Delay in Criminal Trial: An Analysis

DELAY IN CRIMINAL TRIAL: AN ANALYSIS

Author: Bhairabi Das

*This article has been written by the author while pursuing a Certificate Course on Research Methodology with us.

The Indian criminal justice system came into existence in 1860 following the painstaking work of the first law commission led by Lord Macaulay[1]. One of the main beliefs for the codification of criminal law was “major remedial surgery rather than a band-aid”[2], similarly, the code also remained as a check on and arbitrary development of laws. Our criminal justice system follows the ideal that no innocent should be wrongly confined, but that also puts pressure and burden on the prosecution to prove the crime and this is a time-consuming process that might slow down the criminal machinery. over the years it observed that every law in itself has its way of giving justice and there are also delays in the civil sphere and are challenging, on the criminal side, delays become especially hard when we consider that marginalized and vulnerable groups are sometimes forced to join the system as accused and may have to spend extended periods as prisoners under trial if they are denied bail or are unable to afford it. That makes the need for reform enormously urgent.

The current conditions of the judiciary are not improving, according to the India Justice Report on the Judiciary- Average case pendency in subordinate courts is 5 years. The study focused on case pendency, judicial vacancies, and case clearance rates regarding the functioning of courts in India. The pendency of the case was measured per judge and in terms of the court’s overall pending case. All parameters were studied both at the level of the High Court and at the level of the subordinate courts. In addition, the parameter of change in judicial spending was also measured for state spending. Below is the graphical representation of how large and mid-size states performed in the period of 2012 – 2017[3].

It can be observed from the graph that Tamil Nadu has improved greatly in the given period of 5 years.

CAUSES OF DELAY IN TRIAL

The delay incurred in the disposing of pending cases in the courts is one of the leading problems of the administration at the moment, even though it has been for a long time. In some instances, it has been observed that the accused of many petty cases spend their time in jail and sometimes not even presented before the court at all and these petty cases take so much time that the accused spends more than required time in the jail until either he is proven guilty or innocent, either way, the time spent in jail is unreasonable. The statistics of delayed disposal of cases has reached so high in India that now justice delayed is not only justice denied, it is justice circumvented, justice mocked, and the system of justice undermined.[4] Further, we will discuss causes for delay in a criminal trial:

  • Case Load: In every method the analysis of the optimal amount applies to information generation as much as information required to give the output. It may impact the efficiency and the output, and it may even jeopardize the criminal machinery. That applies equally to our system. The 230th law commission report[5] suggested some measures to improve the conditions: In the case of Anil Rai. vs State of Bihar[6] it was set by the apex court that the judgments must be delivered within a reasonable time in the matter. Lawyers ought to curb prolix and redundant claims, and can add written notes to them. The layers should curb the urge to overtly prove an argument which becomes obvious after a point of argument and must refrain from exceeding their time limit, except if the case comprises of complex questions of law or constitutional clarification. The holidays of the higher courts to be reduced by 10- 15 days and working hours increased at least up to half an hour.  
  • Service of Summons: The service of a summons is a time-consuming process; the trial proceedings are many times adjourned due to improper serving of summons.
  • Prolix Testimony of Witnesses: The gathering of testimony is a very critical step in a case ‘s trial. In India, it’s said, there is a tendency to over-prove allegations. In a significant number of cases, the consequences of such actions is a wastage of time during examination-in-chief. Witness cross-examination also appears to prolix unduly. This shows the ignorance of the officials for effective interrogation techniques. While the Indian legal profession’s forensic habits also lead to the escalation of the time taken even at the trial level for the disposal of cases.
  • Witness unwilling to give the appearance in court: similar to the above reasons is that in many instances the witnesses are reluctant to appear before the court and give testimony either because of fear of to avoid any hassle in their daily life and, consequently, cases are adjourned out of necessity as it can’t proceed further. There are many factors that contribute to the absence of witnesses. For example, there are no provisions existing in the court which are to be followed when the witnesses arrive at the court. Even the travel allowance scales and the daily Bhatta has given to the “witnesses” in many states are rather insufficient. This is not the only reason, sometimes when the witnesses subjected to the questions, they feel harassed or the questions are too harsh for them, and even argot. Sushil Harkauli, J. In the case of U.P.88 Justice Hari Babu.v. State of Allahabad High Court, described the mental state of a person who comes forward as a witness, the care that the system offers him, and that he deserves to receive. He observed that people who have witnessed a crime are unwilling to give testimony, and every day the witnesses to the prosecution turned aggressive. A dramatic change of mindset is required for the judges, prosecutors, litigants, and police to help the administration from collapsing and save the criminal justice system.
  • Adjournments and hearing piece by piece: Some of the most important explanations for the delay in disposal of cases is that in practicality it is common in Indian courts to adjourn cases without an accountable reason, it can either for the personal benefit of the parties or the counsel. In the case of N.G, Dastane. vs Srikant Shivde[7], taking notice of the issue, the Supreme Court took the view that seeking or granting unaccounted adjournment while witnesses are present at the Court without any prearrangement for ones benefit is a dereliction of the Court’s duty to advocates and such dereliction, if repeated, will lead to misconduct on the part of the defendant concerned.
  • An inadequate number of judges and an inadequate number of prosecutors: in the last few decades there has been a constant increase in a number of cases but the appointment of judges is not proportionate to the matter, especially at the underlying level and delays in the trials are one of the consequences of the lack of appointment of adequate judges. This results in duplication of cases and will ultimately have the effect of tarnishing the machine picture itself. At all levels the insufficient intensity is the key factor behind the delay and the resulting backlog. India has the lowest number of judges among the world’s major democracies, relative to its population. Given the rise in crime occurrence and the number of criminal courts, it is clear that the power of the prosecution service will be increased correspondingly. Yet the frequency of the prosecution team was not substantially improved with the result that court trials are still postponed.
  • Irregularities in the Legislations Drafted: one of the reasons for the court delay is rapidly increasing litigation due to poorly written and ill-conceived laws. Regulations for their work are mostly followed by legislation. Laws are not always straightforward and require interpretation, so even judges so attorneys, let alone people are sometimes not even sure if they are up to date or not and these conflicts in views result in a large number of lawsuits.
  • The practice of scheduling too many cases in a day: For our criminal courts, it is standard practice to settle a variety of cases on a day where there is no fair chance for them to be taken up for hearing. Not only does this activity cause inconvenience to the parties and their witnesses, but in particular also the witnesses are unable to appear before the court on given dates which hinder the disposal of court proceedings.
  • Civil and criminal cases Heard by the same Court: The same judicial officer exercises authority in some cases in both civil and criminal matters. It has been noted that on the same day these judicial officers are settling both civil and criminal cases. This practice not only causes the parties and witnesses of the counsel inconvenience but also impedes the Court’s day-to-day work.
  • The absence of the accused induces delay: Departure of the single accused or if there are large numbers of accused in a criminal case and if any of them are absent or no action is taken on their behalf, a great deal of time is spent in preventing their presence in the Trial. This is the biggest reason to postpone the criminal case’s Fair Trial. A proceeding also under section 446[8] begins against the accused’s promise, but no fruitful outcome has been obtained. In these instances, practically the de facto plaintiff gets no redress. In this way, the case’s fair trial is postponed and this is the most dangerous cause of delay in handling criminal cases.[9]
  • Framing of Charges: An allegation is a simple document the accused is called upon to answer at court[10]. The accused cannot be held guilty of what he is not convicted of and is called upon to respond. The purpose of an indictment is not to impose a clause that goes to the heart of jurisdiction but to allow the accused to have a reasonable sense of what he is being tried for and the basic requirements that he must follow.[11] This stage normally shouldn’t be very time-consuming. At this stage, however, much time is consumed in framing the charge against the accused. Charges cannot be framed if all the accused are not present o the day of fixing of the charge. This is seen as an opportunity by the accused to avoid the case by not being present at the day when they fix the charges and achieve this through various ways such as providing fake medical certificate claims or adjournment.
  • Improperly executed warrants: By the time of the accused’s acquittal, the police are not enforcing the warrants in time which creates an undue delay in the case’s fair trial.

EFFECT ON ACCUSED AND VICTIM

Criminal delay adversely affects the rights of the victim (and creates future disincentives from filing or prosecuting cases) and the accused (who may be in prison or have restricted his freedom and freedom of movement, or at least live in fear of a possible conviction). There are two types of delay which need to be addressed in a criminal trial context. The first, as set out above, deals with the time taken to finalize a trial and issue a verdict. The second factor, linked to pendency, concerns the effects of delay and its effect on under-testing. Criminal law continues under the presumption of innocence, that is, a presumed innocent convicted unless proven guilty. However, the pendency of a criminal trial has a substantial impact on an accused person’s freedom and presumption of innocence, particularly if they are put in jail pending trial.

One may wonder, what is the connection between the number of inmates under trial and the delays in the criminal justice system? In India, 60 percent of police arrests are reportedly “unnecessary or unjustified.” In that context, inexorable delays in the judicial process leading to the continued detention of accused persons, pending trial. This is troublesome because prolonged detention of a person convicted of a crime impedes their counsel’s successful assistance and may impact the defense put on at trial. From a practical perspective, lawyers often find it difficult and time-consuming to take the time to go to far-off prisons to meet their clients, particularly in the context of legal aid.

There is some anecdotal proof that lawyers end up only meeting their clients when they are represented in court, thereby giving them very little time to consult efficiently on their case with their clients. In addition, prolonged pretrial custody also induces imprisonment of emotional distress and has a socio-economic effect on the families of the accused. In certain instances, the one earning member of the family may be a prisoner on trial, and the time during which he/she has been in jail may have a lasting effect on their families, even though the accused is ultimately acquitted. Apart from this, a criminal case’s pendency is like a sword hanging over a person’s head, directly impacting their freedom, freedom of travel, and participation in society, even though the accused is not in jail. For all these reasons, speedy trial, or “reasonably expeditious trial,” has been considered an integral and essential part of the Supreme Court’s fundamental right to life and freedom enshrined in Article 21.

It is necessary to note that delays in administering justice impact not just the accused’s rights but also the victims’ rights. Long trials may lead to evidence being overlooked or lost, particularly eyewitness testimony, which reduces the likelihood of conviction. Since victims have a very limited role to play in prosecuting a criminal case, and therefore no influence over its progress, delays in the conclusion of the trial that prevent victims from actively filing or pursuing the case.

SUGGESTION TO REDUCE DELAY IN DISPOSAL

Fundamental freedoms are not tingling delusions nor meant to be efficiently implemented. A variety of cases have been adjourned or postponed on a number of matters but now the court has the power to quash the case or the trial to reach the ends of justice. It was proclaimed in the case of Katar Singh v. State of Punjab[12] that the right to a speedy trial is an integral part of the constitutional right to life and liberty. Abdul Rahman Antulay v. R.S. Nayak[13], the bench has declared certain aspects and guidelines concerning the speedy trial, and the quashing of cases would depend on the essence of the matter.

It cannot be denied, at the same time, that proceedings are postponed in the defendant’s interest. The rightly said pause is known as a tactic for defense. The approach to be adopted by the judiciary should be practical rather than pedantic, in order to effectively implement this right of speedy trial.

Clean, J., on the contrary. In the United States v. Ewell[14] it was claimed that whether there is a pause in the case or not, and whether the litigants are deprived of constitutional rights there, depends on the circumstances of the case. The same was called out in Powell, J. In the case of Barker. It should be careful not to let prosecution become persecution.

The competence and ability of the judiciary were determined by the time taken to disposal of the proceedings. There are many scams and frauds that need to be disposed of as soon as possible but in India this is not the case. For example, Harshad Mehta scam took about 6years to announce the decision when he was already dead when at the same time a barring business scandal in Singapore was determined in 2years by Nick leeson.[15] This illustrates how the program provisioning gap in justice operates in favour of the judiciary. Good court management and that is only possible when problems faced by the litigants, attorneys, and judges are resolved only in a few months or days. Time schedules should be achieved so that efficient time management contributes to the effective administration of the judicial system.

Mali math committee

The committee’s primary goal is to make recommendations on improving the working of the criminal machinery, simplifying judicial processes, policies, and getting the provision of justice closer to the society or a layman.

Providing the judges with regular training invocations, help in improving drafting skills, hearing and writing along with the training to be quick in judgments and also improving their judicial accountability.

In addition, the appointment of more judges to deal with an increasing number of cases and the backlog will help in quick disposal of cases. Cases shall be assigned according to the field of qualified judges. Assigning cases without taking the specialty into account leads to delays. In addition, special tribunals will be set up, e.g. for those specialist fields from which cases come frequently on a large-scale basis. Fiscal, labour, etc.

Arbitration should be conducted whenever possible and arbitration should be made mandatory in particular in small and medium situations. It’ll save valuable time on the courts. The amendment is needed so that there are no procedural delays. In addition, the state must see to it that there is a sufficient number of courts to cope with the workload and the timely selection of judges. Reformation is important in order to ensure that the right is applied in the appropriate manner, which is the need of the hour.

The right to a speedy trial is a fundamental truth and its due consideration must be accorded. It has already been acknowledged by the courts and by the legislature as one of the ways to reduce the growing workloads on the courts. The right to a prompt trial and its consequent effect on both the defendant and society as a whole make this Sixth Amendment a vital part of the Bill of Rights — and another significant part of our legal heritage — guarantee. Repeated delays and continuations in the criminal justice process prevent victims from ever obtaining emotional, physical, and financial redress of the violence suffered as a result of the crime(s) committed against them. These delays in the trial can often hinder victims’ ability to seek justice when their memories, or those of other witnesses, diminish with the passage of time or when the health of the victim is declining. In the case of Madheshwardhari Singh v. Bihar State[16] it was held that all criminal cases are now fundamental rights inalienable to people. In addition, it was held in the case of Arun Kumar Ghosh v. State of Bengal[17] that mental abuse and distress endured by an accused of a long period of time was to be considered ad punishment imposed upon him.

According to B.P.Singh J the situation today is so bleak that it should be regarded as an accomplishment if a poor man is able to enter the stage of a high court. Finally, to end with Lord Hewet’s terms, because it is of paramount importance that justice should not only be served but should be seen to be served manifestly and unquestionably.


[1] R.K. Raghavan ‘The Indian Police Service’ (2000) <https://www.bjs.gov/content/pub/pdf/wfbcjsin.pdf> accessed on 13 May 2020

[2] Siyuan Chen, ‘Singapore Journal of Legal Studies’ (December 2011) < https://www.jstor.org/stable/24871192 > accessed on 13 May 2020

[3] Ishita Purkaystha, ‘India Legal, India Justice Report 2019: Scales of Justice’ <https://www.barandbench.com/news/india-justice-report-on-the-judiciary-average-case-pendency-in-subordinate-courts-is-5-years> accessed on 13 May 2019

[4] Jagmohan Singh, Right to speedy justice for undertrial prisoners, Katz, Litwin and Barmreager, Justice is the Crime-pre-trial Delay in Felony Cases” (1972) 35.

[5] 23rd Report of Law Commission of India, August 2009

[6] Anil Rai. vs State of Bihar (2001) 7 SCC 318

[7] N.G, Dastane. vs Srikant Shivde 2001 (6) S.C.C. 135

[8] Code of Criminal Procedure, 1973

[9] Dr. Durga Pada Das, “A study on the causes of delay in the disposal of criminal cases: under the Indian Criminal Justice System”. 1996 Cri.Lj. Journal Section (Vol.4) P.147

[10] Sivaraman.V.State of Kerala (1989) Cri.Lj. 1501

[11] Srikantiah.V.State of Mysore, A.I.R. 1958 S.C.672

[12] Katar Singh v. State of Punjab 1961 AIR 1787

[13] Abdul Rahman Antulay v. R.S. Nayak 1992 AIR 1701

[14] United States v. Ewell, 381 U.S. 909 (1965)

[15] https://www.researchgate.net/publication/247747438_Nick_Leeson_and_the_Collapse_of_Barings_Bank_Socio-Technical_Networks_and_the_’Rogue_Trader’

[16] Madheshwardhari Singh v. Bihar State 1986 CriLJ 1771

[17] Arun Kumar Ghosh v. State of Bengal AIR 1972 SC 1366

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