Criminal Courts

TABLE OF CONTENTS THE PIVOTAL ROLE OF COURTS IN CRIMINAL JUSTICE ADMINISTRATION................2 THE CRIMINAL PROCESS-INVESTIGATION AND PROSECUTION........................................8 HIERARCHY OF CRIMINAL COURTS IN INDIA.................................................................10 The Supreme Court of India:....................................................................................10 The High Courts:.......................................................................................................11 Courts of Session:......................................................................................................11 Courts of Judicial Magistrates:................................................................................11 Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.:...........12 Metropolitan Magistrates:........................................................................................13 Executive Magistrates:..............................................................................................14 Special Executive Magistrates:.................................................................................14 MAGISTRATE: THE KINGPIN IN CRIMINAL JUSTICE ADMINISTRATION.........................15 FAIR TRIAL TO ACCUSED: CO-RELATIVE DUTIES OF MAGISTRATE..................................17 RECORDING CONFESSIONS & DYING DECLARATION.....................................................19 SUMMARY TRIALS: ROLE OF MAGISTRATES IN DELIVERING SWIFT JUSTICE...............21

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THE PIVOTAL ROLE OF COURTS IN CRIMINAL JUSTICE ADMINISTRATION The preamble of the Indian Constitution signifies that the framers of our constitution were influenced by the French, American and Russian revolutions. Its contents in Part-III and Part-IV reflect the values declared in the Universal Declaration of Human Rights and the UN charter. It is relevant to note that it was in the critical forties that these documents were created. Our founding fathers were aware of the inherent tension between Part-III and Part-IV, the FRs and the DPS policies respectively. Both were to have equal importance and it was a question of time for them to have been treated with equal importance. Initially as was expected, fundamental rights – individual rights were given precedence and there arose the conflict which came to be adverted to by none other than the first prime minister who in the course of debate in connection with the fourth amendment to the constitution commented thus: “I would like to draw the attention of the house to something that is not adequately stressed either in Parliament or in the country. We stress greatly and argue in courts of law about the Fundamental Rights. Rightly so, but there is such a thing also as the Directive Principles of Constitution. Those are, as the constitution says, the fundamental in the governance of the country. If there is an inherent contradiction in the constitution between the F.R. and Directive Principles of State Policy, it is upto this parliament to remove the contradiction and make the F. Rights subsume the Directive Principles”.1 The role of the judiciary in resolving the contradiction was reflected in the statement of the then CJI who at the time of the inauguration of the Supreme Court said thus: “On the court will fall the delicate and difficult task of ensuring to the citizen the enjoyment of his guaranteed rights consistently with the right of society and the state”.2 Thus the Chief Justice was emphasizing the balancing function of the judiciary while the 1 CHINNAPPA REDDY, ’The Court And The Constitution”, (2008), at 18-19. 2 CHINNAPPA REDDY, ’The Court And The Constitution”, (2008), at 21. Page | 2

constitution envisaged the judiciary to be proactive in achieving justice social, economic and political (Preamble and Art. 38). After independence it was expected that our District Judiciary would rise to be expectations reflected in the constitution. But the British Indian mould of our judiciary well versed in the implementation of preconstitutional laws like the IPC, Cr.PC, CPC, Evidence Act etc. and cast in the form of a law and order machinery as the bastion of the strong administration was reticent in getting into the role of a proactive agent of social change. This reticence still persists despite the frequent exhortations by the apex court and others. Old habits die hard. But we have to activate ourselves if we are to achieve the aims set by our founding fathers. In fact the preconstitutional laws like IPC, Cr.PC, Evidence Act, CPC etc. despite their being preconstitutional enable the courts to be proactive and to achieve the new role assigned to them by the constitution. Interestingly if willing, the courts could also give the impression of resorting to balancing of the private and public interests while deciding cases under these statutes. This is because of the primordial role assigned to them by the statutes. This situation helps the courts with imagination to interpret the statute law in accordance with the constitutional vision. An examination of these statutes indicate that they are court centric enabling them to play the lead role. This becomes clear if one examines the application of provisions of IPC, Evidence Act or Cr.PC. Let us examine, by way of example, the application of IPC provisions in certain fact situations. In the case of application of mistake of fact as a defence, the concept of reasonable man comes quite often tainted by the segment of society the judge belongs. This is so when one applies sudden and grave provocation, insanity defence, right of private defence etc. etc. This can be brought home by way of an analysis of the decision in Ram Bahadur Thapa v. State of Orissa3, wherein a Gurkha happened to kill and injure several persons by way of his knife mistaking them to be evil spirits during night. The Orissa High Court granted him the defence of mistake of fact saying that he actually by mistake thought his victims to be evil spirits. Still, the question whether the man exercised ordinary prudence of a reasonable man’ could be raised against this decision. Similarly, an analysis of Madhavan v. State of Kerala4 also indicates that the ‘reasonable man’ who is suddenly provoked could be different depending upon the segments 3 AIR 1960 Ori 161 Page | 3

of society to which the judge belongs. The decisions in Cherubin Gregory v. State of Bihar5 and Ashraf v. State of Kerala6 could be analyzed to show how the court could respond differently in appreciating the similar fact-situations viz-a-viz the same statutory provision in the IPC. It is fruitful to examine the various provisions in the Indian Evidence Act to show that the Indian System empowers the judge to do justice in criminal cases. Leaving apart the malleability or manoevrability of provisions like S-8, 9 etc, the provision in S-165 declares in unequivocal terms the supremacy of the Indian trial judge in conducting the trials. It enacts: The judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the court, to cross examine any witness upon any answer given in reply to any such question.7 Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor should the judge ask any question which it would be improper for any other person to ask under section 148 or 149 nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted. 4 AIR 1966 Ker 258. It was a case where the husband was found to have been suddenly provoked by the throw of the mangal sutra at him by his wife. There could be difference of opinion as to ‘prudent man’ in the same circumstances if the judge is of a different hue and holds different view 5 (1964) 1 Cri. L.J. 138 6 1993 1 KLT 501 7 Ram Chander v. State of Haryana, 1981 SCC (Cri.) 683, Vincent v. State of Kerala. Page | 4

Apart from other relevant provisions, section 310 Cr.PC becomes quite relevant while considering the position of the trial judge in dealing with evidence. Section 310 Cr.PC enacts: “310. Local Inspection – (1) Any judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after new notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection. (2) Such memorandum shall form part of the record of the case and if the prosecutor, complainant or accused or any other party to the cases, so desires, a copy of the memorandum shall be furnished to him free of cost.” 8 How enabling it is to deliver justice in a case becomes evident if one ventures to exercise this power. Criminal Procedure Code, right from arrest of the accused till the finalization of the case seems to repose maximum faith on the judicial officer. Theoretically speaking, a person is restrained from movement by way of arrest when he is accused of a cognizable case by the police the representative of the society. The accusation is brought before the magistrate the independent and impartial authority interposed between the individual and the society. It is therefore the magistrate to resolve the conflict. The magistrate is also authorized to peruse the records of his arrest, deal with the request for remand, bail etc. S44 authorizes the magistrate to effect arrest. It declares thus: “44. Arrest by magistrate: When any offence is committed in the presence of a magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.”9

8 State of Himachal Pradesh v. Mast Ram [2004] 8 SCC 660. 9 D.K. Basu v. State of W.B. (1997) 1 SCC 416 Page | 5

Sec.5710 makes it obligatory for the arrested person to be brought before the magistrate within 24 hours of the arrest. In fact this provision reflects Art. 22 of the constitution which in material part lays down thus: “Art. 22. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate, within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.” Examination of various provisions dealing with initiation of investigation and trial, at every stage shows the tremendous faith the system reposes on our judiciary. While S-157 requires a copy of the FIR to be forwarded to the magistrate S-156 (3) empowers the magistrate to order investigation independently of police. S-159 authorizes the magistrate to hold investigation or preliminary inquiry. The power for remand and granting of default bail rests again with the magistrate. While the policy of the code seems to keep the investigation close to the chest of the police, S-172 shows its faith in the impartiality of the judge. For S-172 (2) enacts thus: “(2) Any criminal court may send for the police diaries of a case under inquiry or trial in such court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial” The report of the investigation is also to be submitted to the court under S-173. 11 The provisions enabling the court to inquire into the cause of death (S-174) avoiding presence of the 10 Khatri (II) v. State of Bihar (1981) SCC (Cri.) 228 11 The accused has a right to fair investigation; Manu Sharma’s decision, (2010) 6 SCC 1; See also observations in Zakira Sheikh (2004) 4 SCC 158 with regard to the duties of the court.

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accused from appearing before the court (S-205) supply of copies of documents to the parties (S-207) framing of the charges etc. are to be attended by the court. If there is no case found against a person it is for the magistrate to record it and discharge him. Similarly, on charges being found not sustainable it is for the court to record acquittal. In the case of trial before a court of sessions also the position of the judge is above all. It is for him to consider discharge (S-227), framing of charge (S-228) or conviction on plea (S229). In chapter XIX on trial of warrant cases by magistrates it is again the court which plays the active role. It is for it to see whether supply of copies of documents has been complied with and to discharge the person if no prima facie case is found (S-239). If not discharged, again it is the court which frames the charge (S-240) and proceeds further. The new chapter XXI-A on plea bargaining also emphasizes the role of the court in the working of the scheme (S-265 A–265 H). The court is empowered to summon new witness (S-311), get the signature or handwriting samples (S-311 A), obtain a statement of the accused direct from him (S-313) and to examine the accused as a witness if he so desires (S-315). The court can also dispense with the presence of accused in certain cases (S-317). One of the important provisions in chapter XXIV is S-319 enabling the court to proceed against other persons appearing to be guilty of offence. Though its dimensions are yet to be explored it may be stated that this is a very strong provision empowering the court to initiate criminal proceedings against a person if the court is satisfied about such a step having regard to the evidence in the case. In effecting compounding of offences (S-320) and withdrawal of case also the court’s role is pivotal. The Cr.PC makes provisions enabling the magistrate not to commit any mistake as to his jurisdiction for trial or punishment of an offence (See S-323, 324, 326 etc.). The code also provides for the trial and punishment of offense affecting administration of justice. Under this chapter XXVI also it is the court which has the power to deal with these offences. Section 344 provides for a summary procedure for trial for giving false evidence. Page | 7

Section 348 empowers the court to discharge the offender on tendering of apology whereas S349 enables the court to impose punishment for refusing to answer court’s questions. Some of the important provisions the court should focus are the sections, dealing with payment of compensation (S-357) victim compensation12 (S-357-A), payment of compensation for groundless arrest13 (S-358) and the statutory obligation to consider release of persons on probation (S-360 and 361). In short, the District Judiciary has ample powers in all the matters connected with criminal justice administration14. Some of the powers given to the court go to the extent of reposing much faith on the courts for the protection of the accused. Simultaneously, it is believed that the court will also look into the interests of the society though the police and public prosecutors would be primarily taking care of the societal interests. The provisions in the Cr.PC and Evidence Act are indeed judge centric and therefore the, judge’s role as protector of the individuals interests and society’s interests assumes importance and deserves emphasis.

THE CRIMINAL PROCESS-INVESTIGATION AND PROSECUTION Criminal prosecution has generally two streams in India. The first relates to criminal cases which are initiated on the basis of police report or FIRs lodged with the police, whereas the second stream relates to cases that are initiated on the basis of private complaints. In respect of the first stream, prosecution is conducted by the Director of Public Prosecution through public prosecutors. Specifically Section 225 of the CrPC provides that every trial before a Sessions Court shall be conducted by a public prosecutor.15 In addition to this private parties can also 12 Palaniappa Gounder v. State of T.N. (1977) 2 SCC 634. 13 Mallappa v. Veerabasappa, 1977 Cri. L.J. 1856 14 The High Court has also ample powers and duties to see that Criminal Justice Admn. is done properly. It has powers to control advocates’ appearance in courts - See R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106. 15 Badri Narain v. Laxmi Gehlot, 2002 CriLJ 1976, 472. Page | 8

conduct the cases through their own lawyers in respect of private complaints. Private complaint under Section 138 of the Negotiable Instruments Act, 1881 is one such example. The CrPC elaborates the procedure to be followed in every investigation, inquiry and trial, for every offence under the Indian Penal Code or under any other law. It divides the procedure to be followed for administration of criminal justice into three stages: namely investigation, inquiry and trial. In brief, the objective of investigation is to collect evidence for the purpose of any inquiry or trial.16 Investigation is a preliminary stage enquiry conducted by the Police and usually starts after the recording of a First Information Report (FIR) in the Police Station (Section 154-155 of the Code). If the officer-in-charge of a police station suspects the commission of an offence from statement of FIR or when the magistrate directs or otherwise, the officer or any subordinate officer is duty-bound to proceed to the spot to investigate the facts and circumstances of the case and if necessary, take measures for the discovery and arrest of the offender. Investigation primarily consists of ascertaining facts and circumstances of the case. It includes: i) The collection of evidence; ii) Inspection of the place of occurrence of the commission of the crime; iii) Ascertainment of facts and circumstances; iv) Discovery of any article or object used for the commission of the crime; v) Arrest of the suspected offender; vi) Interrogation and examination of various persons including the accused and taking of their statements in writing;. vii) Search of places or seizure of things considered necessary for the investigation and considered to be material at the time of the trial, etc.

16 Zahira Habibulla H Sheikh & Anr v. State Of Gujarat & Ors, (2004) 4 SCC 158. Page | 9

Investigation ends in a police report to the Magistrate. Once the investigation is completed, the matter will be brought before the Magistrate or the concerned court. Inquiry is the second stage of the process wherein a Magistrate seeks to find out whether the accused should be committed to the Sessions or discharged. According to Section 2 (g) of the CrPC, "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. In other words, inquiry refers to proceedings before a Magistrate prior to the framing of the charge which does not result in conviction of the accused. Trial is judicial determination of a person's guilt or innocence. Trial is a proceeding which involves examination and determination of the cause by a judicial tribunal, and which ends in conviction or acquittal of the accused. In India, the system of criminal trial envisaged by the CrPC is the adversary system based on the accusatorial method. In this system the prosecutor representing the State (or the peoples) accuses the defendant (the accused person) of the commission of some crime; the law requires him to prove his case beyond reasonable doubt. The accused person is presumed to be innocent unless his guilt is proved beyond reasonable doubt (presumption of innocence). Presumption of innocence is one of the cardinal principles of the Indian criminal justice system.

HIERARCHY INDIA

OF

CRIMINAL COURTS

IN

The Supreme Court of India: It is the highest court in the country’s judicial system. So far criminal cases are concerned, the Supreme Court has only appellate powers that too in rare cases. It may, however, be stated that there is a move to enlarge the appellate jurisdiction of the Supreme Court in criminal cases. There is also a demand that the Supreme Court of India should exercise appellate jurisdiction over the cases where the accused has been sentenced to a term of imprisonment for ten years or more. The Supreme Court also has writ jurisdiction for the enforcement of fundamental rights. The new trend is that the Supreme Court has started awarding monetary compensation to the victims of abuse of criminal law process, particularly in cases of custodial torture or illegal detention or abuse of power by the criminal law administrators violating the provisions of Page | 10

Article 21 of the Constitution relating to right to life and liberty of the victims. This is indeed a welcome step in the area of criminal justice system. Yet another significant development in the functioning of the Supreme Court in dispensation of criminal case is its activism in warning the erring governments against abuse of power and authority. Highlighting the activist role of the Supreme Court, Justice Ganguly of the Court, who was probing into the 2-G spectrum scam case, observed, “Courts are now widening their jurisdiction and becoming the institutions of governance and are not merely as arbitrators of disputes.”

The High Courts: The High Court has the power to issue certain writs to any person, authority or even the Government within its territorial jurisdiction for the enforcement of any of the rights conferred by Part in of the Constitution of India. The Court also has the power of superintendence over all subordinate courts and Tribunals situated within its territorial jurisdiction.

Courts of Session: As per Section 9 of CrPC, the court is established by the State Government for every sessions division. The court is presided over by a Judge, appointed by the High Court of that particular state. The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges in this court. It has the power to impose any sentence including capital punishment. In certain cases, Assistant Sessions Judges are also appointed to work in the Sessions Court. The Sessions Judge or the Additional Sessions Judge is empowered to pass any sentence authorised by law but any sentence of death awarded by him must be confirmed by the High Court to which he is subordinate. The Assistant Sessions Judges, however, are not competent to award a sentence of death, imprisonment for life or imprisonment for a term exceeding ten years. The Sessions Court exercises both original and appellate jurisdiction. The appointments of the Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges are made by the High Court of the concerning State with a view to maintaining the independence of the judiciary.

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Courts of Judicial Magistrates: Section 11 of CrPC states that in every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class and at such places, as the State Government may after consultation with the High Court, by notification specify. Courts of Judicial Magistrate of First Class are at the second lowest level of the Criminal Court structure in India. According to Section 15 of the CrPC, a Judicial Magistrate is under the general control of the Sessions Judge and is subordinate to the Chief Judicial Magistrate. In terms of Section 29 of the CrPC, a Judicial Magistrate of First Class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees or of both.

Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.: In every district (not being a metropolitan area), the High Court shall appoint a Judicial Magistrate of the First Class to be the Chief Judicial Magistrate. A Chief Judicial Magistrate may impose a sentence except (a) sentence of death, (b) imprisonment of life, or (c) imprisonment for a term exceeding seven years. A Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate. In each District not being a Metropolitan area, the High Court shall appoint a Judicial Magistrate of the first class to be the Chief Judicial Magistrate. The High Court may also appoint any Judicial Magistrate of the first class as an Additional Chief Judicial Magistrate in a District. The High Court may designate any Judicial Magistrate of the first class in any sub-division as the Sub-Divisional Judicial Magistrate. There are a number of Judicial Magistrates of the

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second class as Special Judicial Magistrates functioning under the Chief Judicial Magistrate for the administration of criminal justice in the Division. Besides the criminal courts mentioned above, the President of India and the Governors of the State have also been conferred certain judicial powers of sentencing the convicted persons. They have power to grant pardon, reprieve, respite or remission of punishment or to suspend, remit or commute the sentence in certain cases. In addition to the Judicial Magistrates, Executive Magistrates are also appointed by the State Government in each district. One of the Executive Magistrates is appointed as the District Magistrate and all the Executive Magistrates except Additional District Magistrate are subordinate to him. These Magistrates belong to the executive branch of the Government and therefore, their appointment is not controlled by the High Court. The functions assigned to executive Magistrates include trial of offences involving preventive action, disputes concerning immovable property and offences relating to public nuisance and breach of peace.

Metropolitan Magistrates: The Courts of Metropolitan Magistrates were created by Section 16 of the Criminal Procedure Code. The Court of Chief Metropolitan Magistrate and those of The Additional Chief Metropolitan Magistrates were created by Section 17 of the Code. Section 18 of the Code also provided for Special Metropolitan Magistrates. The towns having population exceeding one million could be declared as Metropolitan Areas. A Metropolitan magistrate is under the general control of the Sessions Judge and is subordinate to the Chief Metropolitan Magistrate. It must be stated that in the Code of Criminal Procedure, 1973, the provisions of the old Code relating to the Presidency Magistrates in the Presidency Towns of Bombay, Calcutta and Madras have been retained but in a different form. The Code provides for the establishment of Courts of Metropolitan Magistrates in Metropolitan areas instead of Presidency Magistrates. Metropolitan Area, for the purpose of the Code of Criminal Procedure means any area in the State comprising a city or town whose population exceeds one million and is so declared by notification of the State Government, It therefore, follows that a city or town having its Page | 13

population over one million does not automatically become a ‘Metropolitan Area’ unless it is so declared and notified by the State Government. The High Court shall appoint a Chief Metropolitan Magistrate in each Metropolitan area. It may also appoint an Additional Chief Metropolitan Magistrate. The powers and functions of the Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate are analogous to those of Chief Judicial Magistrate and Additional Chief Judicial Magistrates of the Districts. Similarly, one or more Special Metropolitan Magistrate may be appointed in the Metropolitan area who have the same powers as Special Judicial Magistrates of the second class in the district.

Executive Magistrates: In every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate. The State Government may appoint any Executive Magistrate to be an Additional District Magistrate and such Magistrate shall have such of the powers of a District Magistrate under this Code or under any other law for the time being in force as may be directed by the State Government.

Special Executive Magistrates: Under Section 21 of the CrPC, the State Government may appoint, Executive Magistrates, to be known as Special Executive Magistrates, for particular areas or for the performance of particular functions and confer on such Special Executive Magistrates such of the powers as are conferrable under this Code on Executive Magistrates, as it may deem fit. Section 7(1) of Criminal Procedure Code, 1973 states that “The State Government shall establish a Court of Session for every session’s division”. The judge of the Sessions court is appointed by the High Court. In the hierarchy Sessions court is followed by Judicial magistrate Class I and then judicial magistrate of Class II. In metropolitan areas it is followed by Chief Metropolitan Magistrate and metropolitan magistrate. Executive magistrate is one of the classes

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of courts only while performing judicial functions.17 The Court at the lowest level is called Judicial Magistrate of the Second Class. This Court is competent to try the case if the offence is punishable with imprisonment for a term not exceeding one year, or with fine not exceeding five thousand rupees, or with both. The First Class Magistrate is competent to try offences punishable with imprisonment for a term not exceeding three years or with fine up to ten thousand rupees. 18 In States such as Kerala, the Second and the First Class Magistrate Courts have been unified. The Chief Judicial Magistrate can impose any fine and impose punishment up to seven years of imprisonment. The Assistant Sessions Judge is competent to impose punishments up to ten years imprisonment and impose any fine. The Sessions Judge can impose any punishment authorized by law, but the sentence of death passed by him should be subject to the confirmation by the High Court. (See for details Sections 28 and 29 of CrPC).

MAGISTRATE: THE KINGPIN IN CRIMINAL JUSTICE ADMINISTRATION Criminal Justice reflects the responses of the society to crimes and criminals. The key components engaged in this role are the courts, police, prosecution, and defence. Administering criminal justice satisfactorily in a democratic society governed by rule of law and guaranteed fundamental rights is a challenging task. It is in this context that the subordinate judiciary assumes great importance. The role of magistrate is effectively summed up in the words of Former Chief Justice Ranganath Mishra in a writ petition relating to conditions of subordinate judiciary in the case of All India Judges’ Association v. Union of India19, where he observes: “The Trial judge is the kingpin in the hierarchical system of administration of justice. He directly comes in contact with the litigant during the proceedings in court. On him lies the responsibility of building up of the case appropriately and on his understanding 17 Mammoo v. State of Kerala, 1980 Cri LJ (NOC) 75 (Ker). 18 In Re: Government Of Assam & Ors. v. Unknown, 2007 (4) GLT 1. 19 (1992) 1 SCC 119. Page | 15

of the matter the cause of justice is first answered. The personalities, knowledge, judicial restraint, capacity to maintain dignity are the additional aspects which go into making the Court’s functioning successful”. Mentioning the high expectations of society from the judges, he further advices: “A judge ought to be wise enough to know that he is fallible and therefore, ever ready to learn and be courageous enough to acknowledge his errors”. Right to speedy trial is implicit in the right to life and liberty guaranteed by Article 21.20 However, there is a huge pendency of criminal cases and inordinate delay in the disposal of the same on the one hand and very low rate of conviction in cases involving serious crime. As per the latest amendment, Section 309 of the Cr.PC has been inserted with an explanation to its sub-clause. With an aim to speed-up trials, the amendment states that no adjournment should be granted at the party’s request, nor can the party’s lawyer being engaged in another court be ground for adjournment. Section 309 contains a mandatory provision that in every inquiry or trial the proceedings shall be held as expeditiously as possible and in particular when the examination of witnesses has once begun the same shall be continued from day to day until all witnesses in attendance have been examined unless the court finds the adjournment of the case beyond the following day to be necessary for reasons to be recorded. When the enquiry or trial relates to an offence under Section 376 to 376D IPC, the same shall be completed within a period of two months from the date of commencement of the examination of witnesses. The introduction of Plea Bargaining included under sections 265A to 265L of the Code of Criminal Procedure has also been noticed very effectively. Judicial Officers must be aware of “offences affecting the socio-economic condition of the country” for the purpose of Section 265A. A judge should be well versed with the latest amendments and further developments which take place in law and put them into practice to give effect to the intent of the legislature which is to speed up the process of delivering justice. Section 165 of the Indian Evidence Act grants sweeping powers to the Judge to put questions. The rationale for giving such sweeping powers is to discover the truth and indicative 20 The Constitution of India, 1950. Page | 16

evidence. Counsel seeks only client’s success; but the Judge must watch justice triumphs. If criminal court is to be an effective instrument in dispensing justice, Presiding Officer must cease to be a spectator and mere a recording machine. He must become an active participant in the trial evincing intelligence and active interest by putting questions to witness in order to ascertain the truth. The Code of Criminal Procedure delineates the powers and functions of judicial magistrates at every stage both pre-trial, during trial and post-trial. I am confident that you are aware of these provisions and the same require no repetition. However, I wish to remind you that these powers and functions bestowed upon you are to be exercised as public trust in full compliance with the Constitutional mandates of fair and speedy trial for both the accused and the complainant. Criminal system to be truly just must be free of bias. There should be judicial fairness otherwise the public faith in rule of law would be broken. One of the cardinal principles of criminal law is that everyone is presumed to be innocent unless his guilt is proved beyond reasonable doubt in a trial before an impartial and competent court. Justice requires that no one be punished without a fair trial and judicial officers play their part in ensuring the same.

FAIR

TRIAL TO ACCUSED: CO-RELATIVE

DUTIES OF MAGISTRATE It is well settled today that the accused has fundamental right to know the grounds of his arrest, right to legal aid in case he is indigent, right to consult his lawyer and such other rights guaranteed by Constitution and equivalent safeguards incorporated in CrPC. Let’s pause here and dwell more on the corresponding duties of a magistrate in ensuring fair trial to the accused. Article 22(2) provides that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest and no one shall be detained in custody beyond the said period without the authority of a magistrate. The magistrate can pass order of remand to authorise the detention of the accused in such custody as such magistrate thinks fit, for a term not exceeding 15 days in the whole. Justice Bhagwati Page | 17

summed up the purpose of these safeguards in Khatri II v. State of Bihar21, “This healthy provision enables the magistrates to keep check over the police investigation and it is necessary that the magistrates should try enforcing this requirement and where it is found disobeyed, come down heavily upon the police... There is however, no obligation on the part of the magistrate to grant remand as a matter of course. The police have to make out a case for that. It can’t be a mechanical order”. The accused has a right to be medically examined and if such a request is made, the Magistrate shall direct examination of the body unless he considers it is made for purpose of delay or defeating the ends of justice. In Sheela Barse v. State of Maharashtra22, it was held by the Hon’ble Supreme Court that the arrested accused person must be informed by the magistrate about his right to be medically examined in terms of Section 54. In this case, the Hon’ble High court directed magistrates to ask the arrested person as to whether he has any complaint of torture or maltreatment in police custody. The state under constitutional mandate is required to provide free legal aid to an indigent accused person and this arises not only when the trial commences but when the accused is for the first time produced before the magistrate, as also when he is remanded from time to time. In Anil Yadav v. State of Bihar23, commonly referred to as Bhagalpur Blinding case24, the judicial magistrates failed in their duties to inform blinded prisoners of their rights. As a result, the Supreme Court had to cast a duty on all magistrates and courts to promptly and duly inform the indigent accused about his right to get free legal aid as without this the right may prove to be illusory. The right to legal aid today is enshrined in Article 39A and further institutionalised with the coming into force of the Legal Services Authorities Act, 1986. This assumes more significance as denial of the same may even vitiate the trial at later stage. 21 (1981) 1 SCC 627. 22 (1983) 2 SCC 96. 23 1982 (2) SCC 195. 24 Khatri & Ors. v. State Of Bihar & Ors, 1981 SCR (2) 408. Page | 18

Further, in Hussainara Khatoon v. Home Secretary, State of Bihar25, it was held that it is the duty of the magistrate to inform the accused that he has a right to be released on bail on expiry of statutory period of 90 or 60 days as the case may be. Suffice is to say that magistrates are the best persons to oversee that the accused is not denied his rights. We must not forget that ensuring criminal justice requires cooperation of the two arms of the state directly involved i.e. the judiciary and the police machinery. While direct interference is not desirable in investigation process, the magistrate is kept in the picture at all the stages of the police investigation. On a conjoint reading of section 57 and 167 of the Code, it is clear that the legislative intention was to ensure speedy investigation after a person has been taken in custody. It is expected that investigation is completed within 24 hours and if not possible within 15 days. The role of magistrate is to oversee the course of investigation and prevent abuse of law by investigating agency. However, you must understand that your role is complementary to that of police. In doing so, you must preside without fear or favour.

RECORDING CONFESSIONS & DYING DECLARATION Confessions and dying declarations recorded by magistrate constitute valuable evidence as they may form the basis of conviction of the accused. Although there is no hard and fast rule as to proper manner of recording the same, the Magistrate must follow certain broad guidelines to ensure that the document inspires confidence of the court assessing it. Just as the FIR recorded is of great importance because it is the earliest information given soon after the commission of a cognisable offence before there is time to forget, fabricate or embellish. Similarly the confession made to magistrate is highly valuable evidence. Section 164 empowers magistrate to record even when he has no jurisdiction in the case. Before recording any such confession, the magistrate is required to explain to the person making confession that:

25 (1980) 1 SCC 108. Page | 19

a) He is not bound to make such a confession; b) If he does so it may be used as evidence against him. These provisions must be administered in their proper spirit lest they become mere formalities. The magistrate must have reason to believe that it is being made voluntarily. You must exercise your judicial knowledge and wisdom to find out whether it is voluntary confession or not. The magistrate must see that the warning is brought home to the mind of the person making the confession. If the recording continues on another day, a fresh warning is necessary before a confession is recorded on the other day. The act of recording confession is a solemn act and in discharging such duties the magistrate must take care to see that the requirements of law are fully satisfied. The magistrate recording the confession must appreciate his function as one of a judicial officer and he must apply his judicial mind to the task of ascertaining that the statement the accused is going to make is of his own accord and not on account of any influence on him. A dying declaration is an admissible piece of evidence under section 32 of Indian Evidence Act as it is the first hand knowledge of facts of a case by the victim himself. In Surinder Kumar v. State of Haryana26, a case relating to wife burning, that if the dying declaration is true and voluntary, it can be basis of conviction without corroboration. Thus, proper recording of the dying declaration by the magistrates assumes significance. There is no exhaustive list of procedures to be followed rather depends on case to case basis. It may be recorded in the form of question and answers in the language of the deceased as far as practicable. Before proceeding to record the dying declaration, the magistrate shall satisfy himself that the declarant is in a fit condition to make a statement and if medical officer is present, a fitness certificate should be obtained. It is the duty of the magistrate to ensure the making of a free and spontaneous statement by the declarant without any prompting, suggestion or aid from any other justice. If possible, at the conclusion of recording, the declaration must be read out to the declarant and signature must be obtained symbolic of correctness of the same.

LAW

ON

ELECTRONIC EVIDENCE

26 (2011) 10 SCC 173. Page | 20

The proliferation of computers, the social influence of information technology and the ability to store information in digital form have all required Indian law to be amended to include provisions on the appreciation of digital evidence. In the year 2000 Parliament enacted the Information Technology (IT) Act 2000, which amended the existing Indian statutes to allow for the admissibility of digital evidence. The IT Act is based on the United Nations Commission on International Trade Law which adopted the Model Law on Electronic Commerce together with providing amendments to the Indian Evidence Act 1872, the Indian Penal Code 1860 and the Banker’s Book Evidence Act 1891, recognizing transactions that are carried out through electronic data interchange and other means of electronic communication. Digital knowledge has become prerequisite for effective judgeship.

SUMMARY TRIALS: ROLE OF MAGISTRATES IN DELIVERING SWIFT JUSTICE The magistrates are empowered to deal with summons cases and few specific warrant cases in a summary way with the clear intention of ensuring speedy justice. They can give an abridge version of regular trial in offences like petty thefts, house trespass, cattle trespass, insult to provoke breach of peace and other such offences punishable with imprisonment not exceeding 2 years. The inclusion of additional forms of crime, for example, section 138 cases under the Negotiable Instruments Act or section 498A cases under the Indian Penal Code have contributed a large number of cases in the criminal courts. Over 38 lakh cheque bouncing cases are pending in various courts in the country. Huge backlog of cheque bouncing or dishonoured cheque cases need to be speedily disposed, lest the litigants lose faith in the judicial system and the purpose of the Act be defeated. In this context, the Law Commission in its 213 th Report27 has recommended setting up of fast track magisterial courts to for fast disposal of cheque. The provisions of section 143, as inserted in the Act in 2002, state that offences under section 138 of the Act shall be tried in a summary manner. It empowers the Magistrate to pass a sentence of imprisonment for a term up to one year and an amount of fine exceeding five thousand rupees. It also provides that if it appears to the Magistrate that the nature of the case is 27 . Page | 21

such that a sentence of imprisonment for a term exceeding one year may have to be passed, he can do so after hearing the parties and recalling any witness who may have been examined. Under this provision, so far as practicable, the Magistrate is expected to conduct the trial on a day-to day basis until its conclusion and conclude the trial within six months from the date of filing of the complaint. Further, section 147 makes the offence punishable under section 138 of the Act compoundable i.e. it can be settled between the parties. The court can note the same and record the settlement reached. In Damodar S Prabhu v. Sayed Babalal28, the Court laid down certain broad guidelines to ensure that application for compounding is made at an early stage of trial. The guideline empowers the magistrate to: a. Give directions making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. b. If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. The court further observed that: “Complaints are being increasingly filed in multiple jurisdictions in a vexatious manner which causes tremendous harassment and prejudice to the drawers of the cheque. We direct that it should be mandatory for the complainant to disclose that no other complaint has been filed in any other court in respect of the same transaction. Such a disclosure should be made on a sworn affidavit which should accompany the complaint filed under Section 200 of the CrPC”.

28 (2010 ) 5 SCC 663. Page | 22