Senior Advocate Mahesh Jethmalani stated that,"Speedy justice is not visible even in arguably the biggest economic crime in India’s history viz. the 2G spectrum case. Surely, the biggest economic crime in India’s history deserves must speedier disposal and the appeal should be fast tracked". 

Akhil Bhartiya Adhivakta Parishad held its third online lecture as part of the Prof. N R Madhava Menon Memorial Lecture Series in which Mr. Mahesh Jethmalani, Sr. Advocate gave the Keynote Address on the topic - ‘Making our Criminal Justice Work’. This lecture was broadcasted live on various social media platforms at 5.00 PM on 23.05.2020.

Prof. Dilip Ukey, Vice Chancellor, MNLU, Mumbai delivered the Welcome Speech for this lecture. Prof. Ukey enlightened the audience about the contributions of Prof. Madhava Menon in whose honour this Lecture Series is held. Prof Ukey, called Prof. Menon the Pitamah of the Modern Legal Education and spoke at length about his passion for teaching and his work as a Committee Member on the Commission for Center-State Relation. Prof. Ukey also conveyed the vision of Prof. Memon regarding reforms in the Criminal Justice delivery system. Prof. Ukey expressed that Prof. Menon always wanted the ‘delivery of justice’ to reach the last of the last and the poorest of poor of our society. He then spoke about the Maharashtra National Law University and the kind of work the university had been undertaking to enhance the learning experience for its students.

Namit Saxena, Advocate-on-Record was the moderator for this event. He introduced Prof. Ukey and Mr. Jethmalani and apprised the audience of their professional achievements. Mr. Saxena while introducing Mr. Jethmalani briefed the audience about his work as lead counsel in landmark cases such as Harshad Mehta’s Securities Scam Case, 1993 Mumbai Bomb Blast Case, Sadhvi Pragya’s Case to name a few. Adv. Ayush Anand delivered the vote of thanks after the question and answer’s round.

Before the commencement of the Keynote Address by Mr Jethmalani, an introductory note on the earlier lectures series was delivered. The 1st online lecture of the Prof. Menon Lecture Series was delivered by Mr. K.K. Venugopal, Sr. Advocate & Attorney General for India on the topic of "Contours of Judicial Review” on 08.05.2020. The 2nd online lecture of the Prof. Menon Lecture Series was delivered by Mr. Mukul Rohatgi, Senior Advocate and Former Attorney General for India as its Keynote speaker on the topic - ‘Journey of Supreme Court from 1950 till now’ on 16.05.2020.

Prior to Prof. Menon Lecture Series, Dattopant Thengadi Lecture Series was organized by Akhil Bhartiya Adhivakta Parishad, wherein twelve lectures were delivered by Senior Advocates, ASGs and other prominent legal luminaries.

Keynote address by Sr. Adv. Mahesh Jethmalani

Mr. Jethmalani began the keynote address by stating that his Late father Mr. Jethmalani shared a close friendship and that his late father used to frequently visit the National Law University in Bengaluru, which he had co-founded with Prof. Menon, to deliver lectures. He stated that Prof. Menon is rightly acknowledged today as the ‘Father of the Modern legal education in India’ and stated that he studied law “venerating Prof. Menon”, he said.

Mr. Jethmalani commenced his speech by saying that topic “Making the Criminal Justice System Work” is not to suggest that “the framework of our criminal justice system is flawed or that the system does not work at all but to state that long ago the system commenced its path down a slippery slope and that the failure of all stakeholders in that system to check its slide has resulted in the present day alarming situation where it is at the bottom of the slope and an avalanche caused by an earth shattering docket explosion threatens to choke and bury the system beyond redemption.”

He then quoted figures about India’s pendency of criminal trials. He stated that the All India pendency of criminal trials today stands at about 2.33 crore cases. In 2018, cases pending trial from the previous year, i.e. 2017 were almost about 1.62 crores. The number of new cases for trial in 2018 was about 39 lakhs. At the end of 2018, the number of trials completed was about 27.5 lakhs leaving a pendency of 1.72 crore cases. In other words, the increase in pending cases between December 2018 and May 2020, is approximately 60 lakh cases. He stated that the the increase in arrears grow exponentially every year and that in light of these figures, “It is imperative that the tide of arrears is stemmed drastically, at the earliest.”

ENDEMIC DELAY IN PRE-TRIAL PROCESS:

Mr Jethmalani highlighted endemic delay throughout the entire pre-trial process as the root cause of pendency of criminal trials. He said, “from delay in filing of the FIR - sometimes willful to protect powerful accused - to patent apathy in filing chargesheets, particularly once bail proceedings are over, delay and apathy are the hallmark of police investigations. Indeed it is a conspicuous feature of police investigations that inevitably an incomplete chargesheet is filed within a period of 60 days or 90 days for the sole purpose of denying the accused in default bail. Once that purpose is achieved, the police drag their feet in filing the final chargesheet, camouflaging their apathy by sometimes periodically filing supplementary chargesheets. In this way, the process of investigation persists indefinitely.”

He further stated that “The history of two of the biggest crimes that shook India, both in the early 1990s is illustrative of this point. The trial in the bomb blast case that rocked the city of Bombay in March 1993, was completed in two stages; the first, in 2006 ie. 13 years after the incident and the trial of accused subsequently chargesheeted which included the notorious gangster Abu Salem as late as 2017, 24 years after the episode.”

He said that “in 1992 also Parliament enacted the Special Court (Trial of Offences Relating to Transactions in Securities) Act. The Act prescribed that all the accused guilty in the stock market scam in which the late Harshad Mehta featured as the principal accused would be tried by a judge of the High Court from whose judgment an appeal would lie only to the Supreme Court. The plethora of cases, both criminal and civil, that were filed before the Special Court necessitated the appointment of first, one more judge then a second and then a third. At one time, there were four High court Judges performing the task of disposing of cases filed under the Special Court Act, 1992. Even today, a High Court Judge has the assignment of dealing with cases under the 1992 Act and some appeals from the Special Court are pending in the Supreme Court till today. In other words, it has taken, 27 years already to dispose of a category of crimes for which a Special Court was created, for which the court of original trial jurisdiction was the High Court and from which the only appeal lay to the Supreme Court.”

He stated that “Afzal Guru was executed for his role in the Parliament Bomb Blast case of 2001 only in 2013. The trial of Sadhvi Pragya for her role in the Malegaon Bomb Blast case of 2008 has commenced only recently and she was an undertrial for almost 9 years, having been arrested in 2008 and secured bail in 2017. On the other hand, a qualified lawyer from Kashmir one Gulam Bhatt has been in custody since 2011 for being a member of a terrorist organisation. The trial is still underway. Even more unedifying is the state of the case in the Malegaon Bomb Blast Case of 2006 where there is a stark dichotomy between the investigation of the Maharashtra ATS and the CBI on the one hand, and the NIA on the other.”

 Mr Jethmalani stated that “the chargesheet filed by the former, disclose that members of the minority muslim community were responsible for the crime, while the latters investigation has indicted accused belonging to the Hindu community. How and when will this contradiction be resolved?”

He added that “speedy justice is not visible even in arguably the biggest economic crime in India’s history viz. the 2G spectrum case. The crime which occurred in 2008 was only investigated because of the Auditor General of India’s Report that the loss to the exchequer on account of the scam was a staggering 1.76 lakh crore rupees and the monitoring of a PIL by the Supreme Court. The first chargesheet was filed in 2011. In the ensuing trial, the Special Judge acquitted all the accused in December 2017. So much for the Auditor General’s Report and the Supreme Courts prima facie views. The CBI has filed an appeal which is still to be heard. Surely, the biggest economic crime in India’s history deserves must speedier disposal and the appeal should be fast tracked.” “Did the Auditor General and the Supreme Court commit a himalayan blunder which decimated the telecom sector or is Judge O.P. Saini’s verdict a questionable one? The nation wants to know”  he quipped.  He felt the biggest stakeholders in speedy justice - the victims of crimes - can do little to ameliorate the system. He was of the opinion that “unless the other stakeholders - the Executive, the Legislature, the Judiciary and the legal profession take urgent steps to remedy the malaise, crime victims can only helplessly stand by as the tsunami of arrears crushes their hopes of justice.”

He said that “the task of lawyers is constrained by the fact that it is on the government that the major onus lies to stem the rot. Lawyers can only contribute by at all times being ready to proceed with criminal trials and other proceedings and scrupulously eschewing adjournments. They can also suggest procedural reforms which while not eradicating the cancer of arrears in our criminal justice system, can at least mitigate its impact. To some of these reforms. He said that “he desperately hoped that if not Bench strength, will and infrastructure over which only the Executive has control, that Parliament at least performs its legislative duty by amending the Cr.P.C. to ensure that the laws that it passes conform to the Constitutional mandate of fair and speedy investigation and trial.”

Should investigations be the exclusive preserve of the police?

Mr Jethmalani stated that at present the “Cr.P.C. envisages a clear demarcation of jurisdiction between prosecutors and the police. The role of public prosecutors commences with trial; in the sphere of investigation, they have no role to play. Section 25A of the Cr.P.C. inserted by an amendment to the code effective from 2006 prescribes the creation of a Directorate of Prosecution at the discretion of the State Government. This Directorate is to consist of a Director of Prosecution and as many Deputy Directors of Prosecution as the State thinks fit. Sub-section 7 of Section 25A, provides that the powers and the functions of the DP and the DDPPs shall be such as the State Government may by notification specify.”

He is of the view that “the rationale behind the enactment of Section 25A, is opaque. Indeed, the bare creation of a Directorate of Prosecution consisting of a DP and as many DDPS as the State may think fit to appoint is an exercise in futility unless the DP and the DDPS are vested with substantial powers by the requisite notification to be issued by the State Government under sub-section 7. If the object of Section 25A is to create a body like the District Attorneys office in the US, then Section 25A, even with the discretionary powers conferred upon the State Government under sub-section 7 is not merely wholly inadequate but perhaps in patent conflict with the provision of Chapter XII of the Cr.P.C. dealing with police powers of investigation by which powers of investigation vest exclusively with the police and the officer in charge of a police station in particular. If on the other hand, the intent behind Section 25A was to create an office like that the Director of Public Prosecutions in the UK, the section is redundant as in India the role of the prosecutor is rather like that of the DPP i.e. one whose function commences only after investigation is complete. As in the UK the public prosecutor in India occupies a unique, lofty position, at least in theory in the criminal justice system. Like the DPP, the public prosecutor must always act with fairness and detachment in conducting a prosecution with the objectives of establishing the whole truth and ensuring a fair trial.”

He felt that “with the benefit of hindsight on the efficacy of our criminal justice system, it is time for the creation by an amendment to the code of both a Directorate of Prosecution in the states and for a distinct one for central investigating agencies (CBI, ED, SFIO etc.) consisting of two wings: the first, and exclusively prosecutorial agency whose role commences coterminously with the commencement of the prosecution similar to the role of existing public prosecutors and the second, consisting of an investigating wing whose role is advisory but must be sought out at crucial stages of the investigation such as exercise of the powers of arrest, the power to search and seize, the request to the appropriate authority for wire tapping and the manner of collection of evidence, the final decision on all these matters of course resting with the officer in charge of the investigation. The opinion of the investigation wing of the directorate of prosecution being advisory may not ensure complete fairness in investigation but emanating as it does from skilled lawyers will atleast serve as a robust check on the rampant abuse one sees in police investigations today.

He also said that “it is time that public prosecutors, additional and assistant public prosecutors are appointed from a pool of the best available lawyers. The fee structure of prosecutors need to be enhanced and the state of the art technology should be made available to them. This means access to computers and consequently to search engines and databases which even the most junior lawyers in private practice are able to access today. A prerequisite for being appointed as a PP or APP should be the ability to utilise the latest technology with skill. This will go a long way in levelling the playing field between prosecutor and defence counsel facilitating as it does the availability not just of online law reports but also a whole range of academic literature on substantive procedural and evidentiary issues all relevant to the conduct of trials. Moreover,  Section 24(7) of the Cr.P.C. must be amended to provide that a PP or Addl. PP can only be appointed if he has been in practice as an advocate for not less than 10 years. The present requirement of only 7 years practice is wholly inadequate. Appointment should also take into consideration the number of trials conducted and particularly the number of trials conducted for a complainant in private complaints.”

TIME LIMIT ON COMPLETING POLICE INVESTIGATION

Mr Jethmalani was of the view that “once an accused person presumed to be innocent suffers the humiliation of incarceration, the investigation languishes whether he succeeds in subsequently obtaining bail or not. All investigations should be time bound. All investigations should be time bound. Section 173(1-A) inserted by an amendment act of 2008 has already made a start in this direction by prescribing that the investigation in relation to rape of a child may be completed within 3 months from the date on which the information was recorded by the officer in charge of a police station. Tentatively, I suggest that investigations for offences punishable upto 3 years must be completed within 3 months from the date of the registration of the FIR, those for upto 7 years within 6 months and offences punishable with 7 years and above within 1 year. In cases involving terrorism and cross border money laundering the maximum period permitted for completion of investigations can extend to 18 months. These timelines will not cause any prejudice to the investigating agency as if they obtain further evidence under section 173(8) they can always, with the permission of the court bring that evidence on record at any time before the conclusion of trial, subject of course the right of the accused to cross-examine witnesses deposing to the fresh evidence as also the right to recall for cross-examination other witnesses who have completed their deposition but whose further cross-examination is necessary in the light of the fresh evidence.”

Investigation timelines should be rigorously enforced

Mr Jethmalani suggested that the above investigation timelines should be rigorously enforced by a Magistrate referred to in Section 156(3) of the Cr.P.C. He said, “while the view expressed by a bench of the Supreme Court in Sakiri Vasu’s case that such a Magistrate can monitor an investigation under this section has rightly been doubted in a subsequent decision since earlier decisions have held that a Magistrate ordering an investigation under section 156(3), thereafter becomes functus officio, Section 156(3) can be suitably amended without detracting from the latter view if a Magistrate referred to in that section is vested with limited power to ensure that the time limits for investigations are duly complied with by the police.”

Amendment to Section 167

Mr Jethmalani recommended amending Section 167, to provide that the Magistrate/Judge is obliged to inform the accused of his right to in default bail and that such bail must be granted even on an oral request by the accused. If the accused does not want to avail of bail, or cannot do so, an assertion in writing signed by the accused must be obtained from the Magistrate and become part of the remand proceedings. Furthermore he recommended a new Section 167(1A) should be added to provide that an indigent accused should have access to legal aid right from the time of his first remand.

Amendment to Section 311

Mr Jethmalani opined and further recommended that, “Section 311A as it presently stand empowers a Magistrate to pass an order directing any person, including an accused person to give a specimen signature or handwriting and the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting.

To facilitate the discovery of relevant facts in an investigation or other proceeding under the code, a Magistrate should similarly be empowered to pass an order directing any person, including an accused person to provide his password/face scan/touch id so that his mobile phone and other electronic devices can be opened by the police. Similarly, the Magistrate should also be empowered to pass an order directing any person, including an accused person to provide voice samples to the police. These two new powers of a Magistrate, can be vested in him by inserting two new sections in the Cr.P.C. viz. Section 311B and Section 311C.”

All trials must be time bound from the day

Mr Jethmalani mentioned that the late Prof. Madhava Menon while addressing the Conference on the National Initiative to Reduce Pendency and Delay in the Judicial System organised by the Supreme Court of India in collaboration with the Indian Law Institute in July 2018 concluded with an appeal to the judiciary, “to give priority to criminal cases in the initiative proposed and that no criminal case should linger on in the justice system for more than 3 years and a clear message in this regard should go to the police and the prosecution.” He further added that “after stating that business as usual should not be allowed in administration of criminal justice and over 2 crores of criminal cases pending should be ended within the next couple of years, he observed that in that case the National Initiative will occupy a prominent place in the judicial history of the country. While Prof. Menon’s wish may be impossible to fulfil within a 2 year period which ends in July this year, Parliament should honour his contribution to legal education and legal reform by amending the Cr.P.C. to provide that the trials in all cases should be completed within a period of 3 years from the time when the accused first enters his appearance before the Magistrate or presiding Judge of a court. This timeline can be prescribed by inserting a new Section 309A after section 309 in Chapter XXIV dealing with ‘General Provisions as to Enquiries and Trials’.

Mandate of Section 309 of the Cr.P.C

He opined that that in every enquiry or trial proceedings shall continue from day to day until all witnesses have been examined unless the court finds adjournment of the same beyond the following day to be necessary for reasons to be recorded. So also, the fourth proviso to Section 309 setting out conditions as to when an adjournment will be granted to a party must be scrupulously adhered to. And finally when adjournments are granted they must be only on payment of costs by a party commensurate to his financial status. Parties must pay the highest cost proportionate to their means for protracting trials.

Compounding of cases

He further recommended that Section 320 of the Cr.P.C., dealing with compounding of cases, should be amended to mandate that Magistrates trying compoundable offences must refer those cases to mediation and with the assistance of the mediators endeavour to enter into settlements that are enforceable.

Amendment to Section 251

He opined that Section 251 of the Cr.P.C. should be amended so that an accused is able to apply for a discharge in summons cases. In the absence of this provision, either the trial courts are burdened with protracted trials in petty offences or the high court is flooded with Section 482 petitions seeking to quash process in summons cases.

Timelines should be fixed for filing and disposal of discharge applications

Mr Jethmalani stated that he is of view that no discharge application should be entertained after 6 months of the accused being furnished with a copy of the chargesheet or being served with a copy of the complaint. Replies by the State of private complainant should be filed within two weeks of the discharge application being filed and served upon them. The trial court should dispose of discharge applications within a month thereafter. All these timelines should be inserted by appropriate amendments to the discharge provisions in Chapter XVIII, Chapter XIX (A) and (B) and Chapter XX.

Abysmally low conviction rates in criminal cases

Mr Jethmalani stated that the All India trial court conviction rates are about 40%. This figure is reduced to almost half on account of conviction appeals being allowed by appellate courts. An endemic reason for low conviction rates is witnesses turning hostile. The longer a matter takes to come up for trial, and the more protracted a trial, the greater the opportunity for witnesses to be won over particularly by powerful accused. Witnesses can resile from their police statements because Section 162 of the Cr.P.C. prohibits the signing of witness statements by the person making it. Witnesses are not bound by their police statement since the have not signed it. Section 162(1) should be amended to remove this prohibition and to mandate that witness statements should be signed. Such a provision will also ensure that the police cannot fabricate witness statements as happened in the Sohrabuddin case, where witnesses concocted eye-witness accounts which immediately after their recording were disowned by the said witnesses. Witnesses can turn hostile, either if they are won over or if the police put words into their statements which they never uttered. By making it mandatory that their police statements be signed by witnesses, both these rampant abuses can be checked.

Perjury provisions

Mr Jethmalani further said that the only way to deter perjured testimony and professional witnesses is by courts taking frequent recourse to perjury provisions. Once prosecutions for perjury are initiated by courts, witnesses will refrain from giving false testimony on oath. So that perjury prosecutions can be strictly disposed of, the Cr.P.C. should be amended to the effect that all cases of perjury and not just cases referred to in Section 344 should be tried summarily.

Classification of criminal cases in original jurisdiction be classified on pecuniary grounds

He firmly believes that the nature of economic crimes in more recent times has become more complex, has cross-border implications and the quantum involved has reached mind boggling figures involving thousands of crores of rupees. The time has perhaps come where original jurisdiction in criminal cases can also be classified on pecuniary grounds. The trial of crimes involving financial loss or gain upto 100 crores may be tried before a Magistrate and upto 1000 cores by a Sessions Judge or a Special Judge who is a Sessions Court Judge. In a case involving any amount above 1000 crores, the High Court shall be vested with an original trial jurisdiction by the insertion of a new section prescribing such original trial jurisdiction of the High Court based on the pecuniary grounds as aforestated.

Role of the Superior courts in relieving the trial courts of the crushing burden of pending cases:

The superior courts particularly the Hight Court, can exercise its inherent powers liberally to relieve the trial courts of the crushing burden of pending cases. Several police investigations consist of private disputes - corporate or individual. Most of these cases are essentially civil in nature but because of the even greater pendency of cases on the civil side, private parties seek recovery of property or enforcement of commercial contracts through the agency of the police. The police have proved themselves only too keen to offer their services for this unwholesome and unconscionable exercise. In more than one case, the Apex Court has lamented the growing tendency of litigants to invoke police powers of investigation and particularly the power of arrest to enforce what are essentially civil claims.

The court has cautioned that criminal proceedings are not a short cut where other remedies are available and that the police cannot be recovery agents for private parties. Unfortunately, many High Court are loathe to entertain, petitions for quashing in matters which are criminal only because of some verbiage in FIRs reciting ingredients of criminal offences distorted to apply to facts which disclose only a civil dispute. The reluctance of the High Courts to weed out these abuses of police powers is often based on the principle that the power of quashing under Section 482 should be exercised rarely and with the utmost circumspection. The invocation of this principle for non interference with malafide police investigations continues to encourage litigants to seek police help for financial recoveries under the guise of criminal offences. Any High Court Judge ought to be able to easily separate the grain from the chaff and quash what are clearly civil disputes. It behoves the High Court to exercise its powers under section 482 liberally given the growing tendency of litigants to liberally approach the police for civil claims. By not doing so, the High Courts fail in their duty of superintendence of courts subordinate to them and thereby far from relieving trial courts from the burden of arrears, only aggravate them.

India has one of the worst Judges to Population ratio:

He enlightened the audience by apprising them of the fact that at present we have only about 19 judges per million of our population. He said that “the need of the hour surely, is for the Judiciary and for the Government to work in tandem and address the issue of improving the functioning capacity of our courts in order to lessen the burden of pending cases and ensure speedy delivery of justice.”

Conclusion:

He concluded his speech by quoting the famous French Judge, philosopher and the principal source of the theory of separation of powers, Montesquieu stating that he had cautioned that “there is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice”

Picture Source :