Draft Criminal Rules on Practice, 2021: Judiciary calling shots towards a better system.

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What is Draft Criminal Rules on Practice, 2021?

These are a set of guidelines laid down by the Supreme Court of India to surmount the discrepancies in criminal trials and set uniformity in the approaches of all session courts.

The Rules came up in a suo moto proceedings under Article 32 during the course of a criminal appeal[1]. The Supreme Court bench consisting of J. S.A. Bobde, J. L. Nageswara Rao, and J. S. Ravindra Bhat in the matter of To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. State of Andhra Pradesh and Others [2] took up the concerns of different High Courts and suggestions of senior advocates who were also amici curiae, Mr. Sidharth Luthra, Mr. R. Basanth and Mr. K. Parameshwar, and formulated these guidelines.

The process of laying down these rules was going on from 2017 and the final draft has been made ready after addressing the responses of different High Courts. Also during this, individual and diverse practices of each and every High Courts were kept in mind, while uniformity was being brought up. The rules are not repugnant nor in dereliction of the Criminal Procedure Code, 1973 (referred to as Cr.PC. hereafter).

Need for Draft Criminal Rules on Practice

Indian Judiciary has always had the obstinate problem of prolonged cases. The cases go on for several reasons, some inevitable and some avoidable. The inevitable reasons cannot be done away with. The Draft Criminal Rules on Practice could prove to be a perfect shot at the avoidable reasons that include longevity and common deficiencies that occur in the usual course of trials. These as said earlier would bring uniformity in the proceedings and disposal of criminal matters. The uniformity is basically sought in regard to the preparation of injury reports, deposition of a witness, translation of statements, numbering and nomenclature of witnesses, labeling of material objects, description of exhibits, description of the recording of statements of witnesses, etc.[3]

The irregularities mentioned above were acting as fuel to the delayed judicial processes. In the absence of proper guidelines and lack of uniformity in the existing ones, the trial courts are left with asymmetries and disorientation. This led to hampering in appreciation of evidence and when the case reached the appellate court, they had to send it back to the trial courts.

This step of the Supreme Court was much needed in the time when the judiciary is already piled up with hundreds of other problems like lack of infrastructure, deficiency of judges, corruption, etc. It would bring a sort of accountancy and also limit the errors made by the judiciary and its subordinate functionaries at the grass-root level. When the basic proceedings are held with the greatest care and compliance, the pressure on the upper courts reduces a manifold.

Highlights of the Rules

A separation between the investigating and prosecuting lawyers was sought and welcomed by all the High Courts unanimously. A distinct team of lawyers would assist the investigation and prosecution processes. This, however, would require the State governments to take upon the onus and they have been directed to do so.

Under section 207/208 of Cr. PC., the accused is only supplied with the documents and statements that the prosecution relies upon. The Court here opined that the accused shall be furnished with all the documents and statements that the police have found out. The reason behind this is that the accused should not be kept in dark. Also, he can ask for the production of other documents and evidence that he may deem fit in the trial.

The trial courts have been following archaic practice when it comes to objections regarding witnesses and evidence. It goes as follows, whenever an objection regarding evidence came up before the court, it did not move forward without deciding on that objection. The problem with this was if the appellate court takes a different perspective on the same evidence, the case had to be sent back to the trial court for inclusion of the said evidence. This was laid down in Bipin Shantilal Panchal v. the State of Gujarat[4]. An alternative to this was suggested by the learned amici. It said that the objections to such evidence should be reserved and then decided during the last stage of disposal. This would save the time of the court and also provide a gateway to the appellate courts to look into that evidence by viewing the correctness of the stance taken by the trial court. And the rules laid down in the Bipin Shantilal Panchal case were sought for reconsideration by the apex court.

During the cross-examination of a witness, the opposing counsel has the leeway to ask questions regarding all the relevant facts of that case. This may lead to frivolous and irrelevant questions in the course and unnecessary cluttering in the records. Before this, the presiding officer was not allowed to rule during the line of questioning. In this case, the Court opined that the presiding officer should be empowered to decide upon the objections related to questions during the course of the trial itself. This would be advantageous not only for that witness but also for the courts, as they would not have to go through the unneeded clutters of irrelevant information.

The Rules contain a provision for the conduction of day-to-day trials. Several High Courts argued that this was not possible because of the non-availability of witnesses or evidence on the said date. The Court was of the opinion that since these witnesses are relied upon to prove a certain thing, they should be available on the given dates as far as practicable. The witnesses would also be bound to come up before the court for 2-3 consecutive days if the proceedings could not be completed on the given date. Also, the sequencing of witnesses has to be done beforehand by the courts.

A preliminary case management hearing is to be held before every criminal trial, right after framing the charges. In this, the court should look into the witnesses, their classification, and other relevant things. The scheduling for the witnesses could also be done during this hearing so that no procrastination from the side of witnesses and experts takes place at further points of time.    

The first three rules of this Draft, which deal with the investigating part including photographs of the body, post-mortem, and spot panchnama have been set to bring evenness in such processes. The court has directed the police authorities and state bodies to carry out necessary amendments in their rule book to go ahead with compliance with these guidelines.

The Rules also lay down provisions to carry out expeditious hearings. It says that the application of bail for the non-bailable should be disposed off within 3-7 days. If not, the court should furnish proper reasons for its non-compliance.

Other than these guidelines, the Rules also give out certain fundamental requirements that have to be mentioned in the judgment, and also a sort of format has been laid down to give the same.

Conclusion and step ahead     

The High Courts and State governments have been given six months to comply with these guidelines and lay down and amend their rules and regulations for the same.

This step by the Supreme Court is highly commendable and appreciated. If the Rules are actually complied with, it would lead to a better system in the end. These rules are necessary and would help in cutting down the roots of the said problems faced by the judiciary. The only apprehension to this remains, if it is executed in the desired manner. Laying down the Rules only disposes of 10% of the responsibility, the rest 90% lies in its implementation. This step would become futile if the ground reality is in no consonance with what has been laid down on papers. For this to be executed in the said manner, regular checks on the states and High Courts should be conducted. A representative from each state can be appointed, who would bring reports of its furtherance and how it is being carried out in long run. The representative could be any retired judicial officer which the Court may deem fit. In this way, the High Courts and State governments could be made accountable for their operations and practices.

[1] Crl.A.400/2006 & connected matters

[2] To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. State of Andhra Pradesh and Others, 2021 SCC OnLine SC 329.

[3]To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. State of Andhra Pradesh and Others, 2021 SCC OnLine SC 329.

[4] Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC 1.

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