Doing Justice: Peaking into the Mind of a Judge:
During my career as a Judicial Officer, I have come across many situations which are ticklis. In order to simplify the work of magistrates and elucidating their role, I am describing some situations which can be challenging and the solutions to them.
REMAND:
Remand is the act of sending back into judicial custody , an accused person awaiting further proceedings. At the time of remand the magistrate has to see whether, on the basis of the material produced by the investigating officer, the offence alleged is made out or not against the accused produced before him. The magistrate has the power to refuse the prayer for remand, if the case diary, the F.I.R., and any other material produced before him do not point to the involvement of the accused in the crime.
Actually, the stage of remand is the first stage when the magistrate exercises control over the police. And in my opinion, if the magistrate does not exercise effective control over the police, he will have to depend upon the police, instead of the other way round.
Sometimes the criminal case is registered and being investigated in any other city or place, beyond the local jurisdiction of the magistrate but the accused is arrested by the police within the local jurisdiction of the magistrate, then the magistrate can allow the transit remand for a period expected to be taken in the journey to the place where the case is registered. This provision exists in S. 167(1) Cr. P.C., which casts a duty upon the investigating officer to produce the accused before the nearest magistrate and not before the magistrate having jurisdiction, that magistrate may not have the jurisdiction over the case.
BAIL
Property or money given as surety that a person released from custody will return at an appointed time. There are three classes of offences categorized in the First Schedule of Cr. P.C., which describes the offences as bailable, non bailable and session triable or magistrate triable. In case of bailable offences the bail is granted as of right under Section 436 Cr. P.C. This means that if the accused is remanded to the judicial custody in a bailable offence, he must be granted bail if he is ready to provide the requisite securities sought by the court. Here the magistrate is bound to grant bail.
If the offence is reported to be triable exclusively by the court of Session, then again no detailed bail order is required. One need only mention the legal provisions under which the accused is remanded, along with sureties, bail shall be granted under the discretion of the magistrate. The magistrate is empowered, by virtue of S. 437 Cr. P.C. to grant bail in all the cases except those punishable with death or life imprisonment (non- bailable offences), but it is always safer not to exercise that power loosely, as one always has to mention the reason for exercising that power.
When it comes to cases triable by the magistrate himself, one MUST exercise the discretion vested by the law cautiously. One feels in a position of great responsibility when sitting to try criminal cases; wherein one holds the power to effect change in the life of the accused and grant relief to an aggrieved party. It often becomes extremely difficult to decide on way. A novice magistrate may be swayed away by an innovative argument put forth by a lawyer representing one party, yet experience will teach one that he has to remain firm and contrite. He has to act in accordance to the law. And give a reason for his every step. If he decides in favour of one party, the other should know why he has failed. Such reasoning has to be backed by solid logic and law. It cannot be arbitrary. At the end of the day after one has decided in favour of one party the magistrate ought to be bold about it. He cannot be in two-minds; if he does not decide then where will the victim go to seek justice? Hence, when the question of bail arises, discretion has to be exercised to ascertain whether a person deserves it or not.
ACCEPTING SURETIES
After the bail order is passed by the magistrate or the Sessions Court, the accused offers the sureties. The purpose of asking for the sureties is to ensure the presence of the accused at any time required by the court therefore, the more closely related the sureties are to the accused the better control they will be having over the accused and will be in a better position to present the accused before the court. Here the identity and address of the accused person has to be verified thoroughly.
DISPOSAL OF PROPERTY
Disposal of case property, during the pendency of trial or investigation is also somewhat problematic for the magistrate. S. 451 Cr. P.C. relates to the disposal of property pending trial and S. 452 Cr. P.C. relates to the disposal of property at the conclusion of the trial.
According to S. 451 Cr. P.C. the magistrate can pass such order as he thinks fit for the disposal of property pending the conclusion of inquiry or trial. It means that the magistrate can order the case property to be given in the custody of the applicant if the applicant claims the ownership or the possession of the property. It will be proper, in such cases to produce the proof in support of the claim. Generally, the vehicles are taken into custody by the police and the applicant claims the custody of the vehicle being the owner, in such cases it is proper to ask for the registration certificate of the vehicle. The weapon used in the offence, if it is a licensed weapon is also taken into custody by the investigation officer and the accused applies for the release of the weapon, in such cases the license of the weapon is necessary. But if the weapon is to be sent to the Forensic Science Laboratory for testing, then such weapon should not be given in the custody of the accused, as there may be chances of tempering with the weapon. While passing the order for the custody the applicant should be asked to furnish surety for the production of the property whenever required by the court and also an undertaking to the effect that the applicant will not dispose the property without the order of the court nor he will change the appearance of the property. Sometimes, and especially in the case of firearms, the investigating officer reports that the proceeding for the cancellation of the license are pending before the District Magistrate or the proceeding for the confiscation of the case property are pending, but until those proceedings are final and the order for confiscation is passed, the magistrate can legally pass the order for their disposal.
CUSTODY OF GIRL OR MINOR
One of the most disputed matters is that of the custody of the girl or the minor, who is recovered by the investigating officer. It is the job of the officer-in-charge to hand over the girl or the child in the custody of the person whom he deems fit. But in order to avoid any controversy the officer produces the girl/child before the court and the controversy is taken care of by the court. In such cases the magistrate should see if the girl is major or minor and during the period of determination of minority through the medical examination or the certificates, the girl should be sent to the Nari Niketan. If the girl is found to be major, she should be set free to go to any place of her choice but if she is found to be a minor, she must be given in the custody of her parents.
To conclude, when I started out as a magistrate, I was overwhelmed by the day-to-day issues that I was engaged in. I felt responsible for the most insignificant and procedural of orders and directions; after all someone was to be affected by the same. In a country where evidence collection mechanisms are slow, corruption is rampant and judicial process is tedious it is important to learn how to make a decision and to make it quickly without deferring it time and again. The above mentioned problems are only a few; in conclusion I can only say this that indeed every day brings something new to the office of a judge which only accumulates to constitute the great wealth of experience that I have gathered thereby.
PRAVEEN KUMAR
Judicial Magistrate First Class, Agra.
Presiding Officer,
U.P. Avas Evam Vikas Parishad Tribunal,
Agra.