Changes In The Code Of Criminal Procedure

CHANGES IN THE CHANGES IN THE CODE OF CRIMINAL PROCEDURE TO ELIMINATE DELAYS IN CRIMINAL CASES BY NAZIRUDDIN AHMAD Senior Advocate, Supreme Court of Pakistan The Ministry of Law has sent a memorandum to the Pakistan Bar Council containing certain suggestions for some far‑reaching changes in the structure of the Code of Criminal Procedure affecting criminal trials, for their opinion. They are said to be the result of the actual experience of judicial officers. These are also the recommendations of the Law Reforms Commission published in 1959. Broadly speaking, the suggestions are three in number, namely; (i) abo lition of the procedure of warrant cases, (ii) the abolition of the commitment proceedings in cases triable by the Court of Session, and (iii) the abolition of the system of associating assessors with sessions trials. As these suggestions have been made for the avowed purpose of elimi nating delays in criminal trials, they deserve the serious consideration of all interested in the speedy and effective dispensation of justice in criminal cases. Undue and inordinate delays undeniably occur in the disposal of criminal cases at various stages, but the causes of these delays and their nature and effect have not been gone into either by the Commission or in the memorandum. It has been taken for granted that the elimination of these procedures will as a matter of course eliminate the delays. Speaking from long experience in the various types of criminal Courts, I suggest, with respect, that the real or the major causes of the delays, which undoubtedly occur, have not been examined and the suggested changes in the Code will not appreciably reduce these delays‑not to speak of elimi nating them altogether‑and will positively harm the cause of justice which it is the purpose of the Code to ensure. THE IMPUGNED PROVISIONS I shall first deal with the impugned provisions of the Code and the purposes they were designed to serve. For the purpose of providing different modes of trial the Code has divided cases into three categories: (i) summons cases, (ii) warrant cases, and (iii) cases triable by the Court of Session. These are considered in their order. (i) Summons cases: Summons cases are as a rule simple in nature and the offences are punishable with small fines and imprisonments not exceeding six months. The shortened procedure prescribed for these cases in Chapter XX is unexceptionable and bas stood the test of time. Certain offences falling under this category and some warrant cases are now made triable by the Conciliation Courts set up under the Conciliation Courts Ordinance. (ii) Werrant cases.‑Offences under this category are usually more complicated in nature, in fact and law, besides carrying higher punishments. Some more serious offences falling within this category are made triable by the. Court of Session and are dealt with under category (iii) below. The trial of . warrant cases consists of two stages: (a) taking evidence to see if a prima facie case has been made out for framing a formal charge. Interesting questions of fact and law often arise at this stage. Experienced lawyers often cross‑examine witnesses at this stage to show that prima facie case has not been made out, when the accused has to be discharged, thus putting a timely end to an untenable case. The other purpose of this preliminary stage is to give the accused and the prosecution and the Magistrate a clear picture of the case and to reduce the length and duration of the second stage to reasonable proportions. (b) After charge, if any, the accused cross‑examines the prosecution witnesses and examines defence witnesses, if necessary. The first stage is designed to clarify the issues and to prevent both sides from prolonging the trial by going into irrelevant matters. The second stage is designed to test the specific case made out at the first stage. Properly understood, the two stages constitute a clarifying and time saving device, besides securing a fair trial to the accused. This procedure has stood the test of over a century, and should not be disturbed. (iii) Sessions cases.‑These are the most serious cases involving heavy punishments including transportation and death, besides raising complicated issues of fact and law, both substantive and proce dural. Here also the procedure is split up into two stages: (a) first, the commitment proceedings under Chapter XVIII before a Magistrate. The purpose is to make sure that a prima facie case has been made out justifying the taking of the valuable time of the Sessions Court. The nature of the case and the evidence against the accused are also clearly determined at this stage. In many cases the offence is proved but the complicity of the accused or some of them is not made out. In some cases a little cross‑examination or argument by the accused exonerates the accused or some of them from responsibility for the crime. In such cases the accused or some of them have to be discharged. Thus many untenable cases are cut short at an early stage, and much public time and money and the anxieties and harassment of the accused are mercifully saved. (b) Trial at the Sessions.‑When the case survives the preliminary judicial test and the case is sent up to the Sessions, the Judge, the Public Prosecutor and the accused have a clear picture of the evidence against him, and the case to be developed by the prosecution and to be tested by the defence, and so get ready for the trial. The witnesses also know that their statements on oath are judicially recorded and are available to all as substantive evidence under section 288 of the Code, thus making it difficult for witnesses to resile from them, as they often try to do, out of corrupt motives or forgetfulness. The trial proceeds on lines clearly chalked out at the commitment stage, and is fair to all concerned. The only thing to do now is for the prosecution to develop the evidence, and for the defence to cross‑examine the witnesses and for both sides to argue the case. Properly looked at, the two‑stage procedure is really a systematic and business like approach to the trial and constitutes a time and labour‑saving device to ensure justice and fair‑play and has also stood the test of over p century of experience in the Indo‑Pakistan sub‑continent and in the Commonwealth countries for a much longer time. If any time is taken in the commitment proceedings, it is done to ensure clarity and brevity at the trial and to secure justice to all concerned, the pro secution the defence and the society at large, which is also interested in the orderly proceeding in criminal cases. It is in reality time spent to save time. To abolish the commitment stage is to abolish justice and fair‑play, and to invite delay and confusion and to procure miscarriage of justice. TRIAL BEFORE SPECIAL JUDGES The Commission has suggested that instead of the commitment proceed ings, charge‑sheet should be submitted by the police direct to the Court of Session. The effect of this would be to introduce a new procedure now prevalent in trials before Special Judges in corruption cases under the Crimi nal Law Amendment Act, XL of 1958. This leads me to consider the merits and demerits of the system brought to light in the practical working of the Act. The police submits charge‑sheet direct to the, Special Judge without the sifting and clarifying process of a commitment proceeding. Experience in these trials has shown many defects and many ways of prolonging the trials and harassment to the accused. Many cases are sent up where no prima facie case can be made out. Cases where the available evidence is insufficient for a conviction are frequently sent up. Cases depending entirely upon the retracted confession of a co‑accused or upon inconclusive circumstantial evidence, and even upon suspicion are often sent up to these Courts. Cases which are generally true but where the evidence against the accused or against some of them is insufficient, are also sent up without proper examination. Even the Public Prosecutor's certificate is no guarantee against untenable cases coming up to these Courts. The accused cannot go up to the High Court for quashing the charge‑sheet as the case against him is not precisely stated nor the evidence clearly indicated. The case is in a nebulous condition and its strength or weakness cannot be clearly determined. The result is utter waste of public time and money and, of course, uncertainties and harassment to the accused. POLICE STATEMENTS As a suggested substitute for evidence recorded by a Magistrate during commitment proceedings which it is proposed to abolish copies of statements of witnesses purporting to have been recorded by a police officer under section 161, Cr. P. C., is directed to be supplied to the accused. This procedure has serious drawbacks and is open to grave objections. The authenticity of these statements is open to grave doubts. They could be changed before copies are supplied to the accused and their genuineness cannot be verified. Cases have come to light where records of these state ments have been changed and spurious copies supplied to the accused. These are recorded in loose sheets which can be changed. Further, their scope and utility are very limited. The statements can be used only by the defence and only in cross‑examination to challenge the veracity and credit of the witness; the prosecution cannot use them in any case for any purpose whatsoever. Then again these statements are not made on oath and are made in the absence of the accused, and are not tested by cross‑examination. A witness when challenged with reference to this record, often denies the truth of the statement; and the Court has to choose between the witness and the recording police officer. They are not evidence of the truth of their contents, and they cannot be used for any constructive purposes. The prose cution is helpless when a witness goes against his statement; under section 162 of the Code the witness cannot be made to sign the record of his statement and is not bound by it. A further infirmity of these statements is that they are verbose and rambling and do not contain much factual and relevant information. As a record of statements of facts as a check against false statements, they are singularly ineffective. A statement recorded under sections 161/162 of the Code was never designed to be used in a judicial trial except to the very limited extent indicated above. Evidence of witnesses in commitment proceedings, on the other hand, is given on oath in open Court in the presence of the accused and is tested by cross‑examination. It is again, read over to the witness in the presence of the accused and is, if necessary, corrected at the instance of the witness and of the accused. It is signed by the witness and by the Magistrate. Its authenticity and correctness are safeguarded in many ways; these are pre sumed under section 80 of the Evidence Act and certified copies thereof are available to the parties. Further, the statement of the witness recorded by the Magistrate is substantive evidence of the facts stated therein at the trial under section 288 of the Code, even though the witness may resile from it. He can also be prosecuted for perjury for denying or condradicting the state ment. A statement to the police during the investigation is thus a worthless substitute for a judicially recorded statement at the commitment stage which it is proposed to replace, and cannot be accepted. ASSESSORS Trials before Special Judges are held without the aid of assessors. Their absence has, however, led to a practice of adjournments. Cases are frequently adjourned as the defence has not been supplied with copies of statements of witnesses made to the police, or because the Public Prosecutor did not get his papers from the police, or because prosecution witnesses have not attended, or because the investigation police officer did not turn up, and the like. As' a result, cases are seldom heard continuously from day to day, but at intervals of days or even weeks. Some witnesses prove nothing and new witnesses have to be summoned. The object of a "speedy trial" set out in the preamble of the Act as the ideal in corruption cases is seldom realised; procrastination and delay are the rule rather than the exception. Cases proceed aimlessly and their nature often changes and the trial often assumes the character of an investigation when new evidence is called for, resulting in more delays and confusion; and miscarriage of justice often results in which the accused is not the only victim. CAUSES OF DELAY Delay in the disposal of criminal cases poses a serious problem to those interested in the administration of justice. Delay is not, however, due to the two‑stage procedure in warrant cases or to commitment proceedings in sessions cases. It occurs chiefly in two other fields: (i) during police investi gation, and (ii) while the cases are pending before Magistrates. These are discussed below. DELAY IN POLICE INVESTIGATION Most crimes reported to the police are alleged to have been committed in broad day light resulting from local factions, in which the person accused and the identifying witnesses are named before the police along with the first information. It is also noticeable that crimes like murder, dacoity, theft, lurking house trespass, arson and the like are said to have been committed by known persons and recognised by known persons at the earlier stage. There is in fact nothing much to investigate; the question for the police is one of belief or disbelief of the witnesses. These cases cannot require more than two or three weeks to complete the investigation. Yet the police take months or a year or more to investigate. Long delays like these invite corruption and false evidence. Cases depending upon circumstancial evidence requiring real investigation are indeed very rare. But delay even in such cases can only bring out facts charged with suspicion, and cannot serve much useful purpose. The Code of Criminal Procedure does not empower the criminals Courts to speed up the investigation. Even the High Court has no power to quash investigations. This was authoritatively laid down by the Privy Council in 1944 in Khwaja Nazir Ahmad's case71 1 A 203 As the present law stands, the police can delay their investigation as long as they like. Things can be speeded up on executive level and by empowering criminal Courts to require the police to submit charge sheet or final report within a limited time. The High Court may be empowered to require the police to complete their investigation within a reasonable time. The Code has to be amended for that purpose. DELAYS IN MAGISTRATES' COURTS The other stage where serious delays occur is when the case is pending in the Magistrates' Courts. The most important cause of delay is frequent and repeated adjournments. Sometimes the Magistrate is away from the head quarters or from his Court, having been called away for some executive or administrative duties; sometimes the prosecution witnesses are ill some times the accused is ill; sometimes both sides are ready but the Magistrate has other cases. Lawyers are also no less responsible in many cases for adjourn ments; they have other cases in their hands. Parties also love to delay the trial. Sometimes the list of witnesses present is by common consent permitted to be taken away and substituted by a petition for time. Another major cause of delay is that witnesses are not produced for one continuous hearing but on several adjourned dates. Transfer of Magistrates is another cause of delay. Delay also suits all parties concerned. It is the order of the day. About twenty or thirty adjournments in a case for one reason or other is not unusual. The total time occupied in a trial varies from about one to two years. These unusual delays result in many evils including corruption and tampering of witnesses and the introduction of false evidence, all leading to miscarriage of justice. PRACTICE IN U. K. In the U. K. the procedures corresponding to summons cases, warrant cases and sessions cases are retained. And yet with all these procedural stages, cases are investigated by the police, trials by Magistrates, inquiries into cases triable by the jury and the actual trial occupy a remarkably short time to complete. Police investigations occupy two or three weeks, inquiries before trials take another three or four weeks, and the actual trial takes another three weeks, appeal to the Court of Criminal Appeal takes another six weeks and a hearing before the House of Lords in exceptional cases takes another four or five weeks. The whole process from the commission of the crime to the final disposal of the cases takes about a year or a year and a half. These facts are taken from some important reported trials. In the Indo‑Pakistan sub‑continent the entire proceeding takes several years. IMPORTANCE OF RULES OF PROCEDURE Rules of procedure are the result of long experience and are designed to save time and to secure justice to all. The procedures sought to be abolished represent the irreducible minimum to secure the ends of justice; their aboli tion would lead to denial of justice and in many cases positive miscarriage of justice. NO CASE FOR CHANGING THE LAW It will be clear, therefore, that no case has been made out for changing the law to eliminate delays in criminal trials. The causes of delay are to be looked for in police investigations and in the Magistrates' Courts, and require different set of remedies which are indicated below. THE REMEDIES I would suggest that the following remedies should be introduced:‑ (1) The combination of judicial and executive functions in Magistrates should be abolished. Magistrates engaged in inquiries and trials of cases should not be entrusted with executive or administrative duties, and vice versa. (2) The police should be made to complete their investigations normally within two or three weeks. This should be done by (a) executive action, and judicial control, and (b) the High Court's power of superintendence. The Code should be amended to arm these authorities with necessary powers. (3) Adjournments should be cut to the minimum. This if pursued consistently, would bring about the desired improvement; and many serious evils arising from delay would disappear. (4) The system of trials by Special Judges in corruption cases under the Criminal Law Amendment Act, 1958 should be discontinued; these should be made triable by Sessions Judges. (5) The procedure of warrant cases and of commitment proceedings should be retained, though their working may be speeded up. (6) Machinery should be established to look into cases of delay in investigations and in inquiries and trials before Magistrates preferably under the direction of the High Court. The co‑opera tion of the Bar Council should be sought. (7) The taw may be changed to enable Magistrates to continue the inquiry or trial in the absence of the accused. Section 540‑A of the Code should be suitably amended. (8) Trials with the aid of assessors should be retained and should be made applicable to both wings. They are a substitute for jury trials which have been abolished. Their opinion on facts would be of great value and greater regard should be paid to them. Greater care should be taken in their selection. Retired High Government servants and teachers and professors should be enlisted and their attendance should be made compulsory. Their opinions should be of great value specially in doubtful cases. Their elimination would introduce delays through adjournments as have happened in corruption cases, which is an evil by itself. Good citizens should be more and more enlisted in aid of justice in serious cases as a part of their training in self‑Government.