Report No. 14

11. Case for the old procedure (Benefit to the accused) (Saving of time of the Sessions Court).-

The main argument of those who advocated a return to the old procedure was that the documents and the evidence of such witnesses as were examined by the police did not adequately inform the accused of the true nature of the case and the evidence against him. The accused thereby laboured under a disadvantage under the new procedure. Under the old procedure all material witnesses were examined before the Magistrate, so that the accused had definite and clear evidence on oath stating the facts against him, which gave him a clear picture of the case he had to meet. Under the new procedure, all that he was entitled to have were vague statements made to the police which was not evidence and which the witnesses could with impunity alter or improve upon when they gave evidence.

It was further said that all evidence not being required to be led before the magistrate and the accused not being at liberty to lead evidence before him under the new procedure, the magistrate was hardly in a position to exercise the judicial functions which are vested in him under the new procedure. In the result he acted merely as a recorder of such evidence, as may be led before him and passed the matter en to the Sessions Court. The result, it is said, is that not only are the magistrate deprived of the opportunity of having before them material on which they could exercise their discretion to discharge the accused but they are led to send to the Sessions Court, cases which they themselves could well have dealt with.

In the words of the Chief Justice of a major High Court, "now-a-days, in almost every criminal case where the offence involved may be tried either by a magistrate of the First Class or a Court of Session, the Magistrates invariably commit the case to Sessions and free themselves of further responsibility in regard to those cases". Not unnaturally, cases sent up in this manner to the court of session without examination result in a large number of acquittals. This fosters in the public mind a belief that persons really guilty are being acquitted; and thereby the administration of justice is brought into disrepute.

We have already referred in part to the reasons advanced in support of the view that committal proceedings should be abolished. In a sense, the very arguments used by those who express themselves in favour of a reversion to the old system are relief on by those who advocate the abolition of the committal procedure altogether. They draw attention to the very unsatisfactory nature of the new committal procedure, argue that they serve no useful purpose and advocate the abolition of committal altogether.

12. Abolition of committal proceeding not justified.-

Having given careful consideration to the subject we are of the view that the abolition of the committal proceedings altogether will not be justified. We have reached this conclusion for the following reasons:

(1) There are bound to be a certain number of cases brought up before the Magistrate on a police report in which the Magistrate should, if he exercises his discretion properly, discharge the accused and it would not be right to burden the highly paid judicial officers who preside over the courts of sessions with duties which should be discharged by Magistrates.

(2) It would be unjust to an accused person against whom there is no prima facie case to deny him the opportunity of satisfying the magistrate that there should be no committal of the case to the court of session by leading, if necessary, evidence on his behalf. To expose a person to the anxiety and expense of a trial in a sessions court on the hearing of a charge, which in all likelihood would fail, is a course repugnant to notions of justice and fair play.

(3) As pointed out already, the evidence of witnesses recorded in the committal proceedings is of great value as the earliest record on oath of their statements and delays in recording this evidence will encourage the tendency which already exists in witnesses to swerve from the truth.

(4) The large percentage of acquittals which results from the magistrates acting merely as conduit pipes to send the cases on to the sessions court results in shaking public confidence in the administration of criminal law and the functioning of criminal courts.

13. The true remedy.-

The real remedy would, therefore, seem to lie not in doing away with committal proceedings altogether but in making them effective so that they may serve their true purpose. There is no reason why properly regulated committal proceedings should cause delays in criminal trials. In fact the Inspector-General of Police in Madras stated in his evidence before us that in his experience committal proceeding under the old system did not occasion any considerable delays.

14. The law in England.-

In England, in prosecutions for serious offences, a preliminary examination is held by an "examining" justice or justices, also called a magistrate, before the accused is sent up for trial. This procedure of preliminary examination was originally embodied in section 12 of the Criminal Justice Act, 1925 and now finds a place in a recent consolidating enactment called the Magistrates Courts Act, 1952 and the rules framed under it. The procedure provided by it substantially corresponds to the old committal procedure, now applicable to cases instituted otherwise than on a police report.

However, there are some points of difference. The proceedings need not be held in public. The Magistrate is not strictly bound by the rules of evidence though in practice, the prosecution evidence is led as at a trial. The accused is entitled to call evidence and examine himself as a witness. The examining justice or magistrate decides whether the accused person should be committed for trial.

At the preliminary inquiry the prosecution has to satisfy the Presiding Officer that there is sufficient evidence against the accused to justify his being put on trial. The evidence is recorded in the presence of the accused, each witness being examined by counsel for the prosecution and cross-examined by the accused or his counsel. The evidence of all the prosecution witnesses is reduced to writing and read over to the witnesses in the presence of the accused and signed by them. The examining Justice or Magistrate need not be satisfied that the accused person is guilty before he makes an order for committal. His duty is to find "on consideration of the evidence and on any statement of the accused", whether "there is sufficient evidence to put the accused upon trial by a jury for any indictable offence".

Notwithstanding the preliminary examination prescribed for indictable offences, the trials for these offences are, we are informed, not delayed.

15. In the United States.-

The American system also provides safeguards against persons being put on trial for serious offences without a preliminary inquiry. There appears to be first a preliminary examination before a Magistrate "who is under the duty to bind him" (the accused) "over as soon as he is inclined on the whole to believe that there is probable cause to suppose that he may be guilty".1 This is followed by an inquiry by the Grand Jury-a body of citizens-who have to deliberate "as to whether 'probable cause' has been shown-whether enough of showing has been made to warrant trying the accused on the charges contained in the indictment."2 Only if such cause has been shown, is the accused to be indicted.

The procedure adopted in the United States thus ensures that the accused gets an adequate opportunity of knowing the case of the prosecution before he is put on trial. It is also clear that as a result of the two inquiries above-mentioned, only persons against whom there is prima facie evidence of the commission of an offence are compelled to stand trial.

1. Puthkammer Administration of Criminal Law, p. 93.

2. (206) Ibid., p. 127.

16. In other countries.-

Our investigations show that a similar practice of having a preliminary investigation before subjecting a person to trial for serious offences is also provided in the judicial systems prevailing in the Western European countries.

17. Duty of magistrate (Change in the law).-

We may also here advert to the difference in the phraseology of section 207A(6) and section 209(1) which appears to be significant. Under the former, the Magistrate is to discharge the accused "if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial". Under the latter, the Magistrate is to discharge the accused "if he finds that there are not sufficient grounds for committing the accused person for trial". It would appear that the difference in the language used is deliberate and intended to make the former provision stronger in favour of a committal.

Under it, even if he is of opinion that the grounds are not sufficient for committing the accused, the Magistrate would have no alternative but to commit him, unless he is prepared to go further and form an opinion that there are no grounds for commitment. Obviously, the discretion which the Magistrate can exercise under the latter provision is wider. He has to bring his mind to bear on the sufficiency or otherwise of the grounds. We are not aware of the expression of any judicial opinion on the true construction of the language used in the former provision. It may be that the use of this phraseology has been in part responsible for the Magistrate making committals which have been described as "practically automatic".

18. Need to gain greater experience of new procedure.-

Having regard to what has been said above, it may be suggested that while there is a great deal to be said in favour of reverting to the old committal procedure, there is very little to be said in favour of its abolition and perhaps still less in favour of maintaining it in its amended form. But we feel that it would not be right to reach definite conclusions on this question in view of the fact that the amended committal procedure has been in operation only for a little over two years. Greater experience of its working has, we think, to be gained before a decision is reached to make radical changes in legislation so recently enacted. We are, however, clearly of the opinion that the defects and difficulties in its working, which we have noticed above, should be remedies by suitable amendments in section 207A of the Code.

19. Recommendations.-

We, therefore, recommend that-

(a) section 207A(4) may be amended so as to provide that all witnesses to the commission of the crime and all other important witnesses should be examined in the committal proceedings; and

(b) section 207A(6) may be amended so as to enable the Magistrate to exercise a judicial discretion whether a case should or should not be committed by forming an opinion whether there are or are not sufficient grounds for committing the accused person for trial.

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