FROM THE CHAIRMAN S DESK

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3 FROM THE CHAIRMAN S DESK It gives me immense pleasure to bring out the next issue of the Delhi Legal Services Authority s news letter Nyaya Kiran. The news letter guarantees that a wider section of the people are informed about the activities of the Authority and also ensures that more and more people come forward and seek advice and help of the Authority. It is also necessary to highlight, at this juncture, the various programmes conducted by the Authority to ensure legal aid to all sections of the society. In the quarter ending December 2008 the Authority commenced matrimonial Lok Adalats for resolving cases relating the domestic violence, maintenance, divorce petitions and custody of children. A Lok Adalat for compoundable traffic violations was organized by the Authority at all the five district court complexes. The Authority opened an Outreach Centre at Jama Masjid for legal facilitation of involuntary treatment of homeless mentally challenged persons. The Authority opened Legal Aid Centres in Juvenile Justice Board and legal aid counsel are available at the Centres and are generating awareness among the juveniles and their parents about availability of free legal aid from the Authority. First ever paperless mega Lok Adalat was organized by the Authority for pending civil suits and cases under the Negotiable Instruments Act exclusively of ICICI Bank at all five district court complexes in which 1,10,000 pending civil suits and cheque bounce cases were taken up. The colloquium on Plea Bargaining was conducted with the objective to develop a model plan of action for implementing plea bargaining. The Authority commenced Legal Awareness Programmes on Plea Bargaining in Tihar Jail and Rohini Jail to creat awareness of Plea Bargaining among undertrial prisoners. The Authority also created a cell to provide the legal assistance to the victims of illegal actions of Recovery Agents. The Authority set up a separate mechanism to provide suitable and appropriate legal aid in an effective and efficient manner to women who face harassment of various kinds and do no come out to make a complaint due to fear. We, therefore, hope to continue in our efforts to make legal aid more effective and to ensure that the awareness of the rights of the deprived and resourceless is heightened. We also would make suitable efforts for alternate dispute resolutions becoming a regular feature so as to reduce the arrears of the mainstream courts. (Mukul Mudgal)

4 NYAYA KIRAN VOLUME - II ISSUE - IV OCT. - DEC., 2008 DELHI LEGAL INDEX SERVICES AUTHORITY Page No. Patron in Chief Hon ble Mr. Justice A. P. Shah Chief Justice, High Court of Delhi Executive Chairman Hon ble Mr. Justice Mukul Mudgal Judge, High Court of Delhi Chairman, Delhi High Court Legal Services Committee Hon ble Mr. Justice Madan B. Lokur Judge, High Court of Delhi Member Secretary Ms. Asha Menon Addl. District & Sessions Judge Address : Delhi Legal Services Authority, Central Office, Pre-fab Building, Patiala House Courts, New Delhi Tel. No Fax No , Permanent Legal Services Clinic, Room No. 54 to 57, Shaheed Bhagat Singh Place, Gole Market, New Delhi. Tel. No Fax No Toll Free No Website : dlsathebest@yahoo.com ARTICLE SECTION 1. Need for Sentencing Policy in India - Hon ble Mr. Justice Mukul Mudgal Judge, High Court of Delhi & Executive Chairman, DLSA 2. From Ignorance to Legal Empowerment - Hon ble Mr. Justice K.S. Garewal Chairman High Court Legal Services Committee Punjab & Haryana High Court Chandigarh 3. Spreading Legal Literacy and Legal Awareness - Mr. Lal Singh Addl. District & Sessions Judge Delhi 4. Scope for Engaging Private Prosecutors in Criminal Trials - Mr. Ram S. Prabhu Desai Civil Judge Junior Division & J.M.F.C., Sattari at Valpoi, Goa 5. Juvenile Delinquency Editorial Committee Chairman Hon ble Mr. Justice Mukul Mudgal - Mr. Hasan Khurshid Associate Editor, Lawyers Update Judge, High Court of Delhi & Executive JUDGMENT SECTION Chairman, Delhi Legal Services Authority Member 1. Vakil Prasad Singh vs. State of Bihar Hon ble Mr. Justice S.N. Dhingra Judge, High Court of Delhi (Decided on reported in (2009) Member 3 SCC 355) Hon ble Ms. Justice Reva Khetrapal Judge, High Court of Delhi Member - Ms. G.M. Padma Priya Advocate, High Court of Delhi Hon ble Dr. Justice S. Muralidhar Judge, High Court of Delhi GRIEVANCE REDRESSAL PROCEDURE Member Hon ble Ms. Justice Hima Kohli LEGAL AID PROGRAMMES Judge, High Court of Delhi Editor PRESS CLIPPING SECTION Ms. Asha Menon Member Secretary Delhi Legal Services Authority STATISTICAL INFORMATION

5 ARTICLE SECTION NEED FOR SENTENCING POLICY IN INDIA Hon ble Mr. Justice Mukul Mudgal* Nitin Mishra** WHAT IS SENTENCING AND WHEN DOES IT START? Sentencing is that stage of criminal justice system where the actual punishment of the convict is decided by the judge. It follows the stage of conviction and the pronouncement of this penalty imposed on the convict is the ultimate goal of any justice delivery system. This stage reflects the amount of condemnation the society has for a particular crime. The underlying rationale of any criminal justice delivery system can be determined by looking at the nature of punishment given for various crimes. However in a system like ours, with so many actors involved apart from the accused and victim, it is not possible to expect all of them to react in the same manner to a particular act of crime. For instance the victim might express stronger emotions than a judge who is a total stranger to both the opposing parties. In the same manner the accused might be convinced that his action was in fact correct giving more importance to the surrounding factors. It is in order to reach a conclusion of the trial arising from a given incident that judges and other legal players are involved. The decision to be reached here is not restricted to whether there was a wrong done or not but also and more importantly what is the aftermath of the accused being found guilty at the conclusion of a criminal trial. The options are many. In case of a victim centric system the most opted solution would be restoration of the victim to the same position as he/she was in before the wrong had been caused. This is mostly used in torts cases and generally in economic crimes. This cannot be applied across the board in cases of physical, emotional and psychological harm *Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority. **Research Assistance 1

6 where restoration is rarely possible. In such cases there are two options retribution and rehabilitation. Another most favored justification for punishment is deterrence, the basic premise of which is prevention of recurrence of the crime. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. 1 Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. Anything less than a penalty of greatest severity for any serious crime is thought to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable is when it is out of proportion to the crime, as uniformly disproportionate punishment has some very undesirable practical consequences. 2 The problem with the existing system as provided for in the Criminal Procedure Code is the variation in the result obtained from the same or similar set of facts. The judges are allowed to reach the decision after hearing the parties. However the factors which should be considered while determining the decision and those which should be avoided are not specified in statutes. This is where the judge is expected to use his/ her personal discretionary capacity to fix the punishment. This discretion could get misdirected due to irrelevant considerations and undue weight being given to less important or irrelevant factors. The social make up of the sentencing judge and personal preferences, upbringing and predilections and prejudices play a major part in the nature of sentence to be awarded. This is the primary reason for advocating a sentencing policy or guidelines. 1 State of UP v Virendra Prasad (2004) 9 SCC Sushil Murmu v. State of Jharkhand (2004) 2 SCC 338 2

7 THE SENTENCING PROCEDURE AS UNDER CRIMINAL PROCEDURE CODE, Modern penology regards crime and criminal as equally material when the right sentence has to be picked out, although in our system there is neither a comprehensive provision nor adequate machinery for collection and presentation of the social and personal data of the culprit to the extent required in the verdict on sentence. However, on the statutory side there has been a significant change since India became free. In the Criminal Procedure Code, 1973, Parliament has wisely written into the law a post-conviction stage when the Judge shall hear the accused on the question of sentence and then pass sentence on him according to law. The Code provides for wide discretionary powers to the judge once the conviction is determined. The Code talks about sentencing chiefly in S.235, S.248, S.254, S.325, S.354, S.360 and S.361. S.235 is a part of Chapter 18 dealing with a proceeding in the Court of Session. It directs the judge to pass a judgment of acquittal or conviction and in case of a conviction to follow clause 2 of the section. Clause 2 of the section gives the procedure to be followed in cases of sentencing a person convicted of a crime. The section provides a hearing to ensure that the convict is given a chance to speak for himself and give an opinion on the sentence to be imposed on him. The reasons given by the convict may not be pertaining to the crime or be legally sound. It is just for the judge to get an idea of the social and personal details of the convict and to see if any of these will affect the sentence. 3 Facts such as the convict being a breadwinner might help in mitigating his punishment or the conditions in which he might work. 4 This section plainly provides that every convicted accused must be given a chance to put forth his viewpoint post conviction about the kind of punishment which deserves to be imposed. The section just does not stop at allowing the convict to speak but also allows the defence counsel to bring to the notice of the court all possible factors which might mitigate the sentence 3 R.V.Kelkar, Criminal Procedure, K.N. Chandrasekharan Pillai (Rev.) 4 th ed (Rep., 2003), pp For instance, if the convict is a bread winner then the court might provide that the convict be given such work that he gets paid for it and the payment be made to his family. 3

8 and if these factors are contested then the prosecution and defence counsel must prove their plea. The fact that the crime and punishment are functionally related to the society in which they occur, Indian conditions and stages of progress must dominate the exercise of judicial discretion in any case before the judge. In any scientific system which turns the focus, at the sentencing stage, not only on the crime but also the criminal, and seeks to personalize the punishment so that the reformatory component is as much operative as the deterrent element, it is essential that facts of a social and personal nature, sometimes altogether irrelevant if not injurious at the stage of fixing the guilt, may have to be brought to the notice of the Court when the actual sentence is determined. 5 The provision in Clause (2) of this section was newly added and it did not exist in the old Code of This provision is according to the new trend in penology and envisages that after a Court holds a person guilty, it must consider the question of sentencing in the light of various factors such as the prior criminal record of the offender, his age, employment, educational background, home life, sobriety and social adjustment, emotional and mental condition, and the prospects of his returning to normal path of conformity with the law. 6 S.248 comes under Chapter 19 of the Code dealing with warrants case. The provisions contained in this section are very similar to the provisions under S.235. However this section ensures that there is no prejudice against the accused. For this purpose it provides in clause 3 that in case where the convict refuses previous conviction, then the judge can, based on the evidence provided determine if there was any previous conviction. Section 354(3) of the Code of Criminal Procedure, 1973, as amended, makes it obligatory in cases of conviction for offences punishable with death or with imprisonment for life to assign reasons in support of the sentence awarded to the convict and further ordains that in case the Judge awards death penalty, special reasons for such 5 Ediga Anamma v. State of A.P. (1974) 4 SCC Santa Singh v. Punjab, (1976) 4 SCC 190 4

9 sentence shall be stated in the judgment. Thus, the Judge is under a legal obligation to explain his choice of the sentence. The legislature in its supreme wisdom thought that in some rare cases for special reasons to be recorded it will be necessary to impose the extreme penalty of death to deter others and to protect the society and in a given case even the sovereignty and security of the State or country. It, however, left the choice of sentence to the judiciary with the rider that the court may impose the extreme punishment of death for special reasons. The sentencing court has, therefore, to approach the question seriously and make an endeavor to see that all the relevant facts and circumstances bearing on the question of sentence are brought on record. It is only after giving due weight to the mitigating as well as the aggravating circumstances, that it must proceed to impose the appropriate sentence. 7 However, in Bachan Singh v. State of Punjab (Majority judgment), (1980) 2 SCC 684, the Hon ble Supreme Court while repelling a constitutional challenge by a majority of four is to one to the capital punishment, laid down the test of rarest of rare cases for imposition of death sentence in the following terms: 176. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a code for the grant of anticipatory bail, which really is the business of the legislature, it can at best furnish broad guide-lines and cannot compel blind adherence. 7 Jashubha Bharatsinh Gohil v. State of Gujarat, (1994) 4 SCC 353, at page 360 5

10 177. From what has been extracted above, it is clear that this Court should not venture to formulate rigid standards in an area in which the Legislature so warily treads. Only broad guide-lines consistent with the policy indicated by the legislature in Section 354(3) can be laid down Drawing upon the penal statutes of the States in U.S.A. framed after Furman v. Georgia, in general, and clauses 2 (a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr Chitale has suggested these aggravating circumstances : Aggravating circumstances: A court may, however, in the following cases impose the penalty of death in its discretion: (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed (i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding 6

11 his aid or requiring his assistance under Section 37 and Section 129 of the said Code Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other Dr Chitale has suggested these mitigating factors: Mitigating circumstances. In the exercise of its discretion in the above cases, the court shall take into account the following circumstances: (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. 7

12 207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence. Some of these factors like extreme youth can instead be of compelling importance. In several States of India, there are in force special enactments, according to which a child, that is, a person who at the date of murder was less than 16 years of age, cannot be tried, convicted and sentenced to death or imprisonment for life for murder, nor dealt with according to the same criminal procedure as an adult. The special Acts provide for a reformatory procedure for such juvenile offenders or children There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. Nonetheless, it cannot be overemphasized that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Handing of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of 8

13 human life postulates resistance to taking a life through law s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. The main part of judicial discretion comes in S.360 which provides for release of the convict on probation. The aim of the section is to try and reform those criminals in cases where there is no serious threat to the society. This is conveyed by limiting the scope of the section only to cases where the following conditions exist: A woman convicted of offence the punishment of which is not death or life imprisonment A person below 21 years of age convicted of offence the punishment of which is not death or life imprisonment A male above 21 years convicted of an offence the punishment of which is fine or imprisonment of not above 7 years. In the above cases when there is no history of previous conviction the court can, having consideration to other relevant factors such as age, circumstances while committing the crime, character, mental condition, etc. use its discretion and release the convict on entering into a bond with or without sureties. In the case of Ved Prakash v. State of Haryana, (1981) 1 SCC 447 the Hon ble Supreme Court held as follows: The trial court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime-doer are very relevant although in practice criminal courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if Section 360 Cr PC is not attracted, it is the duty of the sentencing court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitation slant. The absence of such materials in the present case has left us with little assistance even from the counsel. 9

14 Indeed, members of the Bar also do not pay sufficient attention to these legislative provisions which relate to dealing with an offender in such manner that he becomes a non-offender. We emphasize this because the legislations which relate to amelioration in punishment have been regarded as Minor Acts and, therefore, of little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfill the humanizing mission of sentencing implicit in such enactments as the Probation of Offenders Act. In the present case, the offender is a young person and his antecedents have no blemish. His life is not unsettled or restless and the report indicates that he is an agriculturist, pursuing a peaceful vocation. His parents are alive and he has a wife and children to maintain. These are stabilizing factors in life. A long period of litigation and the little period of imprisonment suffered, will surely serve as a deterrent. The Code through S.361 makes the application of S.360 mandatory wherever possible and in cases where there is exception to state clear reasons. Wherever the punishment given is below the minimum prescribed under the relevant laws the judge must give the special reason for doing so. The omission to record the special reason is an irregularity and can set aside the sentence passed on the ground of failure of justice. These provisions are available only for trials before the Court of Sessions and the trials of warrants case. The Probation of Offenders Act, 1958 is very similar to S.360 of the Cr.P.C. It is more elaborate in the sense that it explicitly provides for conditions accompanying the release order, a supervision order, payment of compensation to the affected party, powers and predicaments of the probation officer and other particulars that might fall in the ambit of the field. S.360 would cease to have any force in the States or parts where the Probation of Offenders Act is brought into force. 8 It is necessary to have recourse to these provisions more frequently to minor offences so as to avoid turning a one time offender into a habitual criminal by the 8 Section 19 of the Probation of the Offenders Act,

15 impact not only of contact with hardened criminals in prison but also the social stigma of a jail term which would deter even a reformed or repentant convict from following the law abiding path. The Division Bench of the High Court of Delhi in the case of Ravi Chaturvedi v. State, as decided on 14 th November 2007, while acquitting the appellant in accordance with the provisions of the Juvenile Justice Act held as follows: 27...The verbal arguments provoked the deceased and an alteration ensued which culminated in injuries inflicted by the deceased with an iron bar to the mother of the appellant. The appellant who was then aged 16 years in the heat of anger and without premeditation fired from the gun of his father only once and did not act in any cruel manner. The incident occurred due to a sudden quarrel and in the heat of the altercation which led to the appellant a teenager inflicting the injury on the deceased who was about 40 years old without any intention to cause death but at the highest having knowledge that the act was likely to cause the death of the deceased. 28. In our view, the prosecution has not been able to prove the accused guilty of violation of Section 300 as his case has been held to fall within the 4 th Exception to the said Section. The case set up by the prosecution with regard to the arrest of the appellant and the recovery of the gun from the Sarai Rohilla Railway Station is clearly falsified from the testimonies of the prosecution witnesses themselves, namely, PW 8 Krishna Devi, PW 9 Jag Bhushan and PW 7 Constable Mange Ram, who clearly deposed that the appellant was arrested at the spot. The incident of firing which proved fatal for the deceased was accidental is clearly evident from the testimony of PW 19 Renu Chaudhary, who is the daughter of the deceased and the post mortem report which notes blackening around the solitary wound inflicted upon the deceased. Thus, in view of the findings of this Court as noted above the applicable provision to convict the appellant would be 11

16 Section 304 Part II and not Section 302 IPC. We accordingly partly allow the appeal and convict the appellant under Section 304 Part II of the IPC and set aside his conviction under Section 302 of the IPC. The appellant would have been liable to be accordingly sentenced under Section 304 Part II. However at this stage, prior to our sentencing the appellant, the plea of the appellant that the Juvenile Justice Act, would apply has to be considered and if held applicable the provisions of the said Act are required to be enforced. 30. Thus, this court in Ravi v. State following the judgment of the Hon ble Supreme court in Pratap Singh s case rendered by Hon ble Justice S.B. Sinha, held that the claim of juvenility may be raised before any Court, at any stage, even after the final disposal of the case and shall be determined in accordance with the Act and the Rules made under the Juvenile Justice Act (as amended in 2006), even if the juvenile ceases to be a juvenile on or before the date of commencement of the amended Act of We have already by the order dated 19 th July, 2007, while allowing the applicant s application under Section 391 of the Cr.P.C., directed the Registrar of this Court to determine the age of the applicant on the basis of the certificate of CBSE and the birth certificate of the appellant. The report of the Registrar affirmed the veracity of the certificates of C.B.S.E. and NDMC relied upon by the appellant and found the date of birth of the appellant to be 15 th January, 1968, and, thus the appellant was held to be 16 years 2 months and 12 days of age on the date of the incident. Consequently, the law laid down by the Division Bench of this Court has an important bearing on the present case, and as per the law laid down the Juvenile Justice Act, 2000 as amended by the Act of 2006 is applicable to the present case and the appellant is entitled to the protection and benefit of the said Act. 31. We are reinforced in coming to the above conclusion from a bare reading of the Explanation to 12

17 Section 20 of the Amendment Act, 2006 which reads as under: 20. Special provision in respect of pending cases. Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation. In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed. Therefore, while the culpability of the appellant can be recorded by this Court but the orders are required to be passed under the act by the Board. 13

18 32. This brings us to the question of the sentence to be imposed on the appellant. The proviso to Section 10 of the Act mandates that in no case a juvenile in conflict with law shall be placed in a police lockup or lodged in a jail. In the instant case the appellant has already undergone sentence in a normal prison for a period of about one month. The intent of the legislature that a juvenile in no circumstances shall be committed to prison is reiterated in Section 16 of the Act, which reads as under: 16. Order that may not be passed against juvenile. (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or imprisonment for any term which may extend to imprisonment for life], or committed to prison in default of payment of fine or in default of furnishing security: Provided that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is of so serious in nature or that his conduct and behavior have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government. (2) On receipt of a report from a Board under sub-section (1), the State Government may make such arrangement in respect of the 14

19 juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit: Provided that the period of detention so ordered shall not exceed in any case the maximum period provided under section 15 of this Act. 34. In the instant case, we have found the appellant to be guilty of the offence punishable under Section 304 Part II for which offence, had the appellant not been a juvenile, the sentence provided is imprisonment of either description for a term which may extend to ten years, or with fine, or with both. Keeping in view the fact that the appellant is entitled to the beneficent provisions relating to juvenile justice and is now a practising advocate, and that he is not involved in any other case, that he has already suffered a prison sentence for a month which ought and could not have been awarded to him as a juvenile and the fact that the offence was committed almost three decades ago, we are of the view that the ends of justice will be fully met if sentence is imposed upon the appellant by this Court rather than the Board. Furthermore, no useful purpose in the present case will be served by calling for a report under S.15 (2) of the Act as the appellant has already undergone more than a month s imprisonment in a normal prison. Furthermore, the passage of time and the present age and occupation of the appellant makes it inexpedient. Accordingly, we sentence the appellant in terms of Clauses (d) of Sub- Section 1 of Section 15 of the Juvenile Justice Act, 2000 as amended by the Act of 2006 to pay a fine of Rs. 25,000/ - and further order under Clauses (e) of Sub-Section 1 of Section 15 of the amended Act of 2006 that the appellant be put on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond for the good behaviour and well being of the appellant in 15

20 the sum of Rs.15,000/- with one surety in the like amount to the satisfaction of the Board for a period of two years commencing from the date of the furnishing of the bond. 36. In light of the above observations and in view of the facts and circumstances of the present case, we are convinced that the appellant is entitled to the benefit and advantages of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 and does not warrant any conviction as per the provisions of law prescribed in the said Act (emphasis supplied). PROCEDURE IN PRACTICE The efficiency and efficacy of the procedure in the Criminal Procedure Code, can be understood only by seeing its application in practice. The discretion provided for under the existing procedure is guided by general terms such as circumstances of the crime and mental state and age. Inadequate sentence in a serious offence would do more harm to the justice system by undermining the public confidence in the efficacy of law. If the courts did not protect the injured, the injured would then resort to private vengeance as it has now started happening. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. 9 Agreeably these can be determined, but at what point will they have an effect on the sentence is the question left unanswered by the legislature. For instance, every crime has accompanying circumstances but which one qualifies as mitigating and which one acts as aggravating circumstance is something which is left for the judge to decide. Therefore if one judge decides a particular circumstance as mitigating, this would not prevent another judge from ignoring that aspect as irrelevant. 10 This lack of consistency has led a few judges to widely differ in their approach to sentencing. 9 Sevaka Perumal v. State of T.N., (1991) 3 SCC Suresh Chandra Bahri v. State of Bihar AIR 1994 SC This sentencing variation is bound to occur because of the varying degrees of seriousness in the offence and/or varying characteristics of the offender himself. Moreover, since no two offences or offenders can be identical the charge or label of variation as disparity in sentencing necessarily involves a value based judgment. i.e., disparity to one person may be a simply justified variation to another. It is only when such a variation takes the form of different sentences for similar offenders committing similar offences that it can be said to desperate sentencing. 16

21 Apart from the personal biases and prejudice the idea of what constitutes justice and what is the purpose of punishment varies from person to person. For instance, in the case of Gentela Vijayavardhan Rao v. State of Andhra Pradesh 11, the appellant had with the motive to rob, burnt a bus full of passengers, resulting in the death of 23 passengers. The sentence provided by the judges of the lower court was death penalty for convict A and 10 years of rigorous imprisonment for convict B. This was challenged by the convict. The Hon ble Supreme Court quoted from the judgment of Dhananjoy Chatterjee v. State of West Bengal 12 to thus support its view to uphold the judgment: Imposition of appropriate punishment is the manner in which the courts respond to the society s cry for justice against the criminals. Justice demands that Courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. This judgment reflects the principles of deterrence and retribution. 13 Similarly in the case of Gurdev Singh v. State of Punjab 14 the court confirmed the death penalty imposed on the appellant keeping in mind the aggravating circumstances. 15 On the other hand, Mohd Chaman v. State 16 the courts have reduced the sentence of death penalty to rigorous imprisonment of life due to the belief that the accused is not a danger to the society and hence his life need not be taken. The accused in this case had gruesomely raped and murdered a one and a half year old child. The lower courts 11 AIR 1996 SC (1994) 2 SCC The rationale of the judges was that though their ultimate motive was wealth, the convicts had chosen a highly vicious means to attain it. Therefore the amount of cruelty demands such a punishment. 14 AIR2003SC The aggravating circumstances of the case, however, are that the appellants, having known that on the next day a marriage was to take place in the house of the complainant and there would be lot of relatives present in her house, came there on the evening of when a feast was going on and started firing on the innocent persons. Thirteen persons were killed on the spot and eight others were seriously injured. The appellants thereafter went to another place and killed the father and brother of PW-15. Out of the thirteen persons, one of them was seven year old child, three others were at the threshold of their lives. The post-mortem reports show their age ranged between 15 to 17 years Cri LJ

22 having seen the situation as the rarest of the rarest 17 cases imposed death penalty. This was reversed by the Hon ble Supreme Court as it was not convinced that the act was sufficiently deserving of capital punishment. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honor and offends her self-esteem and dignity it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. 18 Dealing with the offence of rape and its traumatic effect on a rape victim, this Court in State of Punjab v. Gurmit Singh 19 observed as under: Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women s rights in all spheres, we show little or no concern for her honor. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the 17 The Indian Judiciary had strongly felt the need to have a sentencing guideline at least to the extent of imposition of death penalty. Therefore in the cases of Bachan Singh v. State of Punjab and subsequently in the case Machhi Singh v. State of Punjab, the Court laid down the rarest of the rarest test by which death penalty should be imposed in only exceptional situations and such exceptional reasons must be recorded. This was followed in numerous cases both to save the life of the accused and to validate the imposition of the death penalty. 18 State of Karnataka v. Krishnappa, (2000) 4 SCC (1996) 2 SCC

23 victim s privacy and personal integrity, but also inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim; a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a greater responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. Retribution and deterrence are not two divergent ends of capital punishment. They are convergent goals which ultimately merge into one. How these ends of punishment coalesce into one was described by the Law Commission of India, as under: The retributive object of capital punishment has been the subject-matter of sharp attack at the hands of the abolitionists. We appreciate that many persons would regard the instinct of revenge as barbarous. How far it should form part of the penal philosophy in modern times will always remain a matter of controversy. No useful purpose will be served by a discussion as to whether the instinct of retribution is or is not commendable. The fact remains, however, that whenever there is a serious crime, the society feels a sense of disapprobation. If there is any element of retribution in the law, as administered now, it is not the instinct of the man of jungle but rather a refined evolution of that instinct the feeling prevails in the public is a fact of which notice is to be taken. The law does not encourage it, or exploit it for any undesirable ends. Rather, by reserving the death penalty for murder, and thus visiting this gravest crime with the gravest punishment, the law helps the element of retribution merge into the element of deterrence. [Para 265 (18), 35th Report] Earlier in , the British Royal Commission in Para 59 of its Report spoke in a somewhat similar strain: 19

24 We think it is reasonable to suppose that the deterrent force of capital punishment operates not only by affecting the conscious thoughts of individuals tempted to commit murder, but also by building up in the community, over a long period of time, a deep feeling of peculiar abhorrence for the crime of murder. The fact that men are hung for murder is one great reason why murder is considered so dreadful a crime. This widely diffused effect on the moral consciousness of society is impossible to assess, but it must be at least as important as any direct part which the death penalty may play as a deterrent in the calculations of potential murderers. How helpful would a guideline be to this scenario? A guideline if laid down would principally have a primary rationale 20 for punishing. Whatever this rationale may be - retribution is the underlying purpose or rehabilitation and reclamation is the ultimate goal. This primary rationale would help the judges determine what exactly needs to be achieved by the imposition of the punishment. The important question which needs to be addressed is whether the identical guidelines could be applied across the country. Social and cultural norms vary widely in a country of the size of India and its disparate circumstances obtaining in different States. An abuse which may be held to be a grave and sudden provocation in State A only, be a minor irritant in the State B. Thus, perhaps the better method would be to lay down only broad guiding parameters without unduly constricting the judicial discretion. Taking off from here, the mitigating and aggravating circumstances can also be easily determined once the primary rationale is clear. Illustrating this point, in the case of Raju v. State of Karnatka 21 the Courts reduced the punishment taking into account the alleged immoral 20 Andrew Ashworth, Sentencing and Criminal Justice, th ed. One of the main criticisms of this primary rationale principle is that it does not provide for all scenarios and results in stereotyping all situations into one. It is the opinion of the author that there can always be an exception to the rule and hence having a rule per se for the sake of guidelines and equality is not harmful. This would only reduce the arbitrariness in the system 21 AIR1994SC222 20

25 character and loose moral of the victim of the accused to the term served. In State of Karnataka v. S. Nagaraju 22 the judge convicted the accused more as a deterrent measure to prevent other potential offenders than to penalize that particular convict. The only point to be noticed from the observation above, is the variations in the idea of justice which drastically affects the societal demand of what the judiciary must do in a particular state of affairs. In the case of Mohammad Giasuddin v. State of Andhra Pradesh 23 the Hon ble Supreme Court explained punishment as follows: Progressive criminologists across the world will agree that the Gandhian diagnosis of offender as patients and his conception of prisons as hospitals - mental and moral - is the key to the pathology of delinquency and the therapeutic role of punishment. In operating the sentencing system, law should adopt the corrective machinery or the deterrence ideology based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used, the indelible impact on the victim and his family and the social and economic circumstances of the convict and all other attending circumstances are relevant facts which would enter into the area of consideration. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of the gravity of crime, the discretionary judgment in the facts of each case is the only way in which such judgment may be 22 JT2002(Suppl1)SC7 23 AIR1977SC

26 equitably distinguished. The imposition of appropriate punishment is the manner in which the court responds to the society s cry for justice against the criminal. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. 24 The 35 th Law commission report on Capital Punishment comprehensively explains various aspects relating to sentencing focusing more closely on capital sentencing. The discussion in this report is on the codification of the factors, to guide the discretion vested in the judge for awarding capital punishment. What is also required to be seen how the policy of Sentencing can help the victim or the affected persons close to the victim.compensation awarded to the affected party can be a major factor on deciding the quantum of sentence to be imparted by a judge to an accused person especially in a system like ours where most accused persons either langer in jails as undertrials or are out on bail for most part of the Trial. The Division Bench of the High Court of Delhi in the case of R.P. Tyagi v. State 25, as decided on 5 th of March, 2008 by the Hon ble Delhi High Court, on the question of compensation, held as follows: The relevant position of law in so far as compensation is concerned, is to be found in the following cases: (i ) In Mangilal v. State of M.P.,(2004) 2 SCC 447 : The power of the court to award compensation to victims under Section 357 is not ancillary to other sentences but is in addition thereto. In Hari Singh v. Sukhbir Singh it was observed that the power under Section 357 is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a recompensatory measure to 24 State of Karnataka v. Puttaraja,(2004) 1 SCC MANU/DE/1427/

27 rehabilitate to an extent the beleaguered victims of the crime; a modern constructive approach to crimes and a step forward in our criminal justice system. In Sarwan Singh v. State of Punjab it was held that in awarding compensation, the court has to decide whether the case is a fit one in which compensation has to be awarded. If it is found that the compensation should be ordered to be paid, then while arriving at the quantum to be paid, courts are obliged to keep into account the capacity of the accused to pay the compensation besides taking into consideration also the nature of the crime in each case, the justness of the claim for compensation and the need for it in the context of the victim or members of the family of the victim and other relevant circumstances, if any, in so fixing or apportioning the amount of compensation. As noted above, the mode of application of the fine is indicated in sub-section (1) of Section 357. Sub-section (3) contains an independent and distinct power to award compensation. (ii) In Pankajbhai Nagjibhai Patel v. State of Gujarat,(2001) 2 SCC 595 :...Whenever a Magistrate of the First Class feels that the complainant should be compensated he can, after imposing a term of imprisonment, award compensation to the complainant for which no limit is prescribed in Section 357 of the Code. In view of the above position, we direct the State to pay a compensation of Rs.2 lakhs to the mother of the deceased in addition to Rs.2 lakhs awarded against the accused. We are constrained to award compensation 23

28 against the State in view of the role played by the police officers in delaying the proceedings and attempting to scuttle the course of justice as well as vicarious liability for the action of its officers. SENTENCING POLICY AND ITS CONTENTS Guidelines for sentencing are difficult to prescribe and more difficult to practice. The Division Bench of the High Court of Delhi in the case of R.P. Tyagi v. State while answering the Death Sentence Reference was unable to sustain the conviction of the appellant awarded by the trial court under Section 302 IPC and instead sentenced him to eight years rigorous imprisonment under Section 304 Part II IPC in terms of the following observations: In our view, the offence falls in Clause II of Section 304 of the IPC, as the act committed by the policeman was done with the knowledge that it is likely to cause death because the accused being the SHO of the police station must be aware that the beatings administered to the deceased Mahender could result in death. However, we are not able to come to a finding in favour of the prosecution that the act was done with the intention to cause death or the intention to cause such bodily injury as was likely to cause death. The intention of the accused was to teach a lesson to the deceased who had dared to hurt a policeman by giving him severe beatings in the police station. However, an intention to cause death or such injury as would, in all likelihood, cause death, has not been proved. There were multiple injuries on the body of the deceased person but no evidence had been given to show any particular injury of grievous nature. If the factual matrix of the whole case is taken into consideration it must be held beyond any doubt that the accused were responsible for inflicting those injuries and they must be attributed only with the knowledge that by inflicting such injuries they were likely to cause the death in which case the offence would be one punishable under section 304 Part II IPC. So, the 24

29 Death Reference and the appeal stands answered to the effect that the death sentence awarded to the appellant R.P. Tyagi cannot be confirmed. As far as the appeal of this appellant is concerned we allow it to the extent that his conviction under Section 302 IPC stands converted into one under Section 304(II) IPC. Now, we proceed to consider as to what punishment appellant R.P. Tyagi deserves for his conviction under Section 304 Part II of the Indian Penal Code The courts must not lose sight of the fact that death in police custody is perhaps the worst kind of crime in a civilized society governed by the law. Torture in police custody flouts the basic rights of the citizens as recognized by the Constitution of India and is against the basic principles of human dignity of life and liberty of an individual as envisaged in the Preamble to the Constitution. The men in uniform should not consider themselves to be above the law and sometimes even to become law unto themselves. In cases of the police tortures and excesses, stern measures are required to be taken so that common man may not lose faith in the law enforcement machinery and the foundations of the criminal justice delivery system is further strengthened. Nothing is so dehumanizing as the conduct of the police officer in inflicting torture of any kind on a person in their custody. The courts are also required to adopt a more deterrent stance, particularly in cases involving custodial torture and death. In view of the above position of law and the accused being the SHO of the police station, in our view, deserves the most severe punishment because when the upholder of law turns into a law breaker, the most stringent punishment should be awarded. Accordingly, we sentence the appellant to undergo eight years of Rigorous Imprisonment. After taking into account the enormity of the offence, we also impose a fine of Rs.2 lakhs on the accused to be payable to the mother of the deceased, 25

30 Raj Kali. In case, the fine is not paid the appellant shall be liable to serve a further term of imprisonment of six months. We are also of the view that had the same offence been committed by a superior officer, then the offence would have warranted an even more stringent punishment FRAMEWORK OF SENTENCING POLICY Justice Henry Alfred Mc Cardie succinctly puts it 26 : Trying a man is easy, as easy as falling off a log, compared with deciding what to do with him when he has been found guilty Speaking broadly, the ultimate desideratum of most sentences is to make an offender a non offender. Only if Judges impose effective sentences with a proper attitude and manner will they perform their expected function of decreasing the rising number of criminal and quasicriminal activities in this nation 27. Penal humanitarianism has come to assert itself, although Sir Winston Churchill puts the point of the common man and of the Judge with forceful clarity: The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country. 28 As far as India is concerned, the Indian Penal Code provides us with a broad classification and gradation of punishments. This has been further carved out by various judicial decisions on sentencing. However these rulings of the court suffer from the following disadvantages: a) Facts specific: Though these guidelines are given as Obiter Dicta, the application of such guidelines is misleading in the subsequent 26 Quotation from Sentencing and Probation Published by National College of the State Judiciary, Reno, Nevada, USA 27 Hiralal Mallick v. State of Bihar, (1977) 4 SCC Quotation from Sentencing and Probation Published by National College of the State Judiciary, Reno, Nevada, USA 26

31 judgments. Currently the well established Guideline followed by the courts is with respect to death penalty as explained above in the case of Bachan Singh v. State of Punjab. The application of this test in the case of A. Devendran v. State of Tamil Nadu 29 explains this point. This was a case of triple murder. However the Court held that the trial court was not justified in awarding death sentence as the accused had no pre-meditated plan to kill any person and as the main object was to commit robbery. This case when compared with Gentela Vijayavardhan Rao v. State of Andhra Pradesh as discussed above shows that the motive in both cases was to rob the victim. However in one case it has been used as an aggravating factor and the other it is used as a mitigating factor. This shows how the same test has been varyingly applied. b) Not followed by lower courts: Another side of the coin is that the lower courts do not follow these guidelines.the precedents are usually ignored or differentiated from the existing fact scenario so as to give the judge his space to rule on the case. c) Factors which determine culpability vary: λ Determinism Where factors outside oneself determines the actions e.g. self defence and duress. Social and Familial background low family income, large family, parental criminality, low intelligence and poor parental behavior. The employment, education and economic policy have a major impact on individuals. They result in consequences such as deprivation and marginalization leading to development of criminals in the society. d) The chief criticism of this procedure is that it involves a wide discretion of the judge when it comes to determining the culpability. This once again leads to certainty as against the discretion. If crime control forms part of the justification for inflicting punishment, it is important to consider the various forms it may take. Some may be 29 AIR1998SC

32 more enthusiastically pursued than others; some may be more open to objections than others. The prevention of crime may, of course, be pursued by a range of methods other than the sentences imposed upon convicted offenders, and indeed the principle of parsimony enjoins this, but crime control through sentencing is our present concern. One approach is individual prevention, which involves preventing this offender from committing further offences after he has experienced the sentence imposed by the court. Individual prevention may be brought about by measures which deter the individual from committing further offences or by measures which reform or rehabilitate him. A second approach to crime control is the aim of incapacitation, which involves protecting the public from the depredations of an offender during the currency of his sentence by substantially reducing his opportunity to commit offences for that period. Permanent incapacitation is practically possible, by means of amputation of limbs or capital punishment, but the humanitarian principle is taken to rule this out and imprisonment is the most completely incapacitative sentence available. It will be observed that whereas individual prevention is concerned with the after-effects of a sentence, incapacitation is concerned with the preventive effect of a sentence whilst it is in force. Thirdly, there is general prevention, which is the aim of deterring others from committing offences. General prevention may be pursued on at least three difference levels: there is short-term general deterrence, which it is sometimes sought to achieve by passing an exemplary sentence on one or a few offenders in an attempt to deter others from committing this particular kind of crime; then there is standing general deterrence against particular types of crime, which involves maintaining a high level of sentences for certain type of crime in order to provide a standing deterrent against committing them; and lastly there is long-term general deterrence, which involves maintaining general sentencing levels so as to provide a sufficient set of disincentives to lawbreaking in general and to reinforce social attitudes against lawbreaking. Some of those who subscribe to denunciation as an aim of sentencing probably do so in the belief, not that denouncing crime publicly by means of a condign sentence is good in itself, but that it is justified because it contributes to upholding general respect for the law and obedience to it. Even this bare statement of the various approaches to crime control suggests that pursuit of any one approach may well conflict with pursuit 28

33 of another, and the possibility of conflicts becomes greater when the limiting principle of parsimony is taken into account. As far as the UK sentencing policy is considered, it was born as a result of the Halliday report and the subsequent White Paper named Justice for All which was presented in the British Parliament. The main aim of the sentencing frame work as explained by the White Paper is deterrence and protection of society above all others. 30 In order to aid the judge a Pre-sentence report is prepared by a parole officer which contains a front sheet, offence analysis, offender s assessment, risk assessment and a conclusion. As far as sentencing Guidelines are concerned, paragraph 5.14 explicitly states as follows: We need to have a consistent set of guidelines that cover all offences and should be applied whenever a sentence is passed. We must work to eradicate the wide disparity in sentencing for the same types of offences and the public mistrust of the system that comes partly from this inconsistent sentencing. The answer of the Halliday report to this problem is, For a new framework, an Act of Parliament should set out the general principles, specify the newly designed sentences, provide for review hearings, prescribe enforcement procedures and require guidelines to be drawn up. The Act should take the form of a Penal Code, which would be kept continuously available in up to date form. This led to the establishment of the Sentencing Guidelines Council headed by the Lord Chief Justice. It is worth considering whether such a 30 As according to the Halliday Report a few of the important recommendations are: The principles governing severity of sentence should be as follows: Severity of punishment should reflect the seriousness of the offence (or offences as a whole) and the offender s relevant criminal history; the seriousness of the offence should reflect its degree of harmfulness, or risked harmfulness, and the offender s culpability in committing the offence; In considering criminal history, the severity of sentence should increase to reflect a persistent course of criminal conduct, as shown by previous convictions and sentences. Imprisonment should be used when no other sentence would be adequate to meet the seriousness of the offence (or offences), having taken account of the offender s criminal history. Courts should have clear discretion to pass a non-custodial sentence of sufficient severity, even when a short prison sentence could have been justified bearing in mind their ability to re-sentence in the event of repeated breach of conditions. The so-called totality principle, which requires courts to look at all the offences before the court as a whole, and increase sentence severity accordingly without adding the total suitable for each individual offence cumulatively, should remain. 29

34 council should be set up in India too. Also a whole new set of punishments with reformatory purpose have been introduced. In short, the main aim of the policy in protection of the public and rehabilitation. As far as discretion goes, there has not been any specific restriction except for ensuring that the judge has complete knowledge of all the details of the convict before passing the sentence. The aim, as can be seen, is to put forth the case in the best possible way and thereby ensure that no stone is left unturned. In the US system, The Guidelines are the product of the United States Sentencing Commission and are part of an overall federal sentencing reform package that took effect in the mid-1980s. In the aftermath of US v. Booker, the Guidelines are discretionary, meaning that the judges may consider them but are not required to adhere to their standards in sentencing decisions. That being said, federal judges almost invariably use the Guidelines at least as a starting point when sentencing criminal defendants. This method is best suited as not only providing guiding parameters without unduly fettering judicial discretion. Any sentence outside of the scope of the guidelines requires a written explanation, by the judge, as to the reason for the discretion. The Guidelines determine sentences based primarily on two factors: (1) the conduct associated with the offence and (2) the defendant s criminal history. The statutory mission as stated in the 2005 Federal Sentencing Guideline Manual 31 is deterring crime, incapacitating the offender, providing just punishment, and rehabilitating the offender. It delegates to the Commission broad authority to review and rationalize the federal sentencing process. Once again discretion though guided is not completely removed in the case of US also. CONCLUSION Moving on to the India scenario, what can be envisaged? It is not possible to do away with discretion all together. However what one has to keep in mind is on particular system should treat a particular fact as either aggravating or mitigating. This depends mainly on what is the aim of the system. As seen in both the jurisdictions discussed above, there is clarity as to the aim of punishing. This clarity leads to determine whether a specific factor is going to be helpful to the convict or not. Adding to the

35 above expressed opinion, it is opined that one factor which needs to be addressed but has been ignored in both systems is the economic and social strata of the accused. This gains immense relevance in the context of crimes such as theft and robbery. Also having in mind the extensive impact of the social diversification in India this too will gain extreme prominence as far as India is concerned unlike the other countries. In the case of Santa Singh V. State of Punjab 32 the Hon ble Supreme court emphasizing on the need for continual re-education of judges on sentencing process held as follows: Per Bhagwati J. Judges should be educated in the new trends in penology and sentencing procedures so that they may learn to use penal law as a tool for reforming and rehabilitating criminals and smoothening out the uneven texture of the social fabric and not as a weapon, fashioned by law, for protecting and perpetuating the hegemony of one class over the other. Per Fazal Ali J. It is, therefore, the prime need of the hour to set up training institutes to impart the new judicial recruits or even to serving Judges with the changing trends of judicial thoughts and the new ideas which the new judicial approach has imbibed over the years as a result of the influence of new circumstances that have come into existence. It is therefore, that this article on Sentencing Policy in India is concluded with the following two propositions: 1. There needs to be only a broad sentencing policy clearly elucidating the purpose of the system. 2. As far as India is concerned, immense importance needs to be given to the social and economic background of the convict as a mitigating circumstance. 31

36 FROM IGNORANCE TO LEGAL EMPOWERMENT Hon ble Mr. Justice K.S. Garewal* In contemporary India we speak of globalization as the panacea of all ills. It is true that cross border movement of goods and services and also capital is taking place at great speed but unfortunately no real benefit is forthcoming to the rural poor. Social justice continues to suffer. The Indian model of economic growth must be coupled with social justice. This is different from the Anglo-American model of market driven laissez faire economy where the accent may be on social welfare but social justice, as understood in India, has never been a factor. Social justice has been and still remains central to the Indian ethos and constitutional morality. The new economy has pushed up GDP and we are experiencing 9 per cent growth. India is no longer a poor, underdeveloped country. However, certain sectors like housing, health, school education, environment, indebtedness are some of the areas of grave concern which affect the poor and magnifies their poverty in different ways. This is where considerable improvement must be achieved if the poor are to benefit from economic growth. We must achieve judicial inclusion through a well drafted and properly executed outreach programme. A background note was circulated at the meeting of High Courts Legal Services Committee on October 7, 2007 at New Delhi which highlighted the need to improve the quality of legal aid to the poor. In the Note it was recorded that there existed no quality parameters, fees of legal aid counsel need to be reworked, there was need for regular meetings between High Court Legal Services Committees. Reference was also made to NALSA s Charter of Vision , and the vision statement-from IGNORANCE TO LEGAL EMPOWERMENT. A 20 point programme was laid down in the Note. The goals of the National Legal Literacy Mission were highlighted. Linking of legal empowerment to the *Chairman, High Court Legal Services Committee, Punjab & Haryana High Court, Chandigarh 32

37 realisation of Millennium Development Goals of the United Nationals was also one of objects. Poverty in India has always been a very serious question. Poverty has been subject to much debate and many programmes of Central and State Governments for poverty eradication have been devised but the sad fact is that poverty is still with us. The middle class is getting richer and receiving all benefits of liberalization and globalization while the poor in India have been totally excluded from the economic developments that are taking place. The poor have been left behind with little hope of ever catching up with the economically advanced parts of India. Without proper nourishment and health-care, children of the poor grow up weak and are unable to cope with studies. The schools which they attend are not properly staffed. The drop-out rate is high. The children of the poor have unhappy childhood because of inadequate housing and insufficient income. Their parents have little or no work and suffer from deep indebtedness. Poor children grown up without skills, with little education, unable and unfit to participate in the great Indian dream, even at the lowest level. It is a grim scenario but unfortunately this is the sad reality about which a lot remains to be done. The question is in what way should the High Court Legal Services Committee (HCLSC) organise its activities to fulfill NALSA s vision. To begin with we must understand the problems faced by the poor and not depend only upon the government definition of poor as those living below poverty line. Poverty line is the amount of money required to buy food equivalent to the minimum nutritional level (2400 calories per capita per day in rural areas). A person above the poverty line is one who does not starve but he may still be very very poor. A slightly different definition of poverty is Capability Poverty Measure (CPM) first used in the 1996 Development Report of United Nations Development Programme. This links poverty to deprivation of basic capabilities, using three chosen factors: percentage of children under five who are under weight, percentage of births unattended by trained 33

38 health workers and adult female illiteracy. By these standards India s score is a dismal 60%, and we rank close to sub-saharan Africa. Similarly, we also have the Millennium Development Goals adopted by the United Nations to achieve social justice by eradicating poverty which are give below: 1. Reduce by half the proportion of people living on less than one dollar a day and who suffer from hunger. 2. Achieve universal primary education 3. Promote gender equality & women empowerment 4. Reduce child mortality 5. Improve mental health 6. Combat HIV/AIDS 7. Ensure Environment Sustainability 8. Develop global partnership for developments. We may now revert back to the Note circulated on October, 7, The Note clearly suggests that an action plan has to be prepared by the High Court Legal Services Committee (HCLSC) to improve the quality of legal aid. The Note also mentions that there are several other drawbacks like absence of a Research and Project Cell, absence of a system of monitoring and evaluation. The Note suggests that the Committees have to develop methodology, net-working and partnership with various Legal Aid Agencies, to collaborate in achieving their common goals. HCLSC is quite aware of the problems or areas where the poor feel powerless. Of course, in a general way, one does know the problems of the poor but the exact nature, extent and scope of these problems must be studied in detail before and an effective action plan can be drawn up to educate the poor about their rights and help them to mitigate their poverty through legal empowerment. Therefore, HCLSC is proposing to develop an action plan or a programme to reach the unreached by empowering the rural poor. The 34

39 proposal is to form a cluster of five panchayats, each to have its own Empowerment Counsel provided by the Committee. The said counsel shall be required to undertake an on-the-spot fact finding study of problems faced by the poor in his area by concentrating on Schools, Hospitals & Health Care, Housing, Environmental Protection & Conservation, Water Management, Drug Addiction, Rural Indebtedness and Gender Justice (eradication of Female Foeticide & Dowry). The Empowerment Counsel shall be recruited by HCLSC from amongst lawyers showing commitment to social work and trained by a faculty of experts from the concerned disciplines, at the State Judicial Academies. The action plan shall require a detailed study and a lot of data collection and inputs from various government agencies working in the area of health, education, environment, social welfare and poverty alleviation etc. There are three different ways of preparing the preliminary reports. Legal Empowerment Counsel can be asked to furnish a report in consultation with government agencies and N.G.O.s in the area. Alternatively, the task can be handed over to a Sub-Committee of nongovernment experts drawn from disciplines like economics, banking, health, agriculture, environment etc. to study the problems of rural poor and submit a report giving suggestion for legal empowerment. This Sub- Committee can function as a in-house think tank designed to create awareness about rights and tell people what is to be done to enforce their rights, which is what empowerment really is. The committee can start with a detailed study on one subject or a comprehensive study on the causes of poverty and produce a report on the basis of which an action plan can be prepared. Thirdly, the task can be performed by a Committee of Secretaries of respective Departments of the Government. This may not really be desirable because it is poor governance of politicians and bureaucrats which has failed the poor in the first place. After the above programme has been prepared, framed and implemented, we shall be able to say that we have finally embarked on the road to empower the poor. Our goal of judicial inclusion through outreach would then be within our sight. 35

40 SPREADING OF LEGAL LITERACY AND LEGAL AWARENESS Mr. Lal Singh* The Constitution of India provides one of its objectives to secure Justice, Social, Economic and Political, Liberty of Thought, Expression, Belief, Faith and Worship and Equality of Status and Opportunity besides assuring for Dignity of the Individual. In order to achieve this objective, the Constitution has provided for Fundamental Rights of citizens in its Chapter III, described from Article 12 to 35. This part of the Constitution has guaranteed six fundamental rights to its citizens i.e. 1. Right to Equality, 2. Right to Freedom, 3. Right against Exploitation, 4. Right to Freedom of Religion, 5. Cultural and Educational Rights and 6. Right to Constitutional Remedies. The sixth Right i.e. Right to Constitutional Remedies infuses the strength for enforceability in former five rights. In other words these rights are enforceable by the Courts of Law and cannot be infringed. Besides, the Fundamental Rights of the citizens, the constitution has also provided for the Directive Principles of State Policy. The Welfare State of India is obliged to follow these Principles provided in Article 38 to 51 of the Constitution of India for the wellbeing and overall developments of the citizens of India. In order to assist the State in achieving the objectives mentioned in the Directives Principles of the State Policy, the Constitution has also provided Fundamental Duties of the citizens of India in Article 51 A. Article 39A of the Constitution of India lays down as under :- 39A Equal Justice and Free Legal Aid:- The State shall secure that the operation of legal system promotes justice, on a basis of equal opportunity and shall in particular, provide free legal aid, by suitable legislation or schemes or in other way, to ensure *Additional District & Sessions Judge, Delhi 36

41 that opportunity for securing justice are not denied to any citizen by reason of economic or other disabilities. The objective of securing justice is on the basis of equality. The Article 14 of the Constitution of India provides that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. It is fundamental right of any citizen of India that he is treated equally before law and he cannot be discriminated. The equal protection is to be given to each and every citizen as fundamental right. According to Article 39A, it cannot be denied for economic or other disability of the citizen. Then only the equal justice is possible. In order to overcome the disability in particular, the State shall provide legal aid. In Kishore Vs. State of Himachal Pradesh (1991) 1 SCC 286 it was laid down that legal aid may be treated as a part of the right created under Article 21. In criminal trials, the care is taken by section 304 of the Code of Criminal Procedure 1973 wherein sessions trial it is made mandatory for the court of sessions to appoint a pleader as amicus curie on state expenses in case where accused has no sufficient means to engage pleader. In Sagri Vs. State of Madhya Pradesh 1991 (1) Crimes 580 (MP) it was held that the convicts who are unable to engage an Advocate of their own because of indigence are entitled, as of constitutional right, to be defended by an Advocate at state expenses. In Sukhdas Vs. Union Territory of Arunachal Pradesh, 1986 Cr.L.J 1084 : AIR1986 SC 991 it was held that an accused is entitled to free legal aid in a case jeopardizing his life or personal liberty. Magistrate is under duty to inform him of such a right. Such a right held did not accrue to the accused only on his application for arranging a counsel for him. A conviction without conveying him such information stands vitiated. In Jitender Kumar Vs. State AIR 1990 SC 1224 when counsel appointed by court not present on the date of hearing, Hon ble Supreme Court remanded the case to High Court for a fresh hearing. An important 37

42 impact of article 39A read with article 21 has been to reinforce the right of a person involved in a criminal proceeding to legal aid. The article has been thus used to interpret and even expand the right conferred by section 304 of the Code of Criminal Procedure The following cases also may be cited in this regard. (i) Hussainara Vs. Home Secretary State of Bihar AIR, 1979 SC 1369 (ii) Hoskot Vs. State of Maharasthra AIR 1978 SC 1548 (iii) State of Haryana Vs. Darshna AIR 1979 SC 885 (iv) Khatri Vs. State of Bihar 1981 SC 928 In the matter of proceedings of civil nature, the suit can be instituted by indigent person Under Order XXXIII of the Code of Civil Procedure 1908 without paying court fees at the time of institution of suit. Similarly an appeal also can be preferred by the indigent person. Under Order XLIV of the Code of Civil Procedure without payment of court fees. There is right of every citizen for equal justice and the right is enforceable by law. In civil action suit can be instituted and appeal can be preferred without paying court fee. But unless the citizen is not aware of these rights as well as other fundamental rights and other legal rights, the equal justice is near to impossible. There has to be some one to make aware that such and such acts or omissions are civil wrongs or offence against his person or property, and there is remedy available for that wrong or offence. Further, it is also informed to him as to how that relief can be claimed. Such person is also to be informed that state shall provide legal aid to him in this respect. Unless and until this legal awareness is imparted, all the rights on law books are meaningless for him. There are plenty of cases where wrong doers or offenders are in such a dominate or influential position that sufferer even if is aware of his rights and able to identify the wrong and offence and person responsible, he cannot dare to approach the court for fear and threats of wrong doers or want of money to meet litigation expenses. In case such person succeeded in instituting suit or initiate criminal proceedings, 38

43 somehow he may not dare to depose before the court due to fear and threats of wrong doers or offenders. In order to achieve the objectives of Article 39 A of the Constitution of India, the Parliament of Republic of India enacted the Legal Services Authority Act, 1987 (Act No. 39 of 1987) of October 11, According to the Preamble of the Act it is enacted to constitute Legal Services Authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunities. The Section 12 of the Legal Services Authorities, 1987 lays down the criteria for rendering the legal services. The Section 12 runs as under: Criteria for giving legal services. Every person who has to file or defend a case, shall be entitled to legal services under this Act if that person is (A) A member of a Scheduled Caste or Scheduled Tribe. (B)A victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution. (C) A women or child. (D) A mentally ill or otherwise disabled person. (E) A person under circumstances of under served want such as being victim of a mass disaster, ethnic violence, caste atrocities, flood, drought, earth quake or industrial disaster or (F) An industrial worksman, or; (G) in custody, including custody in a protective home within the meaning of Clause (g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956 or in a Juvenile Home within the meaning of Clause (j) of Section 2 39

44 of the Juvenile Justice Act, 1986 or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section (2) of the Mental Health Act, or (h) In receipt of annual income less than Rs.50,000/ - if the case is before a court other than Supreme Court and less than Rs.50,000/- or such other amount as may be prescribed by the Central Government if the case is before the Supreme Court. The Section 13 of the Act provides the clarifications. The section 13 runs as under :- 13. Entitlement to Legal Services: (1) Persons who satisfy all or any of the criteria specified in Section 12 shall be entitled to receive legal services provided that the concerned authority is satisfied that such person has a prima facie case to prosecute or to defend. (2) An affidavit made by person as to his income may be regarded as sufficient for making him eligible to the entitlement of legal services under this Act unless the concerned authority has reason to disbelieve such affidavit. The Chapter V provides the provisions for funding the Schemes and audit of accounts. (See Section 14 to 18). This Act has provided three authorities. First at national level, the National Legal Services Authority second at State Level, The State Legal Services Authority and third, at District Level, District Legal Services Authority. These Authorities function in coordination to each other and other agencies. In order to have the comprehensive knowledge of scope of Legal Services Authorities, the function of Central Authority must be understood which are provided by Section 4 of the Act as follows : 40

45 Functions of the Central Authority :- The Central Authority shall, subject to the general directions of the Central Government, perform all or any of the following functions, namely :- (a) lay down policies and principles for making legal services available under the provisions of this Act. (b) Frame the most effective and economical schemes for the purpose of making legal services available under the provisions of this Act; (c) Utilize the funds at its disposal and make appropriate allocations of funds to the State Authorities and District Authorities. (d) Take necessary steps by way of social justice litigation with regard to consumer protection, environmental protection or any other matter of special concern to the weaker sections of the society and for this purpose, give training to social workers in legal skills; (e) Organize legal aid camps, especially in rural areas, slums or labour colonies with the dual purpose of educating the weaker sections of the society as to their rights as well as encouraging the settlement of disputes through Lok Adalats; (f) Encourage the settlement of disputes by way of negotiations, arbitration and conciliation; (g) Undertake and promote research in the field of legal services with special reference to the need for such services among the poor; (h) To do all things necessary for the purpose of ensuring commitment to the fundamental duties of citizens under Part IVA of the Constitution. (i) monitor and evaluate implementation of the legal aid programmes at periodic intervals and provide for independent evaluation of programme and schemes implemented in whole or in part by funds provided under this Act. 41

46 (j) Recommend to the Central Government grants-in aid for the specific schemes to various voluntary social welfare institutions and the State and district Authorities, from out of the amounts placed at its disposal for the implementation of the legal services schemes under the provisions of this Act; (k) Develop, in consultation with the Bar council of India, programmes for clinical legal education and promote guidance and supervise the establishment and working of legal services in universities, law colleges and other institutions; (l) Take appropriate measures for spreading legal literacy and legal awareness amongst the people and, in particular, to educate weaker sections of the society about the rights, benefits and privileges guaranteed by social welfare legislations and other enactments as well as administrative programmes and measures; (m)make special efforts to enlist the support of voluntary social welfare institutions working at the grass-root level, particularly among the Scheduled Castes the Scheduled Tribes women and rural and urban labour; and (n) Co-ordinate and monitor the functioning of State and District authorities and other voluntary social welfare institutions and other legal services organizations and give general directions for the implementation of the legal services programmes. The State Legal Services Authority and District Legal Services Authority work in furtherance of functions of National Legal Services Authority. Their functions are provided vide sections 7 and 10 of the Act respectively. One of the most effective function presently giving remarkable out put is organization of Lok Adalats under Chapter VI of the Act. We have achieved much of our target but lot of it is yet to be achieved. The sections 4 clause(l) of the Act provides to take appropriate measures for spreading legal literacy and legal awareness amongst the 42

47 people and in particular, to educate weaker sections of the society about the rights, benefits and privileges guaranteed by social welfare legislations and other enactments as well as administrative programmes and measures; But hardly worth nothing has been achieved in this direction. Whereas this is most important function. Without this the entire efforts shall be rendered futile. Spreading of legal literacy and legal awareness must reach the illiterate persons also because the major part of Indian population is still illiterate without source of information and finance. The legislations and enactments in this directions are yet to see the light of day. The legal awareness is of most important because it holds pivotal (central) position. In absence of this legal awareness the output shall be near to zero. Because the most deserving persons shall remain ignorant of these facilities. The legal awareness works in three ways i.e. Preventive, progressive and curative. Three kinds of justice assured in our constitution is possible, if three phases of justice delivery system are acquired. Accordingly, justice is done in three forms i.e. Preventive, progressive and curative. The courts while deciding cases of disputes or claims it is creative form of justice. Because only the remedy is provided by delivery of judgment in cases, disputes and claims. However, sometimes it is found when judgments are delivered certain directions are passed for legislature or executive and some observations are made about the actions or omissions, which rendered sometimes preventive justice and sometimes progressive justice and some times both. But lot of hue and cries are made in the name of judicial activities when such directions given. But in lethargic system, such directions or observations are most essential to keep them activated. By preventive justice is meant to such system when minds of people diverted away from the directions committing wrongs or crimes, knowledge or unknowingly. That is possible, to a great extent, by legal awareness from school time onwards. For illiterates from their homes and surroundings onwards wherever they live. They legal service in this direction can be rendered by regular teachers or instructors, who are law graduates, in schools and colleges to provide legal awareness to 43

48 students to make them aware about their rights and duties and wrongs, offences, penalty and punishments provided. So that students refrain from committing wrongs and offences knowingly or unknowingly. This in turn will prevent some wrongs and offences and deliver preventive justice. Such teachers must organize contact camps for poor & illiterate persons of weaker sections, women, rural and urban labours. The progressive justice must be understood, that system which provides bare minimum opportunity to develop people intellectually and physically in life to each and every citizen. No one be left or deprived or ignored due to his economic or other weakness. Each one must get equal opportunity and equal protection by law. No one should go back unheard of his cause. Even lawyers community must stand for this social cause. Legal contact camps to be organized. There should be compulsorily at least one law graduate teacher or instructor in every school, colleges or other educational institute whether it be of Government or private to impart legal knowledge / awareness to the students. Besides that, whoever is engaged in legal work, anywhere in any capacity should share his little knowledge of law with others who may be his friend, subordinate, relative or even servant so as to spread wide legal awareness to common man in any corner of the country. Legal enlightenment itself with cure lost of problems. Whoever gets legal knowledge in this manner he should also spread likewise. In educational institutions law graduate teachers must be appointed for this purpose compulsorily as other subject teachers are appointed. Social workers, NGOs and volunteers can contribute lot in this respect. It is well settled principle of law that ignorance of law is no excuse i.e. ignorantia-legis no excusat. See Bashewhwar Nath Vs. The Commissioners of Income Tax, Delhi and Rajasthan and Another AIR 1959 SC 149. It is presumed that every citizen knows law. No one can say that he does not know law. Take for instance a student while going to school on the way, he finds lying a revolver. He keeps it in his school bag and carries it as a toy. When police finds him in illegal possession of weapon, book him for the offence. Then he wants to know as to why and for what crime his being arrested? Court does not believe him that 44

49 he does not know law of land. Here, is it not duty of state to make sure that each and every citizen is told the law of land? Hence the need of legal awareness so that young citizens do not get involved in crimes unknowingly. They do not play a game which is in fact an offence or wrong. The conclusion of entire discussion is that there is law for the citizens of country to render equal justice. The large number of people are not able to take benefit of law for getting justice for economic or other disabilities. The task of legal aid is to build a bridge between justice (commodity at one hand and people (consumer) at other end), by various methods including one of them as legal awareness which is most significant. The responsibility of this does not lie on the state or legal or justice delivery system alone but on each individual who is able to contribute in this regard, in any manner and most of it on legal fraternity. May Legal Service Authorities succeed in their targets and legal fraternity proves it most helpful. 45

50 SCOPE FOR ENGAGING PRIVATE PROSECUTORS IN CRIMINAL TRIALS PRESENT SYSTEM IN INDIA Shri Ram S. Prabhu Dessai* The basic duties of the Public Prosecutors in India is conducting prosecutions on behalf of the Government and in appearing on behalf of the State in proceedings like criminal trials, appeals, revisions and other matters in the Criminal Courts and the High Courts. He is competent to appear and plead before any court in any case that is entrusted to him. He is authorized under the law with the consent of the court to withdraw from the prosecution of any person. Though it is no part of his statutory duties, he has also sometimes to advise the Police and other Government departments with regard to prosecution of offenders if called upon to do so. As per section 301 of Code of Criminal Procedure 1973 (Cr. P.C), the Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal. Section 301 (2) of Cr. P.C further postulates that if any such case, any private person instructs the pleader to prosecute any person in any court, the public prosecutor or assistant public prosecutor in charge of the case shall conduct the prosecution and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the court, submit written arguments after the evidence is closed in the case. It is known fact that in the most of the criminal cases court takes cognizance of the offences on police report which are popularly known as state cases and such cases the prosecution is exclusively conducted by the Government appointed Public Prosecutor and the pleader, if any, chosen by the victim/complainant can only act under the direction of Public Prosecutor in charge of the case. This leaves very little scope for a complaint/ victim to take part in the proceedings in which he is the actual sufferer of the crime. *Civil Judge Junior Division & JMFC, Sattari at Valpoi, Goa. 46

51 MERITS OF THE PRESENT SYSTEM Prosecution is considered to be part of the larger criminal justice dispensation system and is having its base on the concept of welfare state. It is considered that the crime committed by an individual person is not against particular person, but it is against the society at large and in order to effectuate the deterrent effect, the prosecution system is kept in the hands of the state. And in case of every crime done against the society at large, it becomes bounden duty of the state to prosecute the wrongdoer. Further, it is well acclaimed that purpose of a criminal trial being to determine the guilt or innocence of the accused person, the duty of a Public Prosecutor is not to represent any particular party, but the State. The prosecution of accused persons has to be conducted with the utmost fairness. While prosecuting, the State is not actuated by any motives of revenge but seeks only to protect the society at large. Therefore, there should not be an unwholesome eagerness for, or grasping at a conviction. A Public Prosecutor is expected to be personally indifferent to the outcome of the case. His duty consists of placing all the available evidence on record, irrespective of the fact whether it goes against the accused or assists him, before the court, in order to aid the court in discovering the truth and administration of justice. In that perspective, it is seen that in the machinery of administration of justice, a Public Prosecutor has to play a very responsible role in most impartial manner, which cannot be effectively played by private prosecutor. It is further expected that Public Prosecutors are not there to see the innocent to go to gallows. They are also not there to see the culprits escape the conviction but the pleader engaged by the private person who is a de facto complainant cannot be accepted to be so impartial. Not only that it will be his endeavour to get the conviction even if a conviction may not be possible, which zeal on the part of the private prosecutor, will surely dilute the very essence and spirit of the ideology of the prosecution system in criminal justice dispensation system. DEMERITS OF PRESENT SYSTEM Under the circumstances discussed above, the victim/complainant is left with no other option but to accept the Governmental Public Prosecutor despite of not having any faith in the competence and integrity of such Public Prosecutor. 47

52 The sorry state of affairs of the Public Prosecution system in India reflects from the low conviction rate as compared to other developed countries. However, the prosecutors alone are not only to be blamed for the low conviction rate as there are several other factors also responsible for the same. But at the same time, the role played by the prosecution cannot be also overlooked, which is very vital during the criminal prosecution in getting conviction. Today, the appointments of Assistant Public Prosecutors and other Public Prosecutors is total prerogative of the Government. Most of the appointments are made hardly on merits, but same are based on extraneous considerations. Similarly, the method of recruitment, remunerations and the facilities accorded to the Public Prosecutors interalia discourage competent and honest lawyers from opting for the same. All these factors result in incompetent persons becoming Public Prosecutors, who prove to be of no match to the defence lawyers engaged by the Accused persons, resulting in honourable acquittals for even hard core criminals. This factors indirectly leads to loss of faith of the people in public prosecution in particular and criminal justice dispensation system in general, which may prove to be fatal to the society at large in the long run. It is also interesting to note that, Section 303 of the Cr.P.C gives the unfettered right to the accused person to be defended by pleader of his choice and at the same time similar right is taken away from the victim/ complainant who is always at the receiving end. This mandatory provision of public prosecution looks to be totally unjustified and at the times tantamount to even denial of justice to the victim/complainant who are deprived of right to engage private lawyer of their confidence at their costs and expenses. CONCLUSION The only remedy available to the above problem lies in the judicious use of section 302 of Cr. P. C which reads as under: (1) any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than the police officer below the rank of inspector, but no persons, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission. 48

53 The Hon ble High Court of Bombay in case of Vijay Valia V/s State of Maharashtra (1986) Cr. L. J has held that it cannot be said that a pleader engaged by a private person is de facto complainant and cannot be accepted to be as impartial as the pleader appointed by the state to conduct public prosecution, on the other hand permission to engage an advocate should be given freely to the complainant. The complainant has as much right as the accused to represent his case effectively before the court. Further it was held that the conduct of the prosecution by a lawyer appointed and paid by a private party does not affect his capacity and ability to perform his role as a public prosecution. To accept such proposition is to invalidate all Private Prosecution. The ratio laid down in the above decision in my opinion strikes the balance between the interest of the victim/complainant as well as the Accused. There is apprehension from some quarters about the misuse of confidential information obtained by the Private Prosecutors from the police. It has no basis at all and the same looks to be fallacious. As admittedly, under the law, even the Public Prosecutor has no statutory power to interfere in the investigation, he cannot call papers from the police, analyze them or otherwise examine the available evidence before a report is actually filed in court and hence it can be said that the role of the Prosecutor commences at once the charge sheet/ challan is presented before the Court by the police. In such circumstances, even victim/complainant engages his private prosecutor will not make any difference as there will arise no difficulty even for the police to disclose all the information to the Private Prosecutors once charge sheet is filed before the court, as nothing remains confidential and there remains no any scope for misusing any confidential information by the Private Prosecutors. Since long, the lawmakers have totally ignored and disregarded protection of the interests of the complainant/victim of the crime and on the contrary have focused all their attention in safeguarding the interest of the accused. The provisions relating to the engaging the private prosecutors requires to be further simplified keeping in view the agony of the victim/complainant. The said provisions must be made more liberal and option must be given to the Complainant/Victims to either engage their own lawyer for prosecuting the case or to retain the Public Prosecutor, during trial, appeal, revisions etc. this shall go in long way in restoring faith of the common man in the criminal justice dispensation system. 49

54 JUVENILE DELINQUENCY Mr. Hasan Khurshid * The term Juvenile Delinquency is a misnomer. Lexicon meaning of delinquent are failing in duty, a fault, a crime. Whereas, Section 83 of IPC defines, Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. This means that a child below twelve years can not be branded as delinquent. Contrary to the above, Juvenile Justice ( Care and Protection of Children ) Act, does not provide an immunity to children below 7 and 12 years. The Act deals equally with the child of 10 and 18 year olds, irrespective of the wide gap between age, growth and maturity levels. Philosophically speaking, by prosecuting juveniles below 12 years, the society is blindfoldly punishing the innocents. No civilised society is expected to punish the tender aged branded as criminals. Section 2 (k) of JJ Act, defines the maximum age of 18 years but does not prescribe the minimum age. That means a child of 5 to 7 years can also be prosecuted. The provisions should therefore be speaking in nature. The provisions of Sections 82, 83 IPC must also be retained in the JJ Act and the term juvenile under the law must include children between 12 to 18 years only. Juvenile Delinquency is a very serious, sensitive and complex issue that can not just be solved by law alone. It is basically the outcome of numerous socio-economic, cultural, environmental and political factors, which have not been identified and addressed. A child below 12 years is a blank canvas, he is neither a saint nor a devil. He is nothing but the prodect of the environment around him. *Associate Editor, Lawyers Update 50

55 A recent study shows that children who suffer injury to the frontal cortex before age seven develop abnormal behaviour characterised by frustration, anger and aggression. If such a neurologically diseased juvenile comes in conflict with law, will you prosecute him? The origin of juvenile courts is discussed in Don C Gibbons s Delinquent Behaviour, ( 2nd Edition ). It says the American Juvenile Court grew out of a series of developments in the 1800s, designed to mitigate the severity of punishment handed out to juveniles. The first juvenile court was created in Cook County, Illinois, in The motive of juvenile court movement was to create a stricture that would address the needs of children, treating them rather than punishing them. The youngster was housed in juvenile hall rather than in jail and he was adjudicated rather than convicted. He was supposed to be treated according to his individual needs rather than punished for his law breaking. There has been commentary on juvenile courts centering on the failure of states to implement juvenile court philosophy by providing adequate probation personnel, diagnostic and psychiatric services and other arrangements that would allow the court to carry out its rehabilitations mandate. In The Social Organisation of Juvenile Justice, Aaron Cicourel suggests that the court often inadvertently pressures youthful offenders in the direction of more rather than less deviance. Edwin Lemert notes that a growing number of jurists and sociologists question whether the court can ever manage to serve in parens patriae or guardian role on a grand scale, diverting misbehaving youths into law-abiding pathways. They contend that the juvenile court can never be made into more than a crude piece of social apparatus. On this point, Edwin Lemert remarks, Neither the Spartan gymnasium, nor the Russian creches, nor the Israeli Kibbutz nurseries, nor scientifically run children s homes have been found to successfully duplicate the socio-psychological mystique which nurtures children into 51

56 stable adults. Neither the modern state nor an harassed juvenile court judge is a father; a halfway house is not a home; a reformatory cell is not a teenager s bedroom; a juvenile hall counsellor is not a Dutch uncle; a cottage matron is not a mother. This does not mean that the people referred to should not be or are not kindly and dedicated but rather that they are first and foremost members of organisation s enforcers of superimposed rules. Gibbons in Delinquent Behaviour notes, A good deal of the critical commentary on juvenile courts has advocated alternatives to the court such as Youth Service Bureau and diversion programmes. Senior IPS officer and General Secretary of NGO Priyas, Amod Kanth says that the children related problems are socio-economic which should be resolved by the society and not through the judicial intervention. Similarly, Dr. Rajat Mitra, Psychiatrist and director of NGO Swanchetan feels that sociologists and psychiatrists should be involved while forming and implementing the laws. Experts like Howard Becker, Harold Garfinkel, Schur, Thomas Schoff, etc. have deeply worked on deviance theory initiated by Lemert. Most of them view that the phenomenon of official labelling of deviant as delinquent, criminal, prostitute or even insane may witness the serious consequences of further deviation. The label once attached, sets off a further sequence of acts leading to deviation. 52

57 JUDGMENT SECTION Vakil Prasad Singh Vs. State of Bihar (Decided on reported in (2009) 3 SCC 355) Ms. G.M. Padma Priya* Taking the meaning of Right to Life as enshrined under Article 21 of the Constitution of India to another plane, the Hon ble Supreme Court of India emphasized the need for speedy investigation and trial as both are mandated by the letter and spirit of the provisions of Criminal Procedure Code and held that the right to speedy trial extends not only to actual proceedings in Court but also includes within its sweep the preceding police investigations. Facts: The genesis of the case dates back to 8 th April, 1981 when a search operation was conducted against the appellant for allegedly demanding a sum of Rs. 1000/- as illegal gratification for release of payment for the civil work executed by him. After investigation a chargesheet was filed against the appellant on 28 th February, On 7 th December, 1990, the appellant filed a petition under Section 482 Cr.P.C. before the Patna High Court against the order passed by the Special Judge, Muzaffarpur taking cognizance of the said offences, on the ground that the Inspector of Police, who had conducted the investigations, on the basis whereof the chargesheet was filed, had no jurisdiction to do so. Accepting the plea of the appellant, the High Court, vide order dated 7 th December, 1990 quashed the order of Magistrate *Advocate, High Court of Delhi 53

58 taking cognizance, with a direction to the prosecution to complete the investigation within a period of three months from receipt of the order. No substantial progress was made in the case till the year 1998, when the appellant filed a petition under Section 482 Cr.P.C. seeking quashing of the entire criminal proceedings pending against him mainly on the ground that re-investigation in the matter had not been initiated even after a lapse of seven and a half years of the order passed by the High Court on 7 th December, 1990 and in the process the appellant had suffered undue harassment for over eighteen years. On 20 th November, 1998, the petition was admitted to final hearing. It was stated before the Hon ble High Court that the Deputy Superintendent had finally started re-investigation on 28 th February, 2007 and ultimately filed a fresh chargesheet in May, Thus, the High Court dismissed the petition of the appellant for quashing of proceedings against him and being aggrieved by the said decision, the appellant preferred an appeal before the Hon ble Apex Court. Held: Relying on several precedents, the Hon ble Court observed that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be reasonable, fair and just ; and from there flows, without doubt, the right to speedy trial. The Hon ble Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The Hon ble Court further culled out a gist of guidelines/propositions as regards the fundamental right to speedy trial as guaranteed under Article 21 of the Constitution, which are reproduced as under: 54

59 (i) (ii) (iii) (iv) (v) (vi) (vii) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial; In every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is who is responsible for the delay?; While determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on what is called, the systemic delays; Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case; Ultimately, the court has to balance and weigh several relevant factors balancing test or balancing process and determine in each case whether the right to speedy trial has been denied; Ordinarily speaking, where the court comes to a conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open and having regard 55

60 to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial; (viii) It is neither advisable nor feasible to prescribe any outer timelimit for conclusion of all criminal proceedings. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint; (ix) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in the High Court must, however, be disposed of on a priority basis. Though the Hon ble Court opined that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings, nonetheless, it has been held that the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of Cr.P.C. to effectuate the right to speedy trial and that in appropriate cases, jurisdiction of the High Court under Section 482 Cr.P.C. and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief. In the facts of the case, the Hon ble Court came to the conclusion that the right to speedy trial of the accused had been infringed as there was no explanation whatsoever for the delay in investigation. The prosecution failed to show any exceptional circumstance that could possibly be taken into consideration for condoning a callous and inordinate delay of more than two decades in investigations and the trial. Thus, on facts in hand it was found that delay clearly violated the 56

61 constitutional guarantee of a speedy investigation and trial under Article 21 of the Constitution and quashed the criminal proceedings pending against the appellant despite the fact that allegations against him were serious in nature. The judgment thus reiterates and reaffirms that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution and that this right extends equally to all criminal prosecutions and is not confined to any particular category of cases. 57

62 GRIEVANCE REDRESSAL PROCEDURE 1. Any person aggrieved by any action of Legal Aid Counsel or Delhi Legal Services Authority/Committees functioning in various District Court Complexes may make an application to the Member Secretary of Delhi Legal Services Authority. 2. The complaint can also be made for denial of legal services, deficiency in legal services, misconduct or demand of any amount by any legal aid counsel. 3. All complaints must be in writing alongwith brief statement of material facts. Draft of Grievance Redressal Form is at Schedule A. 4. The complaint can be mailed at or presented to the Central Office, Delhi Legal Services Authority, Pre- Fab Building, Patiala House Courts, New Delhi. 5. The complaint can also be presented at the Office of District Legal Services Authority / Committees functioning in various District Court Complexes of Delhi. 6. Upon receipt of the complaint, appropriate action will be taken as expeditiously as possible. 7. Redressal Action taken in respect of grievance will be communicated to the complainant. 58

63 To Sub: SCHEDULE A DELHI LEGAL SERVICES AUTHORITY, PRE-FAB BUILDING PATIALA HOUSE COURTS, NEW DELHI Website: dlsathebest@yahoo.com Telephone No.: , Fax No.: Sir/Madam, GRIEVANCE REDRESSAL FORM The Member Secretary, Delhi Legal Services Authority, Pre-fab Building, Patiala House Courts, New Delhi Complaint against Legal Aid Counsel or Delhi Legal Services Authority/Committees. A brief statement of the facts giving rise to the complaint is as follows:- (Signature of the Applicant) (Attach additional sheets if necessary) NAME: FOR OFFICE USE ADDRESS: RECEIVED ON: DECISION TAKEN: DECISION MAILED: TELEPHONE : 59

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66 LEGAL AID PROGRAMMES NEW INITIATIVES 1. COMMENCEMENT OF CONTINUOUS MATRIMONIAL LOK ADALAT Delhi Legal Services Authority organized a Matrimonial Lok Adalat on 18 th October, 2008 for resolving cases relating to Domestic Violence, Maintenance u/s 125 Cr.P.C., Divorce, Maintenance u/s 18 & 19 of Hindu Adoption & Maintenance Act & Custody of children at all the District Court Complexes. Each Lok Adalat was presided over by an Additional District & Session Judge (Retd.) and assisted by a Lawyer Mediator as Associate Member. Response of the Lawyers and Litigants to the Lok Adalat was encouraging. The attendance of Lawyers and litigants was high in all the Matrimonial Lok Adalats in all the Court Complexes. In 8 Lok Adalats held at various District Court Complexes, 45 cases were settled. On the basis of experience, Delhi Legal Services Authority commenced Continuous Matrimonial Lok Adalat on 1 st & 3 rd Sunday of every month at all the District Court Complexes of Delhi on 1 st March, 2009 for resolution of cases relating to domestic violence and maintenance u/s 125 Cr.P.C. in which 100% participation of the parties was recorded. Matrimonial Lok Adalat has now become a continuous feature in Delhi. 2. EMPANELMENT OF LEGAL AID COUNSEL IN VIEW OF VISION DOCUMENT OF NATIONAL LEGAL SERVICES AUTHORITY In accordance with the criteria and norms laid down for empanelment of Legal Aid counsel in Vision Document of NALSA, Delhi Legal Services Authority has drawn up a Court Complex wise panel of experienced and honest legal services advocates to provide free and competent legal services to socially and economically weaker sections of our society. Applications were invited in the prescribed format from the eligible candidates for empanelment. 572 applications were received from advocates of various Bar Associations of Delhi. Interviews were conducted by the Selection Committee consisting of District Judge, 62

67 Member Secretary, Chief Metropolitan Magistrate and Secretary, District Legal Services Authority. Selection Committee considered conviction, commitment and competence of candidates for empanelment. On the basis of recommendation of Selection Committee, Court complex wise panel of 167 legal aid counsel was prepared on 24 th October, Delhi Legal Services Authority implemented Legal Aid Counsel Scheme by appointing Remand Advocates in the Courts of Metropolitan Magistrates, Special Executive Magistrates, Juvenile Justice Boards and Child Welfare Committees. Delhi Legal Services Authority has appointed Jail Visiting Advocates to provide legal aid and advice to jail inmates. Jail Visiting Advocates render legal aid & advice and draft bail applications, appeals, revisions, petitions, applications for jail inmates. The Authority periodically reviews the performance of legal services advocates and issues appropriate directions to ensure quality legal services to beneficiaries. The Authority has instructed District Legal Services Authority/ Committees to monitor activities and performances of legal services advocates. 3. IMPLEMENTATION OF SCHEME FRAMED BY HON BLE HIGH COURT FOR THE VICTIMS OF ACCIDENTS CAUSED BY BLUE LINE/DTC BUSES Delhi Legal Services Authority framed a scheme to provide necessary assistance to the next of kin of the deceased / injured for filing appropriate applications before the Motor Accident Claim Tribunal and before the concerned Magistrate for disbursal of interim compensation amount of Rs.1,00,000/- in case of fatal accident and Rs.50,000/- in case of grievous hurt / permanent disability under the Scheme for Victims of Accidents caused by Stage Carriage Buses framed by Hon ble High Court of Delhi in Criminal W.P. 878/2007 decided on 24 th September,

68 4. INAUGURATION OF MEGA TRAFFIC LOK ADALAT ON 2 ND NOVEMBER, 2008 AT DWARKA COURT COMPLEX A Mega Lok Adalat for compoundable traffic challans was organized by Delhi Legal Services Authority on 2 nd November, 2008 at all the five Court Complexes namely Tis Hazari Courts, Dwarka Courts, Patiala House Courts, Rohini Courts and Karkardooma Courts. It was for the first time that a Lok Adalat was organized at the new court complex at Dwarka. In a simple ceremony, Hon ble Mr. Justice Mukul Mudgal, Executive Chairman, DLSA inaugurated the Lok Adalat in the presence of District Judge (South-West) and other Judicial Officers and also watched proceedings in the Lok Adalats sitting at Dwarka Courts. His Lordship interacted with some people from the public who had appreciated the efforts. In 45 Courts all over Delhi, a total of 11,403 cases relating to traffic violations were compounded realising Rs. 5,22,980 as composition fee. 5. JAMIA MILIA ISLAMIA Delhi Legal Services Authority organized a legal awareness programme in coordination with Faculty of Law, Jamia Milia Islamia University on 3 rd November, 2008 at Jamia Milia area, Jamia Nagar, New Delhi. Delhi Legal Services Authority set up a counter for spreading legal awareness in the community about various legal aid programmes and legal rights conferred by various social welfare legislations. Around 4,000 pamphlets and 200 booklets on various social and legal issues were distributed in the community. Ms. Asha Menon, Ld. Member Secretary, Delhi Legal Services Authority has also attended the programme. On this occasion Delhi Legal Services Authority created awareness of free and competent legal services provided to weaker sections of the society by Delhi Legal Services Authority / Committees functioning at various court complexes. 64

69 6. VISIT OF CHIEF JUSTICE OF NORWAY TO DELHI LEGAL SERVICES AUTHORITY The Hon ble Chief Justice of Supreme Court of Norway Mr. Tore Schei visited the Central Office of Delhi Legal Services Authority on 6 th November, His Lordship was welcomed by Ms. Asha Menon, Member Secretary. A power point presentation of Legal Aid Activities of Delhi Legal Services Authority was presented. Ld. Member secretary explained legal aid programmes and activities of Delhi Legal Services Authority. His Lordship observed proceedings of the Daily Lok Adalat. He had seen conciliation proceedings conducted by Secretary, District Legal Service Committee, Patiala House Courts. His Lordship appreciated legal aid programmes and activities of Delhi Legal Services Authority undertaken to ensure Access to Justice for All. 7. COMMENCEMENT OF CONTINUOUS MACT LOK ADALAT Delhi Legal Services Authority has taken a major initiative by commencing Continuous MACT Lok Adalat on 2 nd Sunday of Every Month at all five District Court Complexes. 1 st Continuous MACT Lok Adalat was organized on 8 th November, 2008 at all District Court Complexes. Lok Adalat dealt with cases relating to public as well as private insurance companies. The response of the lawyers & litigants was overwhelming. Continuous MACT Lok Adalat has now become a continuous feature in Delhi. Lok Adalats organized on 8 th November, 2008 and 13 th December, 2008 resolved 162 cases and awarded Rs. 2,88,52,500/- as compensation to the claimants. 8. OPENING OF LEGAL FACILITATION CENTRE TO AUTHORISE INVOLUNTARY TREATMENT OF MENTALLY ILL HOMELESS PERSONS AT JAMA MASJID Delhi Legal Services Authority in collaboration with Institute of Human Behaviour & Allied Sciences (IBHAS) and an NGO AAA has taken a major initiative for treatment of mentally ill homeless persons. The Authority has opened a Legal Aid Centre on 10 th November, 2008 at Jama Masjid for legal facilitation of involuntary treatment of homeless 65

70 mentally ill persons. Secretaries of Delhi Legal Services Committees visit the said Centre on every Monday from 5:00 p.m. to 7:00 p.m. and authorize treatment of mentally ill homeless persons produced before them at Jama Masjid or other areas in Delhi. The programme is being conducted in terms of the Mental Health Act under which patients with severe mental illness in need of treatment is to be produced before a Magistrate who has to then authorize the initiation of involuntary treatment. The Authority has also deputed a qualified lawyer to represent homeless mentally ill persons. 9. MEETING WITH DCP S In a major initiative to enhance the performance for resolving cases disclosing commission of cognizable & compoundable cases at prelitigation stage, a meeting was convened with DCPs of all the Police Districts of Delhi to discuss the ways & means to improve the performance of Lok Adalat. Ld. Member Secretary was pleased to chair the meeting. Consequent to the resolution of the meeting Delhi Legal Services Authority conducted training & sensitization workshops on the role of investigating officers in the resolution of cognizable & compoundable cases at pre-litigation stage through Lok Adalat. Delhi Legal Services Authority has also commenced Lok Adalat for resolving cognizable & compoundable cases covered U/s 320 Cr.P.C. at prelitigative stage at all the five District Court Complexes of Delhi to which the response of the litigants was encouraging which has now become a continuous and regular feature of Delhi. 10. EXCLUSIVE PANEL OF LEGAL AID COUNSEL FOR THE COURTS OF SPECIAL EXECUTIVE MAGISTRATES In an effort to involve the junior members of the Bar and draw upon their vast reserve of energy, enthusiasm and sincere desire to learn and contribute to society, Delhi Legal Services Authority initiated the process of empanelment of junior lawyers for appearing in the Courts of Special Executive Magistrates on 25 th November,08. An advocate with practice experience upto three years was eligible for empanelment. Executive Committees of various Bar Associations in Delhi were associated to 66

71 identify and forward names of advocates genuinely interested in rendering legal aid to the most needy. Interviews of the eligible candidates conducted in December and a panel of 29 legal aid counsel for the Courts of Special Executive Magistrates was drawn up on 21 st January, INTERACTION WITH SENIOR ADVOCATES OF NEW DELHI BAR ASSOCIATION Hon ble Mr. Justice Mukul Mudgal, Judge, High Court of Delhi & Executive Chairman, Delhi Legal Services Authority held a meeting at 4:30 p.m. on 4 th December, 2008 in Patiala House Court Complex with Ld. Members of New Delhi Bar Association, Patiala House Courts to discuss, inter-alia, ways and means of strengthening Legal Aid. Hon ble Ms. Justice Aruna Suresh, Judge, Delhi High Court and Office Bearers and Senior Advocates of New Delhi Bar Association were present. Executive Chairman requested Senior Advocates to volunteer their services to Legal Aid and do at least one case per month for the poor as a social tax. He interacted with Ld. Members of the bar and heard their problems and suggestions for strengthening legal aid. Senior Members of New Delhi Bar Association agreed to volunteer their free services to Delhi Legal Services Authority for sensitive and important cases. 12. STRENGTHENING LEGAL AID TO JUVENILES The Delhi Legal Services Authority (DLSA) has inculcated new ideas to strength the Legal Aid network for juveniles. The Executive Chairman, DLSA was pleased to visit Juvenile Justice Board-II at Ferozshah Kotla on 22 nd December, He interacted with the Principal Magistrate, Social Workers while issuing appropriate instructions to provide effective legal aid to the juveniles. In order to give proper Legal Aid to the Juveniles, DLSA has drawn a dedicated panel of Legal Aid Counsel for Juvenile Justice Boards and Child Welfare Committees on full time basis from 1 st January, DLSA has also opened Legal Aid Centres in Juvenile Justice Board-I & II. Legal Services Counsel are available at the said Centres from 10:00 am to 5:00 p.m. at the said Boards and Committees on all working days. 67

72 Besides dealing with the cases assigned by the Boards, they also work as Remand Advocates and file appropriate applications, bail bond and perform other acts on behalf of the juveniles necessary to protect the interests of juveniles and children. Legal Services Advocates are also generating awareness among the juveniles and their parents about availability of free legal aid from DLSA. 13. LEGAL AID CELL FOR VICTIMS OF RECOVERY AGENTS Moved by incidents of harassment of customers by recovery agents of Financial Institutions, Delhi Legal Services Authority has set up a separate cell on 23 rd December, 2008 to provide legal assistance to victims of illegal actions of Recovery Agents of Financial Institutions and Service Providers. The Authority is also coordinating with Delhi Police and generating awareness about the availability of free legal aid & advice to such persons subjected to questionable methods and threatened by Recovery Agents of Financial Institutions to effect recovery of dues from them. 14. LEGAL AID CELL AGAINST WOMEN HARASSMENT Delhi Legal Services Authority has set up a separate cell ON 23 rd December,2008 to provide appropriate legal aid in an effective and efficient manner to women who face harassment of various kinds and do not come out to make complaint due to fear. The Authority will maintain anonymity of the complainant and take appropriate action for redressal of their grievances. Delhi Legal Services Authority is coordinating with Delhi Police in this regard and generating public awareness about availability of legal aid to such women victim of harassment and obscene behaviour. 15. SUNDAY LOK ADALATS Delhi Legal Services Authority organized Lok Adalats on 1 st and 3 rd Sunday of every month in all the five District Court Complexes for resolving pending cases u/s 138 Negotiable Instruments Act and Compoundable Offences. Statistical information of disposal of cases 68

73 by Sunday Lok Adalats during the period from October to December, 2008 is mentioned under: - Nature of cases Sitting Taken up Disposed Fine Imposed Compensation Off Paid Criminal Rs. 1,73,800/- Rs. 14,28,459/- Compoundable & 138 N.I. Act 16. COMMENCEMENT OF DAILY LOK ADALAT Delhi Legal Services Authority organized Daily Lok Adalat for resolving cases under Section 138 Negotiable Instrument Act at pre-litigation & pending litigation stage. Statistical information of Daily Lok Adalat during the period from October to December, 2008 is mentioned under: - Nature of Cases No. of Sitting No. of Cases No. of cases taken up disposed of 138 N.I Act at pre-litigation and pending litigation 17. LOK ADALAT FOR CASES RELATING TO BANK LOANS AT PRE- LITIGATION STAGE Delhi Legal Services Authority organized Lok Adalat for resolving cases relating to Personal Loans, Credit Cards etc. of Private Sector Banks like ICICI, HDFC, Standard Chartered, ABN AMRO etc. at pre litigation stage on every Sunday with the objective to provide an informal forum to borrowers to settle their loan related disputes with the banks. Statistical information of the disposal of the cases by Lok Adalats during the period from October to December, 2008 is as under: - Nature of Cases Sitting Cases Taken Cases Amount settlement up settled Bank Recovery Matters Rs. 2,07,55,072/- 69

74 18. MOBILE LEGAL SERVICES VAN Mobile Legal Services Van visited Slum and Labour Colonies to provide legal aid and counselling to the needy at their door steps. It generated awareness by of legal rights and distributed informative material on social and legal issues. Statistical Information of Literacy Camps organized through Mobile Legal Services Van and the number of beneficiaries of legal aid & advise during the period from October to December,2008 is as under:- No. of Literacy Camps No. of People Benefited INTERNSHIP PROGRAMMES FOR LAW STUDENTS AND PARA LEGAL VOLUNTEER WORKERS Delhi Legal Services Authority organized Internship Programms for Law Students so as to educate them about Legal Aid Programmes implemented under Legal Services Authorities Act. The conduct Legal Literacy Camps in Slum Colonies & Rural Areas. articulars of internship programme organized during October to December, 2008 are as under: S.No. Duration of Internship Name of the College to Workshop for Law Students of Gujarat National Law University, Gujarat to Workshop for Law Student of Chanakya National Law University, Patna. 20. CONTACTING & COUNSELLING RAPE VICTIMS In terms of orders passed by High Court of Delhi in Khem Chand Vs. State in Criminal Appeal No.5/2000 decided on 7 th July, 2008, Delhi Legal Services Authority deputes social workers / para-legal workers to establish contact with the rape victim within a week of the commission of the offence on being intimated by the police. Social workers / paralegal workers provide moral and legal support and necessary advice required to prepare victim of the offence mentally as well as logistically 70

75 to face the ordeal with special emphasis on the rehabilitation of the victim. In case of child victim, we ensure that education is not disrupted and victim is restored to normal life. Delhi Legal Services Authority has attended 11 cases relating to offence of rape from October-December, CAPACITY BUILDING AND TRAINING PROGRAMME Capacity Building and Training Programme in mediation was held for the empanelled advocates in two phases: First Phase 20 Hours Programme was organized for Foundation Training in Mediation from to and Second Phase 20 Hours Advanced Training in Mediation for empanelled advocates was organized from to Nineteen empanelled advocates successfully completed training. 64 cases referred by Hon ble Judges of the High Court and 70 pre-litigative cases were settled by the Secretary and his team of advocates / mediators. As per directions of Hon ble Mr. Justice A.P. Shah, Chief Justice, High Court of Delhi, mediation work of the Committee has been merged with the Delhi High Court Mediation & Conciliation Centre (DHCMCC) and the trained advocates / mediators are now performing mediation under the umbrella of (DHCMCC). 71

76 DURING INTERACTION WITH THE BANKS STRENGTHENING TIES WITH THE GUJARAT STATE LEGAL SERVICES AUTHORITY S MEMBER SECRETARY

77 INTERACTION WITH SENIOR MEMBERS OF THE BAR ASSURING THEIR SERVICES TO FREE LEGAL AID FIRST TRAFFIC MEGA LOK ADALAT AT THE NEW COURT COMPLEX AT DWARKA

78 PRESS CLIPPING SECTION 1 ST MATRIMONIAL LOK ADALAT HELD ON THE INDIAN EXPRESS

79 THE INDIAN EXPRESS

80 THE TIMES OF INDIA

81 THE INDIAN EXPRESS

82 MEGA TRAFFIC LOK ADALAT HELD ON HINDUSTAN THE NAVBHARAT TIMES

83 THE INDIAN EXPRESS

84 DAINIK JAGRAN THE HINDU

85 CONTINUOUS MACT LOK ADALAT HELD ON THE INDIAN EXPRESS

86 OPENING OF LEGAL FACILITATION CENTRE FOR MENTALLY ILL PERSONS AT JAMA MASJID ON THE HINDU

87 THE TIMES OF INDIA DAINIK JAGRAN

88 INTERACTION WITH NDBA HELD ON AT PATIALA HOUSE COURTS THE INDIAN EXPRESS

89 CONTINUOUS MACT LOK ADALAT HELD ON THE TIMES OF INDIA THE TIMES OF INDIA

90 THE INDIAN EXPRESS DAINIK JAGRAN

91 STATISTICAL INFORMATION SECTION 1. STATISTICAL INFORMATION OF LEGAL AID BENEFICIARIES OF DELHI LEGAL SERVICES AUTHORITY IN THE QUARTER FROM OCTOBER TO DECEMBER, 2008 MONTH SC ST OBC Women Children In Handicapped General Total Custody October November 19 Nil Nil December TOTAL 55 Nil STATISTICAL INFORMATION OF LEGAL AID BENEFICIARIES/ INMATES AVAILED LEGAL AID THROUGH LEGAL AID CENTRE AT TIHAR JAIL COURTS COMPLEX IN THE QUARTER FROM OCTOBER TO DECEMBER, 2008 Number of Beneficiaries

92 3. STATISTICAL INFORMATION OF DISPOSAL OF CASES IN LOK ADALAT IN THE QUARTER FROM OCTOBER TO DECEMBER, 2008 Name of the No. of No. of cases No. of cases Amount Organization Sitting taken up disposed of D.D.A (PLA) BSES/NDPL(PLA) Daily Lok Adalat Bank Recovery Cases Settlement amount:- Rs. 2,07,55,072/- Criminal Compoundable Fine realized:- Cases u/s 138 N.I. Act Rs. 1,73,800/- Compensation paid:- Rs. 14,28,459/- Mahila courts Matrimonial Cases Rs. 5,95,000/- (Family Disputes) Continuous MACT Lok Compensation Paid:- Adalat Rs. 2,88,52,500/- Civil cases Settlement amount:- Rs. 22,550/- Total STATISTICAL INFORMATION IN RESPECT OF CASES SETTLED THROUGH COUNSELLING AND MEDIATION & CONCILIATION IN DELHI LEGAL SERVICES AUTHORITY IN THE QUARTER FROM OCTOBER TO DECEMBER, 2008 Pre-litigation Referred by the Court Cases Received Cases Settled Cases Received Cases Settled Grand Total of Cases Received Cases Settled

93

94