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Report No. 14 21. Powers of a single judge of the High Court.- The need to enlarge the powers of a single judge so as to enable him to dispose of certain categories of matters in the High Court has been noticed elsewhere. In this respect, there is a large amount of variation in the practice of the High Courts. A single judge in Andhra Pradesh, Madhya Pradesh, Madras, Punjab and Uttar Pradesh hears all criminal appeals except those in which sentences of death or imprisonment for life have been passed; in Bihar and Rajasthan, a single judge hears criminal appeals in cases in which sentences of imprisonment upto a period of ten years have been passed; in Assam and Orissa, the single judge's power to hear criminal appeals is confined to cases of sentences upto one year's imprisonment; in West Bengal, a single judge cannot hear criminal appeals in any case in which there is a sentence of imprisonment whether substantive or in dafault. The extreme position is to be found in Bombay and Mysore where a judge sitting singly is not empowered to deal with any criminal appeal whatever. 22. Enlargement necessary.- We see no reason why the powers of a single judge in all the High Courts should not be enlarged so as to enable him to deal with all criminal appeals except those in which sentences of death or imprisonment for life have been passed. The evidence before us shows that such a practice which has prevailed in Madras for a long number of years and also in other States has worked satisfactorily; it is difficult to see why it should not work equally well in other States. The view was expressed by a senior Chief Justice that to enlarge the powers of a single judge in criminal cases would be to place the life, the liberty and the property of individuals in the hands of an inadequately equipped tribunal. We feel that such a view does not do justice to the capacity of the judges and arises mainly from the long practice in some of the States that all criminal matters should be disposed of by a Bench of judges. The adoption of the practice we recommend will greatly help in removing delays and in economising judge-power so that the targets we have indicated elsewhere for disposal of the work in the High Courts will be reached. It should, of course, be open to particular High Courts to provide that criminal appeals of a certain category should be heard by a Bench of two judges if the state of work and the judge-power in that High Court enable it to so provide consistently with maintaining expedition an all other classes of work in the manner indicated by us. 23. In this connection we would like to draw attention to a practice obtaining in the Bombay High Court with regard to the disposal of criminal appeals. There is a convention in that High Court by which all ready criminal matters are disposed of before the court closes for the vacation at the end of a term. If necessary, two or even three Benches are constituted so that all pending criminal matters which are ready are disposed of. We feel that if such a practice is established in all the High Courts and an effort is made to clear off all pending criminal matters by deploying as many judges as are necessary, there would be no likelihood of the High Court falling into arrears in this important branch of its work. 24. Delays in sessions courts.- The position in regard to criminal appeals in the courts of session in the various States during the year 1956 appears from the undermentioned Table. Table C Statement Showing The Volume of Criminal Appeals in The Courts of Session in Various States During The Year 1956
N.A.= not available Note.- These figures have been taken from the statistics furnished to us by the various High Courts. It will be noticed that in the States of Bihar, Madhya Pradesh and Uttar Pradesh, there are pending before sessions courts a large number of appeals more than a year old, Uttar Pradesh again showing the largest number by far. 25. There is no reason whatever why, in States where proper supervision is exercised by the High Courts, there should be any arrears in criminal appeals in the courts of session. In Madras, a system of such rigid supervision prevails that one finds the average duration of criminal appeals in the sessions courts during the years 1954 and 1955 was only 32 days. In 1956 the average duration was as low as twenty-two days, notwithstanding the fact that sessions courts in that State do not hear criminal appeals during vacations. In Andhra Pradesh also, the average duration of criminal appeals during the years 1954 and 1955 ranged between thirty-eight and forty days. Though some High Courts have fixed and have been able to achieve a target to thirty days for the disposal of these appeals, in order to be on the safe side, we recommend a target of sixty days from the date of filing the appeal to the date of disposal. That should not, however, prevent courts from aiming at the ideal target of thirty days. 26. We may, in this connection, invite attention to the practice prescribed by the High Court of Madras for the disposal of criminal appeals by magistrates which has, with some modifications, been observed by the sessions judges in the disposal of appeals in that State. It is the observance of this practice which has enabled the subordinate judiciary in that State to dispose of criminal appeals with an average duration of thirty-two days. In the first place, all jail appeals are subjected to a close scrutiny outside court hours and notice is issued only in proper cases. If it is decided to admit the appeal, it is posted for hearing within a week or a fortnight, after consulting the public prosecutor, and the records are immediately sent for. When a memorandum of appeal is presented by a lawyer, it is received and scrutinised by the magistrate personally. If he considers it to be a fit case for disposal under section 421 of the Ctiminal Procedure Code, he takes it up immediately and asks the appellant or his Counsel to commence his arguments. If an adjournment is asked for, a short adjournment of less than a week is granted, the date being fixed in consultation with the Counsel. In cases where the magistrate decides to admit the appeal and issue notice to the State, he fixes the date immediately in consultation with the Counsel for the appellant and public prosecutor. The fixation of dates in this manner by the judge himself after looking into his diary and consulting the convenience of Counsel avoids adjournments of criminal appeals. Target of 30 days achieved in Madras.- A period of thirty days is fixed by the rules as the maximum period for the duration of criminal appeals. In all cases where an appeal has been pending for over thirty days, an explanation has to accompany the judgment as also a statement of dates which, under the rules, has to accompany every judgment and which is called the calender statement. The judgment and the calender statement have to be submitted to the superior court in every case. The observance of this practice has resulted in the average duration of appeals in the court of magistrates who do not enjoy any vacations to be as low as seventeen days in 1955 and sixteen days in 1956. 27. Increase in acquittals.- A large body of evidence before us shows the rising proportion of the number of acquittals in criminal cases in recent years. This led to our attention being drawn to the provisions of the Code in regard to appeals from acquittals and the recent amendments made in the law in regard to such appeals. Comments were also made by certain witnesses on the uncertainty in the law as to how appeals from acquittals were to be dealt with by the courts which had arisen by reason of certain recent decisions of the Supreme Court. It becomes, therefore, necessary to deal generally with the law relating to appeals from acquittals with particular reference to the views expressed in regard thereto by certain State Governments and the uncertainty which is said to have crept into the law on the subject. 28. Appeals against acquittals.- The principle of permitting appeal against an acquittal has been condemned on numerous occasions as being contrary to the Western ideas of justice and unparallelled in the jurisprudence of any country. The matter was, on more than one occasion, considered by the Government of India who came to the conclusion that the right of appeal against acquittal was justified by the circumstances in this country. Indeed, the question of amending the law in India in certain respects was raised, particularly so as to require that in the case of appeals against acquittals the appellate court should be satisfied that the order of acquittal was "clearly wrong". That attempt, however, failed and the law has remained unchanged except for recent amendments made by Act XXVI of 1955 which will be referred to later. Thus, appeals against acquittals stand under our law on the same footing as appeals against convictions except that such appeals can be filed only by the State or by a private complainant with the special leave of the High Court. 29. Restrictions on that right.- However, the right to file an appeal against an acquittal which till recently could be exercised only by the State Government has, as a matter of principle, been availed of only in exceptional cases and when public interest and tranquility required it. The power of appeal against acquittal has been described by a State Government as "a special provision in the Government Armoury which is judicially reserved for exceptional occasions and which is to be used only after most anxious consideration in cases which are themselves of great public importance or in which a question of principle is involved. The Government therefore have a responsibility not to dull the edge of this salutary weapon by utilisation in cases which are of no general interest and importance or unless it is shown conclusively that the inference of guilt is irresistible or in which the indications of error in the judgment of the lower court are such as to produce a glaring and positive miscarriage of justice of grave nature which is derogatory to the reputation of the Judiciary and detrimental to the common interest of society". In accordance with the principles so laid down, before directing the public prosecutor to file an appeal against acquittal, the State Government directs the Legal Department to scrutinise the case and it is only after such scrutiny, if the case is found to lea fit one for being taken in appeal, that the public prosecutor is authorised to file the appeal. 30. Right of complainant to file appeal.- Act XXVI of 1955 has, however, introduced amendments to section 417 Code of Criminal Procedure which enable a private complainant to appeal against an order of acquittal after obtaining special leave from the High Court. A period of limitation of sixty days has been prescribed for filing a petition to obtain such leave. In the event of a dismissal of the application for special leave, no appeal can be filed from the order of acquittal; thus, in such an event, the State Government would be precluded from filing an appeal.    |
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