Saturday, September 30, 2017

Guest Post: In Defence of Sonu v State of Haryana

(I am happy to host a Guest Post by Mr. Lakshya Gupta, who is a 2017 graduate of the National Law University, Delhi, and is currently practising criminal law in Delhi

As has already been discussed on this blog, Anvar P.V. v. P.K. Basheer [(2014) 10 SCC 473, 'Anvar'] held that the only way to make electronic records admissible by way of secondary evidence is by adducing a certificate under Section 65-B of the Indian Evidence Act 1872. This blog has argued that:

a)   As per Anvar, the certification under Section 65-B is the only mode of proof for secondary evidence of electronic records;
b)  Sonu @ Amar v. State of Haryana [AIR 2017 SC 3441, 'Sonu'] made a distinction between ‘inherent admissibility’ of evidence and its ‘mode of proof’ and held that the requirement of certification under Section 65-B pertained to the latter and not the former;
c)  Ruling in Anvar must be interpreted to mean that absent a certificate under Section 65-B, secondary evidence of electronic record is rendered inherently inadmissible;
d)   Since Sonu which is a two-judge bench, ruled contrary to point c), it is at fault in not applying the law laid down by Anvar, which was decided by a higher bench of three judges.   

I am in agreement with points a) and b). I, however, contest point c) and consequently d). Further, I argue that Sonu applies Anvar retrospectively and decides a different issue than the one determined by Anvar.

The ruling in Sonu

Sonu relies on a two-judge bench decision of the Supreme Court in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Anr. [(2003) 8 SCC 752, 'Venkatachala'] wherein a distinction was been made between admissibility of a document in itself (inherent admissibility) and the manner or mode through which it is sought to be made admissible. The Court in Venkatachala held that objections with respect to the former could be raised for the first time even at the appellate stage while objections with respect to the latter could not be raised once evidence had been tendered. According to Venkatachala (SCC version, paragraph 20), the:

“… crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular ...”

Viewed in light of the reasoning behind Venkatachala, the ruling in Sonu is that since the objection to admissibility (absence of certificate under Section 65-B Evidence Act) of the electronic record (paper printouts comprising Call Detail Records – secondary evidence of their contents) dealt with the mode of proof, such an objection could not be entertained at the appellate stage, if the same was not raised at the time when the electronic record was submitted in evidence at the stage of trial. This is because had an objection been raised at the trial stage, that would have presented an opportunity to the prosecution to cure the defect as to the admissibility at that stage itself. Since no occasion would be available to cure the defect at the appellate stage, it would be unfair to the prosecution if the evidence on record at the time of trial and not objected to then, was omitted from being considered at the appellate stage.

The ruling in Anvar cannot be interpreted to mean that absence of certificate under Section 65-B renders secondary evidence of electronic record inherently inadmissible

From a close reading of Venkatachala and Sonu, it appears that the question of inherent admissibility concerns the nature of the evidence (electronic record) and is separate from the question in what way this evidence may be made admissible in court (as either primary or secondary evidence). So the question that whether printouts comprising Call Detail Records (electronic record in Sonu) or a CD with recorded files (electronic record in Anvar), is something that can be admitted in evidence, decides the inherent admissibility of such CDR or CD. Anvar does not deal with this question, but addresses whether these electronic records can be read in evidence without a certificate under Section 65-B of the Evidence Act. Anvar, as correctly pointed out by this blog, unequivocally answers this question in the negative.

The holding that this is the only manner in which an electronic record by way of secondary evidence may be read in evidence cannot be interpreted as a comment on the nature or inherent admissibility of the electronic record. While a certificate under Section 65-B certainly has a bearing on the authenticity of the electronic record, it does not in any manner, alter or affect the contents of such CD or CDR. Whether or not a certificate under Section 65-B is supplied, the nature of the CD or the CDR remains unchanged. The question of how you establish its authenticity is different – and while State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru [(2005) 11 SCC 600] provided the option of establishing authenticity with or without a certificate, Anvar held that authenticity can be established only through certification under Section 65-B. This question of establishing the authenticity relates to the mode of proof, the only issue discussed in Anvar. Therefore, contrary to what was argued by this blog, I submit the judgment in Anvar does not deliberate on the issue of inherent admissibility or the nature of an electronic record.  

I must also counter a possible response. An argument may be made that since Section 65-B is a deeming provision, an electronic record can be deemed to be a document only if conditions under Section 65-B are satisfied. If the electronic record fails to meet these conditions, it does not qualify as a document and hence becomes inherently inadmissible in evidence. However, as was held in Anvar itself, the deeming of an electronic record as a document depends only on conditions under Section 65-B(2) and not on the certificate under Section 65-B(4). It must be noted here that conditions under Section 65-B(2) relate to the circumstances of the ‘computer’ and the manner of production of the ‘electronic record’ by such ‘computer’. If these circumstances and manner of production exist, then only the electronic record can be deemed to be a document as per Anvar. Now, the question of inherent admissibility of the electronic record would depend on the existence of these circumstances, and not on the manner in which they can be proved before the Court. Even if the only manner in which they can be proved to exist is through a certificate, as was probably held by Anvar, their existence itself determines the inherent admissibility of the record and not the manner in which their existence is proved. It must also be noted that Anvar nowhere expressly observes that an electronic record cannot be deemed to be a document absent a certificate under Section 65-B.  

Sonu applies Anvar retrospectively and decides a different issue that the one determined by Anvar

Sonu recognises that since the law laid down by Anvar applies retrospectively, requirement of a certificate under Section 65-B was necessary to make secondary evidence of electronic records admissible – and that must be deemed to have been the position of law from the introduction of Section 65-B in the Evidence Act. Since this was the position of law, the objection as to admissibility (failure to submit certificate under Section 65-B) should have been raised at the stage of tendering of evidence. Since the objection had not been raised during trial at the stage of evidence, it could not be entertained at the appellate stage.

So basically, the Court is telling the accused/appellant that – we agree that the position of law is what Anvar held, and so you ought to have argued it at the time when evidence was being lead during trial, and you cannot argue it now, at the appellate stage if you didn’t raise the argument during trial. Hence, the Court in Sonu in fact realises it was bound by in Anvar and reaffirms it.  

In Anvar, there is no doubt that the plea of non-admissibility of electronic record has been accepted by the Supreme Court at the appellate stage. It is crucial here to note that the reasoning of Sonu does not preclude the Court from entertaining objection as to admissibility of the electronic record at the appellate stage, but it bars the defence from raising that objection at the appellate stage when this was not taken at the time of tendering of evidence. Now, this would be a legitimate course of action available to the Bench in Sonu if it can be established that Anvar did not consider the issue determined by Sonu, which is - whether a plea regarding non-admissibility of electronic records (due to absence of certification under 65-B) could be taken at the appellate stage if the same had not been raised when evidence was being tendered during the trial. A look at the High Court decision in the Anvar case (Election Petition No. 3 of 2011 in High Court of Kerala) shows that the plea regarding non-admissibility of CD’s was raised by the petitioner even in the High Court.[1] 

Sonu also notes that Venkatchala was a civil case, and also places reliance on the three-judge bench decision in PC Purshothama Reddiar v. S. Perumal [(1972) 1 SCC 9, 'Reddiar'] which pertained to admissibility of police reports in a criminal trial. The defence in Reddiar had objected to the admissibility of police reports (marked in evidence without any objection during trial stage) on the ground that the police officials who had covered those meetings had not been examined. The Court held it was not open to the accused to raise an objection about the admissibility of the police reports when no such objection was taken at the time when evidence was being lead during trial. While Reddiar did not make a distinction between inherent admissibility and mode of proof, it is clear that the Court was unwilling to entertain objections pertaining to admissibility when they had not been raised during trial. Hence, it was legitimate for Sonu to decide an issue which was not considered in Anvar and the determination of which is in consonance with a bench co-ordinate to Anvar.

As has been correctly identified on this blog, Sonu is concerned that retrospective application of Anvar is ‘not in the interests of administration of justice’ for a large number of criminal cases that have already become ‘final’. However, I disagree that Sonu was a misstep, and submit it stands on firm legal footing.    


[1] The argument in the High Court was that since the CD’s were secondary evidence of the content of the recordings contained therein and since primary evidence of this content (recordings created and stored on mobile phones, digital camera or the computers to which they were transferred) was not submitted in court, the secondary evidence (CD’s) was not admissible since it could not be relied upon as an authentic source.

Wednesday, September 27, 2017

Mahmood Farooqui's Appeal and a Problem of Labels

On 25 September 2017, a single judge of the Delhi High Court allowed an appeal filed by Mahmood Farooqui challenging his conviction under Section 376 for rape, where he was sentenced to undergo seven years rigorous imprisonment and pay a fine of Rs. 50,000/-. It comes in the wake of the Punjab and Haryana High Court suspending the sentence of three students convicted of gang-rape in another case that attracted significant media attention. The decision has garnered mostly negative criticism from what I gather (see here, and here), and I am certain more scrutiny of the opinion will come during the week. At the outset, while the fast pace of the proceedings must be applauded (the appeal has been decided around two years after filing of the complaint itself), it only reminds us of the other side of that coin which is, unfortunately, the only one that 'have-nots' unfortunate enough to be stuck in the Indian criminal justice shall ever see. How many regular hearings from past years suffered so that Mr. Farooqui's case could be heard, we shall never know.   

To have my two cents worth as a lawyer, I think the decision is questionable and there is a good case in appeal. I certainly do hope that an appeal will be filed soon by either the the State / Victim before the Supreme Court. The High Court decision does not, with certainty, tell us why the conviction is overturned beyond telling us that the prosecution case was not proved beyond reasonable doubt. What I mean is, that the Court does not fully commit to either saying that it (i) the entire allegation of sexual acts was not proven, or (ii) only the non-consensual nature of the sexual acts was not proven. Given the amount of time spent by the decision in explaining the idea of consent, one may think it is the latter. The Court has said in paragraph 102: "But, it remains in doubt as to whether such an incident, as has been narrated by the prosecutrix [victim], took place and if at all it had taken place, it was without the consent / will of the prosecutrix and if it was without the consent of the prosecutrix, whether the appellant could discern / understand the same.

Because of this (and because I know that a lot will be said about this aspect by more competent commentators) I refrain from discussing in detail the lengthy discussion on consent that the High Court engages in. Suffice to say that everyone thought we had moved past a time when courts would tell us that "instances of woman behaviour are not unknown that a feeble 'no' may mean a 'yes'" [see paragraph 78]. Such inferences are precisely what the 2013 amendments to the Indian Penal Code sought to exclude when it added an explanation to state that 'consent' for the Penal Code required an unequivocal agreement. The court, instead, offers us another idea and suggests the consent definition may be flipped to requiring proof that there was not an unequivocal disagreement, in situations depending on various factors such as whether the parties are persons 'of letters' and 'not conservative'. 

All this should convince readers that the decision is very muddled and will make for good arguments in the Supreme Court. That appeal will not raise any discussion on what are, I think, deeper problems that this case highlights: a problem of labels and criminal conduct. Rape, Murder, Robbery, Extortion - all these are labels that have carried on in language to describe certain kinds of acts. Legislatures have the authority to change their meaning but don't do so easily, because they acknowledge the connotations of these labels. For instance, if a corporation dumps toxins polluting rivers which leads to death, calling it murder may not cut it, so you make a different label for that kind of act. The Indian legislature decided to change the meaning rape and expanded the kinds of acts amounting to rape in 2013 to include non-consensual oral sex. It could have done so differently, i.e., by adopting different labels for different kinds of acts (treat penetrative and non-penetrative acts differently, for instance). It could have also shed the label of rape altogether, as has been done in other countries. But it decided to stick to the old label, and in doing so it hoped that the condemnation the law had reserved for particular kinds of acts by labelling them as rape for a hundred years could be extended to other acts. It also hoped that judges who had been trained to not think of certain acts as rape, would change their minds simply because the law said that they had to now. I think Mr. Farooqui's appeal shows us that this experiment is not working, at least not yet with judges where (on an average) they seem to have distinctly different social mores than the parties. It might not have been the best idea to adopt an aggregator term and not adopt a more granular approach for sexual offences. The judgment conveys to me that faced with the binary choice between holding a person guilty of rape or not, the judge could not do it because of how serious the accusation is. Was that illegal? Perhaps. But do judges simply apply the law? Of course not, and pretending otherwise will not help. Judges have biases, and smarter laws should account for them. If we assume as a base position that most judges in India are male and hold gender biases (implicit or explicit), then why create an architecture that only gives them two options and stiffens how the bias operates? A better architecture would factor in that bias, and probably avoid decisions like this one.

(this post was updated on 27 September, 2017. The reference to Section 114-A Evidence Act earlier was erroneous, and has been corrected.)

Saturday, September 16, 2017

The Indian Evidence Act - Ringing the Bell for Reform

As an undergraduate student, my professor stressed on the beauty of the Indian Evidence Act 1872 [IEA] before leading us down a traumatic three months. I did not know it then, but he was echoing a very commonly held sentiment of reverence for the statute (for instance, the Indian Law Commission in its 69th Report thought the IEA was entitled to a 'place of pride' in the statute book). During my brief experience in the trial courts, I saw the IEA in operation and have also had opportunities to talk about some issues under its specific provisions on this Blog. But the more I think about, I can't help but arrive at the conclusion that the IEA is a horribly antiquated piece of legislation that has served us well beyond its time. It must go. I am hardly the first or the last person to come to this conclusion - but what surprised me is most of my predecessors have not been from India. Instead, I was exposed to rich argumentation from Singapore and Tanzania, countries where the IEA was transplanted by colonialism. Here, I first take up structural issues and then address functionality concerns, both of which strike at the heart of the statute's existence. My comment heavily borrows from these debates and while the articles are not all freely available, I have indicated sources at the end for reference.*

No Jury, No Problem? 
The 69th Report of the Law Commission (referred to above) was a momentous effort. The Report is massive and provides introductory material on the law of evidence, then considers all lengthy 167 provisions in minute detail, and records notes of dissent. But the context of its birth is as impressive as its comprehensiveness. Democracy had just been revived in India after being thrown into a comatose during a two year long Emergency. The Janata Government had won elections, and riding a wave of popularity undertook a project to review various laws. The 69th Report was part of this project and we get a sense of the urgency from the Introduction which the Chairman ends by saying: "At present the Commission is engaged on the study of Transfer of Property Act; and this task again is arduous and exacting. But let me assure you that the Commission has undertaken this task with the full confidence that it will be able to forward to the Union Government its report on the subject before its tenure expires on the 31st of August this year [the introduction is dated May 9, 1977].** 
  
In this massive, 915 pdf page document, I was dumbstruck to find not a single discussion about the abolition of the jury system in India and its effects on the IEA. The only mention of jurors and assessors is on printed page 869 which recommends deletion of Section 166 IEA, which referred to the role of jurors and assessors where they were part of a trial. All the Commission said was "the system of trial by jury has been abolished ... this section should therefore be deleted." Is this the limit to which a jury system affected the IEA? Absolutely not. 

In a jury system, judges are not triers of fact but decide issues of the law being applied to the dispute. Laypersons decided the factual matrix and whether innocence or guilt flow from this consideration. Admittedly, the IEA was not only written with that idea in mind and was designed to be as effective for judges trying the facts as for cases where juries were triers. But, logically, Stephen was required to cater to the lowest minima rather than design rules for judges in designing the legislation. While Stephen thought judges in India were not top notch, like most Englishmen he thought worse of juries, which explains the strictness of his rules if we think of them as being designed for jurors of poor ability. Moreover, certain rules were clearly designed to limit their prejudicial effect on the minds of jurors that have no basis in a case being tried solely by judges. This includes the 'similar fact' rule, the desirability of which has been questioned in several articles written in the Singaporean context.

Trials had the judges screen the material before it came before a jury to ensure it complied with the rules in the IEA. This system makes objections central: since you can't 'unring the bell', you have to ensure the dubious material never reaches the jury in the first place. Replacing the jury with the judge does not reduce the force of that argument at all for, after all, judges are only human. In retaining the same structure of evidence rules we continue in foolishly hoping for judges to 'unring the bell' by deciding on relevance objections themselves after having seen the material. In fact, this has only been worsened after the Indian Supreme Court held in Bipin Shantilal Panchal v State of  Gujarat [(2002) 10 SCC 529] that objections have to be recorded and then decided at the end of trial during final arguments. Effectively, we now let judges see the evidence, touch it, keep it with them while the case develops, and hope that in the end they can exclude that evidence from their consideration of the case.

Conflating Relevance and Admissibility - Stephen's Splendid Mistake 
That is how Pollock described the idea most central to the IEA. He was joined by Thayer who noted that inverting the English position and fitting in all of evidence law within narrow rules of relevance is what deprived Stephen's work of 'permanent value'. Let me give some context. Traditionally, the basic rule of evidence is that everything relevant is admissible. The Federal Rules of Evidence in the United States explain relevant evidence through Rule 401 as anything making a fact more or less probative, which fact is material to the case at hand. This loose formulation leaves it for the trier to decide whether things are relevant. This enquiry is governed by a framework which excludes relevant evidence for policy concerns, for instance, excluding confessions elicited through use of prohibited force.

In the IEA, Stephen reversed this logic. He prescribed strict rules for determining what is, and is not, relevant. He had his reasons as I briefly mentioned above - judges and lawyers being poorly trained in India, juries needing more careful handing. But beyond this reversal, Stephen did not change much of the English law of evidence - what were, traditionally, inquiries of admissibility, had been converted to be understood as questions of relevance and bundled together through Sections 5-57. Out of these, I would term some as hard rules and others being soft. For example, the exclusion of confessions to police officers by accused persons under Section 25 was a hard rule because it did not allow for the evidence to be considered at all. Whereas provisions such as Section 7 (explaining how certain facts are relevant if they establish cause and / or effect) are soft rules because they allow for facts to be looked at, and then applied.     

Keeping aside the slurs on judges in Indian courts, one can imagine a trial working with a jury in largely the traditional manner, albeit with tighter restraints on what is fed to the jury. The judge still exercises oversight, and lawyers raise objections to prevent bad material from being considered. But take the jury away, and it simply does not work anymore. What we have then, is judges ignoring all the soft rules on relevance with all hard rules being conflated with admissibility. The ignorance of soft rules is compounded by the extremely convoluted and overlapping nature of those provisions, which in effect are treated as statutory verbiage for the traditional rule that whatever the judge thinks is relevant, is admissible. I am not making heretical claims here - a bare perusal of appellate decisions confirms how judges have a free reign on bringing in evidence as long as it is not barred. Relevance, as Stephen originally created in the IEA, has thus ceased to function.

Conclusion
The Law Commission reviewed the IEA again in the 185th Report (access it from the link) which was even longer than the 69th Report. Yet, there was no consideration of these issues and all the Commission did was express its agreement that Section 166 ought to have been deleted (which it was). The IEA is a bad statute. Its core is rotten, its context altered, and several provisions - the ones on judicial notice and presumptions especially - either just don't make sense or can be significantly reduced in size. And this post does not utter a word about how the Supreme Court has tortured some of the text over time. 

Why, then, must we continue to carry the burdens of this clunky, nearly 150 year old document? The easy answer is the cynical one - lawyers don't want things to change because they will go out of business soon enough if the law became simpler. But that can hardly suffice. The other answer can be found in the same 69th Report where the Law Commission gave the IEA 'place of pride'. It went on and noted that "respect for its excellence should not amount to blind adoration bordering on deference." The deference, as I have tried to show, is entirely unwarranted.

---

Notes:

The Singapore Evidence Act first came in as the Straits Evidence Ordinance in 1893 and, barring a few modifications, is a nearly complete copy of the Indian Evidence Act 1872. I have relied upon the following pieces from the Singapore context: (i) Robert Margolis, Evidence of Similar Facts, the Evidence Act, And the Judge as Trier-of-Fact, 9 Sing. L. Rev. 103 (1988); (ii) Robert Margolis, The Concept of Relevance: In the Evidence Act and the Modern View, 11 Sing. L. Rev. 24 (1990).

Tanzania has the Tanzania Evidence Act 1967 which, again, is a nearly complete copy of the Indian Evidence Act 1872. In 2011, the Tanzanian Government initiated a project to reform the law and the team included Professor Ronald Allen. Their efforts were published in a three part series run in the Boston University International Law Journal which I would strongly urge everyone to read: Part One, Part Two, and Part Three is the Draft Law prepared.

**
The Janata Party failed to get any of the criminal law reform bills passed through parliament. 

Wednesday, September 13, 2017

Criminal Procedure and Clogged Dockets - Reverse Engineering Solutions?

The delay and docket logjams in the Indian criminal justice system have been so abysmal for so long that, at some level, they've lost their shock value. Year on year, local and international reports will be dutifully published highlighting the plight of the system. The government has done its bit too, with the Indian Law Commission having reviewed the issue of delays on multiple occasions (the reports can be accessed on its website). Beyond losing their shock value, while reading most of these reports I also saw that the pervasive nature of the problem has also rendered discussions on solutions stale, with the same drum being beaten incessantly (for exceptions, see this piece by Vrinda Bhandari).

The solutions (give or take a few) range from (i) increasing courts, (ii) increasing fast-track courts, (iii) increasing alternate dispute mechanisms like Lok Adalats, (iv) make judges work more, (v) introduce time-limits for cases, (v) reinvigorate the dormant plea-bargaining system, (vi) enhance quality of investigations. If the criminal justice system were to be viewed as a funnel (to borrow an old and often-repeated imagery) with the persons who don't commit crimes at the broad top of the funnel and those who go to court at the narrow tip, then we see that these solutions are all focused at the tip. Everyone is talking about what happens when we reach the end of the funnel - why not look at what happens at the start itself?

If you think that there are no steps from the top of the funnel till its tip, you're quite mistaken. There are various steps, and each involves an exercise in discretion. Take speeding on the road as an example. First, not everyone who breaks the law gets apprehended - so the first filter is how many people get caught. Out of those who get caught, the second filter is how many of those are arrested and proceeded against at all (a talking to is all that you get). Next, out of those proceeded against, how many are actually made accused persons with a charge-sheet against them. After which, there is the possibility of discharge / dropping proceedings / settlement. Only after this do we get to cases that stay in courts.* So, what I am suggesting is that the current debates are (at best) only looking at when the courts get involved. But there is so much that happens before that needs to be looked at as well.   

At this stage you might have two conjoint objections arguing basically that everyone who gets caught in the web of law enforcement should be prosecuted and taken to court. Should they, really? The view is based on a gross assumption that the criminal justice system is capable of handling so many cases, which it is not. And in our already bloated criminal justice system, the capability to add fresh cases each year is especially reduced. Do the police know this? Of course they do. Are they encouraged to exercise greater restraint in taking cases forward? I don't think so. Should they be the ones making the decision to take the case forward? That is the big question that I think is not being asked often enough in our system. Most reports on police reform that I saw did not discuss this either and were more focused on improving administrative structures and the quality of investigations, rather than discuss the exercise of discretion (see, Model Police Bill 2015, PRS Report on Police Reforms 2017, Model Police Act 2006, Human Rights Initiative Report

If I am a police officer who invested months in an investigation, and then another few months in preparing the file of the case (all thanks to our cumbersome processes), will I ever think that the case should not be tried and justice not be done? If my track record rests on how many charge-sheets I file, am I not incentivised to add cases to the courts? The case is different from the crime and since the police are experts at dealing with the latter, they often make bad decisions about the former. This why the Criminal Procedure Code 1973 [Cr.P.C] stipulations in Section 169 requiring police officers to not take cases forward when there is deficiency of evidence are rarely applied in practice. Cases may not get taken ahead for many reasons when a crime is certainly committed - lack of evidence is obvious, but equally important are cost-benefit considerations since each trial imposes sever costs on the exchequer (as a judge constantly reminded me in the District Courts at Saket in New Delhi, you lawyers make citizens pay for each adjournment you take).  

Should, then, we have greater discretion being invested in prosecutors to take the decisions of what cases reach the court? This is common practice across the globe. Owing to certain issues with political interference in prosecution office across states with several posts in the Directorate of Public Prosecutions lying vacant without court intervention, I don't know how useful will it prove to have prosecutors make those calls. But I don't merely proceed on an abuse basis to make a claim - there are legal objections towards such a re-orientation. This comes from the primarily inquisitorial model that the Cr.P.C. contains in which judges have supervisory powers over the investigations being conducted by the police. The Supreme Court has already construed this to include a pro-active duty to monitor investigations in Sakiri Vasu and so I argue that this duty requires courts to throw bad cases away as well. This opportunity will not only present itself at the start when a police officer has to report to a magistrate upon beginning an investigation under Section 157, but will come periodically if a person is in custody due to the limits placed upon pre-trial detention under Section 167. Moreover, if the case is sent to the Magistrate after completion of investigation then the Magistrate can only recommend cases be sent for trial after considering various factors such as evidentiary satisfaction, costs, docket control etc. This would, naturally, mandate that the trial not proceed before the magistrates.     

This is a germ of an idea which is riddled with problems that I hope get exposed in the comments. But I do think that in reversing the focus and looking at the top of the funnel rather than the end, we might be able to come up with better solutions for our ailing criminal justice system. 

* The funnel analogy and this discussion are not my own ideas and were exposed to me as part of a class that I am currently enrolled in for my LLM at Harvard Law School.