ANALYSING THE DESIRED IMPLICATIONS OF DRAFT RULES ON CRIMINAL LAW PRACTICE, 2021

This article has been authored by Abhiraam Shukla, a third-year student of National Law Institute University, Bhopal,

Introduction

On 20th April 2021, the Supreme Court of India issued a decision in a suo motu cognizance mandating the High Courts in the country to adopt the Draft Rules on Criminal Practice, 2021 (hereinafter “Draft Rules”) for the purpose of governance of criminal trials and the procedures involved therein. This was rendered after the apex court had taken note of the extended duration of criminal trials in the country due to common deficiencies in the investigation procedure, .

In In Re: to Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials, (hereinafter “the present case”) the Supreme Court, while hearing a criminal appeal[i] of 2017, noticed that that the state of procedural laws in the country was undetermined due to the fact that different High Courts had formulated different rules for procedural aspects of the criminal trial.

In this article, the author tries to analyse the Draft Rules and their implications on the Indian criminal procedure.

Analysis of Draft Rules and Their Implications

Provisions of the Draft Rules are divided into 5 main chapters - i) Investigation, ii) Charge, iii) Trail, and iv) Judgment and v) Miscellaneous. In this part of the article, the author has discussed the prominent ones among them and will be evaluating the changes, the said reforms will be bringing to the impartation of criminal justice in the country.

· Reforms regarding the investigation in criminal cases.

In Chapter I, the most material provisions, keeping in view the abject condition of custodial violence and deaths in the country, are provisions anent investigations of deaths occurring in police custody and police action in the country.

It is provided in the Draft Rules that, in case there is fatality due to police arrest under § 46 of the CrPC 1973, or due to police action under § 129 to 131 of the said Code, the Magistrate or the Investigating Officer [for brevity “IO”] shall inform the concerned doctor and other medical authorities to arrange for photographs and videography for effecting an expedited post-mortem procedure on the deceased. The said photographs/videos shall be also attached in the panchnama seizure memo to ensure their proper proof in the Trial procedure. The IO shall ensure that all the evidences under this part of the Draft Rules are duly endorsed by the certificate.

Another very important provision present in this Chapter bids that every accused in a criminal trial shall be supplied with statements of the witnesses which have been recorded under § 161 [Police examination of witnesses] and 164 [Records of Confessions and Statements] of the CrPC and list of documents, evidence and material objects seized and relied on by the IO according to § 207 [Supply of police report and related documents to the accused] and 208 [Supply of documents and statements to the accused in cases which are triable by the Sessions' Court] of the CrPC.

In the author’s opinion, the provisions of chapter I of the Draft Rules are specifically important since the number of deaths in police arrest/ custody/action is abjectly increasing in our country. More often than not victims of police brutality do not get justice. Draft Rules specify methods for facilitating a proper post-mortem of the victims. This will be helpful in gathering crucial evidence for a fair trial and will be conducive for more convictions in such cases.

· Reforms Regarding Witness Statements, Confessions, And Trial In Criminal Cases

In Chapter III of the Draft Rules, there are some regulations authorizing the deposition of witnesses and related evidence during the trial of criminal cases. Draft Rules have stated that the deposition of witnesses shall be recorded in a typed format on computers, if possible. Further, hard copies of such records of depositions shall be made available to the accused, witness, and the prosecutor free of cost.

In the author’s opinion, the provisions which state that every accused is to be provided with the statements of witnesses, evidence, and material objects relied on by IO ensure that the accused is given every opportunity to object/refute the evidence which might be used against him warranting that the principles of natural justice are observed in their true spirit and letter.

In relation to the statements made by the witnesses under § 161 of the CrPC, there are further instructions provided in the Draft Rules. It is provided that when the witnesses are to be cross-examined, only the relevant portions of their statements shall be extracted and used to contradict them. This shall lead to non-perusal of unimportant records and shall save the precious time of the court.

Thus, Chapter III lays down a list of nifty provisions which particularly smoothen the procedure which is related to the deposition of witnesses during criminal trials. The provisions clearly mandate that the statements of witnesses along with other exhibits, evidence, material objects, and confessions of the accused be marked in the prescribed manner in order to assist their perusal during the trial procedure.

· Miscellaneous Reforms Regarding Criminal Cases

Draft rules have provided in Chapter IV, that bail applications in non-bailable offenses are to be disposed of within a period of 3 to 7 days from the date of the initial hearing. In case the said applications are not disposed of within the mandated period, the Presiding Officer shall furnish reasons thereof in the order itself.

Furthermore, for a speedy trial of criminal cases, it is declared in the Draft Rules that once the examination of witnesses has started, it shall continue day to day till every witness has been examined, unless the Courts records urgent reasons to postpone it beyond the following day under § 309 (1) CrPC [Adjournment of Proceedings]. For this purpose, a Scheduling Hearing shall be held by the Court to ascertain dates for recording of evidence, regard being to whether the witnesses are material or eyewitnesses, or formal witnesses or are experts. After that, a schedule will be drawn by the Court deciding when the witnesses would be examined.

The final provisions of the Draft Rules state the priority of Sessions cases. It is written that Sessions cases may be given precedence over all other work and ought not to be postponed unless that is unavoidable. A Sessions trial should be held continuously until it is completed in the process.

In the author’s view, the provisions in Chapter IV of the Draft Rules are important because they decide the procedure that is to be followed after the case reaches the Court. These provisions are cardinal since a Scheduling Hearing is necessary for a well-planned and seamless trial

Is The Present Judgment Per Incuriam?

Before issuing the Draft Rules, the Supreme Court in the present case analyzed the view taken by the Court in Bipin Shantilal Panchal v. State of Gujarat, with regards to the process of cross-examination methods and objections related to the deposition of witnesses. In Bipin Lal, it was noted by the Court that the practice of deciding objections against material evidence and depositions of witnesses is 'archaic', leading to the prolonged trial procedure.

To solve the problem, the Court pronounced the following procedure in Bipin Shantilal:

“Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration.”

In this case, the amici submitted that the procedure in which the Court has to record answers to all the questions, regardless of the objections, leads to protracted cross-examinations thereby increasing the duration of the trial. Thus, in this case, Court modified Bipin Lal and held that only the Presiding Officer can decide objections to questions during the course of the trial or at the end of deposition of witnesses. This will help in decluttering the record of evidence to be considered and will speed up the process.

It can be argued by some, that the order issued by the Court in the present case is per incuriam, according to the rule set in Dewan Modern Breweries because a three-judge bench had modified the ruling of Bipin Shantilal, which was another three-judge bench judgment. However, given the implications, the successful implementation of the Draft Rules can have on the Indian criminal procedure, such a contention cannot hold good, in the author’s opinion.

Conclusion

Criminal litigation in India is an inexorable phenomenon. Furthermore, the effects of Covid – 19 have increased the backlog of all types of cases including criminal litigations, to 4.4 crores, which is an increase of 19 percent than what was recorded in March last year. According to National Judicial Data Grid, more than 2.88 crore criminal cases are under the procedure in the country, of which 78.13 percent have been filed at least a year ago. Hence, the situation of criminal justice is dire and needs to be exigently resolved.

Since a large number of cases have been under trial for a significant amount of time, the Draft Rules issued by the Supreme Court are expected to expedite the process of case-disposal. The Supreme Court in the present case ordered all the High Courts to incorporate the Draft Rules as part of rules mandating criminal trial procedure and to make sure that the existing rules, orders, and notifications are modified accordingly within a period of 6 months from the date of the said judgment. Apart from that, State Governments should make suitable amendments in the police manuals within the same period of time in accordance with the provisions of the Draft Rules.

Therefore, the successful implementation of Draft Rules can lead to a significant increase in the speed of trial and disposal of criminal cases in the country. Provisions of Chapter I, as stated above, can lead to a prompt and proper trial of cases relating to police violence. In the same way, Chapter III is important because it can lead to a more transparent justice system, allowing the accused to fully peruse the material to his satisfaction which can be used against him. Lastly, Chapter IV is the most important chapter of the Draft Rules because it sets out the pattern of dates the case shall follow for an uninterrupted and aided trial.

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[i] Crl.A.400/2006 & connected matters