“Everything has been said already, but as no one listens, we must always begin again.” This quote by Andre Gide, French thinker and writer, is how the 2003 Report of the Justice Malimath Committee on Reforms of the Criminal Justice System begins.
Though the Report painstakingly set out several recommendations, not many were implemented. This Committee was followed by the Madhava Menon Committee constituted to draft a national policy on criminal justice and which submitted its report in 2007.
In May, 2020, the Central government has constituted yet another committee to “recommend reforms in the criminal law of the country in a principled, effective and efficient manner that ensures the safety and security of the individual, the community and the nation; and which prioritises the constitutional values of justice, dignity, and the inherent worth of the individual.”
The constitution and initial functioning of the committee has led to several protests that it lacks diversity, the timeframe for an overhaul of the criminal law is too short, etc.
Whether the committee itself will be overhauled is yet to be seen. However, while the criminal laws and procedures in the country certainly require reform, sometimes, even minor tweaks to the existing legal provisions may result in effective changes.
While considering any changes to the relevant legal provisions particularly in criminal laws, the objective is to speed up justice delivery while, of course, simultaneously protecting the rights of accused persons. According to the National Judicial Data Grid, more than 55% of criminal cases are stuck at the stage of “appearance.” This means that the accused persons have either not yet been served with summons or having been served with summons, have failed to appear in the courts. This was also highlighted by the Justice Malimath Committee way back in 2003.
It is trite that an accused person will be most reluctant to participate in criminal proceedings against him, more so when such person might be guilty of the alleged crime(s). On the other hand, one of the protections granted by the Constitution of India to persons accused of crimes is that there can be no ex parte proceedings in a criminal trial, i.e. no evidence can be recorded in the absence of either the accused person or his advocate. It is, therefore, necessary that for criminal proceedings to move forward, the criminal courts ought to be equipped to secure the presence of the accused persons by some form of compulsion.
Processes to compel appearance of accused persons
Chapter VI of the Criminal Procedure Code (CrPC), 1973, sets out the processes to compel appearance of accused persons. Part A contains the steps to be taken for service of summons. Part B contains provisions relating to warrants of arrest. Part C contains provisions relating to proclamation and attachment, and Part D contains certain miscellaneous rules regarding the processes to compel appearance of accused persons.
On taking cognizance of a complaint, the Magistrate issues summons directing the accused person to present himself in court. The accused person may not be available at the address to which summons is sent or in spite of the receipt of summons, may choose not to present himself before the Magistrate. In such cases, the Magistrate is empowered to issue a bailable warrant of arrest or a non-bailable warrant of arrest.
A bailable warrant enables the accused person to avoid immediate arrest by furnishing some acceptable security assuring the police of voluntarily presenting himself before the Magistrate. In cases of non-bailable warrants, the accused person will have to be arrested to be produced before the Magistrate, after which the prescribed procedures for bail, etc, will follow.
A huge problem clogging the criminal courts is that in more than 55% of the cases, either summons or the warrants of arrest cannot even be served because the accused persons are absconding. In some cases, the accused persons may not actually be absconding, but may avoid getting served with summons or warrants. It is in such situations that Part C of Chapter VI of the CrPC becomes relevant.
Proclamation and attachment
If a Magistrate has reason to believe that an accused person is absconding or is deliberately concealing himself to avoid service of summons or warrants, under Section 82 CrPC, the Magistrate has the power to issue a proclamation requiring the accused person to present himself in the proceedings on a fixed date. Such a proclamation is to be pasted at the home of the accused person, displayed on a notice board in the court premises, and also published in the newspapers.
One of the consequences of proclaiming an accused person to be an absconder is to enable attachment of the property of the accused person under Section 83 CrPC. If the proclaimed accused person does not turn up within six months from the attachment of his property, the attached property can be sold under the supervision of the court.
This may be quite effective in getting accused persons to present themselves before criminal courts as they may, obviously, not remain in hiding and see their properties being attached and sold.
However, courts are reluctant to issue proclamations and prefer to simply await service of summons or warrants by the police. In several cases, where the Magistrates do issue proclamations, the appellate courts set aside those orders on the ground that there is no material to show that the accused person is deliberately absconding to avoid court proceedings.
Criminal courts do not have professional process servers and have to rely solely on the police to serve summons and warrants. The police are often indifferent to this work and there is no accountability for delays in effecting service of summons and warrants. Courts and Committees have repeatedly stressed on the fact that the police machinery should be enhanced and that the government should consider setting up a dedicated police wing to attend only to service of summons and warrants.
A quick-fix solution could be to amend Chapter VI of the CrPC to require the police to submit service reports to the courts at the subsequent hearing after the police have been directed serve the summons or the warrant on an accused person. If the police is unable to apprehend the accused person after may be three or four attempts, the accused person should stand declared an absconder and the proclamation (and attachment of property) under Part C of the CrPC must follow.
This will do away with the subjective assessment by a Magistrate whether an accused person is deliberately absconding, which is the current requirement of Section 82 CrPC. If an accused person is truly absconding, he must suffer the consequences already provided in law. If the accused person is hiding in cahoots with the police, the proclamation will either drive him out of hiding or he will have to watch his property getting attached and sold by the Court. That would still not excuse him from having to face justice.
Such minor improvements in the provisions relating to service of the courts’ processes may go a long way in getting accused persons to participate in the criminal proceedings and will reduce the pendency of cases at the stage of “appearance”.