This article is based on my four year experience as a Criminal trial lawyer and as a LLM graduate in Criminal Law from Government Law College, Thrissur, Kerala. The major laws of Criminal laws are Code of Criminal Procedure, 1973, Indian Penal Code, 1860 and Evidence Act, 1872. Now the Central Government as passed a new legislations: Bharat Nyaya Sanhitha, Bharath Nagarik Suraksha Sanhitha and Bharat Sakshya Sanhitha. Even though, I have little knowledge about these laws, I feel these laws does very little to solve the problem the Indian Judiciary face.

Problems this Article intends to address:
The problems the Indian judiciary faces are two fold:

1. Huge delay in trial and appellate Court including Supreme and High Courts.
2. Unreasonable sum of money expended in maintaining the judicial system by the State machinery.

Reasons for delay in rendering justice in criminal Court:
The number of Courts in India is nowhere sufficient to takle the huge pending number of cases in trial and appellate Courts. Approximately around 3,000 cases are registered for trial in a magistrate Court in Thrissur region, Kerala State. The office hours of a Court is from 11.00 am to 05.00 pm in Kerala. The roll call which consists of calling all the cases posted on that date takes upto 2 hours i.e from 11.00 am to 1.00 pm. So effective time the Court has to conduct trial in cases which includes examination of witnesses and arguments is only three hours. That is from 1.00 pm to 5.00 pm excluding lunch time from 1.30 pm to 2.30 pm.

Average time for chief examination of a witness is 20.00 minutes and of cross examination is 40.00 minutes. So one hour of Courts working time is spend on a witness. So, 3 persons can be examined on a particular day. In average, a year consists of 290 working days. So, in total, around 870 witnesses can be examined in a year. So, if a magistrate Court case consist of 5 witness in average. Then, a magistrate Court can dispose of 174 cases. So, in conclusion, out of 3,000 cases registered in a year, the Court can only dispose of 174 cases.

This calculation is made without taking into account the time taken in Court for making final arguments, hearing bail application and other miscellaneous petitions. If time taken for those matters is also taken into account, then, the number of cases that can be disposed of by a magistrate Court would be far less than 174.

Above calculation shows the pathetic state of affairs in a Criminal justice system. Obvious solution to this problem is that increasing the number of Courts in India. However, the problem with that is the huge burden it would entail upon tax payers of India. Thus, this article strives to attain certain solutions to the above problem of huge backlog of criminal cases without imposing huge burden upon tax payers.

Reasons for heavy cost imposed upon tax payers in maintaining criminal justice system.

A magistrate court consists of a magistrate, an assistant public prosecutor, a bench clerk, an assistant bench clerk and three or four court staff. Salary of magistrate is around one lakh rupees and that of assistant public prosecutor is around 60,000 rupees. Other Court staff would be 40,000 rupees. Then the approximate salaries of Court officials including the judge and prosecutor and other expenses comes upto 4,00,000 rupees. Thus, the amount the tax payers pay per month to maintain a single Court is 4,00,000 rupees.

While the fine amount recovered from the accused is very meager sum and is nowhere sufficient to cover even partly the expenses incurred by taxpayers in maintaining the Court. Some of the Indian Penal Code only has 1000 rupees as fine. While the cost of investigation and trial of the such offences cost more money than the fine amount. It could be rightly said that the non- prosecution of offences only having fine of Rs. 1,000 or Rs 500 saves a huge lot of money to tax payers.

And further more, imposing such meager sum does not cause any deterrence upon offender as the fine imposed is very less for offender to feel as punishment. Obvious solution to this problem is to increase the fine amount so that the fine imposed upon offender is sufficient to recover, atleast in part, the amount incurred by tax payers in maintaining Criminal Courts and also to serve as deterrence upon the offender.

Plea Bargaining:

The plea bargaining is an American model of justice dispensation which is clearly functioning well and good in United States of America. While the same cannot be said about the system of plea bargaining in India. The surveys shows that about 90% of criminal cases in USA is dispensed by means of plea bargaining. Only a 10% of cases results in trial. This allows a timely justice as well as reduced expenditure of resources in criminal trial.

While in India, the plea bargaining is the rarely used method. The reason is that the stipulation contained in plea bargaining that the parties should arrive at a mutually acceptable disposition. Which means the accused should arrive at a settlement with victim usually by way of paying compensation. Even if he paid the sum, he has to undergo a reduced sentence.

Thus, the accused normally tries to turn the witnesses including the victim hostile by paying the sum necessary rather than compromising the matter by way of plea bargaining. By doing so, an accused could get acquitted without punishment rather than serving a reduced sentence. Which neither reduced the burden of Court, nor does justice to society. So, an alternative to the current provisions is necessary.

Suggestions to remedy the problems envisaged:

• Some of the suggestions envisaged are as follows:
1. Increase the power of punishment of Magistrate Court:
   • Under the criminal procedure code, the power of First class Magistrate Courts is limited to imprisonment upto three years and fine upto 10, 000 rupees or both. While that of Second class Magistrate Courts extends to imprisonment upto one years and fine upto 5, 000 rupees or both. However, the case tried by them has punishments which extend to life imprisonment. Hence, to provide justice, the powers of Magistrate Court must be increased in following manner:
     1. First class Magistrate Courts has power to impose imprisonment upto five years and fine upto 50, 000 rupees or both.
     2. Second class Magistrate Courts has power to impose imprisonment upto three years and fine upto 25, 000 rupees or both.
         
2. Prosecutor must approve the conduct of trial:
   • In USA, the prosecutor determines faces the matter must move to trial or further investigation is necessary. Similar approach would be beneficial to our trial system. Since, the investigation officers are not expert in law. They cannot determine the sufficiency of evidence for starting trial. There are cases where the investigation officer files final report with insufficient evidence and as a result, the case results in acquittal. Such acquittals causes hardship to the accused as well as taxpayers. To avoid such situation, it is beneficial that court takes cognizance of the matter for initiating trial after it is approved by public prosecutor unless the Court is satisfied that the prosecutor without bonafide withheld the approval.
      
3. Offering 'reduced sentence' in lieu of trial:
   1. After filing final report, the Court in sessions and warrant trial, in respect of any offence other than an offence punishable with death, after framing of charge, offer reduced sentence to the accused which he may accept or contest the case.
   2. In respect of summons trial, on arrest and production of accused before magistrate or when he appears before the Court, the Court shall offer reduced sentence to the accused which he may accept or contest the case.
   The 'reduced sentence' include in appropriate cases;
   1. Where the offence is punishable with fine or imprisonment upto one year, 'reduced sentence' means fine alone.
   2. Where the offence is punishable with imprisonment upto three years without any minimum mandatory punishment, 'reduced sentence' means community service with fine except where accused is a habitual offender. In case of habitual offender, the 'reduced sentence' means such reduced period of imprisonment with fine.
   3. Where the offence is punishable with imprisonment between three and seven years without any minimum mandatory punishment, 'reduced sentence' means:
      • Where accused has no previous conviction in similar offence, with community service with fine
      • Where accused has previous conviction in similar offence, such reduced period of imprisonment with fine.
   4. Where the offence is punishable with imprisonment containing any minimum mandatory punishment, 'reduced sentence' means such minimum mandatory punishment.
   5. Where the offence is punishable with imprisonment exceeding seven years, 'reduced sentence' means such reduced period of imprisonment with fine.

The Court is empowered not to offer reduce sentence in appropriate cases.

Cumulative/Consecutive punishment:

Furthermore, where an accused accepts reduced sentence, his punishment for several offence tried together shall be cumulative. While, where an accused contest the case and he was convicted for more than one offence in a single trial, he shall undergo such sentences consecutively.

Discharge of Accused on serving reduced sentence:
In cases where in an accused refused reduced sentence and contested the case, but period of detention undergone by him during the trial exceeds the period of reduced sentence including default imprisonment in respect of fine specified therein, the Court shall, unless there is special reason to do so, discharge the accused in respect of the offence and such accused shall be deemed to be acquitted of the offence tried.

Trial in absence of Accused:

Where an accused who is present on former posting dates, is subsequently absent or not produced by the authorities on the day when witnesses were summoned and present for examination, if he was duly represented by his pleader, who is present therein, the examination of witnesses shall be conducted therein and accused shall be put to identification by showing the witnesses photograph of accused collected and produced before the Court by investigation officer in the manner prescribed by the Criminal procedure Code.

Where an accused who is present on former posting dates, is subsequently absent on the day when witnesses were summoned and present for examination, wherein he is contesting the case without the aid of pleader or even though he was duly represented by his pleader, his pleader is not present on the date of examination or he is present, but refuses to examine, the chief examination of witnesses shall be conducted therein, accused shall be put to identification by showing the witnesses photograph of accused collected in the above said manner and accused is deemed to have refused to cross-examine such witnesses, but Court shall not issue fresh summons in respect of other witnesses unless all steps for procuring the presence of accused is taken by Court.

Where the sole accused is absent even before charge is framed, the court may, if it is free of heavy workload or it is necessary in the interest of justice, after taking all steps necessary under Code for procuring the presence of accused, frame charge and conduct trial in the absence of the accused, convict or acquit the accused and pass such sentence against such accused. Accused shall be put to identification by showing the witnesses photograph of accused collected in the above said manner and accused is deemed to have refused to cross-examine the witnesses in such trial.

Where several accused are tried in a single trial, some of the accused are present but others are absent, the Court shall, after taking all steps necessary for procuring the presence of accused absent therein, conduct trial jointly in the respect of accused who were present and absent therein, convict or acquit such accused and pass such sentence against such accused. The accused that were absent shall be put to identification by showing the witnesses photograph of accused collected in the above said manner and such accused is deemed to have refused to cross-examine the witnesses in such trial.

If the accused who were absent during the trial and cross examination of witnesses were deemed to have refused by such accused under above provisions, is subsequently arrested and produced before Court or he voluntarily appears before Court, either before or after conviction, and satisfies the Court that he did not willfully absconded from the Court and gives sufficient reasons for his non-appearance, the Court may recall such witnesses who were deemed to have cross examined by such accused at the cost of accused.


But if the witnesses who were recalled is dead, or cannot be found, or has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable or wherein Court refused to recall such witness, the evidence tendered by them in the absence of the accused shall be valid and binding upon the accused.

Where in a trial conducted in the absence of accused, without him being represented by pleader or where the pleader of accused is also absent during the trial and accused is convicted and sentenced to punishment in such trial, the accused shall not be at liberty to set aside such conviction and have a fresh trial, but subject to provision provided above for recalling witnesses, he may produce such defence evidence that the Court thinks relevant and he may make concise arguments by himself or through a pleader and may file a memorandum of written arguments challenging such conviction and the Court may after hearing accused and prosecution, confirm such conviction and sentence or acquit the accused or reduce the sentence as the case may be.

Where in a trial conducted in the absence of accused, without him being represented by pleader or where the pleader of accused is also absent during the trial or refuses to conduct the case and accused is convicted and sentenced to punishment in such trial, accused shall be deemed to be a convict and he is not entitled to have his sentence suspended and cannot be released on bail even though he had satisfied the Court that that he did not willfully absconded from the Court and gives sufficient reasons for his non-appearance and Court allowed for recalling witnesses already examined but deemed to have refused by accused to cross examine and such accused shall serve sentence until the conviction is overturned by the court in accordance with above said provision.

A pleader that duly appears for any accused is obligated to cross-examine every witnesses to whom summons were issued while he was appearing for such accused and he cannot absent himself or refuse to cross examine any witnesses who are present in consequence of such summons issued citing any ground including that the accused has not instructed him or that accused is absent or accused presence is necessary for identification. Any pleader who fails to comply with above said obligation is subject to such disciplinary action by the Court after giving him a due opportunity of being heard. Provided that pleader is under no obligation to cross examine any witnesses to whom summons was issued after he had relinquished his vakalat.

Any accused absents himself during trial shall not be eligible for 'reduced sentence' otherwise offered.

Conduct of First Appeal:

The appeals are there to rectify any mistakes in lower court judgement. Presently, the case pending in appeals is as high as cases pending in trial.

Certain changes in the manner the appeal is heard may help speed up the process:

1. There shall be no appeal where the accused accepts 'reduced sentence'.
2. An appeal may lie from conviction, acquittal or discharge of accused. But no appeal shall lie against dismissal of discharge application.
3. On preferring of appeal along with certified copy of judgement, the Court shall issue notice to opposite party concerned. The provision for hearing of appeal for admission may be deleted as rarely an appeal is dismissed at that stage.
4. On appearance of opposite party, the appellate court shall peruse the judgement of trial court and after hearing both side:
   1. if it is satisfied that there exists no reason to interfere with the trial court judgement, it may dismiss the appeal and intimate the same to trial court.
   2. if it is satisfied that the trial court has prima facie erred in determining guilt, the court shall frame such points where the trial court has prima facie erred and:
      1. if the Court think fit to do so, after hearing both the parties on such points, the Court may reverse or modify the trial court order without calling for trial court records, or,
      2. Court shall call for trial court records, hear both the parties on such points and the Court may reverse or modify the trial court order or dismiss the appeal as the Court may thinks fit,
      3. And intimate the appeal order to trial court.
5. No sentence shall be suspended by appellate Court unless the Court, after hearing both side, is satisfied that the trial court has prima facie erred in determining the guilt of the accused.
6. Appellate Court shall not entertain an appeal for enhancement or reduction of sentence nor interfere with sentence imposed by trial court unless the appellate court is satisfied that the sentence is exceptionally higher or lower than the sentence usually given for the offence by the trail courts. Special reasons should be recorded in case the appellate court interferes with trial court sentence. The said provision is not applicable where the offence is punishable with death penalty.

Second Appeal and Revision:

A person is eligible for second appeal if either the offence tried is punishable with death penalty, whether the accused is awarded with death penalty or not, or if the trial court judgment was reversed or modified by first appellate court in material terms. Otherwise, no person shall have any right to second appeal.

The power of revision is mostly used to challenge the order passed in discharge application. Since the right of appeal is granted to prosecution and victim if accused is discharged without trial under above suggestions. And, since the only remedy necessary for accused in case of dismissal of discharge application is to contest the case properly. I find no reason for keeping the revisional powers vested with high court and Sessions Court and same can be omitted from the Code. It rarely proved useful and is mostly used to delay the trial.

Courts to which the appeal preferred:

Nature of Trial	First Appeal	Second Appeal
Summons case or summary trial	CJM Court	Assistant Sessions Court
Warrant trial	Sessions Court	High Court
Sessions case tried by assistant sessions judge	High Court single bench	High Court division bench
Sessions Case tried by Sessions judge	High Court	Supreme Court

Fines:

The fines shall be as provided below:

Nature of trial	If the accused accept reduced sentence	If the accused opt for contesting the case
Summons case or summary trial	Rs 5000	Rs 15,000
Warrant trial	Rs 10,000	Rs. 25,000
Warrant trial in CJM Court	Rs. 10,000	Rs 50,000
Sessions Cases	Unlimited	Unlimited

Above table shall be indicative of fine alone and does not include compensation to victim or relatives of deceased which shall be such amount as court thinks fit to impose.

In cases where the accused accepts 'reduced sentence' and such 'reduced sentenc'e is either community service with fine or fine alone, then the Court shall impose on default of fine, such period of community service not exceeding one fourth of the maximum period of imprisonment which can be imposed for that offence.

In cases where the accused contest the trial, the default imprisonment for the fine imposed upon the accused after trial shall not exceed one-half of maximum period of imprisonment which can be imposed for that offence.

Conclusion:
I hope that the suggestions made in the above article if implemented would speed up the criminal trials in India and consequently reduce the heavy work load of criminal courts and ensure the victims timely justice in respect of offences committed against them.

Written By: Adv. Ashish Jojo (LLM)