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#Columns: Arrears in the criminal justice system: Some causes and concerns

#Columns: Arrears in the criminal justice system: Some causes and concerns

Bar & Bench

by Sushil Kumar Jain

The increasing pendency in our country’s courts is an alarming situation seeking immediate redressal. The figures published by the National Crime Record Bureau are appalling: a total of 1,86,986 murder cases were brought to trial in the year 2012 (including previous cases) but trials were completed only in 21,653 cases.

As per the latest figures there is a pendency of more than three crore cases out of which almost two crore cases are criminal cases. The arrears have a tendency to compound each year and could, if uncorrected, lead to the collapse of the judicial system.

Appreciating the gravity of the problem, a visibly pained Chief Justice T. S. Thakur emphasized the need for appointment of more than 70,000 judges to clear the pendency.

This suggestion sounds attractive at the threshold. But digging deeper into the issue, one finds that implementation of the suggestion is far more complex than it seems. Assuming that the mammoth increase in infrastructure can be taken care of, the question of sourceability of judicial talent stares at us.

This judicial talent, if sourced from the Bar, would lead to a situation of “talent exodus” and render the Bar weak and wanting. Not to mention the possibility of judicial chaos by conflicting judgments written by inexperienced hands working against time. Appointing more judges or curtailing court vacations may increase the judicial man hours needed to reduce pendency. However, it may not effectively address the problem of arrear for a long term solution.

There are several lacunae in our judicial system especially the criminal justice dispensation system which leads to increased pendency. Some of the causative factors are:

  1. Increased influx of cases: Registration of more cases to the extent it is caused by an increased awareness amongst the subjects relating to their rights and increased trust in the judicial dispute resolution system is a welcome sign for our democracy and must be encouraged. Armed with tools like the Right to information Act, citizens are better equipped to fight any unwelcome curtailment of their rights.
  2. Criminal cases  filed as tool of persecution: A problem arises when criminal remedies become tools for aggression instead of defence. There is an alarming rise in number of false criminal cases  filed only to arm twist the outcomes of civil and marital disputes. Cases filed under 498A is a classic example.Even the Apex Court has recognized the repeated misuse of the  Section 498 I.P.C. and the need to curtail it, in recent judgements including that of Arnesh Kumar. Similar is the fate of civil disputes where false cases under section 420 IPC (forgery), 499 IPC(defamation), Section 138 Negotiable Instrument Act are filed to elicit unreasonable compromises.The Apex Court in Lalita Kumari has held that registration of FIR mandatory. If an FIR is registered in cases without preliminary enquiry, the police is required to file challan or closure report in Court. Similarly in complaint cases also, it is well settled law that if mere allegation in complaint discloses any offence, the court is bound to take cognizance and accused has no right to object to the same upto that stage.The issue was very ironically brought to light in Vijay Shekhar where, just to demonstrate that false cases are being registered on the basis of mere allegations, a prominent news publisher filed a frivolous complaint in the personal names of the erstwhile President of India, Chief Justice of India, and judges of the Supreme Court. In the said matter the Supreme Court instead of correcting the procedure, merely set aside the prosecution on the ground of fraud.
  3. Legislation of penal provision without adequate infrastructure: Another reason for increase in criminal cases is the legislations enacted without creating sufficient infrastructure and without proper and adequate research about their impact. Several actions are made penal without ensuring proper increase in infrastructure to try them and without necessary safeguards to prevent their misuse. Eg. section 138 to 140  were inserted in the Negotiable Instruments Act to make dishonour of cheque an offence punishable with imprisonment. While the purpose of enanctment may be salutary, adequate care was not taken to prevent its misuse. Nor are there any separate fast track courts to try these offences. The result is a large number of prosecutions filed before already overburdened courts.
  4. Lacunae in procedural law result in wastage of court time: The tendency of investigating agencies to submit challans without considering the defence of the accused or filing multiple challans has also resulted in wastage of court’s precious time.The delay in reaching the stage of defence to the accused results in serious prejudice to the accused to the extent of diminishing the evidence. Ordinarily, no one can produce the evidence of alibi only after few years of incident. The procedure has also become unfair and results in abridgment of fundamental rights of fair trial protected under Article 14 and 21 of the Indian Constitution.In Adalat Prasad, the Supreme Court held that Magistrate has no power to recall his order once he has taken cognizance. At present there is no mechanism in the criminal procedure code to consider the defence of the accused at the earliest stage without putting him to the subjugation of a long drawn trial. During investigations, on account of various reasons, the police does not record correct statements under Section 161 Cr.P.C. and completely ignores the case of the defense.Therefore there is need for exercise of discretion and application of mind at the initial stage itself where prima facie charge can be investigated and defence of accused can be considered promptly and if found suitable then no case be registered against the accused.A glaring example of the abuse of process is the so called “scandals” and scams where multitudes of cases/FIRs are registered by the investigating agencies like CBI without even establishing a prima facie case.  In most cases the actual culprit is never brought to book. The scapegoats are arrested, trials continue for years and then at after decades verdicts are delivered.
  5. Fear of disciplinary action or media persecution: These become relevant factors before the lower judiciary in matters where bails/acquittals/ discharge are prayed for. The result is that judges opt for the “safer alternative” of refusing the bail/acquittal and satisfying their conscience with a hope that in appeal the same would be corrected by the Higher Court which is more immune from the  these pressures. The end result is the wastage of court time over matters that should have been resolved by the lower courts.
  6. Conflicting or unreasoned of statutory judgments: At present, there are a large number of conflicting judgments which results in multiple litigation.One good, well considered and reasoned judgment may result in not only disposal large number of such litigations but will also restrict further litigation on the subject.Sometimes, the judgments are not based on settled principles of law rather on individual views of the judges.  With due respect, some of the judgments are rendered without even considering written arguments or the constitutional safeguards guaranteed under Articles 14, 19,20,21 and 22 of the Constitution.For example the Supreme Court without considering changes in 313 1973 code or right of silence protected under Article 20(3), has taken the view that mere wrong defence (i.e. a defence which accused might not the able to prove in contradistinction from a false defence) can be taken as a circumstance against the accused. Similarly the Supreme Court, contrary to Section 114 Evidence Act (the only provision for drawing presumption) and contrary to criminal jurisprudence has interpreted Section 106 Evidence Act by holding that the failure by the accused to explain the circumstance which may lead involvement of accused is sufficient to convict a person. 


The aforesaid causative factors would indicate that apart from the increase in infrastructure, there is also a more pressing need of a systematic correction in our judicial process so that unnecessary arrears can be eliminated.

Safeguards should be placed and used to prevent abuse and misuse of the process of law. The abusers should be strictly penalized and the system should be rationalized to flag such errors.

The Bar should uphold its highest traditions and discourage filing of false cases with ulterior motives. The Bench,on its part, should strive and endeavour to ensure elimination of inconsistencies in the judgments and settle the law. 

Sushil Kumar Jain is a Senior Advocate practicing in the Supreme Court of India.