Time stands still: The slow pace of judicial proceedings in India has long been a matter of concern

It took nine years before Shivani Bhatnagar’s ghost could be laid to rest. A court in Delhi convicted the accused — among whom was a senior police officer — for the murder of the Delhi journalist in March 2008.

She was killed in January 1999. And the delay happened despite the fact that this was a high-profile case.

The slow pace of judicial proceedings in India has long been a matter of concern. India’s clogged courts and lingering cases are so well known that a group of American students from the Northwestern University School of Law, Chicago, is now in the country in an effort to understand why criminal cases in India drag on for years.

Long winding cases often end up with no convictions because of a limitation clause that gives an outer time frame within which a case has to be taken note of. Often, it is used by investigating officers to delay justice. Sometimes it is because the police investigation is tardy; more often it is because sections of the police are seen to be working in tandem with the accused.

“We frequently come across cases in lower courts where the investigating officer tactfully delays investigation procedure to cross the limitation period for filing a case. Even magistrates fail to take timely cognizance due to procedural delays. In many cases, the accused gets bail as the charge sheet is not filed within the limitation period. Many cases are quashed on this ground,” says Ramkrishna Roychowdhury, criminal lawyer, Alipore Judges Court.

But in its landmark judgment last year, the apex court has quashed an Orissa High Court judgment and held that a complainant should not in any way suffer because of the limitation period, provided the complaint has been filed within a specified time. The Orissa High Court had quashed a criminal proceeding against an accused on the grounds of limitation.

“Once a complainant files a petition in the magistrate’s court, the complainant’s obligation is discharged. He has placed the matter before the magistrate. Thereafter, if there is any delay in taking cognizance for which the complainant cannot be faulted, then his complaint should not suffer due to the limitation clause,” feels Joy Sengupta, lawyer, Calcutta High Court.

Legal experts point out that there are several instances where investigating officers have deliberately delayed the submission of a charge sheet, making it possible for an accused to walk out on bail.

“In many serious cases the accused gets bail if the charge sheet is not filed on time,” adds Sengupta. There have been cases where the judges could only express their displeasure at the delay in filing of charge sheet, but gave bail to the accused.

A case can also be delayed for other reasons. In many instances, the police have refused to register complaints at a police station. In such cases, the complainant can submit a prayer before the chief judicial magistrate to direct the officer-in-charge of the concerned police station to treat the complaint as an FIR and start the investigation.

It is not always the police. “At times, magistrates in whose courts complaints can be lodged are not available or they are too busy with some other work,” says Alok Mitra, senior lawyer, Calcutta High Court.

“But how can such grounds be reason enough to end a criminal proceeding when a complainant approaches the court well within the time limit prescribed by law?” wonders Mitra.

The Supreme Court judgment will undoubtedly help those who have been victims of the system. Section 468 of the Criminal Procedure Code (CrPC) deals with the limitation clause. It states that the period of limitation shall be: a) six months if the offence is punishable by fine only; b) one year if the offence is punishable with imprisonment for a term not exceeding one year; and c) three years if the offence is punishable with imprisonment for a term exceeding one year but within three years.

Section 469 of CrPC states that the commencement of the period of limitation can be: a) on the date of the offence; b) from the first day when the offence comes to the knowledge of the aggrieved person or the police; or c) from the first day when the identity of the offender is known to the investigating authority. The magistrate is empowered to take cognizance of it on receiving information or a complaint from the aggrieved person, police or from any other source. The proceedings are then initiated.

“The apex court has observed that if the complainant is penalised because of the omission, default or inaction on the part of the court, magistrate or investigating authority, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution,” points out public interest litigation expert Rajesh Ganguly, referring to the principle that gives a person equal right to the law.

The Supreme Court noted that so far as cognizance of an offence is concerned, it is an act of court over which neither the prosecuting agency nor the complainant has any control. For instance, take the example of a case which has a limitation period of three months. If a delayed investigative process leads to the limitation period being lapsed, the court has to take into account when the complaint was filed.

“The question of delay in filing a complaint may be taken into consideration while arriving at the final verdict. But by itself it affords no grounds for dismissing the complaint,” adds Ganguly.

However, the ground reality cannot be ignored. “An accused person cannot be kept under continuous apprehension that he can be prosecuted any time for any crime irrespective of the nature or seriousness of the offence. People will have no peace of mind if there is no period of limitation even for petty offences,” says Mitra. So the provision of limitation must be there. But, yes, it is for the authorities to ensure that it is not misused.

The group of American researchers, which is holding discussions with Supreme Court judges, lawyers and members of the law ministry to find out why the legal process is so slow in India, may go back to the US with a better understanding. And the Indian victims of a system loaded against them may well have reason to cheer.