PUCL May, 2003

Recommendations of the Malimath Committee on reforms of Criminal Justice System

(Transcript by Shankar Gopalakrishnan, People's Union for Civil Liberties (Tamil Nadu & Pondicherry)

Also, Safegaurd the rights of the accused.

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 proactive 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 [of Criminal Procedure] 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 powers 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, 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 - Article 20(3)
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 accuse din 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 Sections 313-A, 313-B and 313-C on the following lines:
a) 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.

b) 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.

c) 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:
a) Requiring the prosecution to prepare a 'Statement of Prosecution' containing all relevant particulars including, date, time, place of the offence, the nature of 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.

b) 'Prosecution statement' shall be served on the accused.

c) On 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.

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

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

f) 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.

g) 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.

h) Forms and particulars to be furnished in the prosecution statement and defence statement shall be prescribed.

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

b) The points of determination shall indicate on whom the burden of proof lies.

c) 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 the 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 the general public.

The following recommendations are made in regard to the rights of the accused:-
(11) The rights of the accused recognized 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 the being 'clear and convincing' standard. The Committee after careful assessment of the standards of proof came 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 'proof beyond reasonable doubt' and higher than the standard of 'proof on preponderance of probabilities.' The Committee is therefore favours a mid level standard of proof of 'courts conviction that it is true.' Accordingly, the Committee has made the following recommendations:-

(13)
a. The Committee recommends that the standard of 'proof beyond reasonable doubt' present followed in criminal cases shall be done away with.

b. The Committee recommends that the standard of proof in criminal cases should be higher than the 'preponderance of probabilities' and lower than 'proof beyond reasonable doubt.'

c. 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 matters 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)

d. The amendments shall have effect notwithstanding anything contained in 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 event o participate in the criminal proceedings. Therefore the Committee feels that the system must focus on justice to victims. Therefore the Committee has made several recommendations which include the right of the victim to participate in cases involving serious crimes and to adequate compensation. Hence, the Committee has made the following recommendations:-

(14)
a) 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 offence is punishable with 7 years imprisonment or more.

b) In select cases notified by the appropriate government, with the permisssion of the court an approved voluntary organization shall also have the right to implead in court proceedings.

c) 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.

d) The victim's right to participate in criminal trials 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 th 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 withdrawand 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.

e) 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 a court.

f) Legal services to victims in select crimes may be extended to include psychiatric and medical help, interim compensation and protection against secondary victimization.

g) Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted. This is to be organized in a separate legislation by Parliamanet. The draft bill on the subject submitted to Government in 1995 by the Indian Society of Victimology provides a tentative framework for consideration.

h) The Victim Compensation law will provide for the creation of a Victim Compensation Fund to be administered possibility 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 organized crime and financial frauds is also made part of 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. Police 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 investigations 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 on 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 backdrop the 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 Commission 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:
a) The post of an Addl SP may be created exclusively for supervision of a crime.

b) Another Addl. SP in each District should be made responsible for collection, collation and dissemination of criminal intelligence; maintenance and analysis of crime data and investigation of important cases.

c) 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 specialized squads for organized crime and other major crimes.

d) Grave and sensational crimes having inter-State and transnational ramifications should be investigated by a team of officers and not by a single IO.

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

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

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

h) 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.

i) 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

j) Criminal cases should be registered promptly with utmost promptitude by the SHO's

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

l) Specialised Units/Squads should be set up at the State and District level for investigating specified category crimes.

m) 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.

n) With emphasis on compulsory registration of crime and removal of difference between non-cognizable and cognizable offences, the workload of investigation agencies would increase considerably. 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.

o) Similarly for ensuring effective and better quality of supervision of investigation, the number of supervisory officers (additional SPs/Dy.SPs) should be doubled in next three years.

p) 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 that 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 Government and State Governments, 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 illiteterate one puts his thumb impression thereon. A copy of the statement should be mandatorily 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)
a) Forensic Science and modern technology must be used in investigations right from the commencement of investigation. A cadre of Scene of Crime officers should be created for preservation of scene of crime and collection of physical evidence there-from.

b) The network of CFSL's and FSL's in the country needs to be strengthened for providing optimal forensic cover to the investigating officers. Mini FSL's and Mobile Forensic Units should be set up at the District/Range level. The Finger Print Bureaux and the FSL's 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 Governments must prescribe time frame for submission of medico legal reports.

(24) A mechanism for coordination among investigators, forensic experts and prosecutors at the State and District 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) S. 438 of the Code regarding anticipatory bail be amended to the effect that such power should be exercised 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 narrative or question and answer form.

(34) In cases of offences where sentence is more than 7 years it may also be tape / video recorded.

(35) Section 162 be amended to require that it should then be read over and signed by the maker of the statement and a copy furnished to him.
(36) Section 162 of the Code should also be amended to provide that such statements can be used for contradicting and corroborating the maker of the statement.

(37) Section 25 of the Evidence Act may be suitably amended on the lines of Section 32 of POTA 2002 that a confession recorded by the Supdt. of Police or Officer above him and simultaneously audio/video recorded is admissible in evidence subject to the condition that the accused was informed of his right to consult a lawyer.

(38) Identification of Prisoners Act 1920 be suitably amended to empower the Magistrate to authorize taking from the accused fingerprints, footprints, photographs, blood sample for DNA, fingerprinting, hair, saliva or semen etc., on the lines of Section 27 of POTA 2002.

(39) A suitable provision be made on the lines of section 36 to 48 of POTA 2002 for interception of wire, electric or oral communication for prevention or detection of crime.

(40) Suitable amendments be made to remove the distinction between cognizable and non-cognizable offences in relation to the power of the police to investigate offences and to make it obligatory on the police officer to entertain complaints regarding commission of all offences and to investigate them.

(41) Refusal to entertain complaints regarding commission of any offence shall be made punishable.

(42) Similar amendments shall be made in respect of offences under special laws.

(43) A provision in the Code be made to provide that no arrest shall be made in respect of offences punishable only with fine, offences punishable with fine as an alternative to a sentence of imprisonment.

(44) In the schedule to the Code for the expression "cognizable", the expression "arrestable without warrant" and for the expression "non-cognizable" the expression "arrestable with warrant or order" shall be substituted.

(45) The Committee recommended for the review and reenactment of the IPC, CrPC and Evidence Act may take a holistic view in respect to punishment, arrestability and bailability.

(46) Consequential amendments shall be made to the first schedule in the column relating to bailability in respect of offences for which the Committee has recommended that no arrest shall be made.

(47) Even in respect of offences which are not arrestable, the police should have power to arrest the person when he fails to give his name and address and other particulars to enable the police to ascertain the same. Section 42 of the Code be amended by substituting the word "any" for the words "of non-cognizable."

(48) As the Committee has recommended removal of distinction between cognizable and non-cognizable offences, consequential amendments shall be made.

(49) The first schedule to the Code be amended to provide only the following particulars.
a) Section
b) Offence
c) Punishment
d) No arrest / arrestable with warrant or order / arrestable without warrant or order.
e) Bailable or non-bailable
f) Compoundable or non-compoundable
g) By what court triable.

Consequential amendments shall be made to part II of the First Schedule in respect of offences against other laws.

(50) Rights and duties of the complainant/informant, the victim, the accused, the witnesses and the authorities to whom they can approach with their grievances should be incorporated in separate Schedules to the Code. The should be translated in the respective regional languages and made available free of cost to the citizens in the form of easily understandable pamphlets.

(51) Presence of witnesses of the locality or other locality or neighborhood is required under different provisions of the existing laws. The committee recommends that such provisions be deleted and substituted by the words "the police should secure the presence of two independent witnesses."

8. Public Prosecution
Prosecutors are the Officers of the Court whose duty is to assist the court in the search of truth which is the objective of the Criminal Justice System. Any amount of good investigation would not result in success unless the institution of prosecution has persons who are of merit and who are committed with foundation of a well structure professional training.

This important institution of the Criminal Justice System has been weak and somewhat neglected. Its recruitment, training and professionalism need special attention so as to make it synergetic with other institutions and effective in delivering good results.

The following recommendations are made in this regard.

(52)
a) In every State, the post of Director of Prosecution should be created, if not already created, and should be filled up from among suitable police officers of the rank of DGP in consultation with the Advocate General of the State.

b) In States where the term of the existing incumbents comes to an end, such appointments shall be made, after the expiry of the term.

(53) The Assistant Public Prosecutors and Prosecutors (other than the State Public Prosecutor in the High Court) shall be subject to the administrative and disciplinary control of the Director of Prosecutions.

(54) The duties of the Director, inter alia, are to facilitate effective coordination between the investigating and prosecuting officers and to review their work and meeting with the Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors from time to time for that purpose.

(55) The Director must function under the guidance of the Advocate General.

(56)
a) All appointments to APP's shall be through competitive examination held by the Public Service Commission having jurisdiction.

b) 50% of the vacancies in the posts of Public Prosecutors or Additional Public Prosecutors at District level in each state shall be filled up by selection and promotion of seniority-cum-merit from the APP's.

c) Remaining 50% of the posts of Public Prosecutors or Additional Public Prosecutor shall be filled by selection from a panel prepared in consultation with District Magistrates and District Judges.

d) No person appointed as APP or promoted as Public Prosecutor shall be posted in the Home district to which he belongs or where he was practicing.

e) Public Prosecutors appointed directly from the Bar shall hold office for a period of three years. However, the State may appoint as Special Public Prosecutor any member of the Bar for any class of cases for a specified period.

f) In appointing to various offices of Public Prosecutors and Assistant Public Prosecutors sufficient representation shall be given to women.

(57) Assistant Public Prosecutors should be given intensive training, both theoretical and practical. Persons in service should be given periodical in-service training.

(58) To provide promotional avenues and to use their expertise. Posts be created in institutions for Training for Prosecutors and Police Officers.

(59) To ensure accountability, the Director must call for reports in all cases that end in acquittal, from the Prosecutor who conducted the case and the Superintendent of Police of the District.

(60) All prosecutors should work in close cooperation with the police department, and assist in speedy and efficient prosecution of criminal cases and render advice and assistance from time to time for efficient performance of their duties.

(61) The Commissioner of Police / Dist. Supdt of Police may be empowered to hold monthly review meetings of P.P.'s / Addl. P.P.'s and APP's for ensuring proper coordination and satisfactory functioning.

(62) Provision may be made for posting Public Prosecutor / Senior Asst. Public Prosecutors at the Commissionerate / Dist. Supdt. offices for rendering legal advice.

9. Courts and Judges
There is gross inadequacy of judges to cope up the enormous pendency and new inflow of cases. The existing judge population ratio in India is 10.5:13 per million population as against 50 judges per million population in many parts of the world. The Supreme Court has given directions to all the States to increase the judge strength by five times in a phased manner within the next five years. The vacancies in the High Courts have remained unfilled for years. This must be remedied quickly.

The Commission is deeply concerned about the deterioration in the quality of judges appointed to the courts at all levels. The Constitution of a National Judicial Commission is being considered at the national level to deal with the appointment of judges to the High Courts and the Supreme Court and to deal with the complaints of misconduct against them. The mere entrustment of the power of appointment to the National Judicial Commission will not ensure the appointment of competent and upright judges. We need a process to ensure objectivity and transparency in this behalf.

This requires laying down the precise qualifications, experience, qualities and attributes that are needed in a good judge and also the prescription of objective criteria to apply to the overall background of the candidate. The analysis and discussions preceding their recommendations should be recorded so as to ensure objectivity and transparency in the matter of selecting the candidates.

There are also complaints of serious aberrations in the conduct of the judges. Under Article 235 of the Constitution, the High Court can exercise supervision and control over the subordinate courts. There is no such power conferred either on the Chief Justice of the High Court or the Chief Justice of India, or the Supreme Court of India. The provisions for impeachment are quite difficult to implement. It is felt that the Chief Justice should be conferred certain powers to enforce discipline and to take some corrective or advisory measures against his colleagues whenever aberrations in their conduct come to notice.

The Committee also feels that criminal work is highly specialize and to improve the quality of justice only those who have expertise in criminal work should be appointed and posted to benches to deal exclusively with criminal work. As the ????? expertise al all levels is found to be woefully inadequate the Committee feels that suitably tailored intensive training including practical programme should be devised and all the judges given training not only at the induction time but also in service at frequent intervals. To achieve these objectives, the following recommendations are made:-

(63)
a) Qualifications prescribed for appointment of judges at different levels should be reviewed to ensure that highly competent judges are inducted at different levels.

b) Special attention should be paid to enquire into the background and antecedents of the persons appointed to the Judicial Offices to ensure that persons of proven integrity and character are appointed.

(64) Intensive training should be imparted in theoretical, practical and in court management to all the Judges.

(65)
a) In the Supreme Court and High Courts, the respective Chief Justices should constitute a separate criminal division consisting of such number of criminal benches as may be required consisting of judges who have specialized in criminal law.

b) Such judges should normally be continued to deal with criminal cases until they demit office.

c) Vacancies in the criminal divisions should be filled up by appointing those who have specialized knowledge in criminal law.

(66) In the subordinate courts where there are more judges of the same cadre at the same place, as far as possible assigning of civil and criminal cases to the same judge every day should be avoided.

(67) In urban areas where there are several trail courts some corust should have lady judges who should be assigned as far as possible criminal cases relating to women.

(68) A High Power Committee should be constituted to lay down the qualifications, qualities and attributes regarding character and integrity that the candidate for the High Court judgeship should possess and specify the evidence or material necessary to satisfy these requirements. Reasons should be recorded with reference to these criteria by the selecting authority.

(69) The Chief Justice of the High Court may be empowered on the lines of the US Judicial Councils Reform and Judicial Conduct and Disabilities Act 1980 to do the following:-
a) Advise the judge suitably
b) Disable the judge from hearing a particular class of cases
c) Withdrawing judicial work for a specified period
d) Censure the judge
e) Advise the judge to seek voluntary retirement
f) Move the Chief Justice of India to advise the Judge or initiate action for impeachment.

(70) The Chief Justice of the High Court may issue circulars:-
a) That immediately below the cause title of the judgment order the following particulars shall be entered:-

a) Date of conclusion of arguments
b) Date of reserving the judgmen
c) Date of pronouncement of judgment
d) At the bottom of the judgment the following particulars shall be entered:-

1. Date when the dictation was completed
2. Date when typing was completed and placed before the judge
3. The date when the judge signed

b) The Court Officer shall enter in a separate register:-
a) The time when the judge assembled.
b) The time when the judge rose
c) Copy of this record shall be sent to the Chief Justice on the same day and put up on the notice board.

(71) The Committee recommends that the Law Commission's consultation paper on case management be accepted and the proposals carried out without any delay.

10. Trial Procedures
The Committee is concerned with enormous delay in decision making, particularly in trial courts. At present, a large number of cases in which punishment is two years and less are tried as summons cases. The summary procedure prescribed by Section 262 to 264 of the Code, if exercised properly, would quicken the pace of justice considerably.

However, the number of cases which are presently tried summarily is quite small and maximum punishment that can be given after a summary trial is three months. In order to speed up the process, the Committee feels that all cases in which punishment is three years and below should be tried summarily and punishment that can be awarded in summary trials should be increased to three years. At present only specially empowered magistrate can exercise summary powers which the Committee feels should be given to all Judicial Magistrates First Class.

Section 206 of the Code prescribes the procedure for dealing with 'petty offences.' This provision empowers the Magistrates to specify in the summons the fine which the accused should pay if he pleads guilty and to send the fine amount along with his reply to the court. This procedure is simple and convenient to the accused, as he need not engage a lawyer nor appear before the court if he is not interested in contesting the case. However, the definition of the expression 'petty offences' restricts it to those offences punishable only with fine not exceeding Rs. 1000/-. In order to give benefit of this provision to large number of accused, the Committee has favoured suitable modification of the expression 'petty offences.' Hence the following recommendations are made:-

(72)
a) Section 260 of the Code may be amended by substituting the word "shall" for the words "may if he think fit."

b) Section 260 (1) (c) of the Code be amended empowering any Magistrate of First Class to exercise the power to try the cases summarily without any special empowerment in this behalf by the High Court.

c) The limit of Rs. 200/- fixed for the value of property under Section 260 (1) (c) (ii, iii, iv) be enhanced to Rs. 5000/-

(73)
a) Section 262(2) be amended to enhance the power of sentence of imprisonment from three months to three years.

b) Section 2(x) be amended by substituting the word "three" for the word "two."

(74) That all Magistrates shall be given intensive practical training to try cases following the summary procedure.

(75) Section 206 be amended to make it mandatory to deal with all petty cases in the manner prescribed in sub-section (1).

(76)
a) In the proviso to sub-section (1) the fine amount to be specified in the summons shall be raised to Rs. 2000/-.

b) Notice to the accused under Section 206 shall be in form No. 30-A and the reply of the accused shall be in form No. 30-B as per annexures.

(77) In sub-section (2) of Section 206 the limit relating to fine be raised to Rs. 5000/-.

(78)
a) Sub-section (3) shall be suitably amended to empower every Magistrate to deal with cases under sub-section (1). Offences which are compoundable under Section 320 or any offence punishable with imprisonment for a term not exceeding one year or with fine or with both.
b)
a) Section 62 of the code be amended by deleting reference to the need for rules by State Government for alternate modes of service.
b) In Section 69 before the word "witness" the words "accused or" be added wherever the word "witness" occurs.

11. Witnesses and Perjury
The prosecution mainly relies on the oral evidence of witnesses for proving the case against the accused. Unfortunately there is no dearth of witnesses who come to the courts and give false evidence with impunity. This is a major cause of failure of the system. The procedure prescribed for taking action against perjury is as cumbersome as it is unsatisfactory.

Many witnesses give false evidence either because of inducement or because of the threats to him or his family members. There is no law to give protection to the witnesses subject to such threats, similar to witness protection laws available in other countries.

Unfortunately the witnesses are treated very shabbily by the system. There are no facilities for the witnesses when they come to the court and have to wait for long periods, often their cross-examination is unreasonable and occasionally rude. They are not given their TA / DA promptly. The witnesses are not treated with due courtesy and consideration; nor are they protected. Witnesses are required to come to the court unnecessarily and repeatedly as a large number of cases are posted and adjourned on frivolous grounds. To overcome these problems, the Committee has made the following recommendations:-

(79)
a) Witness who comes to assist the court should be treated with dignity and shown due courtesy. An official should be assigned to provide assistance to him.

b) Separate place should be provided with proper facilities such as seating, resting, toilet, drinking water etc. for the convenience of the witnesses in the court premises.

(80) Rates of traveling and other allowance to the witness should be reviewed so as to compensate him for the expenses that he incurs. Proper arrangements should be made for payment of the allowances due to the witness on the same day when the case is adjourned without examining the witness he should be paid T.A. and D. A. the same day.

(81) A law should be enacted for giving protection to the witnesses and their family members on the lines of the laws in USA and other countries.

(82) Courts should list the cases in such a manner as to avoid the witnesses being required to come again and again for giving evidence. The trial should proceed on day to day basis and granting of adjournments should be avoided. The judge should be held accountable for any lapse in this behalf. The High Court should ensure due compliance through training and supervision.

(83) Evidence of experts falling under Sections 291, 292 and 293 of the Court may as far as possible received under Affidavit.

(84) DNA experts should be included in subsection 4 of Section 293 of the Code.

(85) The witness should be provided a seat for him to sit down and give evidence in the court.

(86) The judge should be vigilant and regulate cross-examination to prevent the witness being subjected to harassment, annoyance or indignity. This should be ensured through training and proper supervision by the High Courts.

(87)
a) Section 344 of the Code may be suitably amended to require the court to try the case summarily once it forms the opinion that the witness has knowingly or willfully given false evidence or fabricated false evidence with the intention that such evidence should be used in such proceeding. The expression occurring in Section 344(1) to the effect "if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating as the case may be, false evidence" shall be deleted.

b) The Committee recommends that the punishment of three months or fine up to Rs. 500/- or both should be enhanced to imprisonment for two years or fine up to Rs. 10000 /- or both.

c) Sub-section 3 may be suitably amended to the effect that if the Court of Session or Magistrate of first class disposing the judicial proceeding is however satisfied that it is necessary and expedient in the interest of justice that the witness should be tried and punished following the procedure prescribed under Section 340 of the Code, it shall record a finding that effect and proceed to take further action under the said provision. Section 341 providing for appeal is unnecessary and shall be deleted.

(88) As the oath of affirmation administration to the witnesses has become an empty formality and does not act as a deterrent against making false statements by witnesses, it is recommended that a provision should be incorporated requiring the judge administering the oath or affirmation to caution the witness that he is in duty bound under Section 8 of the Oaths Act to speak the truth and that if he makes a false statement in violation of the oath or affirmation that has been administered to him, the court has the power to punish him for the offence of perjury and also to inform him of the punishment prescribed for the said offence.

(89) It is further recommended that the High Court may impress upon the subordinate courts of their duty to resort to these provisions to curb the menace of perjury, through training and calling for periodic reports.

12. Vacations for the Courts
In view of the large pendency and mounting arrears of criminal cases, the long vacations for the High Courts and Supreme Courts in the larger public interest, the Committee feels that there should be a reduction of the vacations.
Hence, the following recommendations are made:-

(90)
a) The working days of the Supreme Court be raised to 206 days.

b) The working days of the High Courts be raised to 231 days.

c) Consequently, the Supreme Court and the High Courts shall reduce their vacations by 21 days on the increase in their working days.

13. Arrears Eradication Scheme
The recommendations made by the Committee in this report would help in reducing the arrears and speeding up the trials, but to tackle the huge arrears a complementary strategy is recommended. Government of India, Ministry of Law and Justice has created a 'fast track courts' scheme for dealing with sessions cases. Though the scheme is good it is beset with many practical problems besides being limited to dealing with sessions cases.

The Committee is in favour of working out an 'Arrears Eradication Scheme' for the purpose of tackling all the cases that are pending for more than 2 years on the appointed day.

To carry out the scheme, the Committee feels that a retired judge of a High Court who is known for effective and expeditious disposal of criminal cases should be put in charge of the Arrears Eradication Scheme as the sitting judges may not find the time for it. Hence the following recommendations.

(91) Arrears Eradication Scheme should be framed on lines suggested in the Section "Arrears Eradication Scheme."

(92) There should be a cell in the High Court whose duty shall be to collect and collate information and particulars from all the Subordinate courts in regard to cases pending in the respective courts for more than two years, to identify the cases among them which can be disposed of summarily under Section 262 of the Code or as petty cases under Section 206 of the Code and cases which can be compounded with or without the leave of the court.

(93) On the coming into force of the scheme, arrangements shall be made for sending all the compoundable cases to the Legal Service Authority for settling those cases through Lok Adalats on priority basis.

(94) The courts constituted under the Arrears Eradication Scheme shall dispose of cases on priority basis. The arrears of cases triable under Section 262 and under Section 206 shall be disposed of expeditiously.

(95) The Courts constituted under the Arrears Eradication Scheme shall dispose of the cases expeditiously.

(96) A case taken up for hearing should be heard on a day to day basis until conclusion. Only such number of cases as can be conveniently disposed of shall be posted for hearing every day as far as possible in consultation with the concerned lawyers.

(97) Once the case is posted for hearing it shall not be adjourned. If under special circumstances a case is required to be adjourned, it should be done for reasons to be recorded in writing subject to payment of costs and also the amount of expenses of the witnesses. The Court in its discretion shall award costs to the other party or direct that the same shall be credited to the victim compensation fund if one is constituted.

(98) The (retired) Judge incharge of the Arrears Eradication Scheme shall make an estimate of the number of additional courts required to be constituted for eradication of the arrears at each place including the requirement of staff, number of Public Prosecutors and other infrastructure required and move the concerned authorities to appoint them.

(99) The High Court shall take effective measures to ensure that the current cases are disposed of expeditiously and that no current cases would be pending for more than two years. Additional Courts if need for this purpose should be sanctioned expeditiously.

14. Offences, Sentence, Sentencing and Compounding
Since the IPC was enacted in the year 1860, may developments have taken place, new forms of crimes have come into existence, punishment for some crimes are proving grossly inadequate and the need for imposing only fine as a sentence for smaller offences is felt. Variety of the punishments prescribed is limited. There is thus a need to have new forms of punishments such as community service, disqualification from holding public offices, confiscation orders, imprisonment for life without commutation or remission etc. Hence the Committee is in favour to review the IPC.

The IPC prescribes only the maximum punishments for the offences and in some cases minimum punishment is also prescribed. The judge exercises wide discretion within the statutory limits. There are no statutory guidelines to regulate his discretion. Therefore in practice there is much variance in the matter of sentencing. There is no clear indication as to what are all the factors that should be taken into account in the matter of assessing the sentences to be imposed. In many countries there are laws prescribing sentencing guidelines. The Committee is therefore in favour of a permanent Statutory Committee being constituted for the purpose of prescribing sentencing guidelines.

As the fines were prescribed more than a century ago and the value of the rupee has since gone down considerably, the Committee feels that it should be suitably enhanced.

The practice of jailing women who are pregnant or having young child: the Committee feels that this is cruel and most unreasonable to virtually put the innocent child in prison for no fault of the child which will also affect his future life. Therefore pregnant women or women with child (below 7 years) should, instead of being sent to prison, be ordered to be under house arrest. This the Committee feels is not a charity but the legitimate right of the unborn and young children.

The Committee feels that the law should lean in favour of settlement of cases without trial, where the interest of society is not involved. The Law Commission has already made its recommendations on this. The implementation of the Law Commission recommendations with the inclusion of more offences in the category of cases that can be compounded is recommended.

(100) The Committee recommends that wherever fine is prescribed as one of the punishments, suitable amendments shall be made to increase the fine amount by fifty times.

(101) In respect of offences for which death is a punishment, the sentence of "imprisonment for life without commutation or remission" be prescribed as an alternative sentence. Suitable amendments shall be made to make it clear that when such punishment is imposed, the government is precluded from commuting or remitting the sentence.

(102) When a woman who is pregnant or has a child below 7 years is sentenced to any term of imprisonment, a provision shall be made to give effect to that sentence by directing that she shall remain under house arrest during that period. Similar provisions shall be made in respect of such women who are remanded to judicial custody.

(103) IPC empowers the court to prescribe the sentence of imprisonment when the accused commits default in payment of fine. The Committee recommends that a suitable provision should be made empowering the court to prescribe an alternative to default sentence, community service for a specified time.

(104) The Committee recommends that a statutory Committee be constituted to lay down sentencing guidelines to regulate the discretion of the court in imposing sentences for various offences under the IPC and Special Local Laws under the Chairmanship of a former Judge of the Supreme Court or a retired Chief Justice of a High Court who has experience in the Criminal Law, and with members representing the Police department, the legal profession, the Prosecution, women and a social activist.

(105) The Committee recommends review of the Indian Penal Code to consider enhancement, reduction or prescribing alternative modes of punishments, creating new offences in respect of new and emerging crimes and prescribing new forms of punishments wherever appropriate and including more offences in the category of compoundable offences and without leave of the court.

(106) The Committee recommends implementation of 142nd and 154th reports of the Law Commission of India in regard to settlement of cases without trial.

15. Reclassification of Offences
It is recommended that non-cognizable offences should be registered and investigated and arrestability shall not depend on cognizability, the present classification has further lost its relevance.

However, the Committee feels that when reviewing the Indian Penal Code it may be examined whether it would be helpful to make a new classification into i) The Social Welfare Code, ii) The Correctional code, iii) the Criminal Code and iv) Economic and other Offences Code. Hence the following recommendations:-

(107) To remove the distinction between cognizable and non-cognizable offences and making it obligatory on the Police Officer to investigate all offences in respect of which a complaint is made. This is discussed in the chapter on 'Police Investigations.'

(108) Increasing the number of cases falling within the category of cases triable by following the summary procedure presented by Sections 262 to 264 of the code in respect of which recommendations have been made in the Section dealing with "Trial Procedures."

(109) Increasing the number of offences falling in the category of "Petty Offences" which can be dealt with by following the procedure prescribed by Section 206 of the Code which has been discussed in the Section dealing with "Trial Procedure".

(110) Increasing the number of offences for which no arrest shall be made, which ahs been discussed in the section dealing with "Police Investigation."

(111) Increasing the number of offences where arrest can be made only with the order of the court and reducing the number of cases where arrest can be made without an order or warrant form the Magistrate, which has been discussed in the section dealing with "Police Investigation."

(112) Increasing the number of offences which are bailable and reducing the number of offences which are not bailable discussed in the Section dealing "Police Investigation."

(113) Increasing the number of offences that can be brought within the category of compoundable / settlement category discussed in the Section dealing with "Sentences and Sentencing."

(114) The Committee recommends a comprehensive review of the Indian Penal Code, the Evidence Act and the Criminal Procedure Code by a broad based Committee representing the functionaries of the Criminal Justice System, eminent men and women representing different schools of thoughts, social scientists and vulnerable sections of the society and make recommendations to the Parliament for stronger and progressive laws for the country.

16. Offences Against Women
There are several shortcomings or aberrations in dealing with the offences against women which need to be addressed. The Committee feels that a man who marries a second wife during the subsistence of the first wife should not escape his liability to maintain his second wife under Section 125 of the Code on the grounds that the second marriage is neither lawful or valid.

The Supreme Court has held that, for proving bigamy, it is to be established that the second marriage was performed in accordance with the customary rites of either parties under the personal laws which is not easy to prove. Therefore the Committee feels that evidence regarding a man and woman living together for a reasonably long period should be sufficient to draw the presumption that marriage was performed according to the customary rites of the parties.

As a man can be punished under Section 497 of the IPC for adultery, for having sexual intercourse with a wife of another man, it stands to reason that wife should likewise be punished if she has intercourse with another married man.

There is a general complain that Section 498A of the IPC regarding cruelty by the husband or his relatives is subjected to gross misuse and many times operates against the interest of the wife herself. This offence is non-bailable and non-compoundable. Hence husband and other members of the family are arrested and can be behind the bars which may result in husband losing his job. Even if the wife is willing to condone and forgive the lapse of the husband and live in matrimony, this provision comes in the way of spouses returning to the matrimonial home. This hardship can be avoided by making the offence bailable and compoundable.

As instances of non-penal penetration are on the increase and they do not fall in the definition under the offence of rape under Section 375 of the IPC, the Committee feels that such non-penal penetration should be made an offence prescribing a heavier punishment.

The Committee is not in favour of imposing death penalty for the offence of rape for in its opinion the rapists may kill the victim. Instead, the Committee recommends sentence of imprisonment for life without commutation or remission.

The Committee however feels that investigation and trial of rape cases should be done with most expedition and with a high degree of sensitivity. The Committee therefore, makes the following recommendations:-

(115) Definition of the word "wife" in section 125 of the Code be amended to include a woman who was living with the man like his wife for a reasonably long period.

(116) Section 494 of the IPC be suitably amended to the effect that if the man and woman were living together as husband and wife for a reasonably long period the man shall be deemed to have married the woman according to the customary rites of either party.

(117) Section 497 of the Indian Penal Code regarding offence of adultery be amended to include wife who has sexual intercourse with a married man, by substituting the words "whosoever has sexual intercourse with the spouse of any other person is guilty of adultery."

(118) The Code may be suitably amended to make the offence under Section 498A of the IPC, bailable and compoundable.

(119) Forcible penetration, penile/oral, penile/anal, object or finger/vaginal and object or finger/anal should be made a separate offence under the IPC prescribing appropriate punishment on the lines of Section 376 of the IP Code.

(120) The Committee is not in favour of prescribing death penalty for the offence of rape. Instead the Committee recommends sentence of imprisonment for life without commutation or remission.

(121) A suitable provision should be made requiring the officer investigation to complete investigation of cases of rape and other sexual offences on priority basis and requiring the court to dispose of such cases expeditious within a period of four months.

(122) Specialized training should be imparted to the Magistrates in regard to trial of cases of rape and other sexual offences to instill in them sensitivity to the feelings, image, dignity and reputation etc. of the victim.

(123) Provision should be made in the Code permitting filing of FIRs in respect of offences under Section 376, 376A, 376B, 376C, 376D and 377 of IP Code within a reasonable time.

17. Organised Crime, 18. Federal Crime and 19. Terrorism
Organised Crime and Terrorism have been growing globally and India has not escaped their pernicious effect. The nexus between organized crime and terrorism has also been a cause of serious concern to the Country. The Committee has given deep consideration to intertwined and inter-dependent professional crimes in Indian as well as international background. The task of dealing with the organized crime and the terrorism becomes more complicated as structured group in organized crime is enmeshed with its counterpart (of structured group) in terrorism.

The former is actuated by financial/commercial propositions whereas the latter is prompted by a wide range of motives and depending on the point in time and the prevailing political ideology. The Committee has given deep consideration to the growth of organized crime, terrorism and their invisible co-relationship with the avowed objective to destroy secular and democratic fabric of the country. The Committee feels that the time has come to sink political differences for better governance of the country and address the task of dealing with these menaces. In the backdrop of the States' reluctance to share political power, through legislatures, for enactment of federal law to deal with certain crimes, the Committee has made recommendations to deal with (a) organized crime (b) terrorism and (c) enactment of central law to tackle federal crimes.

The Committee recommends that:

Organized Crime:
(124) The Government release a paper delineating the genesis of organized crime in India, its international ramifications and its hold over the society, politics and the economy of the country.

(125) Enabling legislative proposals be undertaken speedily to amend domestic laws to conform to the provisions of the UN Convention on Transnational Organised Crime.

(126) An inter-Ministerial Standing Committee be constituted to oversee the implementation of the Convention.

(127) The Nodal Group recommended by the Vohra Committee be given the status of a National Authority with a legal framework with appropriate composition.
(i) This Authority may be mandated to change the orientation and prescription of law enforcement agencies, sensitise the country to the dimensions of the problem and ensure that investigations of cases falling within the ambit of the Authority are completed within a specified time-frame;

(ii) the Authority should be empowered to obtain full information on any case from any agency of the Central or the State Governments; (iii) it should also have the power to freeze bank accounts and any other financial accounts of the suspects/accused involved in cases under its scrutiny (iv) and the power to attach the property of any accused.

(128) Suitable amendments to provisions of the Code of Criminal Procedure, the Indian Penal Code, the Indian Evidence Act and such other relevant laws as required may be made to deal with the dangerous nexus between politicians, bureaucrats and criminals.

(129) A special mechanism be put in place to deal with the cases involving a Central Minister or a State Minister, Members of Parliament and State Assemblies to proceed against them for their involvement.

(130) That the Code of Criminal Procedure provide for attachment, seizure and confiscation of immovable properties on the same lines as available in special laws.

(131) A Central, special legislation be enacted to fight Organised Crime for a uniform and unified legal statute for the entire country.

Federal Law:
(132) that in view of the legal complexity of such cases, underworld criminals/ crimes should be tried by federal courts (to be established), as distinguished from the courts set up by the State Governments.

(133) that Government must ensure that End User Certificate for international sale of arms is not misused [as happened in the Purulia Arms Drop].

(134) The banking laws should be so liberalized as to make transparency the cornerstone of transactions which would help in preventing money laundering since India has become a signatory to the UN Convention against Transnational Organised Crime.

(135) That a Federal Law to deal with crimes of inter-state and /or international / trans-national ramificiations be included in List I (Union List) of the Seventh Schedule to the Constitution of India.

Terrorism:
(136) A Department of Criminal Justice be established to not only carry out the recommendations of the Committee but also set up a Committee, preferably under an Act of Parliament, to appraise procedural and criminal laws with a view to amend them as and when necessary.

(137) Crime Units comprising dedicated investigators and prosecutors and Special Courts by way of Federal Courts be set up to expeditiously deal with the challenges of 'terrorist and organized' crimes.

(138) A comprehensive and inclusive definition of terrorists' acts, disruptive activities and organised crimes be provided in the Indian Penal Code 1860 so that thereis no legal vacuum in dealing with terrorists, underworld crimnal sand their activities after special laws are permitted to lapse as in the case of TADA 1987.

(139) The sunset provision of POTA 2002 must be examined in the light of experiences gained since its enactment and necessary amendments carriedo ut to maintain human rights and civil liberties;

(140) Possession of prohibited automatic or semi-automatic weapons like AK-47, AK-56 Rifles, Machien Guns, etc., and lethal explosives and devices such as RDX, Landmines detonators, time devices and such other components should be made punishable with a punishment of upto 10 years.

(141) Power of search and seizure be vested in the intelligence agencies in the areas declared as Disturbed Areas under the relevant laws.

20. Economic Crimes
In spite of well over 70 laws, apart from earlier laws in the Penal Code, the magnitude and variety of economic crimes is going at a fast rate. The number of agencies for regulation and investigation have also increased. Yet the need for rigorous laws and strong regulatory enforcement and investigation agencies cannot be more obvious. The attempts made in the last few decades to legislate in the matter have not been quite successful. Our judicial processes have not been helpful either. It is essential that these crimes are tackled urgently through legislative and other measures and it is for this purpose that the following recommendations are made:-

(142) Sunset provisions should be continued in statutes and these provisions be examined keeping in view the continuing changes in economy and technology. Such statutes should not be allowed to become out-of-date which can be ensured by comprehensive drafting of those statutes to cover future crimes.

(143)
a) The procedural laws regarding presumption of burden of proof in the case of economic crimes should not be limited to explanation of an accused who must rebut charges conclusively.

b) Adverse inference should be drawn if violation of accounting procedures are prima facie estabilshed and public documents, including bank documents, should be deemed to be correct (AIR 1957 SC 211: 1957 Cr.LJ 328)

(144) Sentences in economic offences should not run concurrently, but consecutively. Fines in these cases should be partly based on seriousness of offence, partly on the ability of the individual/corporation to pay, but ensuring that its deterrence is not lost.

(145) Legislatoin on proceeds of crime be enacted on the lines of simliar legislation in the UK and Ireland. An Asset Recovery Agency at the Federal level and similar agency at the State Levels may be created.

(146) In the past, non-compliance with procedures, healthy norms, institutional rules has led to financial frauds of enormous proportion. The abdication of responsibility by Regulatory Bodies has also contributed to the perpetuity of frauds. Keeping thi sin view, it is recommended that the Regulatory Agnecies should at all times be vigilant and launch timely investigation and punish offenders expeditiously.

(147) While bona fide or inadvertent irregularities should normally be ignored with appropriate advice for remedial action, the failure of the Regulatory bodies in serious lapse should be viewed adversely by the Central Government.

(148) Most economic crimes are amenable to investigation and prosecution by the existing law and institutions, there are still some economic offenders of such magnitude and complxity that could call for investigation by a group of a different kind of specialists. Therefore, it is recommended that a mechanism by name 'Serious Fraud Office' be established by an act of Parliament with strong provisions to enable them to investigate and launch prosecution promptly.

a) To inspire the confidence of the people and to ensure autonomy, the Chairman and Members of the Serious Fraud Office be appoinetd for a term of not more than five years following a procedure that itself should inspire confidence, integrity, objectivity and independence.

b) In a similar manner, State Government must set up Serious Fraud Office, but appointment be made in consultation with the Chairman of the Central Fraud Office to eliminate political influence.

(149) The Committee recommends that the existing Economic Intelligence Units under Ministry of Finance be not only strengthened suitably by induction of specialists, state of the art technology and specialised training. To achieve a common preventive strategy for tackling serious economic crimes, it is necessary that a closer coordination be maintained between the National Authority, the SFO, the Intelligence Units and the regulatory authorities as also private agencies. They should develop and share intelligence tools and databases, which would help investigation and prosecution of cases.

(150) For tackling serious economic offences, it is necessary that our domestic laws are made compatible with laws of other Countries. Mutual legal assistance, udner appropriate Conventions/Treaties/Protocols of the United Nations should be developed for exchange of ifnormation of a continuous basis.

(151) It is recommended that to reduce the work of judges, the responsibility of recovery of assets be given to a newly created Assets Recovery Agency which will deal with not only forfeiture of confiscation on behalf of courts and government departments but also support in certain other types of work.

(152) The practice of appointing serving representatives of regulators on the Board of Directors of financial institutions be discontinued immediately to avoid conflict of interests. To ensure compliance with guidelines of Regulators, the Government may consider appointing independent professionals to represent Regulators.

(153) An effective coordination mechanism must be introduced between the Government and Regulators to detect suspicious activities in time and take prompt action.

(154) Violations of environmental laws having serious economic and pubilc health cosnequences must be dealt with effectively and expeditiously.

(155) The Committee recommends the enactment of a alw to protect informers, covering major crimes.

22. Training - A Strategy for Reform
(156) "Government and judiciary will be well advised to invest in training according to the eight point agenda (set out in the section on 'Training Strategy for Reform') for reaping the benefits of criminal justice reforms in reasonable time."

23. Vision for the future
Society changes, so do its values. Crimes are increasing especially with changes in technology. Ad hoc policy making and piecemeal legislation is not the answer. The Committee therefore recomends the following:-

(157) That the Government may come out with a policy statement on criminal justice and

(158) That a provision be incorporated in the Constitution to provide for a Presidential Commission for a perodical review of the functioning of the Criminal Justice System.

Dr. Justice V.S. Malimath
Chairman

S. Varadachary, IAS (Retd.) Amitabh Gupta IPS (Retd.) Prof.(Dr.)N.R. Madhava Menon D.V. Subba Rao
Member Member Member Member

Durgadas Gupta
Member-Secretary

BANGALORE: 28.03.2003

Committee on Reforms of the Criminal Justice System
Govt of India, Ministry of Home Affairs

Chairman
Dr. Justice V. S. Malimath
Formerly, Chief Justice of Karnataka and Kerala High Courts
Chairman, Central Administrative Tribunal
Member, National Human Rights Commission
Bangalore 560 052

Members

S. Varadachary, IAS (Retd.)
Bangalore 560 076

Amitabh Gupta, IPS (Retd.)
Formerly, Director General of Police, Rajasthan
Jaipur 302 015

Prof. (Dr.) N. R. Madhava Menon
Vice Chancellor
West Bengal National University of Juridical Sciences
Kolkata 700 098

D.V. Subba Rao
Advocate
Presently Chairman, Bar Council of India
Vishakhapatnam

Member-Secretary

Durgadas Gupta
Joint Secretary
Ministry of Home Affairs, Govt of India
New Delhi 110 00

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