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No53 21PA Sharma PDF
No53 21PA Sharma PDF
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185
RESOURCE MATERIAL SERIES No. 53
Superintendent of Police is the head of the Directorate, etc. They investigate cases
police force in a district. He is responsible falling within their jurisdictions and
for the prevention and detection of crime prosecute them in the courts of law.
and the maintenance of law and order, Thus, India has both the state police
subject to such directions as may be issued investigating agencies and a central
by the District Magistrate. In practical investigating agencies as mentioned above.
terms, the District Magistrate has no role CBI, however, is the primary investigating
in criminal investigations. The District and agency of the central government.
Sessions Judge is the head of the judiciary
in a district. He belongs to the higher state B. The Courts
judicial service. The entire magistracy in The cases instituted by the state police
the district functions under his control and and the Central Investigating Agency are
supervision. adjudicated by the courts. We have a four-
tier structure of courts in India. At the
III. CRIMINAL JUSTICE SYSTEM bottom level is the Court of Judicial
Magistrates. It is competent to try offences
The criminal justice system has four
punishable with imprisonment of three
important components in India, namely,
years or less. Above it is the Court of Chief
the Investigating Agency (Police), the
Judicial Magistrates, which tries offences
Judiciary, the Prosecution Wing and the
punishable with less than 7 years. At the
Prison and Correctional Services. A brief
district level, there is the Court of District
mention of their structure and their roles
and Sessions Judge, which tries offences
is made here below:
punishable with imprisonment of more
than 7 years. In fact, the Code specifically
A. Investigating Agency
enumerates offences which are exclusively
The police forces are raised by the state
triable by the Court of Sessions.
under the Indian Police Act, 1861. The
The highest court in a state is the High
basic duty of the police forces is to register
Court. It is an appellate court and hears
cases, investigate them as per the
appeals against the orders of conviction or
procedure laid down in the Code of
acquittal passed by the lower courts, apart
Criminal Procedure (to be referred to as
from having writ jurisdiction. It is also a
the Code hereinafter) and to send them up
court of record. The law laid down by the
for trial. In addition to the State Police
High Court is binding on all the courts
Forces, the Government of India has
subordinate to it in a state.
constituted a central investigating agency
At the apex, there is the Supreme Court
called the Central Bureau of Investigation
of India. It is the highest court in the
(CBI) under the special enactment called
country. All appeals against the orders of
the Delhi Special Police Establishment Act,
the High Courts in criminal, civil and other
1946. It has concurrent jurisdiction in the
matters come to the Supreme Court. This
matters of investigation in the Union
Court, however, is selective in its approach
Territories. It can take up the investigation
in taking up cases. The law laid down by
of cases falling within the jurisdiction of
the Supreme Court is binding on all the
the states only with the prior consent of
courts in the country.
the state governments concerned. There
are certain other specialised investigating
C. Prosecution Wing
agencies constituted by the central
It is the duty of the state to prosecute
government, in various departments,
cases in the courts of law. The state
namely, the Customs Department, the
governments have constituted cadres of
Income Tax Department, the Enforcement
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Table 1
Year Total Cognizable Violent Crimes
Crimes (IPC) Incidence % Total
1953 601,964 49,578 8.2
1961 625,651 55,726 8.9
1971 952,581 124,380 13.1
1981 1,385,757 193,224 13.9
1986 1,405,835 182,119 13.0
1987 1,406,992 179,786 12.8
1988 1,440,356 203,589 14.1
1989 1,529,844 217,311 14.2
1990 1,604,449 234,338 14.6
1991 1,678,375 246,252 14.7
1992 1,689,341 251,952 14.9
1993 1,629,936 232,554 14.3
1994 1,635,251 235,228 14.4
1995 1,695,696 NA NA
Table 2
Incidence Rate % of IPC Crimes
Year Cognizable
IPC SLL Total IPC SLL Total Crimes
1984 1,358,660 2,916,808 4,275,468 184.7 396.5 581.2 31.8
1985 1,384,731 3,096,481 4,481,212 184.4 412.4 596.8 30.9
1986 1,405,835 2,984,654 4,390,489 183.5 389.6 573.1 32.0
1987 1,406,992 3,589,236 4,996,318 180.1 459.3 639.4 28.2
1988 1,440,356 3,765,669 5,206,025 180.8 472.7 653.5 27.7
1989 1,529,844 3,847,665 5,377,509 188.5 474.0 662.4 28.4
1990 1,604,449 3,293,563 4,898,012 194.0 398.3 592.3 32.8
1991 1,678,375 3,370,971 5,049,346 197.5 396.8 594.3 33.2
1992 1,689,341 3,558,448 5,247,789 194.7 410.1 604.8 32.2
1993 1,629,936 3,803,638 5,433,574 184.4 430.4 614.8 30.0
1994 1,635,251 3,876,994 5,512,245 181.7 430.8 612.5 29.7
1995 1,642,599 3,457,189 5,699,788 179.3 377.4 556.7 32.2
Table 2 gives figures about the incidence under the IPC as well as under the
of crime under the IPC and SLL, the rate SLL. IPC crime in 1995 shows an
of crime under IPC and SLL, total rate of increase of 18.6 per cent compared to
crime and percentage of IPC crime vis-à- 1985. The crime registered under
vis, total crimes. SLL also shows an increase of 11.6
From Table 2, the following trends per cent in the aforesaid period.
clearly emerge: (2) However, the crime rate for IPC
(1) There is an increase in the total offences shows a slightly declining
volume of crime over the years—both trend in 1994 and 1995 compared to
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Table 3
Total No. of cases for Inv. No. of Cases No. of Cases % of Cases % of Cases
Year (including cases from Investigated Charge-sheeted Investigated Charge-
previous year) sheeted
1961 696,155 586,279 285,059 84.2 53.6
1971 1,138,588 894,354 428,382 78.5 52.8
1981 1,692,060 1,335,994 740,881 79.0 61.3
1991 2,075,718 1,649,487 1,091,579 79.5 71.3
1993 2,090,508 1,637,712 1,106,435 78.3 72.5
1994 2,077,631 1,612,245 1,109,030 77.6 74.1
Table 4
Year Total No. of Cases for Trial No. of Cases Percentage
(including pending cases) Trial Convicted Trial Completed Conviction
1961 800,784 242,592 157,318 30.3 64.8
1971 943,394 301,869 187,072 32.0 62.0
1981 2,111,791 505,412 265,531 23.9 52.5
1991 3,964,610 667,340 319,157 16.8 47.8
1993 4,504,396 752,852 345,812 16.7 45.9
1994 4,759,521 736,797 316,245 15.5 42.9
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cent in 1991. The conviction percentage by his ability to assist the court in this
has further come down to 42.9 per cent in regard.
1994. It may be clarified that the aforesaid It is in this context that we are going to
conviction rate is for both IPC and SLL have a look at the overall pendency of cases
crimes. If we exclusively take into account in the country. According to an estimate,
the IPC crimes, the conviction rate is still there are 21.8 million cases pending in the
lower. subordinate courts. About 3.1 million cases
In 1994, only 16.02 per cent of murder are pending in the High Courts. The
cases were disposed of from trial and the Supreme Court has a pendency of 22,000
conviction rate was 38 per cent. cases only. There are about 11,000 courts
As regards cases relating to attempts to working in the country.
murder, 15.75 per cent of cases were The number of pending trial cases under
disposed of in 1994, the conviction rate the IPC was 52.8 lacs in 1995 which
being 38.8 per cent. Of under-trial rape increased to 56.2 lacs in 1996. Of these,
cases, 17.75 per cent were disposed of in 21.6 per cent have been pending for more
1994, the conviction percentage being 30.42 than 8 years. The number of cases pending
per cent. trial for more than 8 years increased from
The above shows that, generally 10.7 lacs in 1995 to 12.11 lacs in 1996,
speaking, only one-sixth of the total under- showing an increase of 13.3 per cent.
trial cases were disposed of in 1994 and Table 5 shows the states’ accounting for
about one-third of heinous crimes resulted major pendency.
in conviction. This, however, does not take
into account subsequent acquittals in the Table 5
appellate courts.
State 1995 1996
Maharashitra 1,184,187 1,424,867
IX. EFFICACY OF THE CRIMINAL
U.P. 1,375,588 1,008,558
JUSTICE SYSTEM
Gujarat 473,694 619,473
The courts are constituted by the state Madhya Pradesh 360,664 497,728
government under the Code and cases are Rajasthan 287,337 368,999
prosecuted by public prosecutors appointed Bihar 231,799 301,360
by the state government or the central Pune 74,302 271,318
government as the case may be. Even Orissa 218,954 210,318
though the National Crime Records Bureau Andhra Pradesh 179,635 165,412
has been collecting data about the disposal Haryana 117,582 132,346
of cases by the courts, the statistics do not Kanpur 111,594 116,775
seem to be authentic. It has been aptly Kerala 121,972 114,007
remarked by a wisecrack that the place of Karnataka 96,646 111,023
a nation on the civilizational scale is to be Delhi 117,949 110,086
determined by the manner in which its Tamil Nadu 94,273 103,037
criminal laws are enforced. Since all the Mumbai 84,741 94,890
elements of the public justice system are Assam 72,300 72,300
inter-dependent, even the strictest
enforcement of law by the police agency will The pendency of trial cases during the
not deliver the goods unless it is supported decade 1985-1995 has piled up more than
by the judicial system by way of prompt double with a growth rate of 10.6 per cent
disposals. The role of the public prosecutor per annum.
and his performance is also to be judged
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Apart from the IPC cases mentioned B. Prosecution System under the
above, 69.01 lac SLL cases were awaiting Department of Law
disposal by criminal courts in the country In certain other states, the average
at the beginning of 1995. The disposal percentage of conviction for seven years,
percentage in 1995 was 52.2 per cent. As again, ranges from 76.4 per cent in
against this, the percentage of disposal of Meghalaya to 21.9 per cent in Himachal
IPC cases was only 18.2 per cent. This is Pradesh. This is shown in Table 7.
largely explained by the fact that the SLL
cases pertain to violations of minor acts like Table 7
the Gambling Act, the Prohibition Act, and
State Average Percentage of
the Motor Vehicle Act and there are tried
Conviction of 7 years
summarily, resulting in quicker disposals.
Meghayala 76.4
As mentioned earlier, the Directorate of
Pondicherry 72.2
Prosecutions in some states is under the
Sikkim 67.2
control of the Home Department, while in
Chandigarh 65.5
others is under the control of the Law
Haryana 61.2
Department. The following section
Gujarat 61.0
examines which of the two systems is
Manipur 47.6
working more efficiently.
Goa 44.4
Karnatka 31.9
A. Prosecution System under the
Himachal Pradesh 21.9
Control of the Home Department
In the states of Tamil Nadu, Madhya
Thus, no clear picture emerges as to
Pradesh, Uttar Pradesh, Andhra Pradesh,
which of the two systems is working more
Delhi, Maharashtra, Jammu and Kashmir,
efficiently.
Bihar, and Kerala, the prosecution wing is
under the Home Department. The
X. THE DUTIES AND FUNCTIONS
conviction percentage in these states for the
OF A PUBLIC PROSECUTOR
last seven years ranges from 67.8 per cent
in Tamil Nadu to 17.7 per cent in Kerala. Public prosecution is an important
The average percentage of conviction for 7 component of the public justice system.
years is given in Table 6. Prosecution of an offender is the duty of
the executive which is carried out through
Table 6 the institution of the Public Prosecutor.
The public prosecutor is appointed by the
State Average Percentage of
State, and he conducts prosecution on
Convictions of 7 years
behalf of the State. While it is the
Tamil Nadu 67.8
responsibility of the public prosecutor to
Madhya Pradesh 64.5
see that the trial results in conviction, he
Uttar Pradesh 54.0
need not be overwhelmingly concerned
Andhra Pradesh 51.6
with the outcome of the trial. He is an
Delhi 47.6
officer of the court and is required to
Maharashtra 39.4
present a truthful picture before the court.
Jammu & Kashmir 37.4
Even though he appears on behalf of the
Bihar 36.7
State, it is equally his duty to see that the
Kerala 17.7
accused does not suffer in an unfair and
unethical manner. The public prosecutor,
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interaction or co-ordination between the (5) On its part, the police department
investigating agency and the prosecuting should make available certain
agency. The police files are sent to the facilities to the prosecutors such as
Assistant Public Prosecutors for their legal housing, transport, and telephones.
opinion at the pre-trial stage. As they are
The state government may provide for
not responsible to the district police
the above arrangement by issuing
authorities, the legal advice is sometimes
necessary orders. Such an arrangement
perfunctory and without depth. Further,
would go a long way in bringing about co-
the district police is totally in the dark as
ordination between the police and the
to the fate of cases pending in the courts.
prosecution agency.
Even though there is a district level law
officer (called District Attorney in some
XVII. ROLE OF PUBLIC
states), to supervise the work of the
PROSECUTORS IN NATIONAL
Assistant Public Prosecutors, he does not
CRIMINAL JUSTICE POLICY
have the status and stature that the
District Superintendent Police has. The laws are enacted by the legislature,
Whatever the reasons, as shown supra in enforced by the police, and interpreted by
Table 4, the conviction rate is falling over the courts. Neither the police nor the
the years. Be that as it may, there is no prosecution agency has any say in the
immediate prospect of the Assistant Public formulation of laws. The number of
Prosecutors being placed under the control criminal laws is increasing by the day, but
of District Superintendent of Police. The the quality of drafting shows definite
Law Commission of India has also deterioration and bristles with avoidable
supported total separation between the vagueness in construction. It is felt that a
police department and the prosecution representative each of the police
agency. Even so, it would be desirable to department and the prosecution agency
make some institutional arrangement for should be associated with the formulation/
proper co-ordination between the two drafting of laws. Their field experience
agencies. The following suggestions are would go a long way in improving the
being made in this regard: quality of laws enacted. Further, unlike
(1) The District Superintendent of Police the police, the prosecution agency does not
should periodically review the work have a national level body to watch its
of the Assistant Public Prosecutors; professional and service interests. This is
(2) He should be authorised to call for due to the fact that prosecution agencies
information from the prosecution are organised at the state level and not at
agency regarding the status of a the national level. Such an apex should be
particular case pending in the court; constituted by the government.
(3) The prosecution agency should send
periodical returns to the District XVIII. PROBLEMS OF
Superintendent of Police regarding PROSECUTION AND
disposal of cases in the courts; SUGGESTIONS FOR
(4) The District Superintendent of Police IMPROVEMENT
should send a note annually to the
District Magistrate regarding the It bears repetition that the conviction
performance of each Assistant Public percentage in India has been falling over
Prosecutor working in his district, the years. It was 64.8 per cent in 1961,
which should be placed in his and fell down to 42.9 per cent in 1994. The
confidential annual report/dossier; disposal of cases by the courts is also falling
and over the years. In 1994, it stood at 15.5
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per cent of the total cases pending in the officer and other collateral factors.
Courts in that year. This clearly While there is a case for increasing
demonstrates non-efficacy of the public the number of criminal courts, there
justice system. The public prosecutors is equally a case for increasing the
cannot escape the blame for this dismal number of public prosecutors. As a
state of affairs. It is proposed to highlight norm, at least two public prosecutors
some of the problems being faced by the of the appropriate level should be
prosecution agency and also to suggest attached with each court.
measures to improve the situation. (3) The Assistant Public Prosecutors are
(1) The first and the foremost problem recruited from the open market, and
is the poor quality of entrants in the they are entrusted with the cases
prosecution agency. Undoubtedly, the without any institutional training.
entrant is a law graduate who They learn by experience, but that
qualifies through a state-level takes time and, in the meanwhile, the
competitive exam, but the quality of cases suffer. It is suggested that a
law education is not uniform in the national level training institution
country and is not up to the mark in should be set up for the public
certain law colleges. Further, the prosecutors to impart them proper
earnings in the open market are training. The duration of the training
much higher than what the could be one and a half years. Six
government offers to the prosecutors. months could be earmarked for
Resultantly, able and competent training in law; four months for
advocates shy away from joining the attachment with a police station; four
prosecution agency. The only way to months for attachment with a
remedy the situation is to make the competent magistrate; and the
job attractive by improving the salary remaining four months for
structure and by providing other attachment with a senior and
perks such as government housing, experienced public prosecutor. The
transport, telephone facilities and proposed institutional training could
allowances such as non-practising be supplemented with refersher
allowance, rob allowance, and library courses from time to time.
allowance. (4) The pay scales of the Assistant Public
(2) According to an estimate, 21.8 million Prosecutors are rather low. Assistant
cases are pending trial in the Public Prosecutors Grade-II are
subordinate courts. The exact bracketed with a Sub Inspector of
number of public prosecutors in the Police and Assistant Public
country is not known. Experience, Prosecutors Grade-I with an
however, shows that the public Inspector of Police. As they are law
prosecutors are overburdened with graduates and have lucrative
cases and their number is not avenues open to them in the market,
adequate enough to efficiently handle it is necessary that their pay scales
the cases entrusted to them. It is be improved and also they be given
difficult to fix a norm as to the sumptuous allowances so as to make
number of cases to be entrusted to a the job attractive. Similarly, the
public prosecutor as it would depend honorarium paid to the public
on the nature of the case. Further, prosecutors appearing in the Sessions
the performance of a public Courts is grossly inadequate and this
prosecutor is largely dependent on needs to be enhanced drastically.
the performance of the presiding
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(5) Another problem facing the public in trials because of their lack of
prosecutors is the lack of promotional interest in trials as evidenced in non-
avenues. As stated in the preceding production of witnesses in time and,
paras, an Assistant Public Prosecutor occasional prevarication in appearing
Grade-II is promoted to Assistant in the courts themselves to render
Public Prosecutor Grade-I and evidence. A multi-disciplinary
thereafter as Assistant Director or approach needs to be evolved to
Deputy Director, as the case may be. remedy this situation and no short-
He can appear only in the Magisterial cut solutions are possible.
Courts and not in the Sessions (8) The prosecutors generally do not
Courts, where more heinous offences have good library facilities. Due to
are tried. It would be expedient to their rather inadequate pay scales,
integrate the two cadres and allow an they are not in a position to spend on
Assistant Public Prosecutor to rise in books. The libraries of the Bars are
the heirarchy; enabling him to appear overcrowded and the books are not
not only in the Sessions Court, but made available to the prosecutors. It
even in the High Court, depending on would be advisable to set up exclusive
his ability and calibre. libraries for the prosecutors in cities
(6) The investigations are generally and bigger towns at government cost.
conducted by low level police officers (9) There is virtually no accountability
who are not proficient in laws, on the part of the prosecution agency.
procedures and practical police The work of Assistant Public
working. The supervisory officers Prosecutors is supervised by the
are, sometimes, deficient in closely District Magistrate, who being the
monitoring the investigations. Such chief executive of the district, is
cases when sent up for trial, often saddled with multifarious
result in acquittals and the blame responsibilities and has virtually no
comes on the public prosecutors. time to supervise their work. The
While, it is necessary to improve the public prosecutors appearing in the
quality of public prosecutions, it is Sessions Courts, again, are
clearly important to improve the responsible to the District
quality of investigation. Special Magistrate. Apart from the time
emphasis should be laid on using constraint, the District Magistrate
modern scientific methods of generally does not possess the legal
investigation. A closer rapport acumen and knowledge to objectively
between the investigating agency and assess the performance of each public
the prosecution agency should also prosecutor and cannot give thrust
improve the outcome of trials. and impetus to the prosecution
(7) D e l a y i n t r i a l s i s o n e o f t h e agency. The departmental superiors
fundamental reasons for acquittals in should play a dominant role in this
criminal cases. Speedy trial is the regard. Norms for disposal of work
fundamental right of the accused in should be fixed and non-performers
Indian law. It is the paramount duty should be penalised.
of the public prosecutor to ensure
speedy trial for which he has to take
along with him the court and also the
defence lawyer. The police officers,
sometimes, are responsible for delays
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XIX. CONCLUSION
In the final analysis, a public prosecutor
is an officer of the court and is required to
render assistance to the court to arrive at
a just and equitable decision. He is also
required to be fair to the opposite party.
His guiding principle should be not so much
the letter of law, but the spirit of law based
on prudence, common sense and equity. A
society which is governed by the letter of
law does not fully exploit its human
potentialities. I conclude by quoting from
Russian Nobel laureate Solzhenitsyn,
A society which is based upon the
letter of law, and never reaches any
higher is taking very scarce advantage
of high level of human possibilities.
The letter of the law is too cold to have
any beneficial influences on society.
Whenever the issue of life is woven in
legalist relations, there is an
atmosphere of moral mediocrity,
paralysing man’s noblest impulses.
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