Justice Means Equal & Fair Opportunity To Win Against Most Powerful, Even State Itself: Justice Sanjiv Khanna

He was speaking at the Odisha Judicial Academy, Cuttack on Saturday, where he released the ‘Annual Report-2022’ of the Orissa High Court and also flagged off the ‘District Judges’ Conference-2023’. Chief Justice of the Orissa High Court Dr. Justice S. Muralidhar and Judges of the High Court attended the event.

‘Justice’ In Criminal Law

Justice Khanna stressed upon the roles of Articles 14, 21, 22(1), 38 and 39A of the Constitution in adjudication of criminal matters by the Courts. He said collective reading of Articles 22(1) and 14 essentially means that when a person is not able to afford a legal practitioner of his choice, he must be given equal protection of all laws.

He underlined that the abovementioned provisions particularly emphasize the word ‘justice’ and said,

“Justice can have various connotations and meaning but as far as justice in criminal system is concerned, it means existence of Rules that provide a right to a fair and a just decision. [It means] Rules that provide an equal and fair opportunity of winning against the most powerful and against the State itself.”

Citing Desmond Tutu's famous quote — “if you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality” — Justice Khanna said it should be the basis on which a judge ought to proceed when he decides that he has to take a more proactive and affirmative approach. But, he cautioned, at the same time the judges have to be extremely cautious as they suffer from internal and hidden biases and prejudices.

Decay Of Truth In Courtrooms

Justice Khanna said that with the advent of technology and social media, there is a huge decay in the spread of truth.

“This [decay of truth] has happened because [there is a] huge amount of false information, manipulation of data, use of sensational guidelines to gain larger audience. [With] the rise of social media and abundance of online news sources, it has become easier to manipulate public perception of truth. This results in distortion of representation of events and issues. While finding truth and separating grain from the chaff is already a mammoth task for all of us, truth decay makes it almost impossible to uncover the falsities and deliver justice.”

He expressed concern that there is an increasing disagreement about facts and data and also a blurring of line between ‘opinion’ and ‘fact’. He also said that the increase in misinformation has resulted in declining trust in the facts.

Importance Of Procedural Safeguards

Justice Khanna underlined the importance of procedural rights in the adjudication of criminal cases. He said earlier there were a lot of discussions on the meaning of the phrase ‘procedure established by law’. However, after the decisions in Maneka Gandhi v. Union of India and other cases, it is fairly well-settled that the procedure established by law must not only be fair, just and reasonable but it must also be right, truthful and clear.

While talking about criminal adjudication and procedure, he mentioned Section 41A of the Code of Criminal Procedure, 1973. He highlighted that under the provision it is ensured that a person, who is summoned or asked to appear pursuant to the notice given by the investigating officer, does not feel isolated or intimidated. It keeps a check on police aggression and abuse of power.

He referred to the decision of the Apex Court in Prakash Singh v. Union of India, particularly the direction for establishing a police complaint authority. He lamented that the direction has not been implemented in several states. He also cited the recent decision of the top court in Satender Kumar Antil v. Central Bureau of Investigation & Anr., which has provided guidelines to streamline the process of grant of bail.

Justice Khanna highlighted that in Satender Antil, the apex court directed the Courts to dispose of bail matters within a period of ‘two weeks’ with an exception of express provisions mandating the contrary. It also requires the courts to decide applications for anticipatory bail within a period of ‘six weeks’. The Supreme Court has also directed that the mandate of Section 436A, Cr.P.C. as explained by it in Bhim Singh v. Union of India should be followed.

He then proceeded to analyse the statistics vis-à-vis the mandates and guidelines. He said from the data of the years 2019, 2020 and 2021, one will find that the ratio of under-trial prisoners (UTP) vis-à-vis the convicts was alarmingly high and the number of the UTPs is gradually increasing.

Justice Khanna then referred to the judgment of the Supreme Court in Re-Inhuman Conditions in 1382 Prisons, particularly the direction to set-up Under-Trial Review Committees (UTRCs). The committees were tasked with the examination of persons who are undergoing trials and wherever they have become eligible to be released on bail, the committees were to move applications for grant of bail and ensure that those UTPs are released.

He also made a reference to the historical guidelines issued in D.K. Basu v. State of West Bengal and said,

“At the time when the accused appears for the first time and is produced from police custody, we must ensure whether these guidelines have been complied with. It may be advisable at that stage to put a mark on the document produced by the police to show satisfaction of the D.K. Basu guidelines.”

Spotlight On ‘Case Diaries’

He also highlighted the importance of case diaries in adjudication of criminal cases. He said that case diary is the biggest check against arbitrary police investigation. He cited his own experiences in several cases as a Judge of the Delhi High Court to showcase how vital aspects related to case diaries are often ignored by the trial courts, which affects fair decision making.

Accordingly, he advised the judges present at the event to go through the case diaries thoroughly while deciding cases and to mark them appropriately so that any changes cannot be made therein at a later point of time.

Witness Protection Schemes

He also talked about the schemes for witness protection, which saw light of the day after the judgment of the Delhi High Court in Neelam Katara v. Union of India wherein order was passed for establishment of a competent authority to determine the need, extent and cost of police protection, to assess the nature and risk of security of the witnesses and also to examine the gravity of the testimony of the witnesses. He requested all the District and Sessions Judges to go through the guidelines provided under the Witness Protection Scheme, 2018.

The Issue Of ‘Hostile Witnesses’

He spoke about another common problem in criminal trials, i.e. hostility of witnesses and highlighted broadly three reasons for such hostilities, viz., (i) threat to witnesses; (ii) failure on the part of police to record true and correct statement under Section 161, Cr.P.C. or planting fake witnesses; (iii) unwillingness on that part of witnesses to depose due to personal reasons like relationships and friendships.

Victim Compensation

Justice Khanna invited attentions of the audience to various schemes for victim compensation such as the NALSA (Victims of Trafficking and Commercial Sexual Exploitation) Scheme, 2015, the NALSA (Legal Services to the Victims of Drug Abuse and Eradication of Drug Menace) Scheme, 2015 and other schemes for legal services to disaster victims through Legal Services Authorities.

Personal Attendance: ‘Loss Of Daily Wage’

He also advised the judicial officers to have regard for the provisions under Sections 205 and 317 of the CrPC which throw light as to when exemption from personal appearance should be granted.

“Let us not forget that many times when the accused appears in the Court, the case is simply adjourned for want of evidence and documents etc. But what happens also is he loses his daily wage and for him, then it is a problem. Because many of them, who are facing the prosecutions, face the hostile environment as far as employment is concerned, the social stigma is concerned. So, wherever you feel that the accused will not abscond and will be present on the time when he is required to be present and the trial has got prolonged and insistence of the accused to appear in-person is not really required because he is adequately represented…it should be exercised.”

Lastly, he appreciated the initiative to convene District Judges’ Conference. He said that District Judges must come out and speak of their respective best practices. He encouraged them to discuss the issues of the district judiciary and said that only when courts of first instance are efficient, the appellate courts will be able to avoid their ‘docket explosion’.