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MEETING OF THE COMMONWEALTH NORTH ATLANTIC LAW


MINISTERS IN COMMEMORATION OF THE 50TH YEAR OF
INDEPENDENCE OF THE REPUBLIC OF TRINIDAD AND
TOBAGO AT PORT OF SPAIN, 25TH AND 26TH JUNE 2012;
THEME: FIFTY YEARS OF CRIMINAL JUSTICE
ADMINISTRATION 1962-2012

26.06.2012
Criminal Justice System in India
- Dr Brahm A. Agrawal,
Law Secretary,
Government of India

Hon’ble the Chief Justice of the Republic of Trinidad and Tobago, Mr


Justice Ivor Archie, hon’ble Mr Justice Herbert Volney, Minister of
Justice, Republic of Trinidad and Tobago, distinguished delegates and
friends.

I am privileged to be here at the invitation of the Minister of Justice. I


express my thanks to the hon’ble Minister for the hospitality extended to
me.

My presentation is an outline or overview of the criminal justice system


in India in its totality. Each important point in my presentation may be
discussed at length, if there is time. Many aspects you must already be
knowing as they are common in our respective jurisdictions. Whatever
better features you find, you may like to adopt and adapt.

Hon’ble Minister Volney asked me to specifically speak about abolition


of jury trial in India and the reasons therefor. I propose to do so after I
have finished my presentation, and, in this regard, I will also quote words
of Mahatma Gandhi, our Father of the Nation.

One more point which the hon’ble Minister asked me to speak about was
abolition of the committal proceedings in sessions trials. Yes, when our
new Code of Criminal procedure was enacted in 1973, with a view to
speeding up disposal of criminal cases, the preliminary inquiry which
used to precede the trial by a Court of Session, otherwise known as
committal proceedings, was abolished as it was felt that it did not serve
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any useful purpose and had been the cause of considerable delay in trial
of offences.

Now, my presentation:

Crime is there everywhere. Countries define ‘crime’ differently in their


penal codes, but, in substance, it is behaviour punishable by the State by
law, it being a public wrong or an offence against the State or the
community at large. Regardless of their legal systems, all countries have
three primary components of the criminal justice administration: the
police, the courts and the prisons, the police making up the majority of
the criminal justice personnel. The police also are the front end of the
criminal justice system.

An accountable, transparent and speedy criminal justice system is


essential for all-round progress of a country. The first preambular goal of
our Constitution is ‘Justice’. The system of administration of criminal
justice in India today is the product of well-thought efforts on the part of
successive Governments. It places human rights and dignity for human
life at a much higher pedestal.

In our criminal jurisprudence, an accused is presumed to be innocent till


proven guilty, the burden of proof being on the prosecution; he is entitled
to a true investigation, and fair and open trial, and the prosecution is
enjoined to play a balanced role in the trial of an offence. The standard of
proof required is ‘proof beyond reasonable doubt’. Articles 20 and 22 of
the Constitution of India, falling in the chapter on fundamental rights,
guarantee that no person shall be convicted of any offence except for
violation of a law in force at the time of the commission of the act or
omission charged as an offence, nor be subjected to a penalty greater than
that which might have been inflicted under the law in force at the time of
the commission of the offence ( the rule against ex post facto penal law);
no person shall be prosecuted and punished twice for the same offence
(the rule against double jeopardy); every accused enjoys the right against
self-incrimination; every person who is arrested is entitled to be
informed, as soon as may be, of the grounds for such arrest as well as the
right to consult and be defended by a lawyer of his choice; every person
who is arrested and detained in custody is required to be produced before
the nearest magistrate within 24 hours, excluding journey time, and
cannot be further detained without the magisterial authority. Writ of
habeas corpus is a remedy available under our Constitution to question
detentions which are illegal.
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Article 21 of our Constitution guarantees protection of life and personal


liberty and enjoins that no person shall be deprived of his life or personal
liberty except according to procedure established by law. Through
judicial interpretation, this fundamental right has been elaborated and
expanded tremendously. The ‘procedure’ prescribed by law has to be
‘reasonable, fair and just’. A right to early end of criminal proceedings
through a speedy trial is a part of right to life. Right against solitary
confinement, right against bar fetters, right against handcuffing, right
against custodial violence, right to human conditions in prisons and
protective homes, and right to legal aid are but some of the rights which
have been held to flow from this article. Avoidable arrests are frowned
upon by courts. A person arrested cannot be subjected to more restraint
than is necessary to prevent his escape. Then, there are well-meaning
provisions concerning bail.

It may be noted that the fundamental rights under the above articles are
guaranteed to all persons, not merely citizens.

There is also obligation on the State, imposed by the directive principle


embodied in article 39A of our Constitution, to secure that the operation
of our legal system promotes justice, on a basis of equal opportunity.

Under the Indian Penal Code 1860, criminal responsibility starts at the
age of seven. Further, any act or omission by a child between seven and
12 years of age would not be an offence if it is proved that the child had
not attained sufficient maturity of understanding to judge the nature and
consequences of his or her conduct on the occasion in question. Children
between 12 and 18 years of age are responsible for their criminal acts, but
are not treated as adults. The Juvenile Justice (Care and Protection of
Children) Act 2000 provides for a special approach towards prevention
and treatment of juvenile delinquency. The juvenile justice system
follows the UN Convention on the Rights of the Child 1989. Also, where
a person by reason of unsoundness of mind is incapable of knowing the
nature of his act, the same would not be an offence.

The Indian Penal Code, the Code of Criminal Procedure 1973, along with
parts of the Indian Evidence Act 1872, constitute the essence of Indian
criminal law. A large number of special and local laws take care of
various other antisocial activities. Members of the armed forces face trial
for offences by a Court Martial under special Acts owing to their special
requirements.
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Information as to commission of an offence may be given to the police by


any person. One may also make a written complaint to competent
Magistrate.

The law in relation to investigation of offences and rights of an accused,


in our country, has developed with the passage of time. Power is vested in
the investigating officer to conduct the investigation freely and
transparently. Courts do not normally interfere in the investigation. Only
in exceptional cases, High Courts or the Supreme Court have monitored
investigation within a very limited scope. Rights of accused cannot be
undermined. It is the responsibility of not only the courts but also of the
investigating agency to ensure that the investigation is fair and does not in
any way hamper the freedom of an individual except in accordance with
law. High responsibility lies upon the investigating agency not to conduct
an investigation in tainted and unfair manner. Rather, every effort should
be made to bring the guilty to law as nobody stands above law dehors his
position and influence in the society. Courts decline to accept the report
submitted by an investigating officer which is glaringly unfair. Courts
accept and accord their approval to reports which are fair and result of
faithful and fruitful investigation. It is mandatory for an investigating
officer to maintain a diary where he shall enter day-by-day proceedings in
the investigation carried out by him. A criminal court is empowered to
send for the diary. The purpose behind the requirement to maintain a
diary by the investigating officer is to ensure fairness in investigation and
transparency as well as building a record to ensure a proper investigation.
Investigating agency is also commanded to complete the investigation
expeditiously, without unnecessary delay. Statements recorded by the
police during investigation and confession made by an accused to a police
officer (except the part which leads to discovery of a fact) are not
admissible in evidence.

For the purposes of transnational cooperation in criminal matters, India


has signed Mutual Legal Assistance Treaties in Criminal Matters. They
are designed to facilitate widest measures of mutual assistance in
investigation, prosecution and prevention of crime, service of summons
and execution of warrants, attachment and forfeiture of property
connected with crime, etc.

A fair criminal trial obviously would mean a trial before an impartial


judge, a fair prosecutor and an atmosphere of judicial calm. It is a trial in
which bias or prejudice for or against the accused, the witnesses, or the
cause which is being tried is absent. The controlling question in a
criminal trial is the guilt or innocence of the accused. Its object is to mete
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out justice and to convict the guilty and protect the innocent. It is a search
for the truth. Denial of a fair trial is as much injustice to the accused as is
to the victim and the society. The court has a participatory role in a trial.
It is not a mere tape recorder to record whatever is being stated by the
witnesses. It plays an active role with a view to elicit all necessary
materials and it controls the proceedings effectively so that the ultimate
objective, i.e. truth is achieved. The common law rule “Justice should not
only be done, it should manifestly and undoubtedly be seen to be done” is
followed conspicuously.

According to the nature and gravity of crime, trial is conducted by the


Court of Session or the Magistrate’s Court. Detailed procedure of trial is
laid down in the Code of Criminal Procedure. Cognizance of offence is
taken by a Magistrate either on a police report or upon receiving a
complaint. If the offence is triable exclusively by the Court of Session,
the Magistrate would commit the case to the Court of Session. On the
basis of material on record and after hearing the accused and the
prosecution, if the court finds a prima facie case, it frames charge.
Accused is asked whether he pleads guilty or not. If he pleads guilty, he
may straightaway be convicted. Otherwise, case proceeds further.
Prosecution produce evidence and statements of prosecution witnesses
are recorded. Accused gets the chance to cross-examine prosecution
witnesses. Statement of accused is also recorded. Accused may also
produce evidence and witnesses in his defence. Prosecution too gets the
chance to cross-examine defence witnesses. Trial is always conducted in
the presence of accused. Trial court then pronounces its finding of guilt of
accused or otherwise. If the accused is found guilty, he is convicted and
then he is also heard on the question of punishment. Accused is
honourably acquitted, if he is not found guilty. The orders are subject to
appeal or revision to higher courts. Provisions also exist for awarding
compensation to victims.

The Code of Criminal Procedure contains provision for compounding of


certain offences mentioned therein; some are made compoundable only
with the permission of the court. A new chapter on “Plea Bargaining”
was inserted in the Code of Criminal Procedure in 2006. Provisions of
this chapter apply in respect of an accused against whom either a charge
sheet has been filed by the police or a private complaint has been made in
respect of an offence punishable only up to seven years of imprisonment.
However, this benefit has not been extended to offences which affect
socio-economic conditions of the country (to be notified by the Central
Government) or which have been committed against women or children
below the age of 14 years. An accused who wants to avail of this benefit
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may file an application in the court in which the trial is pending. The
court shall examine the accused in camera to satisfy itself that the
application has been filed voluntarily, thereafter allow time to the public
prosecutor or the complainant, as the case may be, and the accused to
work out a mutually satisfactory disposition of the case and where a
satisfactory disposition has been worked out, dispose of the case and
deliver its judgment. The court awards compensation to the victim as per
the disposition and may release the accused on probation of good conduct
or after admonition.

A public prosecutor is an important officer of the government, appointed


under the Code of Criminal Procedure. He is not a part of the
investigating agency. He is an independent statutory officer. He
represents the State, not the investigating agency. A public prosecutor has
a wider set of duties than to merely ensure that the accused is punished.
He is there to ensure fair play in the proceedings, that all relevant facts
are brought before the court for the determination of truth and justice for
all the parties including the victims. If an accused is entitled to any
legitimate benefit during trial, the public prosecutor should not scuttle or
conceal it. Even if the defence counsel has overlooked it, the public
prosecutor should bring it to the notice of the court if it comes to his
knowledge. Subject to exceptions like sensitive information and public
interest immunity, the prosecution should disclose any material which
might be exculpatory to the defence.

The ultimate object of criminal law is to prevent crime. The society


dislikes a criminal and this dislike is expressed in the form of
punishment. There are various approaches: deterrence, prevention,
retribution and reformation. A perfect system of punishment could not be
based on any single theory. As each theory has its own merits and
demerits, we extract good points of each and the punishment system is a
combination of all. The determination of what should be the proper
punishment in a particular case is left to the court. A sound judicial
discretion on the part of the trial judge in awarding punishment can alone
distinguish between case and case and fit the punishment to the crime in
each individual case. Provisions to release a convict on probation also
exist. Then, there are enabling provisions in the Constitution as well as
the Code of Criminal Procedure for grant of pardon, reprieve or respite of
punishment, or suspension, remission or commutation of sentence of any
person convicted of any offence.
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India has also made agreements with many countries for transfer of
sentenced persons detained in prison to enable them to serve their
sentence in their own country.

With a view to protect public servants from frivolous, vexatious, false or


mala fide prosecution, the Prevention of Corruption Act 1988 as well as
the Criminal Procedure Code make prior sanction of the competent
authority a condition precedent for taking cognizance by the court, of an
offence alleged to have been committed by a public servant.

The Criminal Procedure Code also bars taking of cognizance of an


offence by court after expiry of a period of limitation; this, however, is
limited to offences punishable with imprisonment not exceeding three
years and the limitation period too is three years. Further, this provision
does not extend to certain economic offences.

Freedom of speech and expression is guaranteed by article 19(1) (a) of


our Constitution. In the context of the ‘media trial’, the Supreme Court of
India has ruled that the said freedom has to be carefully and cautiously
used, so as to avoid interference in the administration of justice and
leading to undesirable results in the matters sub judice before the courts.
Despite the significance of the print and electronic media in the present
day, it is desirable to ensure that fair investigation by the investigating
agency is not hampered and more importantly it is necessary to ensure
that the right of defence of the accused is not prejudiced in any manner
whatsoever. Presumption of innocence of an accused should not be
destroyed at the very threshold through the process of media trial and that
too when the investigation is pending. Or else, it will be opposed to the
very basic rule of law and would impinge upon the protection available to
an accused under article 21 of the Constitution.

Subject to the fact that room for improvement is always there, the
criminal justice system in India is one of the best in the world.

Abolition of jury trial in India:

Kawas Maneckshaw Nanavati (a senior naval officer) shot dead his wife
Sylvia’s paramour in 1959. There was a jury trial. He was acquitted with
a verdict of 8:1. The Sessions Judge was dissatisfied and referred the case
to the High Court, which reversed the verdict and sentenced Nanavati to
life imprisonment and this was upheld by the Supreme Court in 1961.
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Nanavati’s case was responsible for abolition of jury trials in India in


1960. His was the last trial by a jury.

Nanavati’s case was extensively reported in the media and it was felt that
the jury was influenced by publicity, jury trial was susceptible to media
and public influence, and results of its deliberation were not in the
interests of justice. Jurors were inexperienced persons and biased too.
Time-line of Nanavati’s case (i.e. crime was done in 1959 and the verdict
came in 1961) was also considered to be impossible for adjudication, in
the light of the fact that the backlog was too large and the pace too slow.

In fact, as far back as in 1958, the Law Commission of India, after


examining the then prevailing situation in the country, felt that this
community-based form of adjudication had been a failure and
recommended its abolition. The Law Commission first noted that the jury
system had not been adopted over a large part of the country, that its
application even in areas where it had been adopted was restricted to
certain classes of offences and that some States which had adopted it had
decided to discontinue it. The Law Commission observed: “Trial by jury
in India to the extent it exists today is but a transplantation of a practice
prevailing in England which has failed to grow and take root in this
country.” “There is a real difficulty in procuring a truly impartial and
unprejudiced jury.” The Law Commission also quoted Lord Denning,
who had said: “It does not work in the Latin countries with their mobile
temperament, easily moved to pity or hate.”

The Law Commission said that the system of trial by jury had the
advantage of associating the public with the administration of criminal
justice, but the system must be judged mainly by the extent to which it
worked efficiently; its main purpose was the dispensation of justice and it
failed to serve that purpose. The test must be a “fairness of trial” –
independent, impartial and just – and how far, in its practical working, the
system ensures justice in its true sense. Judged by this test, the jury
system had failed. There were numerous cases of miscarriage of justice.
The general complaint was that jurymen were “open to approach” and did
not give a fair verdict. There were a number of persons who made it
almost a profession to get themselves chosen as jurors for the sake of the
remuneration and also the illegal gratification which some of them
expected to get. This evil of unscrupulous professional jurors rendered
trial by jury almost a mockery and seriously affected the administration
of criminal justice.
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Lastly, Mahatma Gandhi had raised a powerful voice against the


continuance of the jury system in India as far back as 1931. He wrote in
the magazine called “Young India” of 27th August 1931:

“I am unconvinced of the advantage of jury trials over those by


judges….I have known juries finding prisoners guilty in the face of
no evidence and even judges’ summing up to the contrary. We must
not slavishly copy all that is English. In matters where absolute
impartiality, calmness and ability to sift evidence and understand
human nature are required, we may not replace trained judges by
untrained men brought together by chance. What we must aim at is
an uncorruptible, impartial and able judiciary right from the
bottom.”

Thank you.