The Author, Astha Sharma is 2nd year, BA.LLB student of Panjab University.
Speedy trial is an essential feature of a fair trial. A speedy trial is important not only to the victim but also to the accused. Speedy Fair trials are the only way to prevent miscarriages of justice and are an essential part of a just society. But it’s not only about protecting suspects and defendants. The constitutional provisions that guarantee speedy trial is an important safeguard to prevent undue and oppressive incarceration prior to trial; to minimize concern accompanying public accusation and to limit the possibilities that long delays will impair the ability of an accused to defend himself It also makes societies safer and stronger. Without fair trials, it is believed that the rule of law collapses
The right to a speedy trial was initially mentioned in that landmark document of English law, the Magna Carta. The constitutional philosophy propounded that right to speedy trial has though grown in age by almost two and a half decades; the goal to be achieved is yet far-off. It is a concept that deals with speedy disposal of cases to make the judiciary more effective and to impart justice as fast as possible.
It was held that under trial prisoners have been in jail for duration longer than prescribed, if convicted, their detention in jail is totally unjustified and is violation of fundamental rights under article 21. Delay in trial unnecessarily confers a right upon the accused to apply for bail. Under sec. 482 read with 483, Cr. P.C lays that every possible measure to be taken to dispose off the case within 6months from today.
The Code of Criminal Procedure, 1973 suggests that onus of proving the guilt of the accused is on the prosecution and judge acts as a neutral referee from both the sides, but what about the mental health of the accused, while Malimath committee also suggested that we need to look upon our penal laws and also suggested to introduce time limit to early disposal. In this paper we will discuss about mental health, Malimath committee reforms in the light of aforementioned arguments.
KEYWORDS- Malimath committee, Mental health, Under trial, legislature
1. INTRODUCTION-
The Judiciary being the ultimate protector of human rights and the final resort for dispensation of justice, the citizens of India look up to this institution with great respect and eternal hope. This casts a very heavy responsibility on the entire judicial system to live up to the expectations reposed in it and to maintain the sacred aura attached to it unsullied. Qualities of honesty and integrity are inherent to these expectations. In a developing economy, for that matter in any modern economy, there is an urgent need to implement nationally relevant and important projects in a time bound manner. The role of the judiciary places enormous responsibility on the shoulders of the Courts. The development of the nation is equally dependent on the dynamism and the innovativeness of the judicial system. Hence, there is an urgent need to ensure that no justice is delayed and the situation existing today is remedied soon. Despite the increasing incidence of reliance on the Courts, there are large sections of the population which are unable to approach the judicial system on account of factors such as poverty, lack of awareness and entrenched social discrimination. Thus we have an apparent paradox i.e., even though the judicial system has been tackling a continuously rising case-load, the overall social indicators of access to justice are quite disappointing.
Increase in population, lack of adequate number of Courts, disproportionate judge strength as against the population, lack of ministerial manpower, lack of infrastructure, snail's pace in computerization and use of information technology, inadequate budgetary allocations for judiciary, awareness, globalization, raise in economy, changed economic considerations, literacy, faith in the system, accessibility, resources, impact of legislations, standards of living and new dimensions to relationships are the reasons for huge pendency and delay in disposal.
2. What is Called as Delay, Pendency, Arrears and Backlog of Cases?
When we talk about the enforcement of speedy justice, the basic question is - what is called as delay? There is no single or clear understanding of when a case should be counted as delayed. Often, terms like “delay,” “pendency,” “arrears,” and “backlog” are used interchangeably. This leads to confusion. To avoid this confusion and for the sake of clarity, these terms may be understood as follows. According to the Law Commission of India's 245th Report on Arrears and Backlogs, ‘pendency’ means ‘all cases instituted but not disposed of, regardless of when the case was instituted’, the term ‘delay’ means ‘a case that has been in the Court/judicial system for longer than the normal time that it should take for a case of that type to be disposed of’ while the term ‘arrears’ is understood in relation to ‘delayed cases that might be in the system for longer than the normal time, for valid reasons; those cases that show unwarranted delay are referred to as arrears.’ ‘Backlog’ means ‘when the institution of new cases in any given time period is higher than the disposal of cases in that time period, the difference between institution and disposal is the backlog. This figure represents the accumulation of cases in the system due to the system's inability to dispose of as many cases as are being filed.’ Though the Law commission of India has explained the meaning of these terms but no satisfactory applied definition can be ascertained for the term ‘delay’ unless there is an availability of specific time tables for disposal of different categories of cases.
3. POSITION IN THE US
A. Right to Speedy Trial: Sixth Amendment of the U.S. Constitution (1791)
Right to speedy trial is a fundamental right guaranteed by the Sixth Amendment of the U.S. Constitution (1791) and this right has its roots in the English legal system. The first articulation of the right appears to have been made in Magna Carta (1215) wherein it was stated, “we will sell to no man, we will not deny or defer to any man either justice or right.” Evidence of recognition of right to speedy justice even in earlier times can be traced to the Assise of Clarendon (1166). Sir Edward Coke wrote in Part 11 of his Institutes of the Laws of England—
“… have not suffered the prisoners to be long detained, but at their next coming have given the prisoner full and speedy justice … without detaining him long in prison.” Hence, according to Sir Coke, prolonged detention without trial is contrary to the law and custom of England.
B. The Speedy Trial Act, 1974
In Barker v. Wingo the US Supreme Court held that the quashing of criminal proceedings was the only appropriate remedy for the protection of the right to speedy trial clause. Responding to the judicial regime, the US Congress enacted “The Speedy Trial Act, 1974” which provides for a tighter, fixed schedule that regulates the accusation period. This Act establishes time limits for completing various stages of criminal prosecution. The information or indictment must be filed within thirty days from the date of arrest or service of summons. The trial must commence within seventy days from the date when the defendant appears before an officer of the court in which charges are pending.
4. INDIAN POSITION
A. Constitutional approach
The Constitutional mandate for the timely dispensation of justice is undeniable in India. Justice, including its timely dispensation, is a constitutional and fundamental right of the citizens of India guaranteed by the Indian State. It is also a constitutional obligation of the Indian State in the light of the Directive Principles of State Policy articulated in Articles 38(1), 39 and 39-A of the Constitution of India and also on account of India's international legal obligations to guarantee delivery of justice on time.
The Preamble of the Indian Constitution enjoins the State to secure social, economic and political justice to all its citizens. Article 38(1) provides that the State should strive for a social order in which such justice shall inform all the institutions of national life. While interpreting this provision in L. Babu Ram v. Raghunathji Maharaj.the Supreme Court held that “social justice” would include “legal justice” which means that the system of administration of justice must provide a cheap, expeditious and effective instrument for realisation of justice by all sections of people irrespective of their social or economic position or their financial resources.” Article 39-A mandates the State to provide legal aid. It further states that “the State shall secure that the operation of the legal system promotes justice … to secure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.” The constitutional commitment to speedy justice flows from the combined reading of Articles 14, 19 and 21 of the Constitution of India
B. Statutory provisions: Code of Criminal Procedure
There is no specific legislation in Indian legal system which ensures the right to speedy trial like the Speedy Trial Act 1974 of the United States. As rightly pointed out by Justice Chandramouli Kumar Prasad, the concern for a speedy trial is not merely an inherited mandate from the American jurisprudence but equally is the inarticulate premise underlying our Code of Criminal Procedure, 1973. It was pointed out that both as regards the investigation and also with regard to trial, the need for speed is underwritten in express terms or by unequivocal necessary implication and indeed, permeated the whole gamut of the code in the said context
Under Section 309 Cr.P.C, every inquiry or trial should be held “expeditiously” and when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses have been examined. Interpreting the provisions of the Constitution, the court stressed that expeditious trial is a rule and adjournment is an exception.
Examination of witnesses and speedy trial-
The examination of witnesses during the trial of cases has been another delaying stage of the criminal proceedings. Section 309 of the CrPC requires that when the examination of witnesses has once begun, the same shall be continued from day today until all the witnesses in attendance have been examined. The examination of witnesses, on which the entire edifice of criminal castle is built, is a must and without evidence, the accused cannot be held guilty. Though many provisions are enshrined in the CrPC for the purpose of examination of witnesses, due to lack of provisions for the protection of their life and respect, many times either they do not turn up or are not allowed to turn up before the court. Hence, the provisions as to examination of witnesses cannot be said to be sufficient, in the absence of such provisions; which could ensure the protection of life and respect of the witnesses and the reimbursement of travel expenses for those witnesses who come to court from remote areas. Hence, protective provisions may accelerate the entire proceeding for the speedy disposal of cases.
Plea bargaining and pendency of cases-
Further, in order to ensure speedy disposal of criminal cases, the concept of plea bargaining is considered to be of immense help. Plea bargaining deals with the process whereby the accused and the prosecutor in criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant's pleading guilty to a lesser offence or only one of some of the court indictment or a multi-court indictment, in return for a lighter sentence than possible for serious charges.
5. MALIMATH COMMITTEE-
The Law Commission of India and the Malimath Committee recommended that the system of plea bargaining should be introduced in Indian criminal justice system tofacilitate the speedy disposal of criminal cases and to reduce the burden on the courts. Accordingly, the Criminal Law (Amendment) Bill, 2003 was introduced in the Parliament and the Supreme Court of India referred and supported this Amendment Bill, 2003 and observed that “it is true that the idea of plea bargaining in India was not permissible, but in view of the changed circumstances and present state of affairs of the criminal justice system in our country … the system of plea bargaining should be introduced, as a part of the process of decriminalisation”. The provisions were thus finally incorporated in CrPC as Chapter XXI-A through the Criminal Law (Amendment) Act, 2005 which is applicable only in respect of those offences for which punishment of imprisonment is prescribed up to a period of seven years and it does not apply where such offences affect the socio-economic conditions of the country or have been committed against women and children below the age of fourteen years.
6. Judicial Reflections on Causes for the Delay
Indian Courts are held in high esteem not only by developing but by developed countries as well. There is wide-spread praise for the quality of the judgments delivered, and the hard-work being done by Indian Judiciary. The problem of delay and huge arrears stares us all in the face and unless we do something about it, the whole system will get crushed under its weight. We must guard against the system getting discredited and people losing faith in it and taking recourse to extra-legal remedies with all the sinister potentialities.While taking notice of certain distressing and unethical tendencies, the Supreme Court in Swaran Singh observed that “it is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him. In adjourning the matter without any valid cause a Court unwittingly becomes party tomiscarriage of justice.”
7. The Right to Speedy Justice is a Fundamental Right: Is it Not Imaginary in True Sense?
In 1979 P.N. Bhawati, J. in Hussainara Khatoon (1) said that although the right tospeedy trial is not “specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21” as interpreted in Maneka. It was reiterated that ‘reasonable expeditious trial’ is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. But in Hussainara (1)3 itself Pathak, J. felt that the “question of legality and propriety of the continued detention of undertrials” as infringing Article 21 should await the final determination of the petition. However, it is pertinent to note that Hussainara (3) and Hussainara (4)affirmed that it is part of Article 21. This development made Prof. Upendra Baxi towrite an article on the future of speedy trial right in SCC. Prof. Upendra Baxi hoped that Justice Pathak might also join the other Judges who declared speedy trial rightas part of Article 21. He also wished thus: one also hopes that the Chief Justice of India would retain the same Judges on the Bench for the final disposal in the interests of civilising the administration of justice”. But these hopes were not to be.
The causes of delay in criminal trials have been examined by various committees and academicians while also finding mention various judgments. A few which affect the system are -(a) trial magistrates list a large number of cases every day when they cannot physically pay attention to all those cases personally, leading to a waste of time on calling work or roll calls only to adjourn the cases to next dates
(b) cases being required to be adjourned because prisoners are not produced before the judge
(c) Witnesses not being present, though served, or not being served well in advance
(d) dilatory tactics of prosecution or defence
(e) inept handling of Court administration by inefficient or inexperienced judicial officers.” In additional to the above mentioned causes identified by Law Commission of India, there are many other causes which have been highlighted by the judiciary in a plethora of cases.
8. Where Delay Caused
A. Delay in Police Investigation-
The criminal law is set in motion after filing an FIR and is followed by an investigation. As a part of investigation process, if the police officer seeks the custody of any person for pre-indictment or pre-trial interrogation, he must file an affidavit sworn by him explaining the reasons for not only for such custody but also for the delay, if any, in seeking the police custody. In the absence of a clear-cut policy on scientific investigation and proof, criminal proceedings continue in old fashioned ways, causing enormous delays and costs and occasional miscarriage of justice.
B. Delay in Services of Summons/Warrants-
Absence of some or all the accused or non-production of undertrial prisoners at the stage of framing of charges and during the trial contributes for the delay. Earnest efforts are not being made by the Police in apprehending and producing the absconding accused. Execution of warrants has become the least priority for the police who have their own reasons, may be genuine or artificial.
The Code of Criminal Procedure provides for various modes of service. Section 62 of the Code provides that summons shall be served by a Police Officer, or subject to such rules being framed by the State Government, by any officer of the Court or other public servant.Unfortunately rules have not been framed by many State Governments.
C. Delay in Examination of Witnesses-
Delay in examination of witnesses leads to many unreasonable consequences and several reasons are attributed to this malady such as inordinate delay in the trial of cases.
D. Delay in Submission of Expert Reports-
Police is quite often handicapped in undertaking effective investigation for want of modern gadgets such as cameras, video equipment etc. Forensic science laboratories are scarce and even at the district level, there is no lab which can render timely assistance to the investigating Police. Further, it is common knowledge that there is dearth of forensic and cyber experts in police departments of various State. The result is that police heavily lean towards oral evidence, instead of concentrating on scientific and circumstantial evidence.
E. Non Implementation of Pre-Trial Hearing under the Code of Criminal Procedure-
In India, the concept of pretrial hearing has not taken deep roots. Sections 291 to298 of Cr.P.C. provide for sorting out certain matters at the pre-trial hearing. Section 294 envisages that the particulars of every document filed by the prosecution or the accused shall be included in a list, and the other party or its pleader “shall” be called upon to admit or deny the genuineness of each such document. Where the genuineness of such document is not disputed, the document may be treated as ‘proved’. This provision, unfortunately, is rarely utilized
9. Judicial Mechanism Identified For the Enforcement of the Right
The Hon'ble Supreme Court has held that the Criminal Procedure Code, under Sections 167, 258, 309, 311 and 468 provides to expedite the disposal of cases and to enable timely delivery of justice. Section 167 Cr.P.C provides a statutory time limit to complete an investigattion and further provides that a failure to complete investigation within the statutory time frame shall lead to release of the accused in custody on bail The Criminal Procedure (Amendment) Act, 2005, introduced Section 436A, which stipulates that the maximum period for which under trial prisoners can be detained is half of the maximum period of imprisonment specified for that offence under that law excluding offences for which the punishment of death has been specified as one of the punishments under that law. Hence, by invoking these provisions, right to speedy justice can be protected
The seven Judges constitutional bench has answered maximum questions arising out of enforcement of concept of speedy justice in Abdul Rehman Antulay and has held that ‘it is neither advisable nor feasible to draw or prescribe an outer time-limit for conclusion of the criminal proceedings.
10. Judiciary Cannot Make Law For the Enforcement of Speedy Justice
In Raj Deo Sharma (2)the Additional Solicitor General appearing for the petitioner expressly stated that he was only seeking a clarification of the judgment in the main appeal He argued that the subordinate Courts were under a wrong impression that the directions contained in the said judgment gave no option to them but to close the evidence of the prosecution whenever the periods mentioned in the guidelines were completed.
After deep consideration of the ratio in the judgment of Abdul Rehman Antulay, caseand judgment in the main appeal in the present case, the Court said that, it has no fixed any time limit for the conclusion of trial neither in the Antulay case nor in the main judgment of the case. As such, the Court has only laid down guidelines for closing the prosecution in certain circumstances. There is a difference between fixing a time limit for the disposal of a trial and fixing time limit for the prosecution to complete its evidence. A perusal of the guidelines contained in the main judgment would themselves show that there is no hard and fast rule applicable to every case, irrespective of facts and circumstances thereof. If the delay is not due to any fault of the prosecution, it is open to the prosecution to place the relevant facts before the Court and seek further time for producing its evidence.
11. CONCLUSION-
From the foregoing study of the subject and in the light of the plethora of case laws concerning right to speedy trial and role of the State machinery including special Acts and Courts, basically the following trends emerge—
1. The Supreme Court quashed a number of criminal proceedings due to inordinate delay in investigation, inquiry and trial of the cases. Various factors like complicated procedure, access to police station and problems for registration of FIR, investigation by police officer not well-versed with law that caused delay, are no longer relevant in the modern era of science and technology.
2. The provisions of the Cr.P.C. only impose duties upon the state machinery to conduct investigation, inquiry and trial etc. But no accountability has been fixed in case of non-performance of the assigned duties by the State machinery.
3. The right to speedy trial is a fundamental right of the people but neither the relevant provisions in this regard nor the Supreme Court of India have fixed any time-limit for expeditious disposal of cases. This gives an opportunity to the parties and State machinery for delaying the criminal proceedings.
4. Section 309 CrPC requires the “examination of witnesses” from day to day but no provision has been made in order to ensure the protection of life and honour of the witnesses, or even reimbursement of travel expenditure incurred by the witnesses who come to the court from distant areas. The witnesses are harassed, threatened and abducted. Maltreatment in court is common.
5. The provisions of plea bargaining have been incorporated into the CrPC as Chapter XX-A. But no provision has been made which imposes mandatory obligations upon the presiding officer and the advocate in order to acquaint and explain to the parties concerned as to the process of plea bargaining before commencement of the trial.
6. Many special Acts for speedy trial of cases were passed by the States which were challenged on different grounds including arbitrary exercise of discretionary powers of the Government in selection or classification of classes of cases or offences and unreasonable procedures to be adopted by the special court. The Supreme Court has given certain guidelines from time to time for speedy disposal of the cases by special courts. These guidelines have been incorporated into various subsequent Acts. But the enactments, which have been made, could not achieve the very objective of the speedy trial due to the absence of a sense of responsibility among the machinery concerned. The Bihar Special Courts Act is a welcome step in this regard.
7. The right to speedy trial is a fundamental right guaranteed by the Sixth Amendment (US) and the Speedy Trial Act and under Article 21 of the Constitution of India. The Supreme Court of India has quashed a number of criminal proceedings in order to protect this right. The Supreme Court is of the opinion that it is open to the Court to make “such appropriate order” as may be deemed just and equitable in the circumstances of the cases. But the Court could not include “compensatory jurisprudence” within the meaning of the term “such appropriate order” while the other Courts have observed that the convict can be “compensated” for mental agony on account of protracted trial.
During the research, it was found that there are no express provisions in the CrPC for the speedy trial of cases. There are statutory provisions like Section 309 of CrPC which stand as an ideal only and are ineffective in execution. Hence, the following may be suggested to render justice within time—
1. As the present investigation agency i.e., the police is one of the reasons for the failure of the criminal justice system, the same can be rectified if the investigation is conducted by a legal expert having experience.
2. The time-limit must be fixed at each and every stage of criminal proceedings such as investigation, inquiry, trial, appeal, revision and review, so that the state machinery maybe made responsible for delay at any stage in the disposal of criminal cases.
3. For quick disposal of cases, provisions pertaining to protection of the witnesses, proper hospitality towards witnesses and reimbursement of expenses incurred by them for attending the court to give evidence are to be included in CrPC
4. Undoubtedly, plea bargaining is a tool for expediting the justice-delivery system and reducing the pendency of cases. With some modifications to the present provisions which have been laid down under Chapter XXI-A of CrPC, it can be effectively implemented. These are—
(a) A mandatory provision has to be made to the effect that the Presiding Officer must inform the accused about the process of plea bargaining before commencement of trial.
(b) It shall also be made obligatory on the part of the advocates to explain about the process of plea bargaining to their clients and to that extent to submit an affidavit in the court concerned.
(c) Legal awareness programs are to be conducted with effective participation of Probation Officers, Welfare Officers, and Jail Superintendents including officials of the Legal Services Authority.
5. Class of offences or criteria for selection of offences to be tried by the special courts must be mentioned clearly in the Act itself which is passed for the purpose of speedy trial. As directed by the Supreme Court of India, the discretionary powers of the Government to refer such cases to special courts should be categorically laid down in the Act and should include the time-limit within which the trial is to be completed.
6. As compensation is awarded in the case of failure of the State machinery in protecting the rights of the citizens, on similar lines, compensatory clauses are to be included in the procedural code to compensate the victims for the prolonged delay in criminal trials.
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