Reformation in Criminal Justice System in India by amendments in Sec 174 CrPC

Author: Prof. (Dr.) Mukesh Yadav, B.Sc., MBBS, MD, MBA (HCA), LL.B., PGDHOQM

Abstract

Nowhere have the broad objectives of the Criminal Justice System been codified, though these can be inferred from different statutes, including the Constitution and judicial pronouncements.

As in every democratic civilized society, Criminal Justice System of India is expected to provide the maximum sense of security to the people at large by dealing with crimes and criminals effectively, quickly and legally.

Quality of Investigation is backbone of finding truth and giving justice to innocent alleged accused and also to protection of rights of victim of crime. Timely disposal of criminal cases and subsequent conviction or acquittal depends on quality of medical evidence in the form of Post Mortem Examination Report, especially in cases where there in no witness to crime and circumstantial evidence play an important rule to serve the ends of justice.

Quality of Justice depends on Quality of Evidence which depends on persons involved in investigation whether at police level in doing Inquest or medical fraternity level in doing Post Mortem Examination, visit to scene of crime, etc. more qualified and experienced they are more chances of quality of evidence on which success and failure of a criminal case depends.

Supreme Court of India and various high courts raised concern for lapses in existing criminal justice system and given directions to Government of India, state governments, Law Commission of India Report No.206 of 2008 for enactment of new Coroners Act applicable to the whole of India.

It is pertinent to quote: “Everything has been said already, but as no one listens, we must always begin again.” - Andre Gide French Thinker and Writer

Hon’ble Apex Court of India in a case Titled: K.S. Radhakrishnan, J., A.K. Sikri, J. Dharam Deo Yadav vs. State of U.P., Date of Judgment: 11 April, 2014. SC, observed about relevance of Expert Scientific Evidence in following Paragraph:

“28. Criminal Judicial System is this country is at cross-roads, many a times, reliable, trustworthy, credible witnesses to the crime seldom come forward to depose before the court and even the hardened criminals get away from the clutches of law. Even the reliable witnesses for the prosecution turn hostile due to intimidation, fear and host of other reasons. Investigating agency has, therefore, to look for other ways and means to improve the quality of investigation, which can only be through the collection of scientific evidence. In this age of science, we have to build legal foundations that are sound in science as well as in law. Practices and principles that served in the past, now people think, must give way to innovative and creative methods, if we want to save our criminal justice system. Emerging new types of crimes and their level of sophistication, the traditional methods and tools have become outdated, hence the necessity to strengthen the forensic science for crime detection. Oral evidence depends on several facts, like power of observation, humiliation, external influence, forgetfulness etc., whereas forensic evidence is free from those infirmities. Judiciary should also be equipped to understand and deal with such scientific materials. Constant interaction of Judges with scientists, engineers would promote and widen their knowledge to deal with such scientific evidence and to effectively deal with criminal cases based on scientific evidence. We are not advocating that, in all cases, the scientific evidence is the sure test, but only emphasizing the necessity of promoting scientific evidence also to detect and prove crimes over and above the other evidence.”

Apex Court further observed that “29. Scientific evidence encompasses the so-called hard science, such as physics, chemistry, mathematics, biology and soft science, such as economics, psychology and sociology. Opinions are gathered from persons with scientific, technical or other specialized knowledge, whose skill, experience, training or education may assist the Court to understand the evidence or determine the fact in issue.”

Role of IAFM:

1.    Theme of 43rd ANC of IAFM: Reforms in Criminal Justice System of India: Role of IAFM in Policy making and implementation

2.    A Five members Committee had been formed to study the issue of Amendment in Cr.P.C. 174, comprising, one member from each five zones of India. Committee submitted a comprehensive report available on Website of IAFM: URL:http://iafmonline.in/data/IAFMreport174CrPC.pdf

Questions addressed by IAFM Committee:

•       Who should carry out Post-Mortem examination at District and Rural Hospitals?

•       What should be carried for setting up of Forensic Autopsy Complex?

•       Who should assist the doctor conducting Post-Mortem Examination?

•       Who should do Post-Mortem Examination of dead body of females?

•       Who should make rules for Post-Mortem Examination –whether Union Govt. or State Govt. or both? (NMC/MCI: SC Judgment 1989)

•       Any other matter pertaining to Post-Mortem services including problems that you might have observed in Post-Mortem services.

For detail, please visit IAFM website on link above.

Is there need for Coroners System in India?

A case was reached before Delhi High Court in 2007, Titled: Social Jurist, A Civil Rights group and another vs. Union of India and others, Writ Petition No. (C) 6179/2007 decided by Division Bench of Delhi High Court on 12.10.2007.

Delhi High Court observed that the question whether we ought to have a comparable legislation is however a matter for the Parliament to consider, even if there is no legislation, there is no room for a writ court to issue a mandamus to the appropriate legislature to enact a law considered essential by the Court. [Para 25]

It is trite that there can never be a mandamus to a legislative body to enact a particular law on the subject or to modify an existing law in a particular fashion.

•       What the Court can do in such circumstances?

•       Whether a legislation like the Coroner's Act, 1988 prevalent in UK is needed in India?

•       Whether a suitable proposal can be made to the Parliament in that regard?

All that the court may possibly do is to recommend to the Law Commission to examine this aspect and see whether a legislation like the Coroner's Act, 1988 prevalent in UK is needed in this country and if it is, to consider whether a suitable proposal can be made to the Parliament in that regard. Beyond that, it is neither necessary nor proper for this Court to make any observation. [Para 25]

Role of PIL in Reforms:

Following case law are relevant: Prakash Singh vs. Union of India

·       Separation of Law-and-Order Wing from Crime Investigation

·       Amendments in existing relevant statutory provisions like: Section 174, Cr.P.C.

·       Strengthening of Infrastructure, FSL, DNA Lab, etc. at District Level

·       Public Representation for need for Amendments

·       Research Work and publication

·       Online Petition through Change.org to get public support

·       Zonal and National Convention for Advocacy in Collaboration with like-minded professional bodies

·       PIL to be filed based on Case Law, Recommendations of various Committees and Law Commission of India Reports

·       Individual Efforts/ Group Efforts

·       W.P. by Dr. Indrajet Khandekar is an example of Individual Efforts

Case Law Allahabad High Court:

Division Bench [We] was informed about the developments that have taken place in pursuance of the earlier orders of the Allahabad High Court. Bench [Our] attention has especially been drawn to the 'Action taken' report filed today which mentions action taken on seven points which are as under:

Training of medical officers,
Improvement in mortuaries,
Sanction of posts in FSL/Existing Labs,
Finalization of proforma,
Upgradation of FSL/Existing Labs,
Disposal of old samples of viscera collected in districts,
Meeting of State Level Committee. [Para 3]
Constitutional Limitation: Seventh Schedule, Union List I, Entry No.64, 65 and 66, State List II: Entry No.1, 2, Concurrent List III: Entry No.1, 2, 11, 11A,

Law and Order State Subject

This Research Paper /Presentation deals in brief following questions:

1.    Is there need for Amendment in Criminal Justice System?

2.    What are the older methods followed in India and world over?

3.    Why this Police inquest was brought to India?

4.    Which is the best method of Inquest followed all over the world?

5.    What is the procedure to change the existing system?

6.    What is the Role of Forensic expert in the New Criminal Justice System?

Need for Reforms and Uniformity in Criminal Justice Administration: SC

Division Bench of Hon’ble Supreme Court comprising of Judges S. A. Bobde, J., L. Nageswara Rao, J. observed on the issue of need for reform and uniformity in criminal justice system as: “In the circumstances, we direct that notices be  issued  to  the Registrars General of all the High Courts, and the Chief Secretaries/ the Administrators and the Advocates-General/Senior Standing Counsel of all  the States/Union Territories, so that general consensus can  be  arrived  at on the need to amend the relevant Rules of Practice/ Criminal Manuals to bring about uniform best  practices across the country. This Court may also consider issuance of directions under Article 142 of the Constitution. They can be given the option to give suggestions also on other areas of concern.”

Division Bench of Hon’ble SC referred to: “Kerala Criminal Rules of Practice 1982

 “Rule 62 – Marking of exhibits:

(1)Exhibits admitted in evidence shall be marked as follows:

……

(9)The healthy practice in some states of the Investigating Officer obtaining and producing (or the wound certificate/ post mortem certificate showing) the front and rear sketch of the human torso showing the injuries listed in the medical documents specifically, may be uniformly insisted. This would help the judges to have a clearer and surer understanding of the sites of the injuries.”

Reference: S. A. Bobde, J., L. Nageswara Rao, J. IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS. SUO MOTU WRIT (CRL.) NO.1 of 2017, Date of Judgment: 30.03.2017. SC. Accessed from:URL:http://judis.nic.in/supremecourt/imgst.aspx?filename=44699

Address for Communication:

Dr.Mukesh Yadav

Principal & Professor

Rani Durgavati Medical College

Banda, U.P. 210001

Mob.No.8527063514

E-Mail: drmukesh65@yahoo.co.in