steps to be taken for expeditious disposal of the cases
Supreme Court while identifying the causes of delay, ordered few steps to be taken for the exercise of powers of Magistrate and Sessions Court in the light of various provisions of the Criminal Procedure Code, 1898, to adopt a uniform procedure in the courts to have expeditious disposal of the cases.
The scheme of the Code of Criminal Procedure is that the police after completing the investigation have to form opinion as to whether or not there is sufficient evidence and reasonable ground or suspension to justify the forwarding of the accused to a Magistrate. If the opinion is in the negative, the police officer is required to release the accused if in custody on executing bond, with or without surety as such officer may direct, to appear if and when so required, before the Magistrate in order to take cognizance of the offence, on a police report and to try the accused or send him for trial as provided under section 169 of the Code.
If the opinion is positive, the police officer is required to forward the accused in custody to the Magistrate empowered to take cognizance of the offence upon a police report for trial of the accused or to send him for trial to the Court of Session if the offence is bailable and the accused is able to give surety, the police officer is required to take surety from him for his appearance before the Magistrate on a day fixed and for his appearance from day to day before such Magistrate. At the same time, the police officer is also required to send to the Magistrate any weapon or other articles which may be necessary to be produced before him along with the bonds of the complainant and witnesses for their appearance before the Magistrate as required under section 170 of the Code.
In both cases, when the accused is released under section 169 or is forwarded to the Magistrate, the police officer is required to submit the report, which is commonly known as challan, in the form provided under section 173 of the Code.
Thus under the provisions of section 170 of the Code, the police officer is required to produce the property and other articles as are necessary before the Magistrate. If the police did not produce the property before the Magistrate nor the Magistrate directed the police to produce the property, in these circumstances, the process of delay started from the very first stage. Had the police taken proper steps to produce the property before the Magistrate the delay would have not been caused. Equally when the police had not produced the property at the relevant time, had the Magistrate been vigilant enough to ask for the property, the delay in production of the property could have been avoided.
Now, comes the question of absconders and accused released and placed in column No.2 of the challan. The accused who is released with direction to appear before the Magistrate, if and when required by him as provided under section 169 of the Code, it may be stated that in such a case the Magistrate is empowered to discharge the bond executed before the police only or pass any order, as he thinks fit as provided under section 173(3) of the Code.
It is important to note that provision of S.173(3), Cr.P.C. is mandatory, therefore, the Magistrate is required to pass appropriate order. For exercising the above powers, the Magistrate should not act mechanically, as he has to form an opinion as to whether it is a fit case where bond should be discharged or pass any other order including joining him as an accused. For that, he is required to examine the file so as to form his opinion. Such order of the Magistrate is not a judicial order but is an administrative one. If the Magistrate discharges the bond executed before the police of the released accused then it will not preclude the Sessions Court to join such accused in the case as that will be a judicial act which is taken after taking cognizance by Sessions Judge as required under section 193 of the Code. However, the police cannot re-investigate the case against such accused without getting the order of discharge of bond passed by the Magistrate recalled.
As regards the accused who are shown absconders in the challan, it is to be noted that the Magistrate is competent to issue process including warrant of arrest to procure their attendance as provided under section 204 of the Code because he has powers to take cognizance in the matter. Further the evidence against accused, who is absconder can be recorded after declaring him absconder as provided under section 512 of the Code.
The phrase "or send for trial to the Court of Session or High Court" appearing in section 512 of the Code clearly demonstrates that the Magistrate who is empowered to send the case to the Court of Session has also power to record the evidence in the absence of accused after declaring him absconder which can be done as required under sections 87 and 88 of the Code after issuance of warrants of arrest as provided under section 204 of the Code. Thus such Magistrate has power to initiate proceedings under sections 87 and 88 of the Code in a case triable by the Court of Session.
By virtue of section 190(2) of the Code, the Magistrate is required to send the case to the Court of Session without recording evidence, which was enacted after repealing Chapter XVIII of the Code to make the inquiry process simple, but this provision is general in nature applicable to all the accused persons. However, section 512 of the Code is a special provision applicable to particular class of accused i.e. absconders. Therefore, the special provision will prevail upon general provision of the same enactment. Thus section 512 of the Code is an exception to the general provisions of section 190(2) and section 353 of the Code.
Originally such power was not given to the Magistrate, when committal proceedings were being conducted. However, this power was given to the Magistrate after abolishment of committal proceedings. The above phrase was added by the Law Reforms Ordinance, 1972 with a view that the Sessions Court should not be burdened with these type of proceedings because the main function of the Sessions Court is session trial. If the Sessions Court is involved in these types of proceedings, its major portion of time would be consumed in conducting these proceedings, which is being consumed now a days and further the status of the Sessions Court would be reduced to that of court of Magistrate. If the proceedings under sections 87 and 88 of the Code are completed at the level of the Magistrate before the case is sent up to the Court of Session then the Sessions Court will be in a position to start the trial expeditiously and the time consumed in such proceedings by it can be saved.
In order to comply with Ss.87 and 88 of the Code, it is directed that if all the accused are shown absconders in the challan then the case be sent up to the Court of Session after completing the proceedings as provided under section 512 of the Code. After receipt of case, the Sessions Court may pass order for keeping the case on dormant file or pass any appropriate order as it deems fit. If some of the accused are absconders and some are present, then before sending the case to the Court of Session the Magistrate should simply complete the proceedings under sections 87 and 88 of the Code within the shortest possible time but not later than two months after taking cognizance. The Magistrate should ensure that when a case is sent up to the Court of Session it should be complete in all respect enabling the Court of Session to start the trial immediately.
In this connection the Magistrate should provide all the copies of required documents to the accused, to obtain information from the accused as to whether he would engage an Advocate himself otherwise an advocate could be provided to him on State expenses, produce the property, statements of P.Ws. under section 164 of the Code, confession, memo. of identification test etc. The case should be sent up along with a detailed order showing the application of mind as to whether the case is exclusively triable by the Court of Session keeping in view the facts, circumstances of the case and material made available by the police, mentioning all the proceedings including the above mentioned points so as to facilitate the Sessions Court to fix the case for trial. After receipt of the case by the Court of Session, a thorough scrutiny be made to see as to whether anything is lacking or missing which may affect the start of trial then such shortcoming should be removed and fulfilled including engaging an Advocate on State expenses if the accused so demand before the Magistrate. After fixing the case for trial, the Sessions Court should issue process for appearance of the witnesses keeping in view the bonds executed by them before the Magistrate in compliance with the provision of section 173(5) of the Code well in advance preferably not less than one month to the concerned SHO who shall be responsible to produce all the witnesses before the court on the date fixed for trial. If the SHO fails to produce the witnesses before the court, serious action should be taken against him by initiating departmental proceedings by the competent authority of police on the report of Sessions Court including prosecution under section 174, P.P.C. Notice should also be given to the prosecution, the accused and" his advocate one month in advance so that the prosecution and defence could prepare their case and make necessary arrangements with regard to their other professional duties so as to make them available before the court for trial. No adjournment should be granted on any flimsy or artificial ground except on a very strong and cogent cause by assigning valid and legal reasons. The Sessions Court should try the case .on day to day basis till its completion. Non-compliance would entail very serious consequences. Defence Advocate and Prosecutor shall give preference to the session trial except in a case of criminal trial fixed before the High Court on its original side. No obstruction shall be made in the session trial which can be visualized as an obstructing in the administration of justice. In appropriate cases the Sessions Judges may report the matter to the Bar Council for taking appropriate action against such advocate. In short, all stakeholders shall ensure that Sessions trial should not fail.
As regards the pending cases in which the accused are shown absconders, the court should separate the case of accused person, who is in attendance either on bail or in custody from the accused person who is absconder so that an early trial should be started fulfilling the constitutional rights of the accused and complainant for expeditious disposal of the case. After separating the case of accused person, who is absconder the process should be issued in that case to get it ripe for trial.
It is important to note that under section 233 of the Code every charge of a distinct offence which any person is accused should be tried separately except in the cases mentioned in sections 234, 235, 236 and 239 of the Code. Sections 239 deals with joint trial of several accused persons together. A perusal of sections 233 and 239 of the Code reveals that under such provisions a discretion lies with the court to try the offences of the kind indicated therein jointly in the circumstances mentioned therein, but there is nothing in them to indicate that the court is bound to try such offences or persons together in every case.
Further vide Notification GRHD No.223411/40, dated 5-7-1941, it is provided that where more than one accused are involved the commencement of proceedings should not be held up until all the wanted persons are apprehended, but the case should be proceeded with as soon as the principal accused is/are secured…….such reference is available at page 165 of Federal Capital and Sindh Courts Criminal Circulars 1997 Edition.
Thus there is no bar in separating the case of the absconder from the case of accused who is present before the court. All the courts are directed to adopt such method and immediately proceed with the cases in which some of the accused are present before the court after bifurcating and separating the case of absconder and required process be issued against absconder in those cases.
Another factor, which causes delay, is late submission of challan before the court in violation of provisions of section 173 of the Code. The police officials are exposing themselves to take appropriate action in not submitting the challan within the required period of section 173 of the Code. At the same time, Magistrates were asked to take steps to compel the police officers to submit the challan within time. Sessions Judges were directed to supervise such process sin exercise of their revisional powers.
In order to implement the provisions of section 173 of the Code if the police officer does not submit the challan within the required period then such officer prima facie is disobeying the direction of law contained in section 173 of the Code thereby falling within the ambit of offence punishable under section 166, P.P.C. which is a Scheduled offence of Pakistan Criminal Law (Amendment) Act, 1958. As such if the Magistrate finds that any police officer has violated the provisions of section 173 of the Code then he should either himself on behalf of the court or through any officer of the court file complaint before the Special Court created under the above enactment for prosecution of such police officer. The said court should give preference to the case and the same be decided in accordance with evidence and law within a shortest possible time. Such court shall furnish fortnightly report to the High Court about the progress of the case. If the Magistrate performs his functions in accordance with law and under the supervision of the Sessions Judge, then this problem can be solved adequately.
A copy of the order of the Supreme Court was directed to be sent to Registrars of all High Courts for circulating amongst all the Judges and Magistrates for implementation and strict compliance. The Sessions Judges of the Districts are directed to supply a copy of the present order to the District Bar Associations of their Districts for information and strict compliance. A copy of the order was also directed to be sent to PPO/IGPs of all the Provinces and Federal Capital for strict compliance. The PPO/IGPs should issue special instructions to all SHOs and concerned officers to produce all the witnesses before the Court of Session for trial, failing which strict action as permissible under the law should be taken with information to the concerned Sessions Judge and High Court.
P L D 2010 Supreme Court 585
Supreme Court while identifying the causes of delay, ordered few steps to be taken for the exercise of powers of Magistrate and Sessions Court in the light of various provisions of the Criminal Procedure Code, 1898, to adopt a uniform procedure in the courts to have expeditious disposal of the cases.
The scheme of the Code of Criminal Procedure is that the police after completing the investigation have to form opinion as to whether or not there is sufficient evidence and reasonable ground or suspension to justify the forwarding of the accused to a Magistrate. If the opinion is in the negative, the police officer is required to release the accused if in custody on executing bond, with or without surety as such officer may direct, to appear if and when so required, before the Magistrate in order to take cognizance of the offence, on a police report and to try the accused or send him for trial as provided under section 169 of the Code.
If the opinion is positive, the police officer is required to forward the accused in custody to the Magistrate empowered to take cognizance of the offence upon a police report for trial of the accused or to send him for trial to the Court of Session if the offence is bailable and the accused is able to give surety, the police officer is required to take surety from him for his appearance before the Magistrate on a day fixed and for his appearance from day to day before such Magistrate. At the same time, the police officer is also required to send to the Magistrate any weapon or other articles which may be necessary to be produced before him along with the bonds of the complainant and witnesses for their appearance before the Magistrate as required under section 170 of the Code.
In both cases, when the accused is released under section 169 or is forwarded to the Magistrate, the police officer is required to submit the report, which is commonly known as challan, in the form provided under section 173 of the Code.
Thus under the provisions of section 170 of the Code, the police officer is required to produce the property and other articles as are necessary before the Magistrate. If the police did not produce the property before the Magistrate nor the Magistrate directed the police to produce the property, in these circumstances, the process of delay started from the very first stage. Had the police taken proper steps to produce the property before the Magistrate the delay would have not been caused. Equally when the police had not produced the property at the relevant time, had the Magistrate been vigilant enough to ask for the property, the delay in production of the property could have been avoided.
Now, comes the question of absconders and accused released and placed in column No.2 of the challan. The accused who is released with direction to appear before the Magistrate, if and when required by him as provided under section 169 of the Code, it may be stated that in such a case the Magistrate is empowered to discharge the bond executed before the police only or pass any order, as he thinks fit as provided under section 173(3) of the Code.
It is important to note that provision of S.173(3), Cr.P.C. is mandatory, therefore, the Magistrate is required to pass appropriate order. For exercising the above powers, the Magistrate should not act mechanically, as he has to form an opinion as to whether it is a fit case where bond should be discharged or pass any other order including joining him as an accused. For that, he is required to examine the file so as to form his opinion. Such order of the Magistrate is not a judicial order but is an administrative one. If the Magistrate discharges the bond executed before the police of the released accused then it will not preclude the Sessions Court to join such accused in the case as that will be a judicial act which is taken after taking cognizance by Sessions Judge as required under section 193 of the Code. However, the police cannot re-investigate the case against such accused without getting the order of discharge of bond passed by the Magistrate recalled.
As regards the accused who are shown absconders in the challan, it is to be noted that the Magistrate is competent to issue process including warrant of arrest to procure their attendance as provided under section 204 of the Code because he has powers to take cognizance in the matter. Further the evidence against accused, who is absconder can be recorded after declaring him absconder as provided under section 512 of the Code.
The phrase "or send for trial to the Court of Session or High Court" appearing in section 512 of the Code clearly demonstrates that the Magistrate who is empowered to send the case to the Court of Session has also power to record the evidence in the absence of accused after declaring him absconder which can be done as required under sections 87 and 88 of the Code after issuance of warrants of arrest as provided under section 204 of the Code. Thus such Magistrate has power to initiate proceedings under sections 87 and 88 of the Code in a case triable by the Court of Session.
By virtue of section 190(2) of the Code, the Magistrate is required to send the case to the Court of Session without recording evidence, which was enacted after repealing Chapter XVIII of the Code to make the inquiry process simple, but this provision is general in nature applicable to all the accused persons. However, section 512 of the Code is a special provision applicable to particular class of accused i.e. absconders. Therefore, the special provision will prevail upon general provision of the same enactment. Thus section 512 of the Code is an exception to the general provisions of section 190(2) and section 353 of the Code.
Originally such power was not given to the Magistrate, when committal proceedings were being conducted. However, this power was given to the Magistrate after abolishment of committal proceedings. The above phrase was added by the Law Reforms Ordinance, 1972 with a view that the Sessions Court should not be burdened with these type of proceedings because the main function of the Sessions Court is session trial. If the Sessions Court is involved in these types of proceedings, its major portion of time would be consumed in conducting these proceedings, which is being consumed now a days and further the status of the Sessions Court would be reduced to that of court of Magistrate. If the proceedings under sections 87 and 88 of the Code are completed at the level of the Magistrate before the case is sent up to the Court of Session then the Sessions Court will be in a position to start the trial expeditiously and the time consumed in such proceedings by it can be saved.
In order to comply with Ss.87 and 88 of the Code, it is directed that if all the accused are shown absconders in the challan then the case be sent up to the Court of Session after completing the proceedings as provided under section 512 of the Code. After receipt of case, the Sessions Court may pass order for keeping the case on dormant file or pass any appropriate order as it deems fit. If some of the accused are absconders and some are present, then before sending the case to the Court of Session the Magistrate should simply complete the proceedings under sections 87 and 88 of the Code within the shortest possible time but not later than two months after taking cognizance. The Magistrate should ensure that when a case is sent up to the Court of Session it should be complete in all respect enabling the Court of Session to start the trial immediately.
In this connection the Magistrate should provide all the copies of required documents to the accused, to obtain information from the accused as to whether he would engage an Advocate himself otherwise an advocate could be provided to him on State expenses, produce the property, statements of P.Ws. under section 164 of the Code, confession, memo. of identification test etc. The case should be sent up along with a detailed order showing the application of mind as to whether the case is exclusively triable by the Court of Session keeping in view the facts, circumstances of the case and material made available by the police, mentioning all the proceedings including the above mentioned points so as to facilitate the Sessions Court to fix the case for trial. After receipt of the case by the Court of Session, a thorough scrutiny be made to see as to whether anything is lacking or missing which may affect the start of trial then such shortcoming should be removed and fulfilled including engaging an Advocate on State expenses if the accused so demand before the Magistrate. After fixing the case for trial, the Sessions Court should issue process for appearance of the witnesses keeping in view the bonds executed by them before the Magistrate in compliance with the provision of section 173(5) of the Code well in advance preferably not less than one month to the concerned SHO who shall be responsible to produce all the witnesses before the court on the date fixed for trial. If the SHO fails to produce the witnesses before the court, serious action should be taken against him by initiating departmental proceedings by the competent authority of police on the report of Sessions Court including prosecution under section 174, P.P.C. Notice should also be given to the prosecution, the accused and" his advocate one month in advance so that the prosecution and defence could prepare their case and make necessary arrangements with regard to their other professional duties so as to make them available before the court for trial. No adjournment should be granted on any flimsy or artificial ground except on a very strong and cogent cause by assigning valid and legal reasons. The Sessions Court should try the case .on day to day basis till its completion. Non-compliance would entail very serious consequences. Defence Advocate and Prosecutor shall give preference to the session trial except in a case of criminal trial fixed before the High Court on its original side. No obstruction shall be made in the session trial which can be visualized as an obstructing in the administration of justice. In appropriate cases the Sessions Judges may report the matter to the Bar Council for taking appropriate action against such advocate. In short, all stakeholders shall ensure that Sessions trial should not fail.
As regards the pending cases in which the accused are shown absconders, the court should separate the case of accused person, who is in attendance either on bail or in custody from the accused person who is absconder so that an early trial should be started fulfilling the constitutional rights of the accused and complainant for expeditious disposal of the case. After separating the case of accused person, who is absconder the process should be issued in that case to get it ripe for trial.
It is important to note that under section 233 of the Code every charge of a distinct offence which any person is accused should be tried separately except in the cases mentioned in sections 234, 235, 236 and 239 of the Code. Sections 239 deals with joint trial of several accused persons together. A perusal of sections 233 and 239 of the Code reveals that under such provisions a discretion lies with the court to try the offences of the kind indicated therein jointly in the circumstances mentioned therein, but there is nothing in them to indicate that the court is bound to try such offences or persons together in every case.
Further vide Notification GRHD No.223411/40, dated 5-7-1941, it is provided that where more than one accused are involved the commencement of proceedings should not be held up until all the wanted persons are apprehended, but the case should be proceeded with as soon as the principal accused is/are secured…….such reference is available at page 165 of Federal Capital and Sindh Courts Criminal Circulars 1997 Edition.
Thus there is no bar in separating the case of the absconder from the case of accused who is present before the court. All the courts are directed to adopt such method and immediately proceed with the cases in which some of the accused are present before the court after bifurcating and separating the case of absconder and required process be issued against absconder in those cases.
Another factor, which causes delay, is late submission of challan before the court in violation of provisions of section 173 of the Code. The police officials are exposing themselves to take appropriate action in not submitting the challan within the required period of section 173 of the Code. At the same time, Magistrates were asked to take steps to compel the police officers to submit the challan within time. Sessions Judges were directed to supervise such process sin exercise of their revisional powers.
In order to implement the provisions of section 173 of the Code if the police officer does not submit the challan within the required period then such officer prima facie is disobeying the direction of law contained in section 173 of the Code thereby falling within the ambit of offence punishable under section 166, P.P.C. which is a Scheduled offence of Pakistan Criminal Law (Amendment) Act, 1958. As such if the Magistrate finds that any police officer has violated the provisions of section 173 of the Code then he should either himself on behalf of the court or through any officer of the court file complaint before the Special Court created under the above enactment for prosecution of such police officer. The said court should give preference to the case and the same be decided in accordance with evidence and law within a shortest possible time. Such court shall furnish fortnightly report to the High Court about the progress of the case. If the Magistrate performs his functions in accordance with law and under the supervision of the Sessions Judge, then this problem can be solved adequately.
A copy of the order of the Supreme Court was directed to be sent to Registrars of all High Courts for circulating amongst all the Judges and Magistrates for implementation and strict compliance. The Sessions Judges of the Districts are directed to supply a copy of the present order to the District Bar Associations of their Districts for information and strict compliance. A copy of the order was also directed to be sent to PPO/IGPs of all the Provinces and Federal Capital for strict compliance. The PPO/IGPs should issue special instructions to all SHOs and concerned officers to produce all the witnesses before the Court of Session for trial, failing which strict action as permissible under the law should be taken with information to the concerned Sessions Judge and High Court.
P L D 2010 Supreme Court 585
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