A complainant should
not suffer if the police drag their feet or a magistrate is
unavailable, says the Supreme Court of India. Saheli Mitra on the apex
court’s judgment that may help speed up the process of justice
It took nine years before Shivani Bhatnagar’s ghost could be laid to
rest. A court in Delhi convicted the accused — among whom was a senior
police officer — for the murder of the Delhi journalist in March 2008.
She was killed in January 1999. And the delay happened despite the fact
that this was a high-profile case.
The slow pace of judicial proceedings in India has long been a matter
of concern. India’s clogged courts and lingering cases are so well
known that a group of American students from the Northwestern
University School of Law, Chicago, is now in the country in an effort
to understand why criminal cases in India drag on for years.
Long winding cases often end up with no convictions because of a
limitation clause that gives an outer time frame within which a case
has to be taken note of. Often, it is used by investigating officers to
delay justice. Sometimes it is because the police investigation is
tardy; more often it is because sections of the police are seen to be
working in tandem with the accused.
“We frequently come across cases in lower courts where the
investigating officer tactfully delays investigation procedure to cross
the limitation period for filing a case. Even magistrates fail to take
timely cognizance due to procedural delays. In many cases, the accused
gets bail as the charge sheet is not filed within the limitation
period. Many cases are quashed on this ground,” says Ramkrishna
Roychowdhury, criminal lawyer, Alipore Judges Court.
But in its landmark judgment last year, the apex court has quashed an
Orissa High Court judgment and held that a complainant should not in
any way suffer because of the limitation period, provided the complaint
has been filed within a specified time. The Orissa High Court had
quashed a criminal proceeding against an accused on the grounds of
limitation.
“Once a complainant files a petition in the magistrate’s court, the
complainant’s obligation is discharged. He has placed the matter before
the magistrate. Thereafter, if there is any delay in taking cognizance
for which the complainant cannot be faulted, then his complaint should
not suffer due to the limitation clause,” feels Joy Sengupta, lawyer,
Calcutta High Court.
Legal experts point out that there are several instances where
investigating officers have deliberately delayed the submission of a
charge sheet, making it possible for an accused to walk out on bail.
“In many serious cases the accused gets bail if the charge sheet is not
filed on time,” adds Sengupta. There have been cases where the judges
could only express their displeasure at the delay in filing of charge
sheet, but gave bail to the accused.
A case can also be delayed for other reasons. In many instances, the
police have refused to register complaints at a police station. In such
cases, the complainant can submit a prayer before the chief judicial
magistrate to direct the officer-in-charge of the concerned police
station to treat the complaint as an FIR and start the investigation.
It is not always the police. “At times, magistrates in whose courts
complaints can be lodged are not available or they are too busy with
some other work,” says Alok Mitra, senior lawyer, Calcutta High Court.
“But how can such grounds be reason enough to end a criminal proceeding
when a complainant approaches the court well within the time limit
prescribed by law?” wonders Mitra.
The Supreme Court judgment will undoubtedly help those who have been
victims of the system. Section 468 of the Criminal Procedure Code
(CrPC) deals with the limitation clause. It states that the period of
limitation shall be: a) six months if the offence is punishable by fine
only; b) one year if the offence is punishable with imprisonment for a
term not exceeding one year; and c) three years if the offence is
punishable with imprisonment for a term exceeding one year but within
three years.
Section 469 of CrPC states that the commencement of the period of
limitation can be: a) on the date of the offence; b) from the first day
when the offence comes to the knowledge of the aggrieved person or the
police; or c) from the first day when the identity of the offender is
known to the investigating authority. The magistrate is empowered to
take cognizance of it on receiving information or a complaint from the
aggrieved person, police or from any other source. The proceedings are
then initiated.
“The apex court has observed that if the complainant is penalised
because of the omission, default or inaction on the part of the court,
magistrate or investigating authority, the provision of law may have to
be tested on the touchstone of Article 14 of the Constitution,” points
out public interest litigation expert Rajesh Ganguly, referring to the
principle that gives a person equal right to the law.
The Supreme Court noted that so far as cognizance of an offence is
concerned, it is an act of court over which neither the prosecuting
agency nor the complainant has any control. For instance, take the
example of a case which has a limitation period of three months. If a
delayed investigative process leads to the limitation period being
lapsed, the court has to take into account when the complaint was filed.
“The question of delay in filing a complaint may be taken into
consideration while arriving at the final verdict. But by itself it
affords no grounds for dismissing the complaint,” adds Ganguly.
However, the ground reality cannot be ignored. “An accused person
cannot be kept under continuous apprehension that he can be prosecuted
any time for any crime irrespective of the nature or seriousness of the
offence. People will have no peace of mind if there is no period of
limitation even for petty offences,” says Mitra. So the provision of
limitation must be there. But, yes, it is for the authorities to ensure
that it is not misused.
The group of American researchers, which is holding discussions with
Supreme Court judges, lawyers and members of the law ministry to find
out why the legal process is so slow in India, may go back to the US
with a better understanding. And the Indian victims of a system loaded
against them may well have reason to cheer.
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