This article is written by Prashant Thakkar, pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.
‘The course of justice often prevents it’- Edward Counsel
The Criminal Justice System of India is marked by innumerable discrepancies including loopholes in the investigation system, abysmal quality of documentation, want of promptness with regard to examination and recording of the statement of witnesses, incompetency of some police and judicial officers, etc. These factors have certainly marred the efficient functioning of the law courts who seek to redress the grievances of people and provide timely relief. The abovementioned factors might sound trivial but an indifferent attitude is shown by the police, lawyers and judicial officers and many other officers who function in different capacities toward them has led to an exponential rise in pending court cases over the past few years, straining the country’s already overburdened judicial system. These circumstances demanded immediate action and therefore a reality check was considered essential to ensure speedy justice to the victims and protect the rights of the accused. Urgent need of reform was felt in all spheres of the administrative system including police, the forensics wing, the prosecution, the courts, and the laws. This finally took shape when the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and S. Ravindra Bhatt, JJ directed all High Courts to take expeditious steps to incorporate the Draft Rules of Criminal Practice, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders, and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months.
Background of the draft rules
Mr. R Basant’s submissions
The Court was hearing a criminal appeal involving the death of a political worker in 2016. Amidst these proceedings, Mr. R. Basant, learned Senior Counsel appearing for the appellants-complainant, pointed out certain common inadequacies and deficiencies in the course of trial adopted by the trial courts while disposing of criminal cases. Mr. R Basantstressed upon certain practices which could be incorporated by criminal courts across the country to resolve the issues pertaining to criminal trials which ultimately would usher in a certain amount of uniformity and stability in the conduct of criminal trials across the country.
Eventually by an elaborate order dated 30.03.2017 the Court realized the presence of common deficiencies in the practices and rules of High Courts by taking a cue from existing rules in some high courts particularly the high courts of Andhra Pradesh and Kerala. After considering about 13 issues put forth by Mr. R Basant, the bench noticed a lack of uniformity across States on how criminal trials are conducted. Particular emphasis was laid on to the manner in which documents (i.e. list of witnesses, list of exhibits, list of material objects) referred to are presented and exhibited in the judgment, and the lack of uniform practices in regard to the preparation of injury reports, deposition of witnesses, translation of statements, numbering and nomenclature of witnesses, labeling of material objects, etc. These very often lead to asymmetries and hamper appreciation of evidence, which in turn has a tendency of prolonging proceedings, especially at the appellate stages. The Court, therefore, issued notice to the officers of all High Courts and State government’s calling upon to submit their responses along with suggestions.
Appointment of Amicus curiae
The case took a turning point when the court by an order dated 07.11.2017 appointed Mr. SidharthLuthra and Mr. R. Basanth, Senior Advocates as amicus curiae. The team was further strengthened with the appointment of Mr. K Parmeshwar on 20.02.2018. After a series of events, a colloquium was convened in New Delhi at the IndiaInternational Centre, on 30.03.2019 wherein written responses were invited from stakeholders. After considering the suggestions made during the colloquium, the amici curiae submitted the “Draft Rules of Criminal Practice, 2020” for the consideration of this court. Hereinafter a series of discussions were conducted wherein some high courts indicated their reservations to certain draft rules. However, the case ended on a positive note when the CJI Bobde led three-judge bench issued an order to implement the “Draft Criminal Rules on Practice, 2021”.
Objective and purpose of the draft rules
The Draft Rules consist of 5 chapters under 19 heads which stress upon the various practices that can be incorporated in the system to effectively deal with the inadequacies and deficiencies in the course of trial adopted by the trial courts while disposing of criminal cases. Through these draft rules, the court sought to establish a uniform approach – in the description of exhibits, manner, and description of recording of statements of witnesses, labeling of material objects, and so on. Various measures which could help achieve the objective of uniformity have been mentioned herein below:
- Provide a sense of clarity and uniformity to various state authorities and High courts throughout the country towards the draft rules.
- Ease the burden of workload on public prosecutors by providing a separate team of lawyers to advise the police during an investigation.
- Do away with practices and procedures (Bipin Shantilal Panchal v. State of Gujarat) that impede the smooth progress of Trial Proceedings gives way for better substitutes that would help accelerate Trial Proceedings.
- Respect the time, effort, and money of the court, witnesses, and parties to the litigation.
- Instill a sense of responsibility and respect amongst the court, witnesses, and parties to the litigation towards the Trial.
- Widen the role and responsibilities of the investigating agencies and the police authorities to ensure uniformity and stability in the trial and pre-trial stage.
- Ensure that a preliminary case management hearing is held at the beginning of the trial to ensure orderliness in the conduct of proceedings
- Ensure that all High Courts shall take expeditious steps to incorporate the said Draft Rules, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders, and practice directions are suitably modified, and promulgated(wherever necessary through the Official Gazette) within 6 months from today.
- Ensure that state governments, as well as the Union of India (in relation to investigating agencies in its control), shall carry out consequential amendments to their police and other manuals, within six months from today.
Causes of delay and deficiency in criminal trials
Delay in the criminal justice system is a daunting challenge faced by the Judiciary. Delay and loopholes in the administration can defeat the purpose of criminal law which seeks to prevent crimes, provide justice, and dispose of cases at a rapid rate. Pending court cases have exponentially risen over the past years with criminal cases being worst affected especially in the district and subordinate courts where nearly 2.5 crores of the 3.4 crore impending cases were criminal. This phenomenon can be traced to several factors including
- Scheduling of cases – The courts in India are notorious for attempting to settle a variety of cases in a single day thereby causing inconvenience to parties and the witnesses. Moreover, the judicial officers are partial towards civil cases and pushing the criminal cases to the backburner due to which pending court cases are multiplying at a rapid pace.
- Poor quality of investigation –Incompetent investigation is one of the main factors behind the plummeting rates of conviction. This in addition to the use of outdated methods, inexperienced field officers with inept knowledge of forensic science, poor quality of supervision are some of the many glaring gaps which indirectly have had a malicious impact on the way criminal trials are conducted in India.
- The abysmal quality of documentation –A lackadaisical attitude toward drafting and maintenance of records and other compliances by both the Advocates and judges is one of the main factors responsible for rising in pending court cases. Many irrelevant details form a part of the documentation which leads to unnecessary wastage of courts time and postponement of cases. A huge part of the Draft rules have considered this factor and dealt with it appropriately.
- Adjournment of cases – Respected President Ram NathKovind said that one of the reasons for long delays in the adjudication of cases in courts is the “culture of seeking Adjournments as a norm”. Indian courts are notorious for seeking adjournments as a delay tactic which deprives the court of its precious time leading to many litigants withdrawing the case out of frustration. Moreover, the court grants these adjournments on frivolous, unfounded, and spurious grounds which defeat the very purpose of criminal law.
- Framing of Charges – This is one of the crucial stages of the trial. Unfortunately, this also happens to be one of the most time-consuming aspects of the trial wherein the accused have evaded presence by resorting to adjournments and other tactics.
Chapter I. Investigation
- This chapter focuses extensively on the duties and responsibilities of the investigating authorities, police authorities which include the necessity of a Body sketch, the importance of taking photographs and video-graphs of post mortem in certain cases in case of death of person [under Section 46 Criminal Procedure Code, 1973(“Cr. PC”) or Sections 129 to 131 Cr.PC] or death while in police custody, the necessity of a site plan prepared by the investigating officer shall disclose the details of the occurrence.
- Gone are the days when the police and the judiciary exclusively relied on witnesses for crime detection and solution. Science has acquired immense significance in these modern times and the investigating authorities have found a way to apply scientific principles in crime investigation. Not only the investigating authorities but the whole criminal justice system has realized the importance of giving scientific conclusions to cases and the branch of science which is helping in the application of scientific principles for the effective administration of the Criminal Justice system is called Forensic Science. Forensic science is a multidisciplinary science that sprawls throughout various disciplines including odontology, toxicology, Anthropology.
- Despite acquiring a respectable position in the criminal law circles, Forensic science has been plagued by numerous issues including less reliance on forensic evidence by the Supreme Court and high courts throughout the country, use of obsolete forensic methods and tools. There have been many instances wherein the accused was acquitted owing to lack of forensic evidence notably the cases of Vijay Shankar v State of Haryana and Mani Kamat Dinesh v State Govt of NCT of Delhi. Moreover, many forensic methods used for criminal investigation have been outdated.
- These circumstances demanded immediate action and therefore the amicus curie has allotted an entire chapter to it as a part of the Draft Rules. In order for forensic science to realize its full potential a serious and in-depth understanding was most essential and the Draft Rules have provided a platform for the same.
Chapter II: Charge
- The Draft rules regarding the charge mention that the order framing charge shall be accompanied by a formal charge in Form 32, Schedule II, Cr.P.C. to be prepared personally by the Presiding Officer after complete and total application of mind.
- Framing of charge is an essential element of a criminal trial. The primary object of a charge is to give the accused person firm and clear notice about what the prosecution intends to prove against them. A failure to do so might lead to a miscarriage of justice.
- A recent case of the Supreme Court held that it was not essential to give reasons in an order framing charge. The said order was challenged by the accused through a revision petition before the High Court, wherein he claimed that the Sessions Court ought to have applied its judicial mind and given some reasons while framing charges. Framing of charges is a very crucial part of the trial and not some mere formality and therefore demands the complete and total application of mind on the presiding officer’s part.
- The above-mentioned circumstances demanded immediate action and therefore the amicie curie has taken the right step by including charge as one of the chapters in the Draft Rules.
Chapter III: Trial
- This chapter extensively on the procedure of recording of evidence, the format of witnesses, an exhibition of material objects and evidence, subsequent references to accused witnesses, and other statements.
- In the Code of Criminal Procedure, Section 311 empowers the court to summon a material witness, or to examine a person present at “any stage” of “any inquiry”, or “trial”, or “any other proceedings” under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to. Examination of witnesses is envisaged in the Code of Criminal Procedure whether in trials either session trial, warrant trial, or summary trial.
- Admissibility of evidence is paramount in a trial and therefore the relevant facts are to be presented clearly and coherently and a systematic approach as provided by the Draft rules is imperative to achieve this.
- With the evolution of cyberspace and increasing reliance on electronic means of communication, storage of information in digital form has acquired paramount importance. Requisite amendments made to Indian Laws in the year 2000 with the Introduction of IT Act to make digital evidence admissible are a testimonial to the same and the court is completely justified to use technology to its advantage so as to ensure efficient functioning of the Legal system.
- Marking of witnesses, Exhibits, and Material objects in seriatim and their reference by numbers instead of names is justified and beneficial despite opposition from various high courts due to ease in reference and to ensure greater authenticity and reliability.
Chapter IV: The judgment
- In criminal matters, Chapter XXVII of the Code of Criminal Procedure, 1973 provides for ‘the Judgment’.
- Every judge has a different approach to writing judgment and their writing inevitably varies in style, language, manner of the statement of facts, discussion of evidence, and reasons for such decision.
- Judgment writing consumes a major part of the Judge’s work and considering the current scenario the judges are clearly overwhelmed by the arrears of cases leading to the adoption of ineffective and time-consuming ways of writing Judgements thereby compromising the quality of the drafts.
- More systematic and to the point methods as provided by the Draft rules would facilitate a better culture of judgment writing thereby leading to speedy disposal of cases and delivery of quality judgments.
Chapter V: Miscellaneous
- The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
- S.K. Hyder v. The State of Odisha would be the epitome of the lax attitude shown by the Indian courts in dealing with bail applications and suspension of sentences.
- The draft rules have provided for the disposal of cases within 3 to 7 days which are completely justified and have already seen light in the guidelines issued by Allahabad High Court.
- The 2nd clause under this chapter advocate for appointments for advocates other than public prosecutors to advise the investigating officer during the investigation. This clause previously saw light in the Indian judicial scenario in the year 2012 when the then home minister P Chidambaram today strongly advocated a separation of investigation and prosecution by amending the criminal justice system for the speedy delivery of justice. A part of the reason why the accused get easily acquitted can be traced to the degrading quality of the investigation system. Initially following the CRPC amendment of 1973, the separation of prosecution and investigation was thought to be an unwise measure and it was strongly felt that this would impede the successful conviction of criminals.
- However, it was realized that prosecution was a separate arm of the criminal justice system and its coordination with the investigation was a gratuitous move and for its best interest it ought to remain a separate branch. Therefore by appointing a separate class of advocates to assist the investigation is a well-considered move as it eases the burden on prosecution, improves the quality of investigation, provides a new field for advocates to specialize in, etc.
- Adjournment is a term used in Court when a Lawyer of either side makes an application to adjourn the matter for reasons as stated in its application and there is a grant of such Application. Adjournment is granted either with costs or no costs. Unfortunately, adjournment is being exploited as a delay tactic in courts throughout India. Adjournments are granted without any serious thought and have become an inevitable cause of delay in the disposal of cases. The Draft rules have provided for clauses that adequately deal with the problem.
While we got to realize the fact that courts throughout various parts of India function differently and therefore any change of that magnitude requires time and patience. Many states had their reservations to certain draft rules particularly the one requiring a day-to-day trial. However, the states ought to realize that the Draft rules are merely practiced directions that reflect the mandatory provisions of the Code of Criminal Procedure, 1973 and therefore it’s their duty to abide by them.
The successful implementation and execution of these Draft rules will demand the collective efforts of many branches of the criminal justice system including police, investigating agencies, prosecution, judges, etc. While most certainly these branches will have their reservations too regarding various clauses but it is also likely that they will see the larger picture wherein the Draft rules seek to achieve uniformity and stability throughout the various organs of the criminal justice system accordingly dealing with the problem of delay and deficiencies in the criminal trials.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: