Reform in Criminal Justice System in India through Amendment in Section 174 CrPC
Reform in Criminal Justice System in India through Amendment in Section 174 CrPC
The Issue
P.M. Examination report is an important piece of Evidence in Criminal Justice System in India. Indian Academy of Forensic Medicine (IAFM) is constantly working on the upgradation of medicolegal or forensic medical services of our country. IAFM was also aware about the present problems in the medicolegal services prevalent all over the country. Various research papers were also published in various journals as well as presented in various conferences by the IAFM members about the existing poor quality of medicolegal services.
1. The sudden or unexplained death of an individual has a profound impact on families and friends of the deceased and places significant responsibility on the criminal justice agencies tasked with determining the cause of death. Increasingly, science and technology play a key role in death investigations. One of the hallmarks of science is adherence to clear and well-grounded protocols. The inquest upon a dead body is the basis of the scientific crime investigation and administration of criminal justice.
2. The investigation of cases of unnatural death is essentially an important function of the Police, as the general public, in most of the cases, frequently forward allegations of foul play and if the unnatural death occurs within the view or custody of Police, the things would become very serious. Ideally, all deaths due to unnatural causes and deaths that are believed to be due to natural causes but where the medical cause of death is not certain or known should be subjected to an inquest. The objective of an inquest is to ascertain facts pertaining to the death. Though the inquest system exists in all parts of the world, the laws for the same vary considerably from country to country. In most of the other countries there are separate acts[1]and/or chapters exist to carry out not only inquest but also to carry out post-mortem examination, collection of samples/ viscera and use of scientific technology in death investigation. However, in India only 2 sections [2] are related with it.
3. Death investigations carry broad societal importance for criminal justice and public health. Death investigations provide evidence to convict the guilty and protect the innocent, whether they are accused of murder, child maltreatment, neglect, or other crimes. Death investigations aid civil litigation, such as in malpractice, personal injury, or life insurance claims. Death investigations are critical for many aspects of public health practice and research, including surveillance, epidemiology, and prevention programs, most often in injury prevention and control but also in prevention of suicide, violence, or substance abuse. And death investigations are emerging as critically important in evaluating the quality of health care and the nation's response to bioterrorism[3].
4. The term medicolegal death investigation system is something of a misnomer. It is an umbrella term for a patchwork of highly varied state and local systems for investigating deaths. Death investigations are carried out by coroners or medical examiners or police or prosecutor fiscal[4] or magistrates as per the legal provisions applicable to states. There are broad differences between medical examiners, coroners, and police in training and skills and in the configuration of state and local organizations that support them. Medical examiners are physicians, pathologists, or forensic pathologists with jurisdiction over a county, district, or state. They bring medical expertise to the evaluation of the medical history and physical examination of the deceased. A coroner is an elected or appointed official who usually serves a single county and often is not required to be a physician or to have medical training. But, in India no special specifications have been provided for the police to carry out investigation.
5. Serious concern has been expressed at various quarters on account of recent abnormal spurt in the unnatural deaths, especially at places like hospitals, police firings and police encounters, railways and other vehicles, and even in the household by way of dowry deaths, raising suspicions of adoption of illegal means with a strong possibility of the complicity of the officials of the State. It has also been found that in criminal cases, the divergent post-mortem reports and the statements of witnesses have led to an alarming rate of acquittal in criminal cases[5].
6. Moreover, scope of Article 21 has been enormously expanded by the Apex Court, so as to include the right to know or right to have the correct information and this will also include the right to know the correct cause of death of any person[6].
7. It is also clear that public interest will be greatly sub served and the moral fabric of our democratic government would be considerably strengthened, if the correct and true cause of the death of any person is known, especially when the death is unnatural or there are surrounding suspicious circumstances[7].
8. Protecting the lives of its citizens is a primary function of the State. Its processes for investigating sudden, suspicious deaths ideally should be geared to finding the causes and eliminating them for the future, while respecting the sensibilities of the family in its grief.
9. The law commission report (62) August 2000 Wellington, New Zealand, quoted that, ‘There has been a changing view of death in our society. This view is perhaps best summed up in a submission that:
“Just as we changed our birth practices in the second part of the 20th century, we need to change our death practices in the first half of the 21st century”.
10. Present Indian law neither use the word nor defined “post-mortem” examination/ autopsy. Indian law But, laws of other 40 countries/ states have not only used the word ‘post-mortem’ but have also defined it[8],[9],[10],[11],[12]. For the various definitions please see the Annexure.
11. Since 1860, police & doctors have been following the provision of Section 174 CrPC chalked out by the British government for forensic death investigation and post-mortems, which is now outdated. Even after over 160 years, there was not a single amendment in the law that would help to check the existing pitiable quality of medico-legal death investigation by police and the horrendous quality of post-mortem services in the country. This has resulted into travesty of justice. Existing law has allowed untrained doctors to do post-mortems and SafaiKarmacharis to assist them and even resulted into carrying out lakhs of unnecessary post-mortems. Condition of the mortuaries is dilapidated and most of the time dignity of the dead bodies is not maintained. Therefore, IAFM felt that comprehensive amendment in law is needed that will help to solve the most of existing problems and to improve the quality of post-mortem services in India.
12. Law commission itself has also observed that lack of expertise and sustained effort in investigation and non-utilization of scientific methods of investigation (Inept, unscientific investigation by the police) and lack of proper coordination between police and prosecution machinery is resulting in low rate of convictions and even implication of innocent accused persons[13]. The present conviction rate only shows enormous waste of public money and valuable working hours of the courts.
13. Though the law commission itself accepts that the divergent postmortem reports[14], lack of expertise and sustained effort in investigation and non-utilization of scientific methods of investigation (Inept, unscientific investigation by the police) is one of the reasons for low conviction rate, not proposing even a single amendment in law that would help to improve the quality of postmortem examination, to utilize scientific methods for the death investigation, to prescribe minimum expertise for death investigator and the medical practitioner to carry out post-mortem examination is really a unfortunate one.
14. Though British gave India the provisions of 174 CrPC in 1898 (followed all over the part of the country), but they themselves never followed such inadequate, incomplete provisions for their own country before and even after that. It is however; really unfortunate that even after 6 decades of independence we are following the same inadequate and incomplete provisions for such a sensitive and important issue of death investigation. British had a coroner act which was also made applicable to limited territorial jurisdiction of only Bombay and Calcutta in 1871. British countries periodically amended the coroner act for effective death investigation and have also taken a prospective step by upgrading coroner system with forensic medical examiner system in a step wise manner. But, in our wisdom we repealed coroner act on 1999 in Bombay and took a very unfortunate and retrograde step by making CrPC applicable to these areas also; rather than making coroner act applicable to whole country, periodically amending it and replacing coroner system with forensic medical examiner system in a phase wise manner.
[1] The details of acts have been given in section attached as Annexure I.
[2] See Section 174 & 176 of The Code Of Criminal Procedure, 1973
[3] Medicolegal Death Investigation System: Workshop Summary (2003) available online on http://www.nap.edu/read/10792/chapter/4
[4] As per Scottish Govt act- Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976.
[5] Proposal for enactment of new Coroners Act applicable to the whole of India. Law Commission Of India. Report No.206. June 2008. Available online on http://lawcommissionofindia.nic.in/reports/report206.pdf
[6] Proposal for enactment of new Coroners Act applicable to the whole of India. Law Commission Of India. Report No.206. June 2008.
[7] Proposal for enactment of new Coroners Act applicable to the whole of India. Law Commission Of India. Report No.206. June 2008
[8] Section 88 of Coroners Act 2009 No 41. New South Wales. Available on the NSW legislation website.
[9] Coroners Act 2008 No. 77 of 2008 Victoria
[10] The Coroners Act- Jamaika
[11] Section 19 of Coroners Act 2003. Queensland
[12] Coroners Act (Chapter 63a) Act 14 Of 2010. The Statutes Of The Republic Of Singapore
[13] Expeditious Investigation and Trial of Criminal Cases Against Influential Public Personalities. LAW COMMISSION OF India. Report No.239. March 2012. Submitted to the Supreme Court of India in W P (C) NO. 341/2004, Virender Kumar Ohri vs. Union of India & Others
[14]Even one of the members of the Committee of IAFM had filed a Public Interest Litigation (PIL) in Nagpur bench of Bombay high Court for upgradation of quality of postmortem services in the country. PIL- WP No. 30/2014 titled Dr Indrajit Khandekar vs Union of India.
Support of Government Agencies, Concerned Ministries, Forensic Fraternity, Professional Association can play a great role in understanding the need for reforms in Criminal Justice Administration in India. Indian Academy of Forensic Medicine is working for improving the Criminal Justice System through organizing Annual National Conferences and Publication of Journal of Indian Academy of Forensic Medicine, active research through its Life Members since its inception in May 1972. Details can be accessed at our website: http://www.iafmonline.in/
All concerned are requested to create awareness and educate all concerned regarding need for Reform in Criminal Justice Administration in India through Amendment in Section 174 CrPc and related Sections and other statutory provisions. Become part of this intellectual public interest initiative for development of India.
Report submitted by the Committee available on our website: http://www.iafmonline.in/
Warm Regards
Dr.Mukesh Yadav
General Secretary
Indian Academy of Forensic Medicine
Governing Council (2019-2022)
Email: drmukesh65@yahoo.co.in
492
The Issue
P.M. Examination report is an important piece of Evidence in Criminal Justice System in India. Indian Academy of Forensic Medicine (IAFM) is constantly working on the upgradation of medicolegal or forensic medical services of our country. IAFM was also aware about the present problems in the medicolegal services prevalent all over the country. Various research papers were also published in various journals as well as presented in various conferences by the IAFM members about the existing poor quality of medicolegal services.
1. The sudden or unexplained death of an individual has a profound impact on families and friends of the deceased and places significant responsibility on the criminal justice agencies tasked with determining the cause of death. Increasingly, science and technology play a key role in death investigations. One of the hallmarks of science is adherence to clear and well-grounded protocols. The inquest upon a dead body is the basis of the scientific crime investigation and administration of criminal justice.
2. The investigation of cases of unnatural death is essentially an important function of the Police, as the general public, in most of the cases, frequently forward allegations of foul play and if the unnatural death occurs within the view or custody of Police, the things would become very serious. Ideally, all deaths due to unnatural causes and deaths that are believed to be due to natural causes but where the medical cause of death is not certain or known should be subjected to an inquest. The objective of an inquest is to ascertain facts pertaining to the death. Though the inquest system exists in all parts of the world, the laws for the same vary considerably from country to country. In most of the other countries there are separate acts[1]and/or chapters exist to carry out not only inquest but also to carry out post-mortem examination, collection of samples/ viscera and use of scientific technology in death investigation. However, in India only 2 sections [2] are related with it.
3. Death investigations carry broad societal importance for criminal justice and public health. Death investigations provide evidence to convict the guilty and protect the innocent, whether they are accused of murder, child maltreatment, neglect, or other crimes. Death investigations aid civil litigation, such as in malpractice, personal injury, or life insurance claims. Death investigations are critical for many aspects of public health practice and research, including surveillance, epidemiology, and prevention programs, most often in injury prevention and control but also in prevention of suicide, violence, or substance abuse. And death investigations are emerging as critically important in evaluating the quality of health care and the nation's response to bioterrorism[3].
4. The term medicolegal death investigation system is something of a misnomer. It is an umbrella term for a patchwork of highly varied state and local systems for investigating deaths. Death investigations are carried out by coroners or medical examiners or police or prosecutor fiscal[4] or magistrates as per the legal provisions applicable to states. There are broad differences between medical examiners, coroners, and police in training and skills and in the configuration of state and local organizations that support them. Medical examiners are physicians, pathologists, or forensic pathologists with jurisdiction over a county, district, or state. They bring medical expertise to the evaluation of the medical history and physical examination of the deceased. A coroner is an elected or appointed official who usually serves a single county and often is not required to be a physician or to have medical training. But, in India no special specifications have been provided for the police to carry out investigation.
5. Serious concern has been expressed at various quarters on account of recent abnormal spurt in the unnatural deaths, especially at places like hospitals, police firings and police encounters, railways and other vehicles, and even in the household by way of dowry deaths, raising suspicions of adoption of illegal means with a strong possibility of the complicity of the officials of the State. It has also been found that in criminal cases, the divergent post-mortem reports and the statements of witnesses have led to an alarming rate of acquittal in criminal cases[5].
6. Moreover, scope of Article 21 has been enormously expanded by the Apex Court, so as to include the right to know or right to have the correct information and this will also include the right to know the correct cause of death of any person[6].
7. It is also clear that public interest will be greatly sub served and the moral fabric of our democratic government would be considerably strengthened, if the correct and true cause of the death of any person is known, especially when the death is unnatural or there are surrounding suspicious circumstances[7].
8. Protecting the lives of its citizens is a primary function of the State. Its processes for investigating sudden, suspicious deaths ideally should be geared to finding the causes and eliminating them for the future, while respecting the sensibilities of the family in its grief.
9. The law commission report (62) August 2000 Wellington, New Zealand, quoted that, ‘There has been a changing view of death in our society. This view is perhaps best summed up in a submission that:
“Just as we changed our birth practices in the second part of the 20th century, we need to change our death practices in the first half of the 21st century”.
10. Present Indian law neither use the word nor defined “post-mortem” examination/ autopsy. Indian law But, laws of other 40 countries/ states have not only used the word ‘post-mortem’ but have also defined it[8],[9],[10],[11],[12]. For the various definitions please see the Annexure.
11. Since 1860, police & doctors have been following the provision of Section 174 CrPC chalked out by the British government for forensic death investigation and post-mortems, which is now outdated. Even after over 160 years, there was not a single amendment in the law that would help to check the existing pitiable quality of medico-legal death investigation by police and the horrendous quality of post-mortem services in the country. This has resulted into travesty of justice. Existing law has allowed untrained doctors to do post-mortems and SafaiKarmacharis to assist them and even resulted into carrying out lakhs of unnecessary post-mortems. Condition of the mortuaries is dilapidated and most of the time dignity of the dead bodies is not maintained. Therefore, IAFM felt that comprehensive amendment in law is needed that will help to solve the most of existing problems and to improve the quality of post-mortem services in India.
12. Law commission itself has also observed that lack of expertise and sustained effort in investigation and non-utilization of scientific methods of investigation (Inept, unscientific investigation by the police) and lack of proper coordination between police and prosecution machinery is resulting in low rate of convictions and even implication of innocent accused persons[13]. The present conviction rate only shows enormous waste of public money and valuable working hours of the courts.
13. Though the law commission itself accepts that the divergent postmortem reports[14], lack of expertise and sustained effort in investigation and non-utilization of scientific methods of investigation (Inept, unscientific investigation by the police) is one of the reasons for low conviction rate, not proposing even a single amendment in law that would help to improve the quality of postmortem examination, to utilize scientific methods for the death investigation, to prescribe minimum expertise for death investigator and the medical practitioner to carry out post-mortem examination is really a unfortunate one.
14. Though British gave India the provisions of 174 CrPC in 1898 (followed all over the part of the country), but they themselves never followed such inadequate, incomplete provisions for their own country before and even after that. It is however; really unfortunate that even after 6 decades of independence we are following the same inadequate and incomplete provisions for such a sensitive and important issue of death investigation. British had a coroner act which was also made applicable to limited territorial jurisdiction of only Bombay and Calcutta in 1871. British countries periodically amended the coroner act for effective death investigation and have also taken a prospective step by upgrading coroner system with forensic medical examiner system in a step wise manner. But, in our wisdom we repealed coroner act on 1999 in Bombay and took a very unfortunate and retrograde step by making CrPC applicable to these areas also; rather than making coroner act applicable to whole country, periodically amending it and replacing coroner system with forensic medical examiner system in a phase wise manner.
[1] The details of acts have been given in section attached as Annexure I.
[2] See Section 174 & 176 of The Code Of Criminal Procedure, 1973
[3] Medicolegal Death Investigation System: Workshop Summary (2003) available online on http://www.nap.edu/read/10792/chapter/4
[4] As per Scottish Govt act- Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976.
[5] Proposal for enactment of new Coroners Act applicable to the whole of India. Law Commission Of India. Report No.206. June 2008. Available online on http://lawcommissionofindia.nic.in/reports/report206.pdf
[6] Proposal for enactment of new Coroners Act applicable to the whole of India. Law Commission Of India. Report No.206. June 2008.
[7] Proposal for enactment of new Coroners Act applicable to the whole of India. Law Commission Of India. Report No.206. June 2008
[8] Section 88 of Coroners Act 2009 No 41. New South Wales. Available on the NSW legislation website.
[9] Coroners Act 2008 No. 77 of 2008 Victoria
[10] The Coroners Act- Jamaika
[11] Section 19 of Coroners Act 2003. Queensland
[12] Coroners Act (Chapter 63a) Act 14 Of 2010. The Statutes Of The Republic Of Singapore
[13] Expeditious Investigation and Trial of Criminal Cases Against Influential Public Personalities. LAW COMMISSION OF India. Report No.239. March 2012. Submitted to the Supreme Court of India in W P (C) NO. 341/2004, Virender Kumar Ohri vs. Union of India & Others
[14]Even one of the members of the Committee of IAFM had filed a Public Interest Litigation (PIL) in Nagpur bench of Bombay high Court for upgradation of quality of postmortem services in the country. PIL- WP No. 30/2014 titled Dr Indrajit Khandekar vs Union of India.
Support of Government Agencies, Concerned Ministries, Forensic Fraternity, Professional Association can play a great role in understanding the need for reforms in Criminal Justice Administration in India. Indian Academy of Forensic Medicine is working for improving the Criminal Justice System through organizing Annual National Conferences and Publication of Journal of Indian Academy of Forensic Medicine, active research through its Life Members since its inception in May 1972. Details can be accessed at our website: http://www.iafmonline.in/
All concerned are requested to create awareness and educate all concerned regarding need for Reform in Criminal Justice Administration in India through Amendment in Section 174 CrPc and related Sections and other statutory provisions. Become part of this intellectual public interest initiative for development of India.
Report submitted by the Committee available on our website: http://www.iafmonline.in/
Warm Regards
Dr.Mukesh Yadav
General Secretary
Indian Academy of Forensic Medicine
Governing Council (2019-2022)
Email: drmukesh65@yahoo.co.in
492
Petition created on 25 December 2020