PART-IV

LOOKING AHEAD

EMERGING ROLE OF THE LEGAL PROFESSION

21.1 No system of justice in modern society can function without the active support and participation of members of the Bar. India has the proud record of not only having the second largest number of practicing lawyers in the world but also one which has been in the forefront of freedom movement and constitutional development. Unfortunately after independence, due to a variety of factors for which the Bar alone is not responsible, public perception about the profession is not very flattering. In the field of criminal justice, this change in public perception has done a lot of damage not only to the profession but also to the quality and efficiency of criminal justice administration. This is not the place to explore the causes and consequences of this development. However, if criminal justice administration has to improve and society is to be protected from crime, lawyers practicing on the criminal side whether for defence orprosecution have to appreciate the nature of the malady and equip themselves with the knowledge and skills necessary to act as officers of the court in its search for truth. This aspect is incomplete without projecting the important role of the lawyer as a facilitator of change in criminal justice reform.

21.2 This report seeks to make some necessary changes in the system of criminal justice delivery. Naturally the role and responsibilities of prosecutors and defence lawyers will have to undergo changes in the process. Being an independent and autonomous profession, it is not for the Government to force change on their part, rather the Government should provide opportunities for professional development, facilitate their role as agents of reform and accommodate their legitimate aspirations in judicial administration. In this regard it is necessary for the profession to appreciate why the Committee has great expectations from the criminal law practitioners without whose willing support, the reform process may even not take off. For example delay and arrears are serious problems which should be eradicated as fast as possible. Courts alone cannot accomplish it and lawyers will have to extend full support in minimising adjournments respecting the rights of the victims and witnesses, attempting to settle compoundable offences early etc. As officers of the court, these are their duties and professional responsibilities. There cannot be compromises in the search for truth excepting those laid down by the law itself. Keeping this in mind if the defence and prosecution lend full support and cooperation to the court, one would expect criminal trials to be completed expeditiously and faith of the public in the Criminal Justice System restored.

21.3 Today every profession is seeking to specialize and acquire new skills and expertise to be able to do its job efficiently. The Bar has to realize the importance of specialization and learn, for example the nature and scope of forensic science in detection and proof. Again, information and communication technology is changing the way we think, act and do things. Through videoconferencing and multi-media application recording of evidence or examination can be conducted effectively without invading the rights of parties to the dispute. Lawyers should be receptive to change and the benefits of technology should be fully utilised. Continuing education for lawyers is as much necessary as it is for Judges. Government should assist the Bar councils and Bar associations to enable its members to acquire new knowledge and skills as quickly and efficiently as possible.

21.4 The law of arrest, search, bail, interrogation, detention, identification, etc. has transformed a great deal in the light of constitutional demands and international obligations. It is a welcome development and the contribution of the Bar is significant. At the same time organised crime, economic crime, terrorism and similar developments are threatening the very foundation of democracy and rule of law. Response to the same is changing, rights are being re-written and procedure is being modified. Lawyers have an important role to bring about a balance between individual rights and public good in investigation, prosecution and trial.

21.5 In an era where violence is increasing and security of life, liberty and property are under grave threat and crime is increasing and ensuring peaceful life is one of the functions of the civil society, every player in the Criminal Justice System has a responsible, pro-active and meaningful role to play. It should also not be forgotten that the defence lawyer also is an important player in the scheme of Criminal Justice System along with the prosecutor and the investigator. Therefore apart from assisting in the time bound and quick disposal of criminal trial the defence lawyer also has to be sensitive to his commitment to societal values of protection of the individuals’ life and liberty. Moreover to secure that end he should also rise to higher levels of responsibility because the only aim of a defence counsel is not to secure the acquittal by any manner or means but by adopting just, fair and legally acceptable methods. This kind of sensitivity to the social cause is more important in grave crimes that threaten the security of the State. Where child abuse and victims of sexual assault are concerned both the rules of professional conduct and also provisions in the Evidence Act do provide the limits of fairness in so far as cross examination is concerned. These considerations and objects are prime concern of the defence lawyer as a person who is a key player in the system and therefore he has a higher responsibility to adhere to fair and just means for securing justice to the accused and that way while doing adequate justice to the cause of the accused he should also be fulfilling a commitment which he owes to the society as a responsible citizen ensuring that justice is rendered.

21.6 Assistance of Criminal law practitioners should be available to citizens at all times as what are at stake are life, liberty and right to speedy trial which is a precious fundamental right. Without any detriment to the duties and responsibilities of the Bar, their grievances if any should be resolved by peaceful and constitutional means. Bar should voluntarily extend free legal aid in criminal cases to prevent the indigent accused being made the exclusive responsibility of the Government. Every Bar association should have a cell for this purpose. It is hoped that the legal profession will not fail the system and rise to new heights of responsibility in the quest for truth and justice and social commitment towards a sound criminal justice delivery system in which the accused, the victim and the society all get a fair deal.

TRAINING – A STRATEGY FOR REFORM

22.1 Training is the acknowledged route to efficiency in any profession. In a society, which is getting more complex and specialized, the need for the Criminal Justice System to adopt itself to the changes through continuing education and training is critical. It is the view of the Committee that regular well organised, though not quite adequate training programmes (this ha been addressed by the report of the National Commission on Police Training) the others in the Criminal Justice System, especially at the lowest levels is not satisfactory and there is much variation in the application of the laws and the inexperience of the all-too-burdened Judges. The general inefficiency of the system could be addressed by some of the other recommendations of the Committee, but, the dilatory proceedings, the ever increasing backlog and the poor quality of justice cannot be resolved by just adding more Courts, when the System itself is inefficient. The approach recommended through the Committee to make Criminal Justice System function more efficiently with less resources is simplified and alternative procedures and penalties and by promoting settlements. This requires extensive training, both at the time of induction as well as at regular intervals while in service.

22.2 A substantial way to improve the quality of justice would be to raise the level of competence of Judges and Prosecutors as a long-term strategy to be implemented. Such a strategy must have a clear idea of target groups to be trained; training objectives and topics, identifications of institutions to organize the training, financing the training and finally its monitoring and evaluation.

22.3 If we expect the Judges and Prosecutors to do high quality work, we should expect them to have a profound knowledge of substantive criminal laws. Secondly, to make Court procedures both fast (and cost-efficient), they have to know the rules and procedures and how to enforce them as well as to use the Case method (recommended by the Committee) efficiently. Further, they will need communication and management skills and some degree of knowledge of non-legal areas such as sociology and psychology. For those who are likely to deal with economic laws, specialized knowledge of economics, finance and accounting and for those specializing in environment cases, special knowledge of environmental laws will be necessary. Above all this there is a need for attitude training to facilitate their everyday work, to help handle critical situations and to avoid stress.

22.4 Although there is already a report on police training, the Committee feels that the training needs of the police at the lowest level needs much strengthening especially in terms of protection of human rights. It would be useful to have a look at what are the best practices and promote them especially in friendly/community policing, modern investigation techniques, accountability and attitudinal changes especially towards the poor an vulnerable. The second aspect is to have combined training for senior police officers and Prosecutors as well as Judges. A system of jont programmes, professional exchanges and research needs to be developed for the long-term.

22.5 There are several courses at the Institute of Criminology and Forensic Science, the Bureau of Police Research and Development, the Indian Institute of Public Administration and a few modules on criminal justice and are both ad hoc and short-term and therefore, neither satisfy the training needs nor will it improve the performance of Prosecutors and Judges. The training being recommended here, will be in terms of improving trails in terms of speed and efficiency of trails and the quality of judgements, including better sentencing and settlement among other things.

22.6 The Committee’s recommendation to reform the Criminal Justice

System include:

i. the need for the Courts to focus on finding the truth;

ii. a strong victim orientation;

iii. use of forensic as well as modern methods of investigation;

iv. reclassification of crimes with a large number of offences to be “settles”;

v. an emphasis on the accountability of all those in the System including the judge, the prosecution as well as the defense;

vi. much enhanced managerial and technical skills in the personnel.

22.7 The training programme must comprise all these elements. This is a stupendous

training agenda and will require, training academics to design training courses, study materials, train the trainers, develop the best pedagogic techniques and a system of monitoring and evaluation.

22.8 The Committee endorses in general, the reports of the Law Commission of India (54th & 117th), the various reports of the Committee on judicial reform including the first National Judicial Pay Commission, on training, through criminal justice has not been, we feel adequately covered.

22.9 On-the-job training through attachment has been an important part of induction training in the country. The Committee recommends an year long induction training programme for newly recruited Prosecutors and Judges, a part of which should be with the police, forensic laboratories, courts and prisons on which the recommendations of the first National Judicial Pay Commission are available. While this can take care of the future entrants, there is a need to retain and reorient the existing cadre of more than 15,000 trial court Judges and an equal number of Prosecutors. The judicial academy, which has little infrastructure and meager resources, may not be able to handle this. That the training has not been perceived by Government as critical could be reflection of the relevance of training programmes. But, training programmes redrawn as recommended by the Committee will surely contribute to improving the system.

22.10 A small high level training council is required. This will include in it representatives of the Judiciary, Prosecution, the concerned ministry and academic and a couple of non-legal public persons. This training council should meet at least three or four times in a year to assess the standards of Judges and Prosecutors, the training needs, the improvements in training and the effectiveness of the training methods. The training council should work out a training policy paper, which could be revise once in five years. It could take the help of the National Judicial Academy (NJA) for this purpose. The training policy paper should address the training needs of the Judges as well as the prosecution and defense, attorneys, not to mention other court officials. The training should cover substantive law, rules and procedures, court and case management as well as the use of management techniques to improve the efficiency of the system.

22.11 The Committee has recommended the need for specialization in the Judiciary including the superior court judges. Towards this, there is a need to train judges whenever they are promoted to a higher position so that they have a better appreciation of what is demanded of them and they also become better equipped to do their job well. Considering the new and complex types of cases coming up especially those relating to Information Technology (IT), Environment or Economics and Finance, judges who will specialize in these areas need to have refresher courses irrespective of their status in the hierarchy. With introduction of in-service training as recommended with emphasis on much greater efficiency in court and case management, the use of IT applications and management techniques and the instilling of better professional attitudes and motivation, it can be reasonably expected that the Criminal Justice System could improve in efficiency.

22.12 It is important to have a highly selected group of trainers who will look after the highest level training as well as to train the other trainers. This is a critical area where the highest quality must be ensured. Here, the training needs at the national level and at the state level have to be worked out in detail considering that the demands at each level could vary depending on the region and level. The NJA with other institutions could play the role of a coordinator in developing the training programmes and various types of study materials. Given the variations from State to State, the NJA could work through regional academies to upgrade the development programmes.

22.13 Similarly, there is a need for good quality study materials and audio visual aids for generalized training in all aspects of the Criminal Justice System not only to improve the quality of the work of the players, but, also for specialised study materials and aids in areas such as economic and environmental regulations, public laws, Intellectual Property Rights, IT & other commercial laws, sentencing, settlement & alternative dispute resolution; and an awareness of the need for transparency, fairness and empathy and to protect human rights in dealing with the accused and more so, the victims and a sensitivity to the needs or women and those who are vulnerable. Distance education has also the potential to be utilized for training. Here again, the NJA could play a vital role.

22.14 An independent and strong system to monitor and evaluate the work of judicial training is essential. This can be done be a broad based committee constituted for that purpose once in three years. As it is recommended that the training should go beyond conventional teaching of law to many innovative things, there is the need to develop objective evaluation methods to judge whether the training programmes indeed result in the improvements aimed at. The training results could also be usefully linked to service benefits as it is done in the defense services.

22.15 It is not enough to recognise that vast changes are taking place and the Criminal Justice System should be prepared to meet it. The Committee recommends that research should be given importance in the new scheme things. Research should be done amount other things to study the changes in society, the changes in laws and justice systems and to identify a way of meeting new needs and finding new solutions as well as help in preparing training methods and materials. Therefore, there is a need to build sufficient capacity in this area and give adequate technical infrastructure, libraries for this purpose.

22.16 Financing training programmes requires a commitment to provide adequate finance for effective training. Some financing can also be arranged from external sources in terms of human resources or collaborations of various kinds.

VISION FOR BETTER CRIMINAL JUSTICE SYSTEM

THE VISION FOR THE FUTURE

23.1 The pursuit of life, liberty and peace includes freedom from crime. The State’s foremost duty is to provide these basic rights to each citizen. The success of a Criminal Justice System can only be measured by how successful it is in ensuring these rights in word and spirit. The extent to which these are successfully guaranteed, will be reflected in the confidence of the public in the system.

23.2 Except for some modifications in the Code of Criminal Procedure 1973 (Cr.P.C), there has been no serious attempt to look at the various aspects of the Criminal Justice System. On the one hand particularly with improving information technologies, the availability of information on the incidence of crime is increasing; as is the rise in the expectations of the people from the State. Whether it is the laws, rules or procedures, or whether it is men and women who run the System that are to be blamed, the fact remains that the System has become quite inefficient. The Committee is aware that the laws, rules and procedures which were good for the bygone era have not quite stood the test of time. The men and women who run the System also need to be trained, motivated and finally made accountable. This is essential in a democracy, which requires both transparency and accountability from such public servants. It is difficult to expect the laws and procedures to make up for the deficiencies of the human element and vice-versa. There is also the problem of the earlier perceptions of crimes having given way to newer and more humane perceptions which demand that crimes be re-classified in the light of the new perceptions. What has been suggested in our re-classification system is the beginning of a long-term exercise, but the Committee has no doubt that one has to go much beyond this, based on the experience of how reclassification works. The Committee is also aware that this reclassification is only a part of the solution. Similarly the Committee being aware of the need for changes in criminal laws especially in the Evidence Act and the IPC has made certain recommendations on those too. It is not only necessary to have a fresh look at the juridical principles which are the basis of the Criminal Justice System, but also look at how these have been translated in various laws and regulations. This should particularly apply strongly to our pre-Independence legislation. Ours are hoary laws and procedures based on certain unexceptionable principles, but it cannot be denied that it may be necessary to reinterpret the same principles taking into account the values of modern society and the perception of the society on what is crime and what is not; and in crimes, what is grave and what is petty.

23.3 This is for the first time, after several decades that an attempt is made to reform the Criminal Justice System. We are aware that the problems are innumerable and not capable of easy solutions but we believe we have made a beginning. This first step is towards a big new beginning. We do not subscribe to the view that every one charged by the Police is necessarily guilty of a crime; nor would we seek to change the system only to ensure that the conviction rate goes up. We do not subscribe to the view that the legal adjudication is the only answer to the ills of our society and that the inexorable rise in crime can only be tackled by more and more repressive justice. We do believe that truth is central to the system that victims must be protected and justice must be done to them. Eventually we hope that the system will lean towards more restorative justice. We believe that to break the cycle of reoffending we need to work out measures including rehabilitation programmes and support to the offenders and even their families. We believe that economic crimes should be handled to ensure that the profits and proceeds of crime do not accrue to the criminals and as a general rule no offenders should get away with crime. It believes that organised crime and terrorism should be tackled with due consideration to their roots and the motivation of the criminals and terrorists. The Committee strongly believe that the prison is a place only for the worst offenders but it is no place for children or even women and that our laws and regulations should be changed to ensure this. It believes that not only the rights of suspects must be protected, but also all human rights. Court trials should be totally just, fair and transparent. If the reforms are carried out in this spirit, we hope it would help regain much of the lost public confidence. Incidentally we also feel that it is time the public realize that it too has a duty to report on crimes and cooperate with the police. Our recommendations may appear not entirely in consonance with the above; to some it may appear radical and far reaching. We have only charted out the direction, set the agenda and we believe, we have been quite moderate in our recommendations. We are aware of the strength of the fiercely guarded turfs of the different sections of the system; yet we hope that it will not come in the way of effective reforms to the system. The success of reforms would ultimately depend upon how they are carried out in their details and to what extent they reflect the spirit of our recommendations.

23.4 There is an urgent necessity in the light of our recommendations to have a detailed look at the way our criminal justice institutions have been functioning. Though a few suggestions have been made in this regard in terms of recruitment, training and such, a good overhaul of the system applying modern management principles, strengthening them with new information technologies and finding sufficient resources for these are also matters of great urgency. Equally urgent is the matter of programs and measures to improve and keep up-to-date their training and keep high the motivation of those who run the systems. This applies to all parts of the Criminal Justice System.

23.5 There has been much patchy and piecemeal legislation and much more ad hoc policy making relating to terrorism or organised crime or different types of victims such as women, children and dalits for one reason or the other. Yet, things have improved little for the various kinds of victims and in the handling of organised crimes or terrorism. Success has been elusive. The Committee also feels- with the greatest respect - that many of the orders of the various Courts on different issues, constituting Judge-made law has also hindered the criminal justice administration. It is therefore necessary for Government to come out with a clear and coherent policy statement on all major issues of criminal justice. It is further recommended that Government appoint a Presidential Commission on the lines of the Finance Commission under the Constitution to review the functioning of the Criminal Justice System. This should be done under the Constitution at least once in 15 years.

23.6 Society changes, and so do its values. A system so vital and critical to the society as the Criminal Justice System, cannot be static. Reforms ought to be a continuous process, keeping pace with the emerging challenges. No worthwhile reform is possible without deep study and intensive research.

23.7 The vision demonstrated by the Government in constituting this Committee, will, it is hoped, become the harbinger for setting up a Presidential Commission under the Constitution, to periodically review and reform the health of the System.

PART – VI

RECOMMENDATIONS

RECOMMENDATIONS

1. NEED FOR REFORMS

It is the duty of the State to protect fundamental rights of the citizens as well as the right to property. The State has constituted the Criminal Justice System to protect the rights of the innocent and punish the guilty. The system devised more than a century back, has become ineffective; a large number of guilty go unpunished in a large number of cases; the system takes years to bring the guilty to justice; and has ceased to deter criminals. Crime is increasing rapidly everyday and types of crimes are proliferating. The citizens live in constant fear. It is therefore that the Govt. of India, Ministry of Home Affairs constituted the Committee on reforms of Criminal Justice System to make a comprehensive examination of all the functionaries of the Criminal Justice System, the fundamental principles and the relevant laws. The Committee, having given its utmost consideration to the grave problems facing the country, has made its recommendations in its final report, the salient features of which are given below:-

2. ADVERSARIAL SYSTEM

The Committee has given its anxious consideration to the question as to whether this system is satisfactory or whether we should consider recommending any other system. The Committee examined in particular the Inquisitorial System followed in France, Germany and other Continental countries. The Inquisitorial System is certainly efficient in the sense that the investigation is supervised by the Judicial Magistrate which results in a high rate of conviction. The Committee on balance felt that, a fair trial and in particular, fairness to the accused, are better protected in the adversarial system. However, the Committee felt that some of the good features of the Inquisitorial system can be adopted to strengthen the Adversarial System and to make it more effective. This includes the duty of the Court to search for truth, to assign a pro-active role to the Judges, to give directions to the investigating officers and prosecution agencies in the matter of investigation and leading evidence with the object of seeking the truth and focusing on justice to victims. Accordingly the Committee has made the following recommendations:-

(1) A preamble shall be added to the Code on the following lines: -

“Whereas it is expedient to constitute a Criminal Justice System, for

punishing the guilty and protecting the innocent.

“Whereas it is expedient to prescribe the procedure to be followed by it,

“Whereas quest for truth shall be the foundation of the Criminal Justice System,

“Whereas it shall be the duty of every functionary of the Criminal Justice

System and everyone associated with it in the administration of justice, to

actively pursue the quest for truth.

It is enacted as follows:

(2)       A provision on the following lines be made and placed immediately

above Section 311 of the Code

“Quest for truth shall be the fundamental duty of every court”.

(3)        Section 311 of the Code be substituted on the following lines: -

“Any Court shall at any stage of any inquiry, trial or other proceeding

under the Code, summon any person as a witness or examine any person

in attendance though not summoned as a witness or recall and re-examine

any person already examined as it appears necessary for discovering truth

in the case”.

(4)       Provision similar to Section 255 of the Code relating to summons trial

procedure be made in respect of trial by warrant and sessions procedures,

empowering such court to take into consideration, the evidence received

under Section 311 (new) of the Code in addition to the evidence produced

by the Prosecution

(5)     Section 482 of the Code be substituted by a provision on the following lines:

“Every Court shall have inherent power to make such orders as may be

necessary to discover truth or to give effect to any order under this Code

or to prevent abuse of the process of court or otherwise to secure the ends

of justice”.

(6)       A provision on the following lines be added immediately below Section

311 of the Code.

Power to issue directions regarding investigation

“Any court shall, at any stage of inquiry or trial under this Code, shall have such power to

issue directions to the investigating officer to make further investigation or

to direct the Supervisory Officer to take appropriate action for proper or

adequate investigation so as to assist the Court in search for truth.

(7)       Section 54 of the Evidence Act be substituted by a provision on the

following lines:

“In criminal proceeding the fact that the accused has a bad character is

relevant”.

Explanation: A previous conviction is relevant as evidence of bad character.

3. RIGHT TO SILENCE

The Right to silence is a fundamental right guaranteed to the citizen under Article 20(3) of the Constitution which says that no person accused of any offence shall be compelled to be a witness against himself. As the accused is in most cases the best source of information, the Committee felt that while respecting the right of the accused a way must be found to tap this critical source of information. The Committee feels that without subjecting the accused to any duress, the court should have the freedom to question the accused to elicit the relevant information and if he refuses to answer, to draw adverse inference against the accused.

                  At present the participation of the accused in the trial is minimal. He is

not even required to disclose his stand and the benefit of special exception to any which he claims. This results in great prejudice to the prosecution and impedes the search for truth. The Committee has therefore felt that the accused should be required to file a statement to the prosecution disclosing his stand. For achieving this, the following recommendations are made:

(8) Section 313 of the Code may be substituted by Section 313-A, 313-B and

313-C on the following lines: -

i) 313-A      In every trial, the Court shall, immediately after the

        witnesses for the prosecution have been examined, question the

       accused generally, to explain personally any circumstances

                   appearing in the evidence against him.

ii)313-B(1): Without previously warning the accused, the Court may at any

          stage of trial and shall, after the examination under Section

           313-A and before he is called on his defence put such

           questions to him as the court considers necessary with the

           object of discovering the truth in the case.

           If the accused remains silent or refuses to answer any question

           put to him by the court which he is not compelled by law to

           answer, the court may draw such appropriate inference

   including adverse inference as it considers proper in the   circumstances.

iii)313-C(1):    No oath shall be administered when the accused is examined

              under Section 313-A or Section 313-B and the accused shall not be               liable to punishment for refusing to answer any question or by giving false answer to them.

The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, or any other offence which such answers may tend to show he has committed.

(9) Suitable provisions shall be incorporated in the Code on the following

lines: -

(i) Requiring the Prosecution to prepare a ‘Statement of Prosecution’ containing all relevant particulars including, date, time, place of the offence, part played by the accused, motive for the offence, the nature of the evidence oral and documentary, names of witnesses, names and similar particulars of others involved in the commission of the crime, the offence alleged to have been committed and such other particulars as are necessary to fully disclose the prosecution case.

(ii) ‘Prosecution statement’ shall be served on the accused.

(iii) On the charge being framed the accused shall submit the ‘Defence Statement’, within two weeks. The Court may on sufficient cause being shown extend the time not beyond 4 weeks.

(iv) In the defence statement the accused shall give specific reply to every material allegation made in the prosecution statement.

(v) If the accused pleads guilty he need not file the defence statement.

(vi) If any reply is general, vague or devoid of material particulars, the Court may call upon the accused to rectify the same within 2 weeks, failing which it shall be deemed that the allegation is not denied.

(vii) If the accused is claiming the benefit of any general or special exceptions or the benefit of any exception or proviso, or claims alibi, he shall specifically plead the same, failing which he shall be precluded from claiming benefit of the same.

(viii) Form and particulars to be furnished in the prosecution statement and defence statement shall be prescribed.

(ix) If in the light of the plea taken by the accused, it becomes necessary for the prosecution to investigate the case further, such investigation may be made with the leave of the court.

(10)       (i) On considering the prosecution statement and the defence statement the                         court shall formulate the points of determination that arise for consideration.

 (ii) The points for determination shall indicate on whom the burden of proof lies.

(iii) Allegations which are admitted or are not denied need not be proved and the court shall make a record of the same.

4. RIGHTS OF ACCUSED

The accused has several rights guaranteed to him under the Constitution and relevant laws. They have been liberally extended by the decisions of the Supreme Court. The accused has the right to know about all the rights he has, how to enforce them and whom to approach when there is a denial of those rights. The Committee therefore felt that all the rights of the accused flowing from the laws and judicial decisions should be collected and put in a Schedule to the Code. The Committee also felt that they should be translated by each State in the respective regional language and published in a form of a pamphlet for free distribution to the accused and to the general public. The following recommendations are made in regard to the rights of the accused:-

(11) The rights of the accused recognised by the Supreme Court may subject to the clarification in chapter 4 and the manner of their protection be made statutory, incorporating the same in a schedule to the Criminal Procedure Code.

(12) Specific provision in the Code be made prescribing reasonable conditions to regulate handcuffing including provision for taking action for misuse of the power by the Police Officers.

5. PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF

There is no provision in the Indian Evidence Act prescribing a particular or a different standard of proof for criminal cases. However the standard of proof laid down by our courts following the English precedents is proof beyond reasonable doubt in criminal cases. In several countries in the world including the countries following the inquisitorial system, the standard is proof on ‘preponderance of probabilities’. There is a third standard of proof which is higher than ‘proof on preponderance of probabilities’ and lower than ‘proof beyond reasonable doubt’ described in different ways, one of them being ‘clear and convincing’ standard. The Committee after careful assessment of the standards of proof came to the conclusion that the standard of proof beyond reasonable doubt presently followed in criminal cases should be done away with and recommended in its place a standard of proof lower than that of ‘proof beyond reasonable doubt’ and higher than the standard of ‘proof on preponderance of probabilities’. The Committee therefore favours a mid level standard of proof of “courts conviction that it is true”. Accordingly, the Committee has made the following recommendations:

(13)     i) The Committee recommends that the standard of ‘proof beyond

reasonable doubt’ presently followed in criminal cases shall be done away with.

ii) The Committee recommends that the standard of proof in criminal

cases should be higher than the one prescribed in Section 3 of the

Evidence Act and lower than ‘proof beyond reasonable doubt’.

iii) Accordingly the Committee recommends that a clause be added in

Section 3 on the following lines:

“In criminal cases, unless otherwise provided, a fact is said to be proved when, after considering the matter before it, the court is convinced that it is true”.

(The clause may be worded in any other way to incorporate the

concept in para 2 above)

iv) The amendments shall have effect notwithstanding anything

contained to the contrary in any judgment order or decision of any court.

6. JUSTICE TO VICTIMS OF CRIME

An important object of the Criminal Justice System is to ensure justice to the victims, yet he has not been given any substantial right, not even to participate in the criminal proceedings. Therefore, the Committee feels that the system must focus on justice to victims and has thus, made the following recommendations which include the right of the victim to participate in cases involving serious crimes and to adequate compensation.

(14)     i) The victim, and if he is dead, his legal representative shall have the

right to be impleaded as a party in every criminal proceeding where

the change is punishable with 7 years imprisonment or more.

ii) In select cases notified by the appropriate government, with the

permission of the court an approved voluntary organization shall

also have the right to implead in court proceedings.

iii) The victim has a right to be represented by an advocate of his choice;

provided that an advocate shall be provided at the cost of the State if

the victim is not in a position to afford a lawyer.

iv) The victim’s right to participate in criminal trial shall, inter alia,

include:

a) To produce evidence, oral or documentary, with leave of the

Court and/or to seek directions for production of such evidence

b) To ask questions to the witnesses or to suggest to the court

questions which may be put to witnesses

c) To know the status of investigation and to move the court to

issue directions for further to the investigation on certain

matters or to a supervisory officer to ensure effective and

proper investigation to assist in the search for truth.

d) To be heard in respect of the grant or cancellation of bail

e) To be heard whenever prosecution seeks to withdraw and to

offer to continue the prosecution

f) To advance arguments after the prosecutor has submitted

arguments

g) To participate in negotiations leading to settlement of

compoundable offences

v ) The victim shall have a right to prefer an appeal against any

adverse order passed by the court acquitting the accused,

convicting for a lesser offence, imposing inadequate sentence, or

granting inadequate compensation. Such appeal shall lie to the

court to which an appeal ordinarily lies against the order of

conviction of such court.

vi) Legal services to victims in select crimes may be extended to

include psychiatric and medical help, interim compensation and

protection against secondary victimization.

vii) Victim compensation is a State obligation in all serious crimes,

whether the offender is apprehended or not, convicted or acquitted.

This is to be organised in a separate legislation by Parliament. The

draft bill on the subject submitted to Government in 1995 by the

Indian Society of Victimology provides a tentative framework for

consideration.

viii) The Victim Compensation law will provide for the creation of a

Victim Compensation Fund to be administered possibly by the

Legal Services Authority. The law should provide for the scale of

compensation in different offences for the guidance of the Court. It

may specify offences in which compensation may not be granted

and conditions under which it may be awarded or withdrawn.

It is the considered view of the Committee that criminal justice administration will assume a new direction towards better and quicker justice once the rights of victims are recognized by law and restitution for loss of life, limb and property are provided for in the system. The cost for providing it is not exorbitant as sometimes made out to be. With increase in quantum of fine recovered, diversion of funds generated by the justice system and soliciting public contribution, the proposed victim compensation fund can be mobilized at least to meet the cost of compensating victims of violent crimes. Even if part of the assets confiscated and forfeited in organised crimes and financial frauds is also made part in the Fund and if it is managed efficiently, there will be no paucity of resources for this well conceived reform. In any case, dispensing justice to victims of crime cannot any longer be ignored on grounds of scarcity of resources.

7. INVESTIGATION

The machinery of Criminal Justice System is put into gear when an offence is registered and then investigated. A prompt and quality investigation is therefore the foundation of the effective Criminal Justice System. Police are employed to perform multifarious duties and quite often the important work of expeditious investigation gets relegated in priority. A separate wing of investigation with clear mandate that it is accountable only to Rule of Law is the need of the day.

                Most of the Laws, both substantive as well as procedural were enacted more than 100 years back. Criminality has undergone a tremendous change qualitatively as well as quantitatively. Therefore the apparatus designed for investigation has to be equipped with laws and procedures to make it functional in the present context. If the existing challenges of crime are to be met effectively, not only the mindset of investigators needs a change but they have to be trained in advanced technology, knowledge of changing economy, new dynamics of social engineering, efficacy and use of modern forensics etc. Investigation Agency is understaffed, ill equipped and therefore the gross inadequacies in basic facilities and infrastructure also need attention on priority.

               There is need for the Law and the society to trust the police and the police

leadership to ensure improvement in their credibility.

In the above back drop following recommendations are made:

(15) The Investigation Wing should be separated from the Law and Order Wing.

(16) National Security Commission and the State Security Commissions at the

State level should be constituted, as recommended by the National Police Commission.

(17) To improve quality of investigation the following measures shall be taken:

i. The post of an Additional SP may be created exclusively for

supervision of crime.

ii. Another Additional SP in each Dist. should be made responsible for

collection, collation and dissemination of criminal intelligence;

maintenance and analysis of crime data and investigation of important cases .

iii. Each State should have an officer of the IGP rank in the State Crime

Branch exclusively to supervise the functioning of the Crime Police.

The Crime Branch should have specialised squads for organized crime and other major crimes.

iv. Grave and sensational crimes having inter-State and transnational

ramifications should be investigated by a team of officers and not by a

single IO.

v. The Sessions cases must be investigated by the senior-most police officer posted at the police station.

vi. Fair and transparent mechanisms shall be set up in place where they do not exist and strengthened where they exist, at the District Police Range and State level for redressal of public grievances.

vii. Police Establishment Boards should be set up at the police headquarters for posting, transfer and promotion etc of the District. Level officers.

viii. The existing system of Police Commissioner’s office which is found to be more efficient in the matter of crime control and management shall be introduced in the urban cities and towns.

ix. Dy.SP level officers to investigate crimes need to be reviewed for

reducing the burden of the Circle Officers so as to enable them to devote more time to supervisory work.

x. Criminal cases should be registered promptly with utmost promptitude by the SHOs .

xi. Stringent punishment should be provided for false registration of cases and false complaints. Section 182/211 of IPC be suitably amended

xii. Specialised Units/Squads should be set up at the State and District. Level for investigating specified category crimes.

xiii. A panel of experts be drawn from various disciplines such as auditing, computer science, banking, engineering and revenue matters etc. at the State level from whom assistance can be sought by the investigating officers .

xiv. With emphasis on compulsory registration of crime and removal of

difference between non-cognizable and cognizable offences, the work

load of investigation agencies would increase considerately. Additionally, some investigations would be required to be done by a team of investigators. For liquidating the existing pendency, and, for prompt and quality investigation including increase in the number of Investigating Officers is of utmost importance. It is recommended that such number be increased at least two-fold during the next three years.

xv. Similarly for ensuring effective and better quality of supervision of

investigation, the number of supervisory officers (additional SPs/Dy.SP) should be doubled in next three years.

xvi. Infrastructural facilities available to the Investigating Officers

specially in regard to accommodation, mobility, connectivity,

use of technology, training facilities etc. are grossly inadequate

and they need to be improved on top priority. It is recommended

a five year rolling plan be prepared and adequate funds are

made available to meet the basic requirements of personnel and

infrastructure of the police.

(18) The training infrastructure, both at the level of Central Govt. and State

Govts., should be strengthened for imparting state-of-the-art training to

the fresh recruits as also to the in-service personnel. Hand-picked

officers must be posted in the training institutions and they should be

given adequate monetary incentive

(19) Law should be amended to the effect that the literate witness signs the

statement and illiterate one puts his thumb impression thereon. A copy of the statement should mandatorily be given to the witness.

(20) Audio/video recording of statements of witnesses, dying declarations and confessions should be authorized by law.

(21) Interrogation Centres should be set up at the District. Hqrs. in each

District., where they do not exist, and strengthened where they exist, with facilities like tape recording and or videography and photography etc.

          (22)     (i) Forensic Science and modern technology must be used in

investigations right from the commencement of investigations. A cadre of Scene of Crime Officers should be created for preservation of scene of crime and collection of physical evidence there-from.

(ii) The network of CFSLs and FSLs in the country needs to be

strengthened for providing optimal forensic cover to the investigating officers. Mini FSLs and Mobile Forensic Units should be set up at the District./Range level. The Finger Print Bureaux and the FSLs should be equipped with well trained manpower in adequate numbers and adequate financial resources.

(23) Forensic Medico Legal Services should be strengthened at the District.

and the State /Central level, with adequate training facilities at the State/Central level for the experts doing medico legal work. The State

Govts. must prescribe time frame for submission of medico legal reports.

(24) A mechanism for coordination amongst investigators, forensic experts

and prosecutors at the State and Dist. level for effective investigations and prosecutions should be devised.

 (25) Preparation of Police Briefs in all grave crimes must be made mandatory. A certain number of experienced public prosecutors must be set apart in each District. to act as Legal Advisors to the District. police for this purpose.

(26) An apex Criminal intelligence bureau should be set up at the national

level for collection, collation and dissemination of criminal intelligence.

A similar mechanism may be devised at the State, District. and Police Station level.

(27) As the Indian Police Act, 1861, has become outdated, a new Police Act

must be enacted on the pattern of the draft ‘prepared by the National

Police Commission.

(28) Section 167 (2) of the Code be amended to increase the maximum period of Police custody to 30 days in respect of offences punishable with

sentence more than seven years.

(29) Section 167 of the Code which fixes 90 days for filing charge sheet

failing which the accused is entitled to be released on bail be amended empowering the Court to extend the same by a further period up to 90

days if the Court is satisfied that there was sufficient cause, in cases

where the offence is punishable with imprisonment above seven years.

(30) A suitable provision be made to enable the police take the accused in

police custody remand even after the expiry of the first 15 days from the

date of arrest subject to the condition that the total period of police

custody of the accused does not exceed 15 days.

(31) A suitable provision be made to exclude the period during which the

accused is not available for investigation on grounds of health etc., for

computing the permissible period of police custody.

(32) Section 438 of the code regarding anticipatory bail be amended to the

effect that such power should be exercised only by the Court of competent jurisdiction only after giving the public prosecutor an opportunity of being heard.

(33) Section 161 of the Code be amended to provide that the statements by

any person to a police officer should be recorded in the n