 1 1 1 1 1 1

5. When the victim is an innocent child, a helpless women, or a reputed figure i.e. the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

case of a political murder. 1 1 1 1

The Court ruled that death penalty should be awarded only punishment to be awarded in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the aforesaid case.

1 1

In Dhananjoy Chatterjeev. State of W.B., the accused hit a girl aged 14 years, brutally on
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

head & while the girl was dying, she was raped by him. The Session’s Court considered
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

it as the rarest of the rare case & death sentence was awarded. High Court also gave the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

death sentence & appeal against the High Court’s order was dismissed by the Supreme
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Court. His death sentence was executed on 14th Aug 2004, & he was hanged till death,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

after affirmation by the Supreme Court & rejection of his mercy petition by the Hon’ble
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

President of India. 1 1

In MahendraNath Das v. State of Assam, the accused was a young man, who killed the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

deceased & chopped off the hands & head of the dead body. Thereafter, he came to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

police station along with the chopped h&& head of the deceased to make a confession of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

his offence. The Supreme Court considered this murder as the rarest of rare case &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

upheld the death sentence of the accused. The Court rejected the plea that the accused
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

was a young man having liability of his three young unmarried sisters & age-old parents
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

who were solely dependent on him.

1 1 1 1 1

In Mattoo Murder case, PriyadarshiniMattoo, a bright & intelligent law student of Delhi
1 1 1 1 1 1 1 1 1 1 1 1 1

University, was raped & killed by Santosh Kumar Singh. A verdict of guilty was 1 1 1 1 1 1 1 1 1 1 1 1 1 1

66 | P a g e 1 1
delivered against him on Oct. 17, 2006 & pronounced death sentence on Oct.30, 2006.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Court stated that normal sentence for murder in India is death is no longer true. The death
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 sentence be where facts disclosed that ‘culpability has assumed depravity; the accused,
1 1 1 1 1 1 1 1 1 1 1 1

an ardent criminal & menace to society.’ Where the crime is committed in an organized
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

manner & is gruesome, cold blooded, heinous atrocious & cruel, the case being one of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the rarest of the rare, shocking the collectively conscious of the community.
1 1 1 1 1 1 1 1 1 1 1

In Bantu v. State of U.P, the Supreme Court upheld the validity of rarest of rare case on
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the basis that for a crime to be proved it is not necessary that the crime must be seen to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

have committed & must, in all circumstances be proved by direct ocular evidence which
1 1 1 1 1 1 1 1 1 1 1 1 1 1

are examined before the court.

1 1 1 1

4.5 Mercy Petition

1 1

As discussed above that the power is given to appropriate Government to commute the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

death sentence under Section 54 of the Indian Penal Code. The accused can file mercy
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

petition before president of India. Under Article 72 of the Constitution of India president
1 1 1 1 1 1 1 1 1 1 1 1 1 1

having power & under Article 161 Governor of India has the power to grant mercy
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

petition.

Under Article 72 & 161 of the Constitution, the Governor & President of India has the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

exclusive power to grant pardon or commutation of sentence, reprieves or remission of

1 1 1 1 1 1 1 1 1 1 1 1 1

punishment or to suspend, remit or commute the death sentence passed against any 1 1 1 1 1 1 1 1 1 1 1 1 1

person.

In Kuljeet Singh v. Union of India, the death sentence of one of the appellants was
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

confirmed by the Supreme Court. His mercy petition was rejected by the President.
1 1 1 1 1 1 1 1 1 1 1 1 1

Thereupon, the appellant filed a writ petition in the Supreme Court challenging the
1 1 1 1 1 1 1 1 1 1 1 1 1

discretion of the President of India to grant pardon on the ground that no reasons were
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

given for the rejection of mercy petition. The Supreme Court dismissed the petition &
1 1 1 1 1 1 1 1 1 1 1 1 1 1

observed that the petition & observed that the term “pardon” itself signifies that it is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

entirely a discretionary remedy & the grant or rejection of it need not to be reasoned.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

In Abdul Azad v. State, it was further observed that if any remission in sentence is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

granted by the government, the prisoner would be entitled to set-off his period of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

detention undergone by him during the period of investigation, inquiry or trial.

1 1 1 1 1 1 1 1 1 1 1

67 | P a g e 1 1
In State of Madhya Pradesh v. Ratan Singh & Ors, the Supreme Court observed that:
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1. A sentence of imprisonment for life does not automatically expire at the end of twenty
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

years including the remissions, because the administrative rules framed under
1 1 1 1 1 1 1 1 1 1

the various Jail Manuals or under the Prisons Act cannot supersede the statutory
1 1 1 1 1 1 1 1 1 1 1 1 1

provisions of the IPC. A sentence of imprisonment for life means a sentence for 1 1 1 1 1 1 1 1 1 1 1 1 1 1

entire life of the prisoner unless the appropriate government chooses to exercise
1 1 1 1 1 1 1 1 1 1 1 1

its discretion to remit either the whole or a part of the sentence under Section 432
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of the Criminal Procedure Code 1973.

1 1 1 1 1

2. The appropriate government has the undoubted discretion to remit the sentence &
1 1 1 1 1 1 1 1 1 1 1 1 1

where it refuses to remit the sentence & where it refuses to remit the sentence no
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

writ can be issued directing the state government to release the prisoner.
1 1 1 1 1 1 1 1 1 1 1

3. The appropriate government which is empowered to grant remission under section

1 1 1 1 1 1 1 1 1 1 1 1

432 of the Criminal Procedure Code 1973 is the government of the State where
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the prisoner has been convicted & sentenced, that is to say, the transferor state &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

not the transferee state where the prisoner may have been transferred at his
1 1 1 1 1 1 1 1 1 1 1 1 1

instance under the Transfer of Prisoners Act. 1 1 1 1 1 1

4. Where the transferee state feels that the accused has completed a period of twenty
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

years it has merely to forward the request of the prisoner to the concerned state
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

government that is to say, the government of the state where the prisoner was 1 1 1 1 1 1 1 1 1 1 1 1 1 1

convicted & sentenced &if this request is rejected by the State government, the
1 1 1 1 1 1 1 1 1 1 1 1 1

order of the government cannot be inferred with by a High Court in its writ
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

jurisdiction.

In ZahidHussainv. State of West Bengal, The Apex Court upheld its earlier view that a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sentence of imprisonment for life means a sentence for entire life of the prisoner
1 1 1 1 1 1 1 1 1 1 1 1 1 1

government chooses to exercise its discretion to remit either the whole or part of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sentence. It does not automatically expire at the end of 20 years.

1 1 1 1 1 1 1 1 1 1 1

In Jessica Lal’s murder case, the High Court of Delhi on 20th December 2006, awarded
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

life imprisonment to Manu Sharma, son of Congress leader Vinod Sharma, for
1 1 1 1 1 1 1 1 1 1 1 1

murdering model Jessica Lal in 1999. Manu Sharma has to spend his entire life in the jail
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

as directed by the court. The Court clarified that the Apex Court ruled that a convict who
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

68 | P a g e 1 1
is sentenced to life imprisonment has to spend his entire life in prison, unless the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Government passes an order remitting the sentence for his early release. 1 1 1 1 1 1 1 1 1 1

The Sentencing procedure as under Criminal Procedure Code, 1973

1 1 1 1 1 1 1 1

The Code of Criminal Procedure, 1973 confers wide discretionary powers on the Court
1 1 1 1 1 1 1 1 1 1 1 1 1

once the conviction is determined. The Code of Criminal Procedure deals with
1 1 1 1 1 1 1 1 1 1 1 1

sentencing in Sections 235, 248, 325, 360 & 361. Section.235 is a part of Chapter 18
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

dealing with a proceeding in the Court of Session. It directs the judge to pass a judgment
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of acquittal or conviction & in case conviction to follow clause 2 of the section. Clause 2
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of the section gives the procedure to be followed in cases of sentencing a person

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

convicted of a crime. The section provides a quasi trial to ensure that the convict is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

afforded an opportunity to be heard & give opinion on the sentence to be imposed on

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

him. The only purpose of conducting arguments on charge is that the judge gets an idea
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of the social & personal details of the convict & to see if none of these will affect the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sentence. Factors such as the convict being a breadwinner might help in mitigating his
1 1 1 1 1 1 1 1 1 1 1 1 1 1

punishment or the conditions in which he might work. This section plainly provides that
1 1 1 1 1 1 1 1 1 1 1 1 1 1

every person must be given an opportunity to talk about the kind of punishment to be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

imposed.

As per the section, not only is the convict given an opportunity to speak upon his
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sentence but it also affords an opportunity to the defence counsel to apprise the Court of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the possible factors that ought to be considered while deciding the quantum of sentence.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

This ordeal must not be looked on as a formality but as a serious effort in doing justice to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the persons involved. A sentence not in compliance with Section 235 (2) might be struck
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

down as violative of natural justice. However this procedure is not required in cases
1 1 1 1 1 1 1 1 1 1 1 1 1 1

where the sentencing is done according to Section 360.

1 1 1 1 1 1 1 1

The judge cannot at any point of time exceed the powers conferred upon him by the Code
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 of Criminal Procedure under the garb of discretion. In the event where the magistrate is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of the view that the crime proved to have been committed is of greater intensity & must
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

be punished severely & if it is outside the purview of his jurisdiction to award the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

punishment then he may refer the case to the Chief Judicial Magistrate with the relevant
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

papers along with his opinion. 1 1 1 1 1

69 | P a g e 1 1
The fundamental aspect of judicial discretion is enshrined in Section 360 which provides
1 1 1 1 1 1 1 1 1 1 1 1

1 for release of the convict on probation. The objective of this section is to try & reform
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

those criminals in cases where there is no serious threat to the society. Following are the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

prerequisite conditions for the section to be applicable- 1 1 1 1 1 1 1

1. A woman convicted of offence the punishment of which is not death or life

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

imprisonment 1

2. A person below 21 years of age convicted of offence the punishment of which is not
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

death or life imprisonment 1 1 1 1

3. A male above 21 years convicted of an offence the punishment of which is fine or

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

imprisonment of not above 7 years. 1 1 1 1 1

The Code of Criminal Procedure, 1973 mandates an application under Section 361
1 1 1 1 1 1 1 1 1 1 1 1

wherever Section 360 of the code is applied & in case of omission to do so; special
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

reasons have to be cited by the Court. Also the Court has to award special reasons in case
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the punishment awarded is less than the minimum prescribed under the relevant laws.
1 1 1 1 1 1 1 1 1 1 1 1 1

The omission to record the special reason is an irregularity & the sentence can be set
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

aside due to this reason. 1 1 1 1 1

4.6 Sentencing Practice in India: An Analysis

1 1 1 1 1 1

The principal sources of Indian sentencing law are twofold, dominantly the legislation &
1 1 1 1 1 1 1 1 1 1 1 1

1 judicial decisions. Statute law, i.e. the Indian Penal Code & other local & special laws
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

lay down the terms under which a criminal court may pass a sentence after conviction. In
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

India various means of penal sanction such as fine, imprisonment, probation &
1 1 1 1 1 1 1 1 1 1 1 1

sometimes the extreme punishment if death are available to the courts, under the
1 1 1 1 1 1 1 1 1 1 1 1 1

provisions of law governing a particular kind of offence of an offender. 1 1 1 1 1 1 1 1 1 1 1

A progressive trend in the area of sentencing is discernible in the Indian criminal justice
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

system. The substantial amendments that are being brought about in the Code of
1 1 1 1 1 1 1 1 1 1 1 1 1

Criminal Procedure 1973, which in particular incorporated clause (2) in Section 235
1 1 1 1 1 1 1 1 1 1 1 1

makes it mandatory on the part of the sentencing judge to hear he accused on the question
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 of sentence, when the accused is found guilty.

1 1 1 1 1 1 1 1

Similarly, Section 248 (2) enjoins a duty on the part of the Magistrate to hear the accused
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

with regard to the question of sentence.

1 1 1 1 1 1

70 | P a g e 1 1
The Supreme Court has time & again emphasized the need for effective sentencing
1 1 1 1 1 1 1 1 1 1 1 1 1

justice. In Santa Singh v. State of Punjab, the Court observed:

1 1 1 1 1 1 1 1 1 1

“This new provision in Section 235(2) is in consonance with the modern trends in
1 1 1 1 1 1 1 1 1 1 1 1 1 1

penology & sentencing procedure. It should be a matter of some anxiety to the court to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

impose an appropriate punishment on the criminal & sentencing, therefore, should

1 1 1 1 1 1 1 1 1 1 1

receive serious attention of the courts. Of course care will have to be taken by the court to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 see that this hearing of the question of sentence is not abused & turned into & instrument
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

for unduly protracting the proceedings”

1 1 1 1

New avenues, in respect of sentencing have been introduced in Indian legislation.

1 1 1 1 1 1 1 1 1 1 1

Over the years, the Courts over & above the traditional sentences available to them have
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

been provided with the power to impound conductor’s license, of proclamation in the
1 1 1 1 1 1 1 1 1 1 1 1 1

newspapers, release on probation for treatment & confiscation of property & so on. A 1 1 1 1 1 1 1 1 1 1 1 1 1 1

distinct movement towards reformation oriented policy is noticeable.

1 1 1 1 1 1 1 1

It is also to be noted that certain provisions of the Criminal Procedure Code 1973 for
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

example Section 361, concerned with Probation & Section 354(3) of the Cr.PC where
1 1 1 1 1 1 1 1 1 1 1 1 1

reasons for awarding a sentence must be recorded in cases of the sentence of death,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

special reasons should be given & other such kind of laws are reform oriented.
1 1 1 1 1 1 1 1 1 1 1 1 1

However legislation in India is not solely influenced by the reformative theory. Other
1 1 1 1 1 1 1 1 1 1 1 1 1

sentencing rationales, for example the principles of deterrence & retribution are 1 1 1 1 1 1 1 1 1 1 1

reflected in the core fabric of India’s sentencing policy. This is evidenced by provisions
1 1 1 1 1 1 1 1 1 1 1 1 1 1

such as Section 53 of the Indian Penal Code which deals with different punishments such
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 as death penalty as discussed above, Section 75 of the IPC which speaks of the enhanced
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

punishment for certain offences, after previous conviction, the incorporation of the 1 1 1 1 1 1 1 1 1 1 1

concept of mandatory minimum punishment & so forth. The deterrent principle is

1 1 1 1 1 1 1 1 1 1 1 1

especially applied in cases of socio- economic offences. 1 1 1 1 1 1 1

71 | P a g e 1 1
4.7 CERTAIN IMPORTANT ASPECTS OF THE SENTENCING PROCESS IN
1 1 1 1 1 1 1 1 1

INDIA:

4.7.1 Aggravating & mitigating circumstances:

1 1 1 1

The sentencing Judge is to inquire into the aggravating or mitigating circumstancing

1 1 1 1 1 1 1 1 1 1 1 1

while exercising discretion in determining penalty. In Zafar Ahmed Khan v. State of

1 1 1 1 1 1 1 1 1 1 1 1 1

U.P., a case relating to eve-teasing, the sentencing Judge considering certain aggravating
1 1 1 1 1 1 1 1 1 1 1

1 circumstances, such as, the offence is fast on increase in the city, is so easy to commit, so 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

difficult to be booked for, is hardly ever brought to the notice of the authorities & so on &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 while awarding the sentence, decided that the punishment should be based on the
1 1 1 1 1 1 1 1 1 1 1 1 1

deterrent principle. The sentencing Court inevitably finds certain factors in a particular
1 1 1 1 1 1 1 1 1 1 1 1

case, which either aggravates or mitigates the penalty.

1 1 1 1 1 1 1

4.7.2 Minimum Mandatory Sentences:

1 1 1 1

The present day sentencing scenario unveils quite conspicuously the relentless efforts of
1 1 1 1 1 1 1 1 1 1 1 1

the Legislature to interfere with the sentencing discretion of the Courts. Particularly, by
1 1 1 1 1 1 1 1 1 1 1 1 1

the introduction of minimum mandatory sentences, the sentencing Judges are left with
1 1 1 1 1 1 1 1 1 1 1 1

no discretion except to award the mandatory sentences.

1 1 1 1 1 1 1

One major reason in support of minimum punishment is that such punishment is an

1 1 1 1 1 1 1 1 1 1 1 1 1 1

effective deterrent for curbing the crime. But it is nothing but blatant injustice towards
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the offender, when the Judge cannot impose any sentence below the minimum
1 1 1 1 1 1 1 1 1 1 1 1

punishment, in spite of circumstances, which call for much leniency. 1 1 1 1 1 1 1 1 1 1

One important factor to be mentioned here is that prescription of minimum mandatory

1 1 1 1 1 1 1 1 1 1 1 1 1

sentences is inhibiting the judiciary from imposing the same & promoting an attitude
1 1 1 1 1 1 1 1 1 1 1 1 1

towards acquitting the accused on marginal doubts due to the harshness of the sentences.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

The cases filed under the Narcotic Drugs & Psychotropic Substances Act, 1985, wherein
1 1 1 1 1 1 1 1 1 1 1 1 1

for almost all offences minimum mandatory sentences are prescribed, would support
1 1 1 1 1 1 1 1 1 1 1

this contention. Recent studies with reference to this law revealed that the majority of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 cases resulted in acquittals. If the aim of the Legislature was to incorporate minimum
1 1 1 1 1 1 1 1 1 1 1 1 1 1

sentences so as to ensure award to deterrent sentence & at the same time avoid lenient
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sentences, the result is contrary to expectations since it has merely led to an increase in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the number of acquittals. Then the question is whether curtailment of judicial discretion
1 1 1 1 1 1 1 1 1 1 1 1 1

serves any purpose. 1 1

72 | P a g e 1 1
4.7.3 Disparity in Sentencing
1 1 1

One complex problem relating to the sentencing process is the lack of uniformity in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

quantum of punishment given by different Courts for the same or similar offences. The
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Supreme Court took note of the problem of disparity in sentences in RameshwarDayalv.

1 1 1 1 1 1 1 1 1 1 1 1 1

State of U.P. The Court observed that the problem of disparity had not been solved
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

satisfactorily so far. In the case before it, the Court found it strange that thought the two
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

cases were identical in terms of offence & circumstances, a four year imprisonment was
1 1 1 1 1 1 1 1 1 1 1 1 1 1

awarded in one while only three months imprisonment was given in the other.
1 1 1 1 1 1 1 1 1 1 1 1

Though sentencing disparity cannot be eliminated altogether, yet efforts can be made for
1 1 1 1 1 1 1 1 1 1 1 1 1

reducing it to a minimum level. The strategies indicated are the better training of judicial
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

personnel & the coordination of sentencing. In this context it becomes relevant to

1 1 1 1 1 1 1 1 1 1 1 1 1

discuss two devices, sentencing councils & appellate review of sentences, which are
1 1 1 1 1 1 1 1 1 1 1 1

particularly designed to reduce the sentencing disparity in the United States. The
1 1 1 1 1 1 1 1 1 1 1 1

sentencing council consists of several Judges of a multi Judge Court who meet
1 1 1 1 1 1 1 1 1 1 1 1 1

periodically to discuss sentences to be imposed in pending cases. From such a discussion

1 1 1 1 1 1 1 1 1 1 1 1 1

1 a consensus on sentencing standards may emerge. However, the ultimate responsibility

1 1 1 1 1 1 1 1 1 1 1

for determining a sentence rests with the Judge to whom the case is assigned although the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 discussion & need to state reasons for a sentence tend to restrain the imposition of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

unreasonably severe or lenient sentences. 1 1 1 1 1

The appellate review of sentences affords the occasion for a systematic & continuous
1 1 1 1 1 1 1 1 1 1 1 1 1

examination of sentencing policy by an appellate Court. The appellate review 1 1 1 1 1 1 1 1 1 1 1

encourages the development of uniform & considered sentencing policies within a

1 1 1 1 1 1 1 1 1 1 1

jurisdiction. It leads both the trial Court & the appellate Court to give sustained &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

explicit consideration to the justification for particular sentences. It provides a workable

1 1 1 1 1 1 1 1 1 1 1 1

means of correcting unjust & ill considered sentences, particularly in which the
1 1 1 1 1 1 1 1 1 1 1 1

punishment imposed, is grossly inappropriate. These devices are worth trying in our
1 1 1 1 1 1 1 1 1 1 1 1

system of criminal justice for the purpose of reducing sentencing disparity.

1 1 1 1 1 1 1 1 1 1 1

4.7.4 Judicial Orientation:

1 1

Sentencing standards are so utterly absent in the criminal system that aberrations
1 1 1 1 1 1 1 1 1 1 1 1

frequently occur, shaking the faith of the community in the system of judicial
1 1 1 1 1 1 1 1 1 1 1 1 1

sentencing. There are many theories of sentencing from penal humanitarianism &
1 1 1 1 1 1 1 1 1 1 1

73 | P a g e 1 1
rehabilitative therapeutics to retributive justice & public denunciation cult. However 1 1 1 1 1 1 1 1 1 1

few Judges in India have received training in correctional theories & practices. Judges
1 1 1 1 1 1 1 1 1 1 1 1 1

while well qualified legally possess few if any penological qualifications. It is

1 1 1 1 1 1 1 1 1 1 1 1

imperative that this situation is remedied, if an effective sentencing system is to be

1 1 1 1 1 1 1 1 1 1 1 1 1 1

achieved. In Santa Singh v. State of Punjab, the Supreme Court emphasized the
1 1 1 1 1 1 1 1 1 1 1 1 1

importance of training of judicial personnel in penology & sentencing procedures. 1 1 1 1 1 1 1 1 1 1 1

Judges are encouraged to seek & obtaining training, education & information to assist
1 1 1 1 1 1 1 1 1 1 1 1 1

them in evaluating the effectiveness of available sanctions, programs, & sentencing

1 1 1 1 1 1 1 1 1 1 1

options in reducing future criminal conduct.1 1 1 1 1 1

Regular judicial training institutes, conferences at which Judges meet with other Judges
1 1 1 1 1 1 1 1 1 1 1 1

& with correctional authorities, to discuss sentencing standards & learn about the
1 1 1 1 1 1 1 1 1 1 1 1

available correctional programs & the latest reforms in the area of sentencing, are
1 1 1 1 1 1 1 1 1 1 1 1 1

therefore needed. In fact there have been endeavors in this direction as is evidenced by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the Judicial Orientation Training Courses, which are being offered today, & the number
1 1 1 1 1 1 1 1 1 1 1 1 1

of conferences & lecture being organized for the purpose of judicial orientation.
1 1 1 1 1 1 1 1 1 1 1

4.8 Judicial Discretion inthe Sentencing Procedure

1 1 1 1 1

The stage of punishment is the final process of the criminal jurisprudence system. As is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

well-known, one of the fundamental tenets of criminal law is that a person is considered 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

innocent until proved guilty. The nature of proof requires that the evidence must prove
1 1 1 1 1 1 1 1 1 1 1 1 1 1

beyond reasonable doubt the guilt of the person accused of various offences. The method
1 1 1 1 1 1 1 1 1 1 1 1 1

1 of proof is though conduct of trial. Earlier before amendment to the Criminal Procedure
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Code in 1973, trial in India included jury trials. However, the jury system has been
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

discontinued in India, & trial is conducted in either the Magistrate’s Courts or Session’s 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Court. The nature of offences alleged against the accused determines whether the trial is
1 1 1 1 1 1 1 1 1 1 1 1 1 1

to be conducted before the Magistrate’s Court or the Sessions Court. Once the court
1 1 1 1 1 1 1 1 1 1 1 1 1 1

comes to a conclusion after evaluating the evidence admitted before the court & after the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accusations are proved against the accused, the court has to necessarily decide on the 1 1 1 1 1 1 1 1 1 1 1 1 1 1

quantum of punishment to be awarded to the accused. The principles determining the

1 1 1 1 1 1 1 1 1 1 1 1 1

nature & extent of punishment to be prescribed by the trial court are to be found in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Chapter III of the Indian Penal Code titled “Of Punishments”.

1 1 1 1 1 1 1 1 1 1

Section 53 of the Indian Penal Code essentially determines the nature of punishment that
1 1 1 1 1 1 1 1 1 1 1 1 1 1

a judge can impose on the accused have been proved beyond doubt. The Section itself
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

74 | P a g e 1 1
indicates that the discretion of the judge is severely limited by the various options
1 1 1 1 1 1 1 1 1 1 1 1 1 1

namely, death sentence, life imprisonment, imprisonment for lesser periods with
1 1 1 1 1 1 1 1 1 1

rigorous & simple imprisonment, forfeiture of property & fine or combination of

1 1 1 1 1 1 1 1 1 1 1 1

imprisonment with fines. The trial court itself has wide discretion in matters of 1 1 1 1 1 1 1 1 1 1 1 1 1

sentencing based on what the court determines as appropriate given the nature of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

offence, the previous conduct of the accused & the other mitigating factors as also
1 1 1 1 1 1 1 1 1 1 1 1 1 1

factors called aggravating factors. 1 1 1

Generally speaking, the courts have been giving more importance to the sentences & to
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the seriousness of crime & they seem to be in favor of awarding severe punishment for
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

serious crimes. In Surja Ram v. Rajasthan, for deciding just & appropriate sentence to be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

awarded for an offence, the aggravating & mitigating factors & circumstances in which a
1 1 1 1 1 1 1 1 1 1 1 1 1

1 crime has been conducted are to be delicately balanced in a delicate manner. In the case
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of DhananjoyChatterjeev. State of West Bengal, the Supreme Court said “Justice

1 1 1 1 1 1 1 1 1 1 1

demands that courts should impose punishment befitting the crime so that courts reflect
1 1 1 1 1 1 1 1 1 1 1 1 1

public abhorrence of the crime.” The court further observed:

1 1 1 1 1 1 1 1

In our opinion, the measure of punishment in a given case must depend upon the atrocity
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of the crime; the conduct of the criminal & the defenseless& unprotected situation of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

victim. Imposition of appropriate punishment is the manner in which the courts should
1 1 1 1 1 1 1 1 1 1 1 1 1

impose punishment befitting the crime so that the judgment reflects public abhorrence of
1 1 1 1 1 1 1 1 1 1 1 1

1 the crime. The courts must not only keep in view the rights of the criminal but also the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

right of the victim & the society at large while considering imposition of appropriate
1 1 1 1 1 1 1 1 1 1 1 1 1 1

punishment. In Ravjiv v. State of Rajasthan, the social interest will suffer a lot if 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

deterrent punishment is not given. If a large number of criminals go unpunished this

1 1 1 1 1 1 1 1 1 1 1 1 1 1

encourages criminals & makes justice system weak. 1 1 1 1 1 1

75 | P a g e1 1
4.9 Discretion of the Trial Court in awarding Sentence
1 1 1 1 1 1 1 1

Indian Penal Code seems to measure the gravity of the violation by the seriousness of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

crime & its general effect public tranquility. There are five kinds of punishment stated in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Section 53 of the Indian Penal Code i.e. death penalty, imprisonment for life,
1 1 1 1 1 1 1 1 1 1 1 1 1

imprisonment, forfeiture of property & fine. As far as imprisonment is concerned, for 1 1 1 1 1 1 1 1 1 1 1 1 1

majority of offences the court prescribes the maximum penalty & leaves the infliction of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the appropriate term within that set limit to judicial discretion. For some offences
1 1 1 1 1 1 1 1 1 1 1 1 1

minimum sentence is fixed by the court & infliction of sentence beyond that is left to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

discretion of judges. Generally speaking, the Indian Penal Code gives so much
1 1 1 1 1 1 1 1 1 1 1 1

discretion to the judicial officer. 1 1 1 1 1

The Judge can choose & pick an appropriate sentence within this range. While doing so
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

judges are expected to apply their mind in each & every individual case. The offence
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

may be committed by one or more offenders. Before sentencing he should analyze the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

background of all offenders. Thus Courts must exercise their discretion in deciding the
1 1 1 1 1 1 1 1 1 1 1 1 1

type & length of sentence to be imposed the range provided under the law.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

The Indian Supreme Court, briefly states the basis of one of the well-recognized
1 1 1 1 1 1 1 1 1 1 1 1 1

principles of sentencing, namely, the nature of the punishment to be awarded is

1 1 1 1 1 1 1 1 1 1 1 1 1

recognized as falling within the discretion of the trial court. There are several
1 1 1 1 1 1 1 1 1 1 1 1 1

dimensions to the issue of appropriate sentence to be awarded. Firstly, one the court is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

convinced about the prosecution recognizes the distinction between the nature of proof
1 1 1 1 1 1 1 1 1 1 1 1

& the circumstances in which the offence has been committed. The former i.e. nature of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

proof is important in the consideration of whether, based on the evidence presented by

1 1 1 1 1 1 1 1 1 1 1 1 1 1

the prosecution, the accused has been proved guilty, & it so, to the offence committed by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the accused. The nature of proof has nothing to do with the character of punishment to be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

imposed by the character. 1 1 1

There is no straight jacket formula to consider whether a punishment is appropriate or

1 1 1 1 1 1 1 1 1 1 1 1 1 1

not. The Courts are expected to observe a desirable proportion between the gravity of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

offence & the punishment for it. The Court is required to consider certain factors such as
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

nature of the offence, the circumstances in which it was committed & the degree of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

deliberation shown by the offender before deciding the quantum of sentence. The 1 1 1 1 1 1 1 1 1 1 1 1

measure of punishment should be proportionate to the gravity of the offence.

1 1 1 1 1 1 1 1 1 1 1 1

In Halsbury’s Laws of England, it has observed that:

1 1 1 1 1 1 1 1

76 | P a g e 1 1
“A very wide discretion in fixing the degree of punishment is allowed to the trial judge
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

except for the offence of murder, for which the court must pass a sentence of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

imprisonment of life, & for a limited number of offences in respect of which the penalty 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

is fixed by the law including those offences for which the sentence of death must be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

pronounced.”

With regard to most offences, the policy of the law is to fix a maximum penalty which is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

intended only for the grave cases, & to leave the discretion of the judge on the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

determination of the extent to which in a particular case the punishment awarded should 1 1 1 1 1 1 1 1 1 1 1 1 1 1

approach to or recede from the maximum limit. The exercise of discretion is a matter of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

prudence & not of law, but an appeal lies by the leave of the court of Appeal against any
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sentence not fixed by law, &, if leave is given; the sentence can be altered by that court.”
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

What sentence should be imposed in a given case is essentially within the discretion of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the trial court. The High Court would not be justified in interfering with that discretion
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

unless it is satisfied that the sentence imposed by the trial court is unduly lenient or in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

other words grossly inadequate. 1 1 1 1

4.10 When Appellate Courts Can Interfere With Sentence

1 1 1 1 1 1 1

In any case of conviction on a trial held by any court other than a High Court, the State
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Government may direct the Public Prosecutor to present an appeal against the sentence 1 1 1 1 1 1 1 1 1 1 1 1 1

on the ground of its adequacy to (a) the court of session (if the sentence is passed by a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

magistrate) & (b) to the High Court (if the sentence is passed by any other court). In 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

every such appeal, the High Court has to give reasonable opportunity to the accused of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

showing cause against the enhancement of the sentence. In a case where the accused has
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

filed his appeal & the court issued notice for enhancement ofsentence it may not be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

correct to say that the accused should be heard before enhancing the sentence, because
1 1 1 1 1 1 1 1 1 1 1 1 1 1

he should be getting adequate opportunity to represent for his acquittal. & the High
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Court under Section 401 read with Section 391 & Section 386 will have the power to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

enhance the sentence. 1 1 1

The High Court alone is empowered to entertain any appeal against the inadequacy of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the sentence. This would help in securing uniform standards in awarding punishments.
1 1 1 1 1 1 1 1 1 1 1 1

By way of Articles 132,134 & 136 of the Constitution, it may be theoretically possible to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

77 | P a g e 1 1
present an appeal to the Supreme Court against the inadequacy of the sentence passed by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the High Court. 1 1 1

In an earlier case, Dalip Singh v. State of Punjab, the Supreme Court clarified the context
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 in which the appellate court could interfere with the sentence imposed by the lower
1 1 1 1 1 1 1 1 1 1 1 1 1 1

court. Thus, when discretion has been exercised along accepted judicial lines, an
1 1 1 1 1 1 1 1 1 1 1 1

appellate court should not interfere to the detriment of an accused except for very strong
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

reasons, which must be disclosed on the face of the judgment.

1 1 1 1 1 1 1 1 1 1

4.11 Principles Stated in Various Cases

1 1 1 1 1

The courts have from time to time laid down certain principles with regard to sentencing
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

practice. 1

In Prem Chand Santramdasv. State of Bihar, it has been stated that maximum
1 1 1 1 1 1 1 1 1 1 1 1 1

punishment prescribed should not automatically follow upon a conviction. 1 1 1 1 1 1 1 1

In Adamji Umar Dalalv. State of Bombay, it has been stated that the Court has to bear in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

mind the necessity of proportion between an offence & the penalty.

1 1 1 1 1 1 1 1 1 1

In RamashrayaChakravartyv. State of M.P., it has been stated that in judging adequacy

1 1 1 1 1 1 1 1 1 1 1 1 1

of sentence, the nature of the offence, the circumstances of its commission, the age &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

character of the offender, injury to individuals or to society, effect of the punishment on

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the offender, eye to correction & reformation of the offender are some most amongst any
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

other factors which would ordinarily be taken into account by Courts.

1 1 1 1 1 1 1 1 1 1

In Harnam Singh v. Emporer, it has been stated that where the Court imposes the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

maximum sentence allowed under the law, it should record its reasons for doing so.
1 1 1 1 1 1 1 1 1 1 1 1 1

In Tahsildar Singh v. State of Bihar, it has been stated that in order to judge the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

appropriateness of the sentence, the court should take into account subsequent notoriety, 1 1 1 1 1 1 1 1 1 1 1 1

which the convict acquired. 1 1 1 1

The following principles in deciding the quantum of punishment to be imposed on

1 1 1 1 1 1 1 1 1 1 1 1 1

offenders were stated by James, J., in Dullav. State: 1 1 1 1 1 1 1 1

1. The twin objects of punishment are to prevent a person who has committed a crime
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

from repeating it & to prevent others from committing similar crimes. The
1 1 1 1 1 1 1 1 1 1 1 1

sentence passed on the offender must be least that will achieve both these
1 1 1 1 1 1 1 1 1 1 1 1 1

78 | P a g e 1 1
 objects. In deciding the measure of punishment the court ought to take into
1 1 1 1 1 1 1 1 1 1 1 1 1

consideration the nature of the offence, the circumstances in which it was 1 1 1 1 1 1 1 1 1 1 1 1

committed, the degree of deliberation shown by the offender, & his age, 1 1 1 1 1 1 1 1 1 1 1 1

character & antecedents. 1 1

2. The prevalence of a particular crime in a particular area or during a particular period

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

should also be taken into account. One’s political, sentimental or religious pre-
1 1 1 1 1 1 1 1 1 1 1

conceptions should be strictly disregarded. The court must bear in mind the 1 1 1 1 1 1 1 1 1 1 1 1

necessity of proportion between an offence & the penalty. The maximum penalty
1 1 1 1 1 1 1 1 1 1 1

1 provided for any offence is meant for only the worst cases.
1 1 1 1 1 1 1 1 1 1

3. No sentence should ever appear to be vindictive. An excessive sentence defeats its

1 1 1 1 1 1 1 1 1 1 1 1 1 1

own object & tends to further undermine the respect for law. The jails should be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

reserved for the reception of those who perform criminal acts of not merely a
1 1 1 1 1 1 1 1 1 1 1 1 1 1

technical but of a criminal character. If the law permits sentence of fine as an

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

alternative, there is no need of the sentence of imprisonment, unless of course the

1 1 1 1 1 1 1 1 1 1 1 1 1 1

gravity of the offence or the antecedents of the offender or the antecedents of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

offender demand it. 1 1

4. First &/or youthful offenders should invariably be treated leniently, & in applying
1 1 1 1 1 1 1 1 1 1 1 1 1

provisions of law like Section 562, of Criminal Procedure Code, it would be

1 1 1 1 1 1 1 1 1 1 1 1 1

better for the court to err on the side of liberality. On the other h& a person who
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

has taken to a life of crime or who has refused to take a lesson from his previous
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

convictions should be meted out severe punishment. 1 1 1 1 1 1

5. A deterrent sentence is wholly justifiable when the offence is the result of deliberation
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

& pre-planning, is committed for the sake of personal gain at the expense of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

innocent, is a menace to the safety, health or moral of well being of the

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

community, or is difficult to detect or trace. Unlike those acts which are 1 1 1 1 1 1 1 1 1 1 1 1 1

universally acknowledged to be a criminal nature, an act which has only recently

1 1 1 1 1 1 1 1 1 1 1 1 1

been made offence or which is not essentially criminal in character deserves

1 1 1 1 1 1 1 1 1 1 1 1

leniency, except in the case of persistent offenders.1 1 1 1 1 1 1

4.12 Conclusion
1

Sentencing is the last stage of criminal process & it is the end result of all trials resulting
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

in the conviction & sentence being an indispensable phenomenon of criminal law as per
1 1 1 1 1 1 1 1 1 1 1 1 1 1

79 | P a g e 1 1
social conception; the sentencing process plays a crucial role in the gamut of criminal
1 1 1 1 1 1 1 1 1 1 1 1 1 1

justice system. Every sentence is in a way the public’s concern for their protection &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

security. Basically the main aim or purpose of the sentence is that the accused must
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

realise that he has committed an act which is not only harmful to the society of which he
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

forms an integral part but is also harmful to his own future both as an individual & as a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

member of the society. In other words sentencing is a way by which the offender is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

deterred from committing the same offence in future. It also sets an example for others &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

deters them from committing a similar offence & it also reforms the offender & makes
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

them a law abiding citizen.

1 1 1 1 1

Sentencing, which is the cutting edge of judicial process, is the crucial strategy of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

criminal law in achieving social defense& delinquent rehabilitation.

1 1 1 1 1 1 1 1

It is well known that the Indian system of criminal justice is not based upon one single
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

theory of punishment. Each theory has its own value & it is a well known fact that none
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of the theories are acceptable by all penologists. Our Indian criminal justice system is
1 1 1 1 1 1 1 1 1 1 1 1 1 1

combination of all theory. Every theory has its own merits & demerits. 1 1 1 1 1 1 1 1 1 1 1

The Indian Penal Code under Section 53 deals with different kinds of punishments out of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

which the punishment of death penalty & life imprisonment is the most debatable issue.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

The most important criminal law statute in India which is IPC leaves the quantum of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

punishment to the discretion of judges who would have the means in each case of 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

forming an opinion as to character of the offender & the circumstances, whether

1 1 1 1 1 1 1 1 1 1 1 1 1

aggravating or mitigating under which, the offence has been committed. To a certain 1 1 1 1 1 1 1 1 1 1 1 1 1

extent, it is a subjective exercise which might depend, upon the penal philosophy of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

judge also. But Court has always to bear in mind the necessity or proportion between an
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

offence & the penalty. 1 1 1 1

The sentencing process or the imposition of punishment is one of the major aspects &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

primary concern of Indian criminal justice system as the entire future of the offender is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

dependent on the outcome of sentencing process & such is bound to have a social impact
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

also. The inconsistency in the sentencing policy in India has led to denial of justice to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

offender. The main sufferer of the discretionary sentencing policy is not just the offender
1 1 1 1 1 1 1 1 1 1 1 1 1

1 but also the victim &then there is a major effect on the society also.
1 1 1 1 1 1 1 1 1 1 1 1 1

80 | P a g e 1 1
The most severe criticism of the Indian sentencing process involves the disparity in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

scope & length of sentences. This disparity is seen in the Indian Penal Code itself as well
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

as in the imposition of sentences. The most important aspect of sentencing that has to be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

checked is the unfettered discretion given to the judges to award sentences & specifically
1 1 1 1 1 1 1 1 1 1 1 1 1

1 in cases of death penalty & life imprisonment as these two punishments involve the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

future of the offender. 1 1 1

81 | P a g e
1 1
 CHAPTER-5 1

ARTICLE 21 OF THE
1 1 1 1

CONSTITUTION OF INDIAFAIR
1 1 1

TRIAL: SPEEDY TRIAL &

1 1 1 1

SPEEDIER DISPOSALOF
1 1

CRIMINAL CASES 1

82 | P a g e
1 1
 ARTICLE 21 OF THE CONSTITUTION OF INDIAFAIR 1 1 1 1 1 1 1

TRIAL: SPEEDY TRIAL & SPEEDIER DISPOSALOF 1 1 1 1 1 1

CRIMINAL CASES 1

Ambit & Scope Of Art. 21: 1 1 1 1 1

"No person shall be deprived of his life or personal liberty except to procedure
1 1 1 1 1 1 1 1 1 1 1 1 1 1

established by law. This is the guarantee enshrined in Art. 21 of the Constitution."

1 1 1 1 1 1 1 1 1 1 1 1 1 1

5.1 Life & liberty under article 21 of the constitution:

1 1 1 1 1 1 1 1 1

The scope & ambit of the words 'life' & 'liberty' used in Article 21 has been expanded
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

considerably due to liberal interpretation by the Courts. The most noticeable feature of
1 1 1 1 1 1 1 1 1 1 1 1 1

this expansion of Article 21is that many of the non-binding & non-enforceable Directive
1 1 1 1 1 1 1 1 1 1 1 1 1

Principles enshrined in Part IV of the constitution have now emerged as enforceable

1 1 1 1 1 1 1 1 1 1 1 1 1

fundamental rights by magical want of judicial activism, playing on the said article, e.g.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

right to clean environment, right to shelter, right to food, clothing, livelihood, etc. The
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Supreme Court in various cases has also imposed an obligation upon the state to take
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

measures for ensuring the individual a better enjoyment of his life & dignity.
1 1 1 1 1 1 1 1 1 1 1 1 1

5.2 Constitutional philosophy of personal liberty:

1 1 1 1 1

The constitutional philosophy of personal liberty enshrined in Article 21 is an idealistic

1 1 1 1 1 1 1 1 1 1 1 1 1

one, the curtailment of liberty by way of imposing reasonable restrictions in the name of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

security of the State, public order & morality, etc. being envisaged as necessary evil to be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 administered under strict constitutional restrictions. 1 1 1 1 1

In Ichhudevi v. Union of India, Bhagwati, J. spoke of this judicial commitment & stated
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

that 1

“The court has always regarded personal liberty as the most precious possession of
1 1 1 1 1 1 1 1 1 1 1 1 1

mankind & refused to tolerate illegal detention, regardless of the social cost involved in
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the release of a possible renegade."

1 1 1 1 1

The constitution is all pervasive. All laws made by the State must, therefore, yield to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

constitutional protections & restrictions. The citizen's right to personal liberty is 1 1 1 1 1 1 1 1 1 1 1

guaranteed under Articles 21 & 22 of the Constitution irrespective of his political

1 1 1 1 1 1 1 1 1 1 1 1 1

beliefs, class, creed or religion. 1 1 1 1 1

83 | P a g e 1 1
5.3 Protection of personal liberty under Article 21:
1 1 1 1 1 1 1

Art. 21 of the constitution aims to prevent encroachment upon the personal liberty of an
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

individual by the State except in accordance with law & in accordance with the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

provisions thereof & with the procedure established by law. The provisions of law must
1 1 1 1 1 1 1 1 1 1 1 1 1 1

be strictly complied with before depriving a person of his personal liberty by the State &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

must not be deviated from to the disadvantage of the person affected.

1 1 1 1 1 1 1 1 1 1 1 1

In VinodNarainv. State of UP, it was held thatfor disposal of a bail application, no time
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

bound direction under Article 226 of the Constitution can be issued.

1 1 1 1 1 1 1 1 1 1 1

The said view has been reiterated in P.Ram Chandra Rao by the Supreme Court.
1 1 1 1 1 1 1 1 1 1 1 1 1

5.4 Deprivation of personal liberty if accused involved in a number of cases:

1 1 1 1 1 1 1 1 1 1 1 1

In a case where an accused is alleged to have deceived millions of countrymen, who have
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 invested their whole life’s saving in fabricated & frivolous companies promoted by the
1 1 1 1 1 1 1 1 1 1 1 1 1

accused & when multiple cases are pending against him in different parts of the country,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

he cannot at all complain of breach of Art. 21, on the ground that he is not being able to be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 released out of bail custody due to different production warrants issued by different
1 1 1 1 1 1 1 1 1 1 1 1 1

courts. Issuance of production warrants by the court & the production of accused in
1 1 1 1 1 1 1 1 1 1 1 1 1 1

court, in case in which he is involved, is a procedure duly established by law & as a

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

result, the accused cannot be allowed to complain of infringement of his rights under Art.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 21 of the constitution.
1 1 1 1

5.5 Personal liberty & due process of law:

It should be kept in mind that personal liberty should be in conformity with the
provisions of Article-21 of the constitution of India which has widened the meaning
& scope of life & personal liberty.

The expression “due process of law” has not been defined anywhere in the
Constitution of India, but this expression has been well defined under Section 6 (3),
Requisitioning & Acquisition of Immovable Property Act. 1952. In Hagar v.
Reclamation Distt., the Court observed:

84 | P a g e 1 1
“By ‘due process of law’ is meant that it must be adopted to the end to be attained,
whenever it is necessary for the protection of the parties, it must give them an
opportunity to be heard respecting the justness of the judgment sought."

A procedure, prescribed by law, depriving an individual of his personal liberty, must

adhere to the norms of justice failing which, it shall be deemed unreasonable &
consequently, the action taken under it shall be vitiated. This view is well established.

Any action taken by a statutory authority must, therefore, be reasonable & within the
scope of authority. Both these elements must be present. The absence of either of
them renders the entire procedure invalid. The procedure prescribed by law & the law
prescribing it cannot be separated from each other. If a law is found to direct the
doing of an act which is forbidden by Constitution or to compel, in the doing of an act
the adoption of a procedure which is impermissible under the Constitution, it would
have to be struck down.

5.6 Purpose of criminal trial

1 1 1 1

The paramount purpose of criminal justice is the protection of the innocent &
1 1 1 1 1 1 1 1 1 1 1 1 1

punishment of the offenders. A victim for securing this end has come to the Criminal
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Court for punishing the offenders. But prolonged pendency of cases has created an
1 1 1 1 1 1 1 1 1 1 1 1 1

insurmountable barrier in the dispensation of criminal justice. This has cast a serious
1 1 1 1 1 1 1 1 1 1 1 1 1

repercussion on the public at large. They have lost their faith in the present system of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

criminal justice administration. Huge numbers of criminal cases pending for years
1 1 1 1 1 1 1 1 1 1 1

together are creating an unbearable mental & economic pressure on the litigants of
1 1 1 1 1 1 1 1 1 1 1 1 1

criminal justice system. The disposal rate in comparison with the institution of criminal
1 1 1 1 1 1 1 1 1 1 1 1 1

cases is hopelessly meager.

1 1 1

5.7 Illegal Incarceration & Compensation:

1 1 1 1

In Rudul Shah v. State of Bihar, the Supreme Court held that in exercise of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

jurisdiction under Article 32 of the Constitution, it can order payment of monetary

1 1 1 1 1 1 1 1 1 1 1 1 1

compensation in case of infringement of fundamental right to life & liberty of a

1 1 1 1 1 1 1 1 1 1 1 1 1 1

petitioner.

85 | P a g e1 1
The Court pointed out as under:
1 1 1 1 1

"Article 21 will be robbed of its significant content if the power is limited only to passing
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

orders of release from illegal detention. However, the violation of Article 21 can be
1 1 1 1 1 1 1 1 1 1 1 1 1 1

prevented if its violators are made to pay monetary compensation. Administrative 1 1 1 1 1 1 1 1 1 1 1

sclerosis leading to gross violation of fundamental rights cannot be corrected by any

1 1 1 1 1 1 1 1 1 1 1 1 1

other method open to the judiciary to adopt. Right to compensation can help repair the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

damage to a certain extent & acts as an analgesic for the pain caused by infringement of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the fundamental right to personal liberty. Respect of rights of individuals is the true spirit
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 of democracy. Hence, the damage done by the officers of the State to the petitioner's
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

rights must be repaired by the State though it may have recourse against its officers. "
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

5.8 Rights To Speedy & Expeditious Criminal Trial

1 1 1 1 1 1 1

One of the most cherished fundamental rights of the accused is the right to speedy trial.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

This right is guaranteed by Article 21 of the Constitution as part of right to life &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

personal liberty. In a case where the proceedings had been lingering on for 10 years &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

proceedings were to commence de novo of the transfer of the Presiding Officer. On 1 1 1 1 1 1 1 1 1 1 1 1 1 1

several dates, the witnesses had not appeared & the case did not make any progress. The
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

court held that delay in trial is an infringement of his fundamental right to speedy &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

expeditious criminal trial. In necessary cases, the Court must exercise its inherent 1 1 1 1 1 1 1 1 1 1 1 1

powers to quash the proceedings to meet the ends of justice.

1 1 1 1 1 1 1 1 1 1 1

The obligation to ensure implementation of constitutional guarantees lies on the State &
1 1 1 1 1 1 1 1 1 1 1 1 1

in cases where speedy trial cannot be ensured, the citizen’s liberty cannot be curtailed
1 1 1 1 1 1 1 1 1 1 1 1 1 1

endlessly & he will, therefore have to be released. Whether an accused who is facing a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

trial is in custody or whether he is on bail are matters of little consideration in this regard
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

because the liberty of the citizen is still curtailed either completely or partially.
1 1 1 1 1 1 1 1 1 1 1 1 1

5.8.1 Speedy trial:- 1 1 1

Section 309 of the Code of Criminal Procedure, 1973 (amended y the Act 13 of 2013)
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

lays down that: 1 1 1

(1) In every inquiry or the trial the proceeding shall be continued from day-to-day until
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

all the witnesses in attendance have been examined, unless the court finds the
1 1 1 1 1 1 1 1 1 1 1 1 1

86 | P a g e 1 1
adjournment of the same beyond the following day to be necessary for reasons to be 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

recorded: 1

Provided that when the inquiry or trial relates to an offence under section 376, section
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

376A,section376B,, section 376C & section 376D of the Indian Penal Code, the inquiry 1 1 1 1 1 1 1 1 1 1 1 1 1

or trial shall, as far as possible be completed within a period of two months from the date
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of filling the charge sheet.

1 1 1 1 1

(2) If the court after taking cognizance of the offence, or commencement of trial, finds it
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

necessary or advisable to postpone the commencement of, or adjourn, any inquiry or

1 1 1 1 1 1 1 1 1 1 1 1 1

trial, it may from time to time, for reasons to be recorded, postpone or adjourn the same
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

on such terms as it thinks fit, for such times it considers reasonable, & may by warrant
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

remand the accused in custody. 1 1 1 1 1

Provided that no magistrate shall remand an accused person to custody under this section
1 1 1 1 1 1 1 1 1 1 1 1 1

1 for a term exceeding fifteen days at a time.

1 1 1 1 1 1 1 1

Provided further that when witnesses are in attendance, no adjournment or

1 1 1 1 1 1 1 1 1 1 1

postponement shall be granted, without examining them, except for specific reasons to 1 1 1 1 1 1 1 1 1 1 1 1

be recorded in writing.
1 1 1

Provide also that no adjournment shall be granted for the purpose only of enabling the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused person to show cause against the sentence proposed to be imposed on him.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Provided also that:-- 1 1 1

(a) No adjournment shall be granted at the request of a party, except where the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

circumstances are beyond the control of the party. 1 1 1 1 1 1 1 1

(b) The fact that the pleader of a party is engaged in another court shall not be a ground
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

for adjournment. 1 1

(c) Where a witness is present in court but a party or his pleader is not present or the party
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

or his pleader though present in court, is not ready to examine or cross examine the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

witness, the court may, if thinks fit, record the statement of the witness & pass such
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

orders as it thinks fit dispensing with the examination-in-chief or cross-examination of

1 1 1 1 1 1 1 1 1 1 1 1

the witness, as the case may be.

1 1 1 1 1 1 1

87 | P a g e 1 1
Explanation 1:- If sufficient evidence has been obtained to raise a suspicion that the 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused may have committed an offence & it appears likely that further evidence may be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

obtained by a remand; this is a reasonable cause for a remand.

1 1 1 1 1 1 1 1 1 1 1 1

Explanation 2:- The terms ones which an adjournment or postponement may be granted 1 1 1 1 1 1 1 1 1 1 1 1 1

include, in appropriate cases, the payment of costs by the prosecution or the accused.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

The legislature has brought certain significant changes in the Code of Criminal
1 1 1 1 1 1 1 1 1 1 1 1

Procedure, 1973, to ensure that the accused person, the victim of the crime & the society
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

at large get reasonable, just & fair trial. While drafting the code, the lawmakers also kept
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

in view the three basic legal requirements that:

1 1 1 1 1 1 1 1

(1) the accused person, the victim of the crime & the society at large get a fair trial in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accordance with the principle of natural justice; 1 1 1 1 1 1 1

(2) serious efforts should be made to avoid delay in the investigation & trial; &
1 1 1 1 1 1 1 1 1 1 1 1 1 1

(3) the procedure should not be complicated & full of technicalities & shall have
1 1 1 1 1 1 1 1 1 1 1 1 1 1

provisions for providing free legal aid to the accused. 1 1 1 1 1 1 1 1 1

Considering this aspect, speedy trial & speedier disposal of criminal cases are now 1 1 1 1 1 1 1 1 1 1 1 1 1

indispensable part in all criminal proceedings. The Supreme Court in Hussainara 1 1 1 1 1 1 1 1 1 1 1

Khatoon & Others V. State of Bihar has made the following observations:
1 1 1 1 1 1 1 1 1 1 1 1

“We think that even in our constitution, though speedy trial is not specifically
1 1 1 1 1 1 1 1 1 1 1 1 1

enumerated as fundamental right, it is implicit in the broad sweep & content of Article 21
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 as interpreted by this Court in Meneka Gandhi V. Union of India.20 we have held in that
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

case that Article 21 confers a fundamental right on every person not to be deprived of his
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

life or liberty except in accordance with the procedure prescribed by law & it is not
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

enough to constitute compliance with requirement of that Article that some semblance of
1 1 1 1 1 1 1 1 1 1 1 1

1 a procedure should be prescribed by law, but that the procedure should be ‘reasonable,
1 1 1 1 1 1 1 1 1 1 1 1 1 1

fair & just’. If a person is deprived of his liberty under a procedure which is not
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

‘reasonable, fair & just’, such deprivation would be violative of his fundamental right 1 1 1 1 1 1 1 1 1 1 1 1 1

under Article 21 & he would be entitled to enforce such fundamental right & secure his
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

released. Now obviously procedure prescribed by law for depriving a person of his
1 1 1 1 1 1 1 1 1 1 1 1 1

liberty cannot be ‘reasonable, fair & just’ unless the procedure ensures a speedy trial for
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

determination of the guilt of such person. 1 1 1 1 1 1 1

88 | P a g e 1 1
No procedure which does not ensure a reasonably quick trial can be regarded as
1 1 1 1 1 1 1 1 1 1 1 1 1 1

‘reasonable, fair or just’ & it would fail foul of Article 21. There can, therefore, be no 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

doubt that speedy trial, & by speedy trial we mean reasonably expeditious trial, is an
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

integral part of the fundamental right to life & liberty enshrined in Article 21”.
1 1 1 1 1 1 1 1 1 1 1 1 1

In Kartar Singh v. State of Punjab, a Constitution Bench observed thus:

1 1 1 1 1 1 1 1 1 1 1

"The concept of speedy & expeditious criminal trial is read as part of article 21 of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Constitution. Hence, it is a right guaranteed by the Constitution. This right encompasses 1 1 1 1 1 1 1 1 1 1 1 1 1

at all stages of the trial namely investigation, enquiry, appeal, revision, etc so that any
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

possible prejudice that may result delay from the time of the commission of the offence
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

till it consummates into finality, can be averred. Section 309 of the Code of Criminal
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Procedure 1973 properly reflects this right. " 1 1 1 1 1 1

1 No length of time can be considered per se too long nor is the accused called upon to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

show the actual prejudice caused by delay in disposal of cases. The Court, therefore, has
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

to adopt a balanced approach by considering the possible prejudices to be suffered by the

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused by avoidable delay & to determine whether there has been a deprivation of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

right to speedy trial. However, the fact of delay is dependent on the circumstances of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

each case because reason for delay will vary in each case.
1 1 1 1 1 1 1 1 1 1 1

In Abdul RahmanAntulayv. R.S. Nayak, the Constitution Bench of the Apex Court dealt
1 1 1 1 1 1 1 1 1 1 1 1 1

with this aspect of the matter & laid down certain guidelines. These propositions are not
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

& fast rules. These propositions are:

1 1 1 1 1

(a) The accused is entitled to a right to speedy & expeditious criminal trial by way offair,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

just & reasonable procedure enshrined in article 21. Quick determination of the guilt of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the accused is in the interest of all concerned.

1 1 1 1 1 1 1 1

(b) The accused is entitled to right to speedy trial at all stages- investigation, inquiry,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

trial, revision, etc. Hence, there is no reason to restrict the scope of this right.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

(c) An accused has certain concerns with respect to right to speedy trial namely period of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

remand& pre-conviction incarceration, impairment in the ability of the accused to

1 1 1 1 1 1 1 1 1 1 1

defend himself due to undue delay causing disappearance or non-availability of the

1 1 1 1 1 1 1 1 1 1 1 1

witnesses or otherwise. 1 1 1

89 | P a g e 1 1
(d) At the same time, an important fact which cannot be ignored is that it is usually the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused who is interested in delaying the proceedings. Since the burden of proving the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

guilt of the accused lies on the prosecution, delay ordinarily prejudices the prosecution.
1 1 1 1 1 1 1 1 1 1 1 1 1

However, there may also be cases where the Prosecution might be interested in delaying
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the proceedings for whatever reason.

1 1 1 1 1

(e) Hence, the question as to who is responsible for the delay needs to be answered in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

every case where there is an allegation of infringement of right to speedy & expeditious
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

trial. 1

(f) Though the obligation of ensuring a speedy trial lies upon the State but a realistic &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

practical approach needs to be adopted in such matters & factors like nature of offence,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

number of accused & witnesses, the workload of the Court concerned, prevailing local
1 1 1 1 1 1 1 1 1 1 1 1 1

conditions &, the systemic delays need to be considered in order to determine whether 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the delay was unnecessary (resulting in breach of fundamental right under article 21).
1 1 1 1 1 1 1 1 1 1 1 1

(g) Ordinarily, upon conclusion by the Court, of infringement of the right of accused
1 1 1 1 1 1 1 1 1 1 1 1 1 1

under Article 21, the charges or conviction, as the case may be, shall be quashed. But if in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 a given case, the circumstances are such that it may not be just & equitable to quash the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

proceedings, such other appropriate orders namely an order to conclude the trial within a 1 1 1 1 1 1 1 1 1 1 1 1 1 1

fixed time where the trial is not concluded or reducing the sentence where the trial has
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

concluded—as the Court may deem fit may be passed. 1 1 1 1 1 1 1 1 1

(h) Fixing of any time limit for trial of cases is not practicable & neither does it guarantee
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

a right to speedy trial. Reasons for delay vary in different cases. Hence, the Court must
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

weigh all circumstances in a given case before pronouncing the judgment.

1 1 1 1 1 1 1 1 1 1 1

5.9 154th report of the Law Commission of India

1 1 1 1 1 1 1 1 1

The Law Commission of India which undertook a comprehensive review of the criminal
1 1 1 1 1 1 1 1 1 1 1 1 1

procedure code, 1973, has in its 154th report made several recommendations with regard
1 1 1 1 1 1 1 1 1 1 1 1

1 to speedy disposal of criminal cases. The recommendations are as under:

1 1 1 1 1 1 1 1 1 1 1

(1) Listing of cases should be done in such a way that the witnesses who are summoned
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

are examined on the day they are summoned & adjournments should be made
1 1 1 1 1 1 1 1 1 1 1 1 1

meticulously. The list should be prepared in such a way that a day or two are devoted 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

continuously to all cases of a particular police station & cases should not be proceeded 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

mechanically just according to the chronological order regardless of the fact of the 1 1 1 1 1 1 1 1 1 1 1 1 1

90 | P a g e 1 1
likelihood of their being tried or not. The courts also should proceed with trial on a day to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

day basis & the listing of the cases should be on those lines. The High Courts should
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

issue necessary circulars to all the criminal courts giving guidelines to listing of cases.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

(2) The court can take the assistance of the prosecutor & defence counsel in preparing the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 questions which are to be put in a concise form to the accused under section 313. The
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

court can also permit the filing of written statements y the accused as sufficient
1 1 1 1 1 1 1 1 1 1 1 1 1 1

compliances with sections 313. 1 1 1

(3) There is a general complaint that is undue delay in the serving of summons or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

execution of warrants issued by the court which in turn results in the delay of the trial.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Likewise, service is not made at the correct residential address which again results in
1 1 1 1 1 1 1 1 1 1 1 1 1 1

delay. At present the service system is completely in the hands of police in criminal cases
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 who take they are otherwise “employed”. It is a common experienced that more than 25
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

% cases are adjourned due to non-appearance of the accused. It is therefore, highly

1 1 1 1 1 1 1 1 1 1 1 1 1 1

desirable that a separate process agency directly under the control of the courts is
1 1 1 1 1 1 1 1 1 1 1 1 1 1

established so that these delays can be avoided. 1 1 1 1 1 1 1 1

(4) In order to minimize the long pending cases, it is necessary to adopt the directions
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

given y the Supreme Court in Common Cause V. Union of India... Further the direction
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

given by the Supreme Court should not be made applicable to cases where the accused
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

has been convicted more than once or against whom more than one case is pending.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Moreover, the direction of the Supreme Court should be made applicable only to 1 1 1 1 1 1 1 1 1 1 1 1 1

pending cases & not in respect of future cases. However, there should be a periodical
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

review from time to time preferably every three years.

1 1 1 1 1 1 1 1 1

(5) A special machinery should be provided in order to procure vehicles for producing
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the accused before the court on each date & time.

1 1 1 1 1 1 1 1 1 1

Section 309 of The Code of Criminal Procedure, 1973, mainly relates to criminal
1 1 1 1 1 1 1 1 1 1 1 1 1

proceedings in inquiries & trials conducted by the court & it is the only proviso which 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

confers power on the trial court for granting adjournments in criminal proceedings. The
1 1 1 1 1 1 1 1 1 1 1 1 1

section expressly provided that a court to enquire & try the case expeditiously as possible
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 soon after it takes cognizance of the offence & when examination of the witness has
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

once begun, such examination shall be continued from day to day basis until all the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

witnesses in attendance have been examined, unless the court finds the adjournment of
1 1 1 1 1 1 1 1 1 1 1 1 1

91 | P a g e 1 1
the proceeding beyond the following day to be necessary for reasons to be recorded. It
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

also imposed another stringent condition that when witnesses are in attendance, no
1 1 1 1 1 1 1 1 1 1 1 1

adjournment or postponement shall be granted without examining them, except for 1 1 1 1 1 1 1 1 1 1 1

special reasons to be recorded in writing. 1 1 1 1 1 1 1

However, adjournment of cases despite attendance of the accused as well as the

1 1 1 1 1 1 1 1 1 1 1 1 1

prosecution witnesses in the court, are now being held regularly in various courts in 1 1 1 1 1 1 1 1 1 1 1 1 1 1

complete ignorance of the compliance procedure. 1 1 1 1 1 1

9. The Supreme Court in the State of U.P. V. SambhuNath Singh & others90held that:
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

“Witnesses tremble on getting summons from courts, in India, not because they fear 1 1 1 1 1 1 1 1 1 1 1 1 1

examination or cross examination in courts but because of the fact that they might not be 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

examined at all for several days & on all such days they would be nailed at the precincts
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of the Courts awaiting their chance of being examined. The witnesses, perforce, keep
1 1 1 1 1 1 1 1 1 1 1 1 1

aside their avocation & go to the courts & wait & wait for hours to be told at the end of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 day to come again & wait & wait like that. This is the infelicitous scenario in many of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

courts in India so far as witnesses are concerned. It is high time that trial courts should
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

regard witnesses as guests invited (through summons) for helping such courts with their
1 1 1 1 1 1 1 1 1 1 1 1 1

testimony for reaching judicial findings”. 1 1 1 1 1

It is further held that a witness if present in Court must be examined on the same day as
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

they could attend the court only at the heavy cost to them, after keeping aside their own
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

avocation. Certainly, they incur suffering & loss of income. The diet money paid to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

witness is also of very meager amount .It is a harassment for the witnesses who are called
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 in Courts & made to stand at the doorstep from morning till evening only to be told at the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

end of the day that the case is adjourned to another day, there is a need for the judges to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

keep a check on this malpractice. The Presiding Officers must take care not to grant
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

adjournments in a casual manner. 1 1 1 1 1

5.9.1 Fair Trial: 1 1 1

Fair trial is an integral part of Article 21 of the constitution of India. It is also a norm of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

international human rights law & adopted by many countries like U.S.A., Canada, U.K. 1 1 1 1 1 1 1 1 1 1 1 1 1

90
Criminal Appeal No. 392 of 2001 1 1 1 1 1

92 | P a g e 1 1
& India. Some of the basic features of fair trial preserved in Universal Declaration of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Human Rights, 1948 are as under: 1 1 1 1 1 1

Article 10(i) — Everyone is entitled in full equality to a fair & public hearing by an
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

independent & impartial tribunal in the determination of his rights & obligations & of1 1 1 1 1 1 1 1 1 1 1 1 1 1

any criminal charge against him.

1 1 1 1

Article 1 1(ii) — (1) Everyone charged with a penal offence has the right to be presumed
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

innocent until proved guilty according to law in a public trial at which he has had all the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

guarantees necessary for his defense. 1 1 1 1 1

(2) No one shall be held guilty of any penal offence on account of any act or omission
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

which did not constitute a penal offence, under national or international law, at the time,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

at the time it was committed. Nor shall a heavier penalty be imposed than the one that
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

was applicable at the time the penal offence was committed.

1 1 1 1 1 1 1 1 1 1

Article 14 of the International Covenant on Civil & Political Rights reaffirmed these
1 1 1 1 1 1 1 1 1 1 1 1 1

objects of the Universal Declaration on Human Rights.

1 1 1 1 1 1 1 1

12. The concept of fair trial is based on the principle that the legal procedure adopted by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the state in relation to the trial of any of the accused person for his alleged commission of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

any offence must be just, fair & reasonable. The Supreme Court in
1 1 1 1 1 1 1 1 1 1 1 1

ZahiraHabibullahSeikh’s case91 held that:- 1 1 1 1

“Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

trial is as much injustice to the accused as is to the victim & the society. Fair trial
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

obviously would mean a trial before an impartial judge, a fair prosecutor & an
1 1 1 1 1 1 1 1 1 1 1 1 1 1

atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

against the accused, the witness, or the cause which is being tried, is eliminated.”
1 1 1 1 1 1 1 1 1 1 1 1 1 1

91
ZahiraHabibulla Sheikh and others V. State of Gujarat, (2006) 3 SCC 374: AIR 2006 SC 1367 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

93 | P a g e 1 1
 CHAPTER-6
VICTIMOLOGYJUSTICE TO 1 1

VICTIMS OF CRIMES &

1 1 1 1

COMPENSATION TO THE VICTIMS

1 1 1 1

OF CRIMES
1

94 | P a g e
1 1
 VICTIMOLOGYJUSTICE TO VICTIMS OF CRIMES & 1 1 1 1 1 1

COMPENSATION TO THE VICTIMS OF CRIMES 1 1 1 1 1

Victimology in India is a new arm of law dealing with the problems of the victim who 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

has suffered physical & mental harm, damage to his or her own property or financial loss
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

as a result of a crime & the relative scope for compensation to the victim as a means of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

redressal. 1

Section 2 (wa) of the Code of Criminal Procedure, 1973, defines “victim” as a person
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

who has suffered any loss or injury caused by reason of the act or omission for which the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused person has been charged & the expression victim includes his or her guardian or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

legal heir. In the light of Article 14 of the Constitution of India which provides equality
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

before the law & equal protection of the laws, punishing the offender alone is not
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sufficient to redress the grievance of the victim of crime. Earlier in India, the victim of a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

crime was taken as the mere informant who has brought information relating to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

offence to the police. The victim will be forgotten after recording his or her evidence.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Many of these victims died instantly at the scene of the crime as succumbed to their
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

injuries, some of them survived as disabled & some others used to live bearing the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

physical pain or mental sufferings as a result of the crime. This is all about the tragic fate
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of Jessica Lal who could not unfold her story as she died instantly on the spot where the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

crime was occurred & also all about the story of Nirvaya who met her terrific end though
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

she desperately struggled to live.

1 1 1 1 1

Therefore, victimology is all about the study of the victims of crime which includes the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

responsibility of the offender to compensate the victim as well as study in relation to the 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

duty of the state to give adequate support to the victim under a social welfare scheme
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

specially adopted for such victims of crimes. 1 1 1 1 1 1

6.1 Victim Compensation Scheme

1 1 1

Earlier criminal justice system in India appeared to have been based on the assumption
1 1 1 1 1 1 1 1 1 1 1 1 1 1

that the claims of the victims of crime were sufficiently satisfied by the conviction of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

offender. Such concept is changed now due to the impact given by changes in the social
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

system. Though section 357 of the code of criminal procedure, 1973 has appeared to be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the only statutory provision providing certain safeguards to the victims of crimes,
1 1 1 1 1 1 1 1 1 1 1 1

researchers felt that such a provision alone cannot give complete justice to the victims of1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

95 | P a g e 1 1
crimes. For the sake of convenience in consideration to the matter in question, we may
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

have a look at section 357 of the code of Criminal Procedure, 1973.

1 1 1 1 1 1 1 1 1 1 1 1 1

Section 357 :- Order to pay compensation —(1) When the court imposes a sentence of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

fine or a sentence (including a sentence of death) of which fines forms a part, the court
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

may,when passing judgment order the whole or any part of fine recovered to be 1 1 1 1 1 1 1 1 1 1 1 1 1 1

applied—

(a) In defraying the expenses properly incurred in the prosecution;

1 1 1 1 1 1 1 1 1 1

(b) In the payment to any person of compensation for any loss or injury caused by the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

offence, when compensation is, in the opinion of the court, recoverable by such 1 1 1 1 1 1 1 1 1 1 1 1 1

person in a civil court; 1 1 1 1 1

(c) When any person is convicted of any offence for having cause the death of any person
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 or of having abetted the commission of such an offence, in paying compensation

1 1 1 1 1 1 1 1 1 1 1 1 1

to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 to recover damages from the person sentenced for the loss resulting to them from
1 1 1 1 1 1 1 1 1 1 1 1 1

1 such death; 1 1

(d) When any person is convicted of any offence which includes theft, criminal
1 1 1 1 1 1 1 1 1 1 1 1 1

misappropriation, criminal breach of trust, or cheating, or of having dishonestly 1 1 1 1 1 1 1 1 1 1 1

received or retained, or of having voluntarily assisted in disposing of stolen 1 1 1 1 1 1 1 1 1 1 1 1

property knowing or having reason to believe the same to be stolen, in 1 1 1 1 1 1 1 1 1 1 1 1 1

compensating any bonafide purchaser of such purchaser of property for the loss 1 1 1 1 1 1 1 1 1 1 1 1

of the same if such property is restored to the possession of the person entitled
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

thereto. 1

If the fine imposed in a case which is subject to appeal, no such payment shall be made
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

before the period allowed for presenting the appeal has elapsed, or if an appeal is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

presented, before the decision of the appeal. 1 1 1 1 1 1 1

When a Court imposes a sentence, of which fine does not form a part, the court may,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

when passing judgment order the accused person to pay, by way of compensation such
1 1 1 1 1 1 1 1 1 1 1 1 1 1

amount as may be specified in the order to the person who has suffered any loss or injury
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

by reason of the act for which the accused person has been sentenced.
1 1 1 1 1 1 1 1 1 1 1 1 1

96 | P a g e 1 1
An order under this section may also e made by the appellate court or by the High Court
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

or the Court of Sessions when exercising its power of revision.

1 1 1 1 1 1 1 1 1 1 1

At the time of awarding compensation in any subsequent civil suit relating to the same
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

matter, the court shall take into account any sum paid or recovered as compensation
1 1 1 1 1 1 1 1 1 1 1 1 1 1

under this section. 1 1 1

Under section 357 the compensation is to e paid by the offender on his conviction. Such
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

payment is not possible if the accused is not arrested & either discharged or acquitted the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused in the event of his arrest & thereafter. 1 1 1 1 1 1 1 1 1

The 14th Law Commission in its report recommended States to compensate the victim
1 1 1 1 1 1 1 1 1 1 1 1 1

thereby citing reasons that it is the political, economic & social institutions of the state
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

system that generates crime by poverty, discrimination, unemployment & insecurity.

1 1 1 1 1 1 1 1 1 1

The committee on reforms of criminal justice system (March 2003) headed by Justice
1 1 1 1 1 1 1 1 1 1 1 1 1

Malimath observed that an important object of the criminal justice system is to ensure
1 1 1 1 1 1 1 1 1 1 1 1 1 1

justice to the victims, yet he has not been given any substantial right, not even to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

participate in the criminal proceedings. The committee has made several 1 1 1 1 1 1 1 1 1 1

recommendations which include the right of the victim to participate in cases involving 1 1 1 1 1 1 1 1 1 1 1 1 1

serious crimes & to adequate compensation. 1 1 1 1 1 1

The committee was of the view that criminal justice administration will assume a new
1 1 1 1 1 1 1 1 1 1 1 1 1 1

direction towards better & quicker justice once the rights of the victim are recognized by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

law & restitution for loss of life, limb & property are provided for in the system. The cost
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

for providing it is not exorbitant as sometimes made out to be. With increase in quantum
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of fine recovered, division of funds generated by the justice system & soliciting public
1 1 1 1 1 1 1 1 1 1 1 1 1 1

contributions, the proposed victim compensation fund can be mobilized at least to meet 1 1 1 1 1 1 1 1 1 1 1 1 1

the cost of compensating victims of violent crimes. The committee has further gave its
1 1 1 1 1 1 1 1 1 1 1 1 1 1

view that even if part of the assets confiscated & forfeited in organized crime & financial
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

frauds is also made part of the fund & it is managed efficiently, there will be no paucity
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of resources for this well conceived reform. In any case, dispensing justice to victims of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

crime cannot be longer being ignored on ground of scarcity of resources.

1 1 1 1 1 1 1 1 1 1 1

Keeping the above recommendations in view, section 357A has been added [by Act No.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

5 of 2009 Sec 28 (W.E.F. 31.12.2009)J in the Code of Criminal Procedure, 1973 as

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

hereunder as follows: 1 1 1

97 | P a g e 1 1
6.2 Section 357A, Victim compensation scheme—
1 1 1 1 1 1

1. Every state Government in consultation with the Central Government shall prepare a
1 1 1 1 1 1 1 1 1 1 1 1 1

scheme for providing funds for the purpose of compensation to the victim or his
1 1 1 1 1 1 1 1 1 1 1 1 1 1

dependants who have suffered loss or injury as a result of the crime & who require 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

rehabilitation. 1

2. Whenever a recommendation is made by the court for compensation, the District

1 1 1 1 1 1 1 1 1 1 1 1 1

Legal Service Authority of the State Legal Services Authority, as the case may be, shall
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

decide the quantum of compensation to be awarded under the scheme referred to in sub-
1 1 1 1 1 1 1 1 1 1 1 1 1 1

section (1). 1 1

3. If the trial court, at the conclusion of the trail, is satisfied that the compensation
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

awarded under section 357 is not adequate for such rehabilitation, & where the case ends
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

in acquittal or discharge & the victim has to be rehabilitated, it make recommendation

1 1 1 1 1 1 1 1 1 1 1 1 1 1

for compensation.
1

4. Where the offender is not traced or identified, but the victim is identified, & where no
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

trial takes place, the victim or his dependants may take an application to the State or the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

District Legal Services Authority for award of compensation.

1 1 1 1 1 1 1 1

5. On receipt of such recommendations or on the application under sub-section (4), the

1 1 1 1 1 1 1 1 1 1 1 1 1 1

State or the District Legal Services Authority shall, after due enquiry award adequate
1 1 1 1 1 1 1 1 1 1 1 1 1

compensation by completing the enquiry within two months. 1 1 1 1 1 1 1 1

6. The State or the District Legal Services Authority, as the case may be, to alleviate the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

suffering of the victim, may order for immediate first-aid facility or medical benefits to
1 1 1 1 1 1 1 1 1 1 1 1 1 1

be made available free of cost on the certificate of the police officer not below the rank of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the officer-in-charge of the police station or the Magistrate of the area concerned, or on
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

any other interim relief as the appropriate authority deems fit.

1 1 1 1 1 1 1 1 1 1

7. To cope with all the problems faced by the victims of crimes, the Parliament vide
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

amendment of the Code of Criminal Procedure.1973, of the year, 2013 (w.e.f. 3-2- 2013) 1 1 1 1 1 1 1 1 1 1 1 1 1

1 has inserted section 357B & section 357Cas under:

1 1 1 1 1 1 1 1

6.3 Section 357B:1 1 1

98 | P a g e 1 1
Compensation to be in addition to fine under section 326A or section 376D of the Indian 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Penal Code:-The compensation payable by the state Government under section

1 1 1 1 1 1 1 1 1 1

357Ashall be in addition to the payment of fine to the victim under section 326A or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

section 376D of the Indian Penal Code (45 of 1860).

1 1 1 1 1 1 1 1 1 1

6.4 Section 357C: Treatment of victims:-

1 1 1 1 1 1

All hospitals, public or private, whether run by the Central Government, the State
1 1 1 1 1 1 1 1 1 1 1 1 1

Government, local bodies or any other person, shall immediately, provide the first aid or
1 1 1 1 1 1 1 1 1 1 1 1 1 1

medical treatment, free of cost, to the victims of any offence covered under section
1 1 1 1 1 1 1 1 1 1 1 1 1 1

326A, 376, 376A, 376B, 376C, 376D or section 376E of the Indian Penal Code (45 of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1860), & shall immediately inform the police of such incident.

1 1 1 1 1 1 1 1 1 1

In a recent decision laid down by the Supreme Court in Ankur Gaikwad V. State of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Maharashtra, (2013) 6 sec 770, it has been held that the amendments to the Code of 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Criminal Procedure focused heavily on the rights of the victims in a criminal trial,
1 1 1 1 1 1 1 1 1 1 1 1 1 1

particularly in trials relating to sexual offences. Though the recent amendments left
1 1 1 1 1 1 1 1 1 1 1 1

section 357 unchanged, they introduced section 357A under which the court is
1 1 1 1 1 1 1 1 1 1 1 1

empowered to direct the State to pay compensation to the victim in such cases where the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

compensation awarded under section 357 is not adequate for such rehabilitation, or 1 1 1 1 1 1 1 1 1 1 1 1

where the case ends in acquittal or discharge & the victim is to be rehabilitated. Under
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

this provision, even if the accused is not tried but the victims need to be rehabilitated, the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

victim may request the State or District Legal Services Authority to award him/her
1 1 1 1 1 1 1 1 1 1 1 1 1

compensation. The court has also directed in this case that the courts are obliged to give 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

reasons for not recommending compensation to the victims of crimes.

1 1 1 1 1 1 1 1 1 1

A victim of crime, as more fully discussed above, is an unfortunate person who suffers
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

from some adverse, inhuman & negligent actions of humankind. Therefore, delay in
1 1 1 1 1 1 1 1 1 1 1 1

payment of compensation to the victim should be avoided. Although a victim of crime is

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

not a party in criminal proceedings, they have a vital role in the process of criminal trial
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

as their testimony is very important for consideration in deciding the involvement of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused in every case, if the victim is dead, his or her spouse, lawful partner, relative or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

dependent & anyone who has legal custody of the actual victim is entitled to receive the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

compensation payable to such victim. 1 1 1 1 1

99 | P a g e 1 1
In a recent decision laid down by the Supreme Court in AnkurGaikwad V. State of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Maharashtra, (2013) 6 sec 770, it has been held that the amendments to the Code of 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Criminal Procedure focused heavily on the rights of the victims in a criminal trial,
1 1 1 1 1 1 1 1 1 1 1 1 1 1

particularly in trials relating to sexual offences. Though the recent amendments left
1 1 1 1 1 1 1 1 1 1 1 1

section 357 unchanged, they introduced section 357A under which the court is
1 1 1 1 1 1 1 1 1 1 1 1

empowered to direct the State to pay compensation to the victim in such cases where the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

compensation awarded under section 357 is not adequate for such rehabilitation, or 1 1 1 1 1 1 1 1 1 1 1 1

where the case ends in acquittal or discharge & the victim is to be rehabilitated. Under
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

this provision, even if the accused is not tried but the victims need to be rehabilitated, the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

victim may request the State or District Legal Services Authority to award him/her
1 1 1 1 1 1 1 1 1 1 1 1 1

compensation. The court has also directed in this case that the courts are obliged to give 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

reasons for not recommending compensation to the victims of crimes.

1 1 1 1 1 1 1 1 1 1

A victim of crime, as more fully discussed above, is an unfortunate person who suffers
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

from some adverse, inhuman & negligent actions of humankind. Therefore, delay in
1 1 1 1 1 1 1 1 1 1 1 1

payment of compensation to the victim should be avoided. Although a victim of crime is

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

not a party in criminal proceedings, they have a vital role in the process of criminal trial
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

as their testimony is very important for consideration in deciding the involvement of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused in every case, if the victim is dead, his or her spouse, lawful partner, relative or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

dependent & anyone who has legal custody of the actual victim is entitled to receive the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

compensation payable to such victim. 1 1 1 1 1

100 | P a g e 1 1
 CHAPTER-7
CRITICAL ANANLYSIS OF
1 1 1

CRIMINAL JUSTICE SYSTEM IN

1 1 1 1

INDIA

101 | P a g e
1 1
 CRITICAL ANANLYSIS OF CRIMINAL JUSTICE 1 1 1 1 1

SYSTEM IN INDIA 1 1

1. Merits & demerits of adversarial Criminal Justice system:—

1 1 1 1 1 1 1 1 1

The legal system for dispensation of criminal justice in India is the adversarial system of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

law inherited form the British common law system. In such a system, the accused is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

presumed to be innocent till the prosecution proves the case beyond reasonable doubt
1 1 1 1 1 1 1 1 1 1 1 1 1

that the accused is guilty. As provided under Art. 20(3) of the Constitution of India, the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

accused cannot be compelled to admit his crime & even during the period of police
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

investigation, the accused has the right to remain silence when he is asked questions
1 1 1 1 1 1 1 1 1 1 1 1 1 1

incriminatory in nature. The process of trial is in the nature of surgical procedures

1 1 1 1 1 1 1 1 1 1 1 1 1 1

without there being left any room for doubt in the process of proving made by the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

prosecution. In the adversarial system, the Courts have fairly acted neutral to both the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

prosecution as well defence. However, Judges put serious efforts during trial to ascertain
1 1 1 1 1 1 1 1 1 1 1 1 1

that no innocent be punished & no guilty person be allowed to escape appropriate

1 1 1 1 1 1 1 1 1 1 1 1 1 1

punishment. 1

Whereas, some of the researchers feel that the adversarial system has its disadvantages
1 1 1 1 1 1 1 1 1 1 1 1 1

on the following grounds:

1 1 1 1

• The Judge is empowered to weigh evidence only to ascertain whether the

1 1 1 1 1 1 1 1 1 1 1 1

prosecution has able to prove the case beyond reasonable doubt or not so. It 1 1 1 1 1 1 1 1 1 1 1 1 1 1

seems that the Judge has no active & positive role during the trial.
1 1 1 1 1 1 1 1 1 1 1 1 1

• Investigation of the crime is also prerogative of the police. The Judge cannot 1 1 1 1 1 1 1 1 1 1 1 1 1

supervise investigation. 1 1

• Most of the accused are acquitted at the end of the trials as the prosecution in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

such cases failed to prove beyond reasonable doubt.

1 1 1 1 1 1 1 1

• In the eyes of common people, this system is no more impressive.

1 1 1 1 1 1 1 1 1 1 1 1

• The adversary system is also taken as time consuming as it usually takes

1 1 1 1 1 1 1 1 1 1 1 1 1

years together in disposal of a criminal case. –

1 1 1 1 1 1 1 1

• The rate of conviction is very low.

1 1 1 1 1 1 1

102 | P a g e 1 1
Considering all these aspects, inquisitorial criminal justice system is regarded as more
1 1 1 1 1 1 1 1 1 1 1 1

appropriate on the following counts that: 1 1 1 1 1 1

• Investigation is being made done by the judicial police officer. 1 1 1 1 1 1 1 1 1 1

• If the prosecutor finds that there is no adequate evidence to prosecute the

1 1 1 1 1 1 1 1 1 1 1 1 1

accused, he can close the investigation. 1 1 1 1 1 1

• The case against the accused is proceeded with a composite effort of the
1 1 1 1 1 1 1 1 1 1 1 1 1

prosecutor, police, the defence counsel & the Court. 1 1 1 1 1 1 1 1

• The rate of conviction is very high & people have confidence of the judicial
1 1 1 1 1 1 1 1 1 1 1 1 1 1

system. 1

2. Delay in criminal justice Justice system.-Perception of the common people in

1 1 1 1 1 1 1 1 1 1 1 1

judiciary in India is that in such a system the scene is not changed & will be never going
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

to be changed. The amended provision of section 309 of the Code of Criminal

1 1 1 1 1 1 1 1 1 1 1 1 1 1

Procedure,1973(amended by Act 13 of 2013),provides that every inquiry or trial,the 1 1 1 1 1 1 1 1 1 1 1

proceedings shall be continued from day-to-day until all the witnesses in attendance
1 1 1 1 1 1 1 1 1 1 1 1

have been examined, unless the Court finds the adjournment of the same beyond the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

following day to be necessary for reasons to be recorded & when the inquiry or trial
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

relates to an offence under section 376,section 376 A,376B,section 376 C or section 376
1 1 1 1 1 1 1 1 1 1 1 1 1 1

D of the Indian Penal Code(45 of 1 960),the inquiry or trial shall as far as possible be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

completed within a period of two months from the date of filing of the charge sheet.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

It also provides that when the witnesses are in attendance, no adjournment or

1 1 1 1 1 1 1 1 1 1 1 1 1

postponement shall be granted, without examining them, except for the purpose 1 1 1 1 1 1 1 1 1 1 1

recorded in writing. 1 1 1

2.1 Section 309 has been amended with a view to curb the practice of pursuation by the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

prosecutor as well as defence for adjournments frequently during the course of criminal
1 1 1 1 1 1 1 1 1 1 1 1 1

trial & proceedings. However, the impact of this section is not well understood by all the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

stakeholders & most of the members in the Bench & the Bar have taken it as a directory
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

provision & not as a statutory command. 1 1 1 1 1 1

103 | P a g e 1 1
Expressing anguish in such a conduct in which the Courts have to comply with section 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

309 of the Code of Criminal procedure, the Supreme Court in Vinod Kumar vs. State of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Punjab(20 15)3 SCC 220[Criminal Appeal No.554 of 2012 decided on 21st 1 1 1 1 1 1 1 1 1 1 1

January,2015] held that: 1 1 1

“57.1 Adjournments are sought on the drop of a hat by the Counsel, even though the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

witness is present in Court, contrary to all principles of holding a trial. That apart, after
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the examination —in —chief of a witness is over, adjournment is sought for cross-
1 1 1 1 1 1 1 1 1 1 1 1 1

examination & the disquieting feature is that the trial courts grant time. The law requires 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

special reasons to be recorded for grant of time but the same is not taken note of.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

57.2 As has been noticed earlier, in the instant case the cross examination has taken place
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 after a year & 8 months allowing ample time to pressurize the witness & to gain over him
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 by adopting all kinds of tactics.

1 1 1 1 1 1

57.3 There is no cavil over the proposition that there has to be a fair but the duty of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Court while conducting the trial is to be guided by the mandate of the law, the conceptual
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

fairness & above all bearing in mind its sacrosanct duty to arrive at the truth on the basis
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of the material brought on record, If an accused for his benefit takes the trial on the path
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of total mockery, it cannot be countenanced. The Court has a sacred duty to see that the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

trial is conducted as per law. If adjournments are granted in this manner it would
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

tantamount to violation of the rule of law & eventually turn such trials to a farce. It is 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

legally impermissible & jurisprudencially abominable. The trial Courts are expected in
1 1 1 1 1 1 1 1 1 1 1

law to follow the command of the procedure relating to trial & not yield to the request of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the counsel to grant adjournment for non-acceptable reasons.”

1 1 1 1 1 1 1 1

2.2 In the State of U.P. v. Sambhu Nath Singh & others, AIR 2001 SC
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1403,2001(3)Scale, the Supreme Court expressed that: 1 1 1 1 1 1

Witnesses tremble on getting summons form Courts, in India, not because they fear
1 1 1 1 1 1 1 1 1 1 1 1 1

examination or cross-examination in Courts but because of the fact that they might not 1 1 1 1 1 1 1 1 1 1 1 1 1 1

be examined at all for several days & on all such days they would be nailed to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

precincts of the Courts awaiting their chance of being examined. 1 1 1 1 1 1 1 1 1 1

The witnesses perforce, keep aside their avocation & go to the Courts & wait & wait for
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

hours to be told at the end of the day to come again & wait & wait for that. This is the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

infelicitous scenario in many of the Courts in India so far as the witnesses are concerned.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

104 | P a g e 1 1
It is high time that trial Courts should regard witnesses as guests invited (through
1 1 1 1 1 1 1 1 1 1 1 1 1 1

summons) for helping such Courts with their testimony for reaching judicial findings”
1 1 1 1 1 1 1 1 1 1 1 1

It was also observed in this case that if a witness is present in Court he must be examined
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

on that day. The Court must know that most of the witnesses could attend the Court only
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

at the heavy cost to them, after keeping aside their own avocation. Certainly they incur
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

suffering & loss of income. The meagre amount of Bhatta (allowance) which a witness
1 1 1 1 1 1 1 1 1 1 1 1 1 1

may be paid by the Court is generally a poor solace for the financial loss incurred by him.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

It is a sad plight in the trial Courts that witnesses who are called through summons or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

other processes st& at the door step from morning till evening only to be told at the end of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 the day that the case is adjourned to another day. This primitive practice must be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

reformed by presiding officers of the trial Courts & it can be reformed by everyone
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

provided the presiding officer concerned has no commitment to duty. No sadistic

1 1 1 1 1 1 1 1 1 1 1 1

pleasure in seeking how other persons summoned by him as witnesses are str&ed on
1 1 1 1 1 1 1 1 1 1 1 1 1 1

account of the dimension of his judicial powers can be a persuading factor for granting
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

such adjournments lavishly,that is a casual manner.

1 1 1 1 1 1 1

7.1 Unequal treatment of the police to the victims of crime.

1 1 1 1 1 1 1 1 1 1

In all the developed countries the victims of crimes are treated as the privileged clients &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the police takes adequate care in taking legal steps on the basis of reports submitted by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the victims. In appropriate cases, the police has taken immediate measures to protect
1 1 1 1 1 1 1 1 1 1 1 1 1

such victims against the wrongdoers.

1 1 1 1 1

The victims’ first contact after commission of the offence is with the police. Section 157
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of the Code of Criminal Procedure, 1973, provides that when the victim or any other
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

person on his or her behalf gives information to the police regarding commission of a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

cognizable offence, the officer-in-charge or any officer under the direction of the officer-
1 1 1 1 1 1 1 1 1 1 1 1

in -charge, shall reduce the information into writing & read it over to the informant.
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

If the officer-in- charge refused to record the information, either the victim or the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

informant is allowed to send the substance of such information, in writing & by post, to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the Superintendent of police concerned, who,if satisfied that such information discloses
1 1 1 1 1 1 1 1 1 1 1

commission of a cognizable offence, shall either investigate the case himself or direct an 1 1 1 1 1 1 1 1 1 1 1 1 1 1

investigation to be made by any police officer subordinate to him. 1 1 1 1 1 1 1 1 1 1 1

105 | P a g e 1 1
The abovementioned process is, in fact, a time consuming process. In rural India, we do
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

not find efficiency of the postal offices. In practice, it takes a week at least to reach a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

letter from a corner of a district to it’s headquarter & the Superintendent of police may
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

not have taken immediate action upon his receiving such information due to his
1 1 1 1 1 1 1 1 1 1 1 1 1

engagement with other assignments. It naturally causes delay in the investigation into 1 1 1 1 1 1 1 1 1 1 1 1

the case. 1 1

Another problem is that the victims of crimes are not happy with the attitude of the police
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 mainly due to lack of receptive & sympathetic attitude from the police. We also found
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

reports of harassment of the victims by the police on their own will or at the instance of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

powerful persons. The Code of Criminal Procedure,1973 is the main procedural law
1 1 1 1 1 1 1 1 1 1 1 1

providing protection of the rights of the victims. However, it cannot be said a complete
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

code in this regard as appearing that it has no provisions to protect the alleged victim
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

during investigation, for information requiring to be given to the victim about the
1 1 1 1 1 1 1 1 1 1 1 1 1

progress of investigation & participation of the victim in the process of investigation if

1 1 1 1 1 1 1 1 1 1 1 1 1 1

so required.
1 1

7.2 Oppressive Bail System

1 1 1 1

The bail law in India is inadequate, uncertain & prejudicial to the poor. The working of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the system is also extremely unsatisfactory. Refusal to admit bail would mean that
1 1 1 1 1 1 1 1 1 1 1 1 1

exercise of discretionary power by the court requires that the under trial prisoners be put
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

in the custody of the state. There is no reason why “under trial prisoner should be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

allowed to continue to languish in jail merely because the state is not in a position to try
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

them within a reasonable period of time” .Though speedy trial is the right of every
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

person accused of an offence, custodial control of the court over an accused for the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

purposes of administering justice lasts much longer 1 1 1 1 1 1

There have been several cases, where under trials have languished in jails for periods
1 1 1 1 1 1 1 1 1 1 1 1 1 1

longer than the maximum imprisonment provided for the alleged offence. A new section
1 1 1 1 1 1 1 1 1 1 1 1 1

436-A was inserted in the code by way of amendment in 2005. It provides that where an
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

under trial prisoner except the one accused of an offence punishable with death, has been
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

in custody for a period longer than one half of the maximum period of imprisonment
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

provided for the alleged offence, he should be immediately released on his personal
1 1 1 1 1 1 1 1 1 1 1 1 1

bond, with or without sureties. 1 1 1 1

106 | P a g e 1 1
Moreover, the present system of bail is discriminatory towards the poor as they are 1 1 1 1 1 1 1 1 1 1 1 1 1 1

unable to furnish the bail amount in order to secure their release. The wealthier persons,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

on the other h&, are in a better position for they find no difficulty in furnishing the bail
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

amount set by the Courts. Even if the bail amount fixed by the court is not high, a large
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

majority of the accused are unable to furnish even a small amount of bail for most of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

them are very poor. Hence, the discrimination prevails on a large scale.
1 1 1 1 1 1 1 1 1 1 1 1

7.3 Disparity in Sentencing Procedure & judicial Discretion:-

1 1 1 1 1 1 1

The sentencing policy in awarding punishments like death penalty & life imprisonment
1 1 1 1 1 1 1 1 1 1 1 1

are not at all adequate & consistent. The sentencing system suffers with various
1 1 1 1 1 1 1 1 1 1 1 1 1

drawbacks & flaws. Some of the criticisms of the Indian sentencing policy are as 1 1 1 1 1 1 1 1 1 1 1 1 1 1

follows:

7.3.1 Excessive discretion given to the Trial Court in awarding sentences:

1 1 1 1 1 1 1 1 1 1

As already discussed elaborately in chapter 4, there is too much discretion given to the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Trial Courts in India. The Indian Penal Code & other penal laws normally prescribe the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

maximum punishment awardable in respect of each offence & then leave it to be the 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

discretion of the court to pass suitable sentence within such maximum limit. The policy
1 1 1 1 1 1 1 1 1 1 1 1 1 1

of our criminal law with regard to different kind of crimes, including the gruesome crime
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 of murder, is to fix a maximum penalty the same being intended for the worst cases
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

leaving a very wide discretion in the matter of punishment to the judge.

1 1 1 1 1 1 1 1 1 1 1 1 1

There is no hard & fast rule laid down for measuring the punishment that in what case
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

what is a proper sentence, here the Courts are expected to themselves ascertain a
1 1 1 1 1 1 1 1 1 1 1 1 1 1

desirable proportion between the seriousness of the offence & the punishment. Here the
1 1 1 1 1 1 1 1 1 1 1 1 1

Judge has to apply his mind in each & in every case. Before giving or passing the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sentence the Judge does not considering the background & circumstances of the case.
1 1 1 1 1 1 1 1 1 1 1 1

Generally a Judge is an individual & in all circumstances he decides the case on the basis
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of his own individual philosophy. It is entirely the Judge’s discretion to chose & pick an
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

appropriate sentence within his range. It is also observed that discretion is important to 1 1 1 1 1 1 1 1 1 1 1 1 1 1

enable the Courts to take its own decision without any pressure, but it is undesirable to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

allow different approaches or individual Judges to pursue their own policies that amount
1 1 1 1 1 1 1 1 1 1 1 1 1

to discrimination in sentencing.
1 1 1

107 | P a g e 1 1
There is no adequate punishment within the maximum limit provided for an offence & it
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

is primarily for the convicting court to decide, but the discretion should be so exercised
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

that there should be a reasonable proportion maintained between the seriousness of the
1 1 1 1 1 1 1 1 1 1 1 1 1

crime & the punishment imposed. 1 1 1 1

7.3.2 No uniformity followed by the Judges while awarding sentence:

1 1 1 1 1 1 1 1 1

In India, there is no uniformity in the sentencing policy. It is generally the practice that
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

different courts & different Judges give different punishments for the same offences or
1 1 1 1 1 1 1 1 1 1 1 1 1

similar offences. There is a lack of uniformity in the sentences passed by the courts. The
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

main reason behind this is that there is no readymade formula of a fixed nature which can
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

be applied to meet the various situations. Another reason is that the Judges &
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Magistrates do not possess the same attitude during sentencing as they are bound to be 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

influenced by their own values & personalities. Some Judges look at the age of the 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

offender & the circumstances of the case whereas some judges see the motive & mental
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

disturbances of the offender. Some Judges look at the fact that whether the offender is a 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

first time offender or a habitual offender. This plurality of forces plays a major part in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

swinging the pendulum of sentencing justice erratically. 1 1 1 1 1 1 1

The guidelines given by the courts are facts specific. Though the guidelines given by the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

courts are given as Obiter Dicta, the application of the guidelines is found to be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

misleading in some judgments. Currently the well established Guideline followed by the 1 1 1 1 1 1 1 1 1 1 1 1

courts with respect to death penalty is the mitigating & aggravating circumstances as
1 1 1 1 1 1 1 1 1 1 1 1 1

explained in chapter 3. The application of this test in the case of A. Devendranv. State of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Tamil Nadu explains this point. This was a case of triple murder. However the Court held
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 that the trial court was not justified in awarding death sentence as the accused had no
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

pre-meditated plan to kill any person & as the main object was to commit robbery. This 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

case should be compared with GentelaVijayavardhanRaov. State of Andhra Pradesh

1 1 1 1 1 1 1 1 1 1

discussed above. The motive in both is to rob the victim. However in one case it has been
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

used as an aggravating factor & the other it is used as a mitigating factor. This shows how
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 the same test has been contradictorily applied & this also creates disparity in sentencing.
1 1 1 1 1 1 1 1 1 1 1 1 1

It is also observed that the guidelines are not followed by lower courts: Another side of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the coin is that the lower courts do not follow these guidelines as they are not binding on
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

them. The precedents are usually ignored or differentiated from the existing fact
1 1 1 1 1 1 1 1 1 1 1 1

scenario so as to give the judge his space to rule on the case. 1 1 1 1 1 1 1 1 1 1 1 1 1

108 | P a g e 1 1
In India, there are different Courts & there is range of various factors that are held to be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

relevant in sentencing such as mitigating & aggravating circumstances. Now what is

1 1 1 1 1 1 1 1 1 1 1 1

mitigating circumstance for one judge might not be mitigating for the other. Thus this in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

return it creates an inconsistency & disparity. The Judges in all jurisdictions enjoy wide
1 1 1 1 1 1 1 1 1 1 1 1 1 1

discretion in imposing punishment in every case. This has resulted in wide disparity &
1 1 1 1 1 1 1 1 1 1 1 1 1 1

inexplicable inconsistency in sentencing. For example, a judge may give death sentence
1 1 1 1 1 1 1 1 1 1 1 1

to the offender in one case & life imprisonment is given by another Judge in similar case
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

where the facts & circumstances are exactly the same.

1 1 1 1 1 1 1 1

7.8 Victim compensation scheme:-

1 1 1

The fundamental reason for having criminal justice system is to provide a framework for
1 1 1 1 1 1 1 1 1 1 1 1 1 1

punishment of the guilty & to protect the innocent so as to preserve a harmonious social
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

order. The State has constituted such system to protect the life & liberty of innocent
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

citizens. It aims at safeguarding public as well as private properties. It was basically

1 1 1 1 1 1 1 1 1 1 1 1 1 1

based on Blackstone’s formulation of the principle that it is better that 10 guilty men go
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

free than one innocent man be wrongly convicted.

1 1 1 1 1 1 1 1

However, this concept is no more ideal in today’s context as it seems ignoring the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

constitutional impulse urging to incorporate certain provisions in relevant statues in 1 1 1 1 1 1 1 1 1 1 1

relation to substantial justice to the victims of crimes, more particularly in respect of

1 1 1 1 1 1 1 1 1 1 1 1 1 1

offences punishable under section 376, section 376-A, section 376 B, section 376C &
1 1 1 1 1 1 1 1 1 1 1 1 1

section 376 D of the Indian Penal Code, speedy trial & speedier disposal of criminal
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

cases. 1

It may be said in this regard that an impressive legislation has been made recently & the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

same has already been incorporated in the Code of Criminal Procedure,1973,on the
1 1 1 1 1 1 1 1 1 1 1 1

recommendation of Malimath Committee on reforms of criminal justice system by 1 1 1 1 1 1 1 1 1 1 1

inserting section 357 A,section357B,section357C in the Code of Criminal

1 1 1 1 1 1 1 1 1

Procedure,1973,regarding victim compensation scheme, compensation to be in addition 1 1 1 1 1 1 1 1 1

to fine under section 326A or section 376 D of Indian Penal Code respectively
1 1 1 1 1 1 1 1 1 1 1 1 1 1

7.9 Presumption of innocence & burden of proof –

1 1 1 1 1 1 1 1

The above said committee on reforms of criminal justice strongly felt that there is no
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

provision in the Indian Evidence Act prescribing a particular or a different standard of

1 1 1 1 1 1 1 1 1 1 1 1 1 1

proof for criminal cases. However, the standard of proof lay down by our Courts
1 1 1 1 1 1 1 1 1 1 1 1 1 1

109 | P a g e 1 1
following the, English precedents is proof beyond reasonable doubt in criminal cases. In
1 1 1 1 1 1 1 1 1 1 1 1 1

several countries in the world including the countries following the inquisitorial system,
1 1 1 1 1 1 1 1 1 1 1 1

the standard is proof on preponderance of probabilities

1 1 1 1 1 1 1 1

There is a third standard of proof which is higher than proof on preponderance of

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

probabilities & lower than proof beyond reasonable doubt described in different ways.
1 1 1 1 1 1 1 1 1 1 1 1

The Committee after careful assessment of the standards of proof came to the conclusion
1 1 1 1 1 1 1 1 1 1 1 1 1 1

that the standard of proof beyond reasonable doubt presently followed in criminal cases
1 1 1 1 1 1 1 1 1 1 1 1 1

should be done away with & recommended in its place a standard of proof lower than
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

proof beyond reasonable doubt & higher than the standard of proof on preponderance of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

probabilities & ultimately took a stand that” in criminal cases, unless otherwise
1 1 1 1 1 1 1 1 1 1 1 1

provided,a fact is said to be proved when, after considering the matters before it, the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Court is convinced that it is true.”

1 1 1 1 1 1 1

This,in my considered view, is more rational & appropriate in the present context.
1 1 1 1 1 1 1 1 1 1 1 1 1

7.10 FINDINGS OF THE EMPIRICAL STUDY:

1 1 1 1 1

For a better understanding of the empirical study, the opinion of litigants, lawyers and
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Judicial officers can be discussed under several heads like nature of the pending case,
1 1 1 1 1 1 1 1 1 1 1 1 1 1

year of filing the case, main reasons for the delay, personal experience of delay,
1 1 1 1 1 1 1 1 1 1 1 1 1 1

designation of Judicial officers interviewed and other correlated issues.

1 1 1 1 1 1 1 1

The finding given below (in the tabulation- A, B & C) is based on the data collected by
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the researcher from the litigants, lawyer and judicial officers.

1 1 1 1 1 1 1 1

TABULATION- A 1

7.11 Response Of Litigants:

1 1 1

S. 1 Nature of the 1 1 1 Whom the 1 1 Stage of the 1 1 1 Main 1 How Many 1 1

no Pending Cases 1 case was 1 1 Case Reason for 1 1 times

filled the delay 1

1 Civil 2001 Trial Adjournment Thrice

2. Civil 1998 Appellate Adjournment Not known 1

3 Civil 1991 Appellate Adjournment Thrice

110 | P a g e 1 1
4 Civil 1994 Appellate Adjournment Not Known 1

5 Absence of 1 1

the lawyer Four times

Civil 1992 Appellate 1 1

and 1

Adjournment
6 Criminal 2001 Trial Adjournment Six times 1

7 Criminal 1995 Appellate Adjournment Eight times 1

8 Motor accident 1 1 2003 Trial Adjournment Thrice

claim Case 1

9 Criminal 2000 Appellate Adjournment Not exactly 1 1

Known

10 Criminal 2003 Trail Adjournment Thrice

TABULATION- B 1

Responses of Lawyers:
1 1

S.no Nature of cases dealt in

1 1 1 1 1 Year of Personal
1 1 1 Main reason 1 1

by you
1 start of experience of delay
1 1 1 1 1 for delay in
1 1 1

profession disposal of 1 1

cases
A 1 civil case 1 1 Judges- 1

(property dispute) population ratio

1 Both Civil and Criminal 1981 1 1 1

1 1 1

took 13 years for

1 1 1 1 low
1

final disposal
1

Judicial 1

vacancies in the
2 Criminal 1986 Rape case took 12 1 1

1 1 1 1

subordinates
years for final
1 1

1 1 1

courts
disposal
Attempt to murder 1 1 1 Awareness of 1 1

pending for 10 years rights by the

3 Criminal 1981 1 1 1 1 1 1

common 1

people

111 | P a g e
1 1
 Judges- 1

population ratio
4 Both Civil and Criminal 1978 Kidnapping case 1

1 1 1 1 1

low
took 11 years 1

1 1

Awareness of 1 1

rights by
5 Criminal 1994 A case of murder 1 1

1 1 1 1 1

common
pending for 10 year 1

1 1 1

people

Lack of Judicial 1 1

officer in the
6 Civil 1979 Murder case took 15 1 1 1 1

1 1 1 1 1

lower court
year 1

Criminal assault 1 1 Judicial 1

case took 7 years Vacancies

7 Both Civil and Criminal 1985 1 1 1

1 1 1

Heavy burden 1 1

8 Both civil and criminal 1995 Murder case pending of cases much 1 1 1

1 1 1 1 1

resources on
for 9 years 1 1

1 1 1

courts

A rape case pending

1 1 1 1 Judicial 1

for 7 years vacancies

9 Criminal 1999 1 1

An illegal 1 1 Judicial 1

encroachment case population ratio

10 Civil 2001 1 1 1

pending for 7 years 1 1 1 low

1

TABLE-C

Responses of Judicial Officers

1 1 1

S.no Designation of the Judicial 1 1 1 1 Year 1of Main reason for delay in the
1 1 1 1 1 1 1

Officer appointment disposal of cases 1 1

1 ACMM (Additional Chief

1 1 1 1981 Lack of Judicial officer to 1 1 1 1 1

Metropolitan Magistrate) 1 handle the inflow of cases 1 1 1 1

2 Presiding 1 officer 1 MCD 1 1980 Adjournment and 1 1 frequent 1

Court application for 1 1 adding 1

documents

112 | P a g e 1 1
3 Judicial Magistrate 1st class 1 1 1 2001 Judges- Population ratio less 1 1 1

4 Judicial Magistrate 1st class 1 1 1 2002 Lack of Judicial officers 1 1 1

5. Presiding officers MACT 1 1 1989 Judges-population ratio less 1 1

7.12 ANALYSIS OF DATA:1 1 1

Analysis Of Table- A: 1 1 1

As part of this empirical study, the researcher has interviewed ten litigants across the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Courts in Delhi .On the question as to what is the main reason for delay; the respondents
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

are more or less unanimous in their response. Out of these ten respondents, eight are of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the view that the frequent adjournments on one ground or the other is the main reason for
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

delay. Remaining two are of the view that absence of lawyers as well as adjournments
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

are responsible for delay. But the bottom line is that the repeated adjournments are
1 1 1 1 1 1 1 1 1 1 1 1 1 1

granted due to the fact that the courts are over-burdened with cases. Therefore the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

judicial officer does not object too much in granting adjournments because they have to
1 1 1 1 1 1 1 1 1 1 1 1 1 1

take up other pending cases also on a priority basis.

1 1 1 1 1 1 1 1 1

Analysis Of Table- B 1 1 1

To know the views of lawyers as to the cause for delay in the disposal of cases, the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

researchers interviewed ten lawyers across the courts in Delhi. All these respondents are
1 1 1 1 1 1 1 1 1 1 1 1 1

unanimous that there is on one factor responsible for delay but combination of several
1 1 1 1 1 1 1 1 1 1 1 1 1 1

factors contribute to the delay. But on the question as to what is the main reason for
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

delay, the respondents are more or less unanimous in their responses. Out of these ten
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

respondents, three are of the view that the judges- population ratio is very low and this is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the main factor for delay in the disposal of cases. India is amongst the lowest in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Judges Population ratio. The judge-population ratio in India is 10.5 Judges for every 10
1 1 1 1 1 1 1 1 1 1 1 1 1 1

lakh citizens. In contrast, there are 107 judges in the United States of America for every
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

10 lakhs citizens. Another three respondents are of the view that the judicial vacancies is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

one the main reason for delay in the disposal of cases, Statistics reveal that the High
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

courts have a sanctioned strength of 749 Judges but the working strength is only 597 as
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

on 1st March 2007. And the sanctioned strength of judicial officers in the subordinate
1 1 1 1 1 1 1 1 1 1 1 1 1 1

113 | P a g e 1 1
courts is 14,477 but the working strength is only 11767 as on 1st March 2007. That is to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

say that 152 post of judges are lying vacant in the High courts and around 3000 post of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

judicial officers of subordinate courts are lying vacant without any effort on the part of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the government to fill the same.

1 1 1 1 1

1 Out of the rest four respondents, three are of the view that awareness of rights by the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

common people have resulted in more litigation and thereby increasing the burden on
1 1 1 1 1 1 1 1 1 1 1 1 1

courts but there is no corresponding increase in the number of Judicial officers to handle
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

these cases. One respondent is of the opinion that lack of judicial officers is the main
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

reason for delay because as a human being, they cannot handle more than a particular
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

number of cases per day. So, all the respondents are more or less unanimous in their
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

opinion that there should be an increase in the number of judicial officers to tackle the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

huge back log of cases. 1 1 1 1

Analysis Of Table-C 1 1

To know the opinion of judicial officers as to the cause for delay in the disposal of cases,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the researchers interviewed five judicial officers of various courts in Delhi. Out of these
1 1 1 1 1 1 1 1 1 1 1 1 1 1

five Judicial officers, two are of the opinion that low judge-population ratio is the main
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

reason for delay. Out of the rest three, two are of the opinion that lack of judicial officers
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

in comparison to inflow of cases is the main reason for huge backlog of cases. One such
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

judge is of the opinion that filing of the cases are increasing geometrically while the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

number of Judicial officers are the same as it was five or ten years back. He is of the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

opinion that in order to dispose of pending cases in the present state of affair, a judicial
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

officer have to dispose of one thousand cases per month, whereas it is humanely
1 1 1 1 1 1 1 1 1 1 1 1 1 1

impossible for a Judicial officer to handle more than two hundred cases per month. One 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

respondent is of the opinion that frequent adjournment of cases either due to false 1 1 1 1 1 1 1 1 1 1 1 1 1 1

pretence by the lawyers or due to over burdening of courts also adds to the delay. He is of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the opinion that some lawyers also resort to filing application for adding document with
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the intention of delaying the cases. One such judicial officers is of the opinion that in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

order to reduce the pendency of cases, there has to be a four-fold increase in the number
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of judicial officers.
1 1

7.13 CONCLUSION: 1

After discussion and cogitation over various reasons for delay in the disposal of cases as
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

well as after analyzing the pros and cons of the data, it can be said that there is no one
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

114 | P a g e 1 1
single factor which is solely responsible for delay in disposal of cases rather it is the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

combination of several factors which are contributing to delay. But what is visible is that
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the lack of judicial officers and Judges is the main reason for delay in the disposal of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

cases. There is considerable increase in litigation, almost an explosion in numbers of

1 1 1 1 1 1 1 1 1 1 1 1 1

litigations without any proportionate increase either in the number of Judge or Judicial
1 1 1 1 1 1 1 1 1 1 1 1 1

Infrastructure. Another reason for delay (as pointed by the respondents) is the frequent
1 1 1 1 1 1 1 1 1 1 1 1 1

adjournment of cases. But such adjournments are the direct fall out of the increasing
1 1 1 1 1 1 1 1 1 1 1 1 1 1

inflow of cases. Sufficient judicial officers commensurate with the cases filed everyday
1 1 1 1 1 1 1 1 1 1 1 1

are not there. Therefore, the judicial officers are constrained to adjourn the cases again
1 1 1 1 1 1 1 1 1 1 1 1 1 1

and again so as to take up other matters also. In whatever way one approaches the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

problem , there is unanimity of opinion that the strength of judges in India has to be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

considerably increased to cope with the growing litigation and demands. So the need of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the hour is to overhaul the entire system of justice delivery mechanism so that the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

problem of delay can be nipped in the bud.

1 1 1 1 1 1 1 1

115 | P a g e 1 1
 Chapter-8
CONCLUSION

116 | P a g e
1 1
 CONCLUSION

3C. Conclusion. 1

In a democratic country like India, for protecting and enhancing the rights of the people,
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the judiciary besides the legislature and the executive plays an important role. For the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

enforcement of rights of citizens and remedies thereto, in case of violation thereof, 1 1 1 1 1 1 1 1 1 1 1 1 1

Courts have been established at all levels in the country. These courts by interpreting the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

laws enhance justice to the individual and the society at large. With the rapid growth in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the population as well as technological and industrial advancement, the workload of the
1 1 1 1 1 1 1 1 1 1 1 1 1

judiciary has increased tremendously. According to 2007 records, a total of around 2.9
1 1 1 1 1 1 1 1 1 1 1 1 1

crore cases in various Courts were pending .Out of this, 2,5285,982 cases were pending
1 1 1 1 1 1 1 1 1 1 1 1 1 1

in the district and subordinate courts as on 31st December, 2007; 37, 00,223 in the High
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Courts as on 31st December, 2007 and 46,926 in the Supreme Court as on 31st Dec
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

2007.92

1 With the increase in the workload, the efficiency of the Courts is hampered badly. With
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the piling of pending cases and delay in the pronouncement of judgments, the saying
1 1 1 1 1 1 1 1 1 1 1 1 1 1

‘Justice delayed is Justice denied’ is truly applicable to our society. Due to this delay in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

rendering justice people are losing faith in the judicial system. The Supreme Court, from
1 1 1 1 1 1 1 1 1 1 1 1 1 1

time to time, has confirmed that speedy trial is a fundamental right which is implied
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

under Article 21 of the Constitution 93 but the position is still static and unchanged.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

Many committee and Boards set up by the Governments from time to time have
1 1 1 1 1 1 1 1 1 1 1 1 1 1

suggested reformation and solutions for rendering justice effectively. However, the
1 1 1 1 1 1 1 1 1 1

recommendations of these committees have not been put into practice due to one reason 1 1 1 1 1 1 1 1 1 1 1 1 1 1

or the other.1 1

1. Need to reform of the present bail system because this system of bail is a source of
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

great hardship to the poor: 1 1 1 1

The present system of bail is a source of great hardship to the poor & for eliminating the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

evil effects of penalty & assuring a fair & just treatment to the poor in the administration
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of justice, it is crucial that the bail system should be thoroughly reformed so that it is
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

92
Figure was given by Chief Justice K G Balakrishnan while inaugurating the “ALL INDIA SEMINER
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

ON JUDICIAL REFORM” held from 23rd, - 25th Feb. 2008.

1 1 1 1 1 1
1 1 1

93
Art.21 provides that “No person shall be deprived of his life and personal liberty except according to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

procedure established by law”. 1 1 1

117 | P a g e 1 1
possible for the poor as easily as the rich to obtain the pre-trial release without
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

jeopardizing the interest of justice. Rethinking should now be done on the subject of 1 1 1 1 1 1 1 1 1 1 1 1 1 1

demanding pecuniary bail which has become a tradition of our legal system.
1 1 1 1 1 1 1 1 1 1 1

The current bail system is extremely unsatisfactory & needs to be changed radically.
1 1 1 1 1 1 1 1 1 1 1 1 1

Firstly, it is virtually impossible to eliminate risk of non-appearance by the accused.

1 1 1 1 1 1 1 1 1 1 1 1 1

Secondly, its basic premise that risk of financial loss is necessary to prevent the accused
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

from fleeing is of doubtful validity.

1 1 1 1 1

2. Reforming the Sentencing Policy of the Country

1 1 1 1 1 1 1

To achieve greater rationality, uniformity, & certainty in sentencing practices, a

1 1 1 1 1 1 1 1 1 1 1

Sentencing Council, consisting of judges, academicians, police representatives,

1 1 1 1 1 1 1 1

psychologists, psychiatrists, social workers may be constituted to develop detailed 1 1 1 1 1 1 1 1 1 1

guidelines to be followed by all courts at disposition, thereby assuming responsibility for

1 1 1 1 1 1 1 1 1 1 1 1

1 fixing the parameters of exactly what sentences should be imposed for what crimes, in
1 1 1 1 1 1 1 1 1 1 1 1 1 1

what situation. The Council’s recommendations may be only advisory; the final
1 1 1 1 1 1 1 1 1 1 1

sentencing decision may be with the discretion of the trial judge. Under this model
1 1 1 1 1 1 1 1 1 1 1 1 1 1

appeal against sentence may be available to convicted offenders who are sentenced to a
1 1 1 1 1 1 1 1 1 1 1 1 1 1

term greater than the maximum allowed by the guidelines- as well as to the state in case
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

where the sentence falls below the minimum sentencing guidelines. The availability of
1 1 1 1 1 1 1 1 1 1 1 1

sentencing guidelines makes it possible for a judge who is about to impose sentence
1 1 1 1 1 1 1 1 1 1 1 1 1 1

before h& the actual sentence imposed by higher courts & even by colleagues on similar
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

offenders & to be guided accordingly on the basis of the judges own collective &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

common experience. This model has been very successful of the United States to control
1 1 1 1 1 1 1 1 1 1 1 1 1 1

unwarranted disparity without obliterating discretion altogether. 1 1 1 1 1 1

The sentencing disparity can be reduced to some extent by fixing a mandatory minimum
1 1 1 1 1 1 1 1 1 1 1 1 1 1

sentence for all serious crimes. In this sentencing model, the court may be required to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sentence persons convicted of specified crime to determine mandatory prison terms.

1 1 1 1 1 1 1 1 1 1 1

This model guarantees that the career criminals, recidivists, & violent offenders will face
1 1 1 1 1 1 1 1 1 1 1 1

1 the certainty of punishment. Depending on the circumstances, murder, under the Indian
1 1 1 1 1 1 1 1 1 1 1 1

Penal Code, carries mandatory life imprisonment or death penalty. Armed robbery also
1 1 1 1 1 1 1 1 1 1 1 1

carries the minimum mandatory prison term. In 1983, the Parliament passes the Criminal
1 1 1 1 1 1 1 1 1 1 1 1

1 law (Amendment) Act to impose mandatory minimum sentence for rape. However, the
1 1 1 1 1 1 1 1 1 1 1 1

118 | P a g e 1 1
court could decrease the fixed minimum term, provided there were mitigating
1 1 1 1 1 1 1 1 1 1 1

circumstances. 1

The mandatory minimum sentences may be proposed for all serious crimes, like,
1 1 1 1 1 1 1 1 1 1 1 1

murder, rape, robbery, grievous hurt & other violent crimes against women & children.
1 1 1 1 1 1 1 1 1 1 1 1 1

Cheating, Embezzlement & giving or fabricating false evidence in a court may also be
1 1 1 1 1 1 1 1 1 1 1 1 1 1

included in the category of offences that carry minimum mandatory prison term. It is not
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the severity, but the certainty of punishment, that really deters the actual & prospective
1 1 1 1 1 1 1 1 1 1 1 1 1 1

offenders from committing further crimes in the society. Uniformity in sentences is an

1 1 1 1 1 1 1 1 1 1 1 1 1

essential to achieve fairness in sentencing process because this will create an atmosphere
1 1 1 1 1 1 1 1 1 1 1 1

1 of certainty among offenders & general public.

1 1 1 1 1 1 1

One positive approach to control sentencing disparity is that special panel of trial judges
1 1 1 1 1 1 1 1 1 1 1 1 1 1

may be utilized which may specially be convened for the sole purpose of reviewing the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

propensity of sentences & increasing or decreasing them if the necessity so requires.

1 1 1 1 1 1 1 1 1 1 1 1 1

Another approach to control sentencing discretion is that trial judges be required to

1 1 1 1 1 1 1 1 1 1 1 1 1

provide written explanation for sentences they impose. Such a written explanation is
1 1 1 1 1 1 1 1 1 1 1 1

considered useful especially for appellate body to review whether the imposed sentence
1 1 1 1 1 1 1 1 1 1 1 1

was proper or not. This will also help the appellate court to reassess the aggravating or
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

mitigating circumstances affecting sentencing discretion, & also to assess the relative
1 1 1 1 1 1 1 1 1 1 1

weights given to the four objectives of punishment. Today, the trial judges required to
1 1 1 1 1 1 1 1 1 1 1 1 1 1

give written explanation only when the maximum sentence is given. This condition
1 1 1 1 1 1 1 1 1 1 1 1

needs to be changed in the context of growing problem of sentencing disparity.

1 1 1 1 1 1 1 1 1 1 1 1

In the Indian criminal justice system there must be an introduction & application of pre-
1 1 1 1 1 1 1 1 1 1 1 1 1 1

sentence investigation. A rational & consistent sentencing policy requires the removal of
1 1 1 1 1 1 1 1 1 1 1

1 several deficiencies in the present system, one being the lack of information as to
1 1 1 1 1 1 1 1 1 1 1 1 1 1

characteristics & background of the offender. In a good system of administration of 1 1 1 1 1 1 1 1 1 1 1 1 1

criminal justice pre-sentencing investigation has a great sociological value. Judges have
1 1 1 1 1 1 1 1 1 1 1

to first assess the degree of offence, its gravity along with the circumstances leading to a
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

particular offence before finally arriving at conclusion to award the punishment to the
1 1 1 1 1 1 1 1 1 1 1 1 1

offender. It is not the legislature alone that legislates. The judiciary also legislates when
1 1 1 1 1 1 1 1 1 1 1 1 1 1

it gives the human interpretation of the words of the statute by passing a sentence.
1 1 1 1 1 1 1 1 1 1 1 1 1 1

In summary, the Law Commission of India has now undertaken a comprehensive job to
1 1 1 1 1 1 1 1 1 1 1 1 1 1

remove lacunae in the 136 years old Indian Penal Code & update the law to meet the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

119 | P a g e 1 1
current needs of the society. The Law Commission intends to make sentences more
1 1 1 1 1 1 1 1 1 1 1 1 1

purposeful, uniform, lenient & rational. It is, however, extremely important to realize
1 1 1 1 1 1 1 1 1 1 1 1

that some degree of disparity exists if there is to be a system of individualized treatment

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

of offenders. But clearly that disparity should not be based on class, background or
1 1 1 1 1 1 1 1 1 1 1 1 1 1

poverty. Although complete uniformity cannot be achieved, attempt should always be

1 1 1 1 1 1 1 1 1 1 1

made towards relatively equal justice. Today the big need is to evolve new guidelines for
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

judges in determining sentences in keeping with the highest norms of justice & fairness.
1 1 1 1 1 1 1 1 1 1 1 1 1

4. Expeditious Trials
1 1

Nothing can be more galling for an accused than the prospect of a long drawn out jail
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

term even before he is pronounced guilty. It prompts him to “arrange” for bail anyhow &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

secure his freedom. 1 1 1

(1) After the completion of investigation, the trial of an under trial prisoner should be
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

held speedily by arranging day to day proceedings without any interruption. The trial
1 1 1 1 1 1 1 1 1 1 1 1 1

courts should furnish periodical statements of cases in which the under trials are in
1 1 1 1 1 1 1 1 1 1 1 1 1 1

custody & which are not concluded within the proposed time-limits.
1 1 1 1 1 1 1 1 1 1

(2) Although the law provides for expeditious proceedings & permits reasonable
1 1 1 1 1 1 1 1 1 1 1

adjournments in exceptional circumstances, but in practice, the frequency of 1 1 1 1 1 1 1 1 1 1

adjournments or postponements has increased very much. Non-appearance of accused, 1 1 1 1 1 1 1 1 1 1

non-production of under trials, non-appearance of witnesses, non-availability or 1 1 1 1 1 1 1 1 1

unpreparedness of defense counsel or prosecutor, non-availability of time with the court 1 1 1 1 1 1 1 1 1 1 1 1

due to large number of cases fixed on a day & long cross-examinations, presiding officer
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

being on leave, unscheduled holidays, non-availability of lower court records or copies

1 1 1 1 1 1 1 1 1 1 1 1

of documents & the like are the common grounds on which adjournments are often
1 1 1 1 1 1 1 1 1 1 1 1 1 1

sought & granted. These factors unhesitatingly prolong incarceration for the under trial.
1 1 1 1 1 1 1 1 1 1 1 1

Where the under trial prisoners are in jail, frequent adjournments of their cases should
1 1 1 1 1 1 1 1 1 1 1 1 1 1

not be granted unless absolutely necessary. Further, all under trials should be physically
1 1 1 1 1 1 1 1 1 1 1 1 1

produced before the presiding officers of the court on their dates of hearing. Before
1 1 1 1 1 1 1 1 1 1 1 1 1 1

granting further remand, they should see its necessity & provide him with information of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

his right to bail & legal aid to the under trials.

1 1 1 1 1 1 1 1 1 1 1

(3) Many persons are detained in jail with under trial prisoners under preventive
1 1 1 1 1 1 1 1 1 1 1 1 1

provisions of the Code of Criminal Procedure because of their inability to furnish the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

120 | P a g e 1 1
requisite bond. These provisions should be amended suitably to restrict their use only in
1 1 1 1 1 1 1 1 1 1 1 1 1 1

very genuine cases, which should be heard with due promptness. Efforts should be made
1 1 1 1 1 1 1 1 1 1 1 1 1 1

to conclude these proceedings within three months.

1 1 1 1 1 1 1

(4) Persons detained under executive orders, such as, agitators defying law during
1 1 1 1 1 1 1 1 1 1 1 1

agitations, cause a sudden increase in the number of under trial prisoners. Most of them
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

do not offer bail. Such persons should be put up for trial soon after their arrest in order to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

avoid congestion in jails. Another suggestion is to keep them away from the convicts
1 1 1 1 1 1 1 1 1 1 1 1 1 1

&under trials. 1 1

(5) Chapter XXI of the Criminal Procedure Code provides for summary trial of certain
1 1 1 1 1 1 1 1 1 1 1 1 1 1

offences, which are very rarely tried summarily. It would make for much a quicker
1 1 1 1 1 1 1 1 1 1 1 1 1 1

disposal of several cases if the summary trial procedure is made mandatory for the
1 1 1 1 1 1 1 1 1 1 1 1 1 1

offences specified in Section 260 of the Criminal Procedure Code by substituting the
1 1 1 1 1 1 1 1 1 1 1 1 1

words ‘may, if he thinks fit’ appearing in it with the word ‘shall’. All first class
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Magistrates, Special Judicial Magistrates & Special Metropolitan Magistrates be 1 1 1 1 1 1 1 1 1

empowered to act under this provision without being specially empowered by the High 1 1 1 1 1 1 1 1 1 1 1 1 1

Court to act under this provision & their disposal through summary trials must be
1 1 1 1 1 1 1 1 1 1 1 1 1 1

properly accounted for, while assessing their performance.1 1 1 1 1 1 1

(6) There should be a periodic review of the cases of under trial prisoners pending in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Courts at district level & State level. The officers of the rank of Sessions Judge &
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Additional Sessions Judge must be entrusted this task of reviewing the above cases up to
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

the Sessions Court level.

1 1 1

5. Police Working
1 1 1

(1) Investigation of undertrial prisoners should be completed with a period of 90 days in

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

grave cases or 60 days in lesser cases, which should include the filing of the charge-
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

sheet, the taking of cognizance & also committal proceedings, if any Section 167(2) of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

the Criminal Procedure Code should be strictly followed & in case of non-completion of
1 1 1 1 1 1 1 1 1 1 1 1 1 1

investigation in the above period, the under trial should be released on personal bond. 1 1 1 1 1 1 1 1 1 1 1 1 1 1

(2) Those officials of the police who are concerned with the investigation of cases should
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 as far as possible, concentrate upon investigation & looking after the progress of the case
1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 after they are filed in the court. They should not be, as far as possible, deputed for other
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

121 | P a g e 1 1
purposes. This would not only ensure prompt & effective investigation of crime, but also
1 1 1 1 1 1 1 1 1 1 1 1 1 1

help in quick disposal of court cases & prevent miscarriage of justice.

1 1 1 1 1 1 1 1 1 1 1 1

The police with their pre-occupation with order & maintenance duties have neglected
1 1 1 1 1 1 1 1 1 1 1 1

crime prevention & crime control functions. Effective investigation in an offence

1 1 1 1 1 1 1 1 1 1 1

requires a minimum number of steps beginning with spot inspection to preparation of

1 1 1 1 1 1 1 1 1 1 1 1 1

charge sheet. It is well known that a policeman is preoccupied with a number of other
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

duties as well. A study made of eight police stations in Delhi revealed that the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

constabulary performs twenty three different duties. 1 1 1 1 1 1

(3) Strict compliance with conditions after arrest as laid down by the Supreme Court in
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

D.K. Basu v. State of West Bengal will go a long way towards creating awareness in the
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

general public of rights of an arrestee.

1 1 1 1 1 1 1

6. Legal Aid & Services

1 1 1 1

State Government is under Constitutional responsibility to provide free legal services

to the indigent accused. The Supreme Court has time & again laid down compulsory
legal aid from the time an accused is produced before the magistrate as also when he
is remanded from time to time. Studies on bail have revealed the remarkable
difference in bail/custody decisions with regards to represented & unrepresented
defendants. Looking at the reality of State Legal Aid services, the onus of giving just
treatment to an unrepresented accused shifts largely upon our courts.

Epilogue:-
A democracy, all the stakeholders need to be fair & transparent. An impressive statue
may not be worthy of appreciation in actual practice unless the men & women who
run the system have a more human attitude. Literarily, they need to be sensitized to
make aware more as to how such changes in the statues are coming up & its
importance in the social context.

The criminal justice system cannot be static because of the changes in the society .Its
reforms shall be a continuous process, keeping pace with the gradual changes in the
social system. Hence, the process is without finality. The nation will need various
reforms of such system in future. This is an unending process.

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123 | P a g e
1 1
BIBLIOGRAPHY

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1 1
 BIBLIOGRAPHY

Primary Sources 1

Statutes

 Constitution of India. 1 1

 Indian Penal Code. 1 1

 Indian Evidence Act. 1 1

 Criminal Procedure Code. 1 1

 National Criminal Justice Commission act of , 2011.

1 1 1 1 1 1 1

SECONDARY SOURCES 1

Books

 Mahesh Chandra, Socio-Economic Crimes, (Bombay: N.M. Tripathi Pvt. Ltd., 1979),
1 1 1 1 1 1 1 1 1 1

p.110

 S. Venugopal Rao, Perplexities in Criminal Justice, 27 J.I.L.I. (1985). P.459.

1 1 1 1 1 1 1 1 1 1

 Dr. G. Kameswari, Imprisonment Is it For Punishment or as punishment 2001 Cri. L.J.

1 1 1 1 1 1 1 1 1 1 1 1 1 1

240 (Orissa). p. 132.

1 1 1

 Smith and Hogan, Criminal Law Cases and materials, (London: Butterworths, 1975),
1 1 1 1 1 1 1 1 1 1 1

p. 92 1

 P.S. Atchuthen Pillai, Criminal Law, 4th edition, (Trivandrum: Rajan Brothers 1977),
1 1 1 1 1 1 1 1 1 1 1

p. 77. 1

 Granville Williams, The proof of Guilt, 2nd edition., (London: Stevens & Sons Ltd.,
1 1 1 1 1 1 1 1 1 1 1 1 1

1958), p.151. 1

 Glanville Williams, Text book of Criminal Law, (London: Stevens and Sons 1978), p.
1 1 1 1 1 1 1 1 1 1 1 1 1

17

 J W Celcil Turner, Kenny’s Outlines of Criminal Law, ninteenth edition., (Cambridge

1 1 1 1 1 1 1 1 1 1 1 1

University Press, 1962) p.14. 1 1 1

 Prof. M.P. Jain, Indian Constitutional Law, fifth edition., (Nagpur: Wadhwa &
1 1 1 1 1 1 1 1 1 1 1

Company, 2005), p.1055. 1 1

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  Jerome Hall, General Principles of Criminal Law, 2nd edition., (New York: The
1 1 1 1 1 1 1 1 1 1 1 1

Bobbs-Merrill Co.Inc., 1945), p. 37. 1 1 1 1

 Hazel B. Kerper. Criminal Justice System, 2nd Edition., (USA: West Publishing Co.,
1 1 1 1 1 1 1 1 1 1 1 1

1979) p.83. 1

Law Journal and Editorials

1 1 1

 Editorials published in newspapers stressing upon the delay in justice system and need
1 1 1 1 1 1 1 1 1 1 1 1 1

for reforms.(Indian Express, Hindustan Times, Times of India )

1 1 1 1 1 1 1 1

 Case studies available on the delay in justice.

1 1 1 1 1 1 1

 Legal era. 1

 Crime magazine. 1

 International crimes news. 1 1

 ABA journal. 1

 Indian journal of public administration.

1 1 1 1

 Journal of Indian law institute. 1 1 1 1

Reports to be Referred
1 1 1

 Report of Malimath Committee on reforms of Criminal justice system.

1 1 1 1 1 1 1 1 1

 Roundtable meeting report Criminal justice system. 1 1 1 1 1

 Reports of reform Committee on reform of Criminal justice system ( Government of

1 1 1 1 1 1 1 1 1 1 1 1 1

 India, Ministry of Home affairs )

1 1 1 1 1

Websites

 www.legalindia.in

 http://www.indianlawcds.com/criminalbareacts/IPC.htm

 http://www.vakilno1.com/bareacts/IndianPenalCode/indianpenalcode.htm.

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