The Telegraph
Since 1st March, 1999
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Guilty or innocent' Let accused speak

New Delhi, April 21: India might change its criminal law principle that an accused is “presumed to be innocent” until proven guilty — carried over from the Anglo-Saxon legal system imposed during colonial rule — if the recommendations of the Justice V.C. Malimath Committee appointed to review criminal laws are accepted.

This would mean that the burden of proving innocence would lie with the accused rather than the prosecution having to prove the person’s guilt “beyond reasonable doubts”.

The Malimath Committee report, which has suggested sweeping changes to the country’s criminal laws, was submitted today to the Union home ministry.

Presenting the report to deputy Prime Minister L.K. Advani, who holds the home portfolio, Malimath said the changes were proposed for the first time in 150 years. He also recommended that from now on, criminal laws be reviewed every 15 years so that they are in tune with the “changing times”.

The “criminal justice system is virtually collapsing under its own weight as it is slow, inefficient and ineffective” due to which “people are losing confidence in the system”, the report said.

The present system of the prosecution having to prove the guilt of an accused “places a very unreasonable burden on the prosecution”, the committee said in its report and recommended that in India, like in the continental countries, a “clear and convincing” standard of proof should be statutorily prescribed.

For example, ministers and other VIPs caught with wads of currency notes on their premises during raids need not come under the category of “presumed to be innocent till proved guilty beyond reasonable doubts”.

The committee recommended that evidence recorded in video and audiotapes before a police officer of the rank of a superintendent should be admitted as evidence. At present, confessions recorded by police are not admissible as evidence on the belief that the police often resort to torture to extract a confessional statement. But with the strides in technology, videotapes could be used so that a magistrate can be convinced whether the person making the confession is under duress, it said.

The Malimath Committee, constituted on November 24, 2000, also made a case for amendments to Section 125 of the Criminal Procedure Code (CrPC) so that “a woman living with a man like his wife for a reasonably long period is also entitled to the benefit of maintenance”. A recent Cabinet note had recommended recognition of “illegitimate wives” — as “illegitimate children” of a man are recognised by law — for “maintenance”.

On the law for rape, the report prescribed that “non-penile penetration” should also be construed to constitute an offence along the lines of rape.

Malimath has said that domestic laws dealing with organised crime should be amended in conformation with the UN convention on transnational organised crime.

The committee said “economic crimes” are mainly related to corruption, evasion of tax, channelling money through hawala routes and related unlawful activities.

It recommended that a “Serious Fraud Office” should be established by an Act of Parliament and given adequate power to investigate and launch prosecution into such cases with utmost speed.

The former Supreme Court judge has suggested that once life imprisonment is imposed, it should not be reduced or commuted. The convict should serve the longest period of 14 years of imprisonment.

Malimath recommends segregation of the investigative wing of the police from law and order functions. “To insulate the investigating agency from political or other influences and to ensure fair treatment to them (investigating officers) the committee has recommended the constitution of (a) National Security Commission,” he said.

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