Why did Salman Khan's trial take so long? Because that's how law works in India

By Abhinav Sekri Close to 13 years have passed since FIR No. 326 was registered at Bandra Police Station, after that sombre September morning that saw one pavement-dweller killed and four others maimed by a speeding car that crushed them in their sleep. During this time, the State of Maharashtra has steadily, albeit slowly, proceeded in a trial against the prime accused in this case, actor Salman Khan. Khan was alleged to have been driving the car rashly, under the influence of alcohol. After a long-winded series of trials that saw plenty of drama, multiple changes of venue, deaths of witnesses and the disappearance of evidence, arguments finally concluded in April 2015. Today, the actor has been found guilty of the charges framed under Sections 304 (Part II), 279, 337, 338 and 429 of the Indian Penal Code, 1860 (IPC) read with Sections 134, 187, 181 and 185 of the Motor Vehicles Act, 1988. With the exception of Section 304, the remaining sections mostly pertain to rash driving, speeding and consequent injury caused to people and property. [caption id=“attachment_2232032” align=“alignleft” width=“380” class=" “]  Image courtesy: Solaris Images[/caption] So what exactly transpired during these thirteen years, and why did it take so long? Did it take 13 years only because Khan occupies a more privileged position in society than others? Would different charges have made a difference? Did Khan even have a plausible defence? Proving One’s Case Is it just a waste of time to have Khan put up a defence when the whole country knows he did it? Thankfully, the law remains blind to public opinion (textually, as one cannot read the mind of the judge!). Criminal law adheres to notions of presuming the innocence of an accused, requiring the prosecution to establish its case beyond all reasonable doubt. The differences between how charges are proved under Section 304-A as against Section 304 certainly affected the defence strategy. To prove a charge under Section 304-A is significantly simpler than proving the culpable homicide of Section 304 (Part II) IPC. For the latter, the prosecution needs to prove the enigma that is a “culpable mental state”. Simply put: the accused must have committed the act/illegal omission with the knowledge that this would lead to death, in contrast to Section 304-A’s negligent act, which doesn’t require one to have such knowledge. The retrial began in January 2014, and the defence – unsuccessfully, it turned out - sought a direct strategy of seeking an acquittal on all charges. The defence story has been that Khan was not at the wheel, in support of which varied theories have been offered (ranging from a ‘confession’ by his driver to a suggestion that the victims were killed by a crane, not the car). The only eyewitness to this fact, Ravindra Patil (a former constable in the Maharashtra Police who, along with other witnesses, disappeared under mysterious circumstances during the first trial), testified against Khan. However, he died midway through the first trial in 2007, giving the defence some scope to raise reasonable doubt on that front. In 2014, they opposed the prosecution’s request to use Patil’s recorded statements from the first trial as evidence in the final trial (unsuccessfully, since the judge allowed the recorded statements to be used). And as is evident from the verdict, the defence, despite all its tactics, failed to establish any reasonable doubt in the mind of the judge regarding Khan’s guilt. Trials and Travails The 13-year long trial was not quite the result of extra-legal considerations attracted by Khan’s celebrity, but something that could happen in a trial against anyone, given certain circumstances. Currently, the law remains tight-lipped about the grant of adjournments during a case: Section 309 of the Criminal Procedure Code 1973 [Cr.P.C.] makes it extremely difficult to seek adjournments during recording of evidence. However, there’s a great gap between the text and what’s practiced. Lawyers are often busy in other courts; clogged dockets make daily trials difficult; the judge might be on leave; witnesses may not appear in court. Such circumstances make delays inevitable in nearly every trial today. The last of these instances – of witnesses not appearing – was responsible for delaying matters by at least three years in Khan’s trial. To compound matters, several documents disappeared during the trial. This is unsurprising given the general maintenance of malkhanas at police stations, and a lengthy trial would thus only increase the probability of evidence disappearing or deteriorating. So what explains the sudden speeding up of Khan’s trial over the last couple of years? It is common practice for the judiciary to tackle long-pending cases and dispose of them faster. Consider a parallel: if you live alone (like young litigators I know), you generally finish the older slice of pizza in the fridge first, knowing that the box you just ordered can wait a while. That said, a round of applause for Judge Deshpande, for completing the trial in just over a year and finally concluding the 13-year long travail. The progress since his taking charge can be seen courtesy of the very accessible case information system run by the The Maharashtra District Courts Website. One can see detailed orders being put up for public view on daily applications. This is not standard practice and such digital access of district court materials is a rare phenomenon in India today. It may well be a by-product of the media following Khan to Court. After all, leaving aside the odd implosion, even the Indian Cricket team performs well when under strict scrutiny! The Problem of the Charge The particular charges framed against Khan have attracted a great deal of attention and litigation, most of which hinges on the difference between Section 304 and Section 304-A of the IPC. The original charges framed included one under Section 304 IPC. This was challenged before the High Court, which in 2003 amended the charge and replaced Section 304 IPC with Section 304-A. The State then moved the Supreme Court against this order. Although the High Court was criticised for its approach, the Supreme Court observed that since the trial had begun, it would be unwise to further alter charges. However, it clarified that the power to alter charges remained with the Magistrate (under Section 216 Cr.P.C.) and that necessary alterations could be made at a future stage of the trial, if warranted. Which is exactly what the Additional Chief Metropolitan Magistrate did 10 years later, and placed the case before the Sessions Judge, which is the competent court to try a case under the higher charge of section 304. By this time, many witnesses had been examined and cross-examined on the charges under 304-A IPC, and the defence requested a retrial to allow Khan to defend himself against the more serious charge under Section 304. A retrial was allowed and began in January 2014, culminating in today’s conviction of Khan on all charges. Section 304-A vs. 304 IPC So why did it matter whether charges were framed under Section 304 of 304-A of the IPC? The primary reason here, for me at least, was the gravity of punishment. Section 304 punishes “culpable homicide not amounting to murder” [as defined under Section 299 IPC] and is divided into two parts. We are concerned with the second, which allows for imprisonment up to ten years. Section 304-A punishes “causing death by a rash or negligent act, not amounting to culpable homicide”, with a maximum of two years’ imprisonment. Further, Khan could have immediately sought release on bail following a conviction under Section 304-A while now under Section 304 IPC, he has been sentenced to five years’ imprisonment, which requires him to move the High Court for release on bail, pending the filing of an appeal against the conviction. (There are also differences in how the offences are proved, which we will come to later.) The likelihood of a trial under Section 304-A concluding faster than one under Section 304 IPC is definitely higher. But there is a problem here: if the facts label my actions as rash and negligent and the law creates a specific offence under Section 304-A, should this not override the more general offence under Section 304? I think it should, but the courts disagree and in doing so try to present a rather confusing logic which I won’t try and tackle. The real reason for this strange practice is the difference in potential punishment between the two sections, which has led to a situation where judges incline towards framing charges under Section 304 when the incident appears rather heinous. Those interested in reading further might find useful the Supreme Court’s 2012 decision in another high-profile hit-and-run case from Bombay: that of Alistair Pereira (who received three years in jail). If nothing else, one hopes that the scrutiny surrounding Khan’s trial warrants a re-look at the punishment possible for Section 304-A offences, or a possible reconsideration of the offence itself - as the Supreme Court itself suggested in Alistair Pereira’s case. As it happens in a country obsessed with its celebrities, the nation today is riveted with updates on the case. Khan has appealed against the decision before the Bombay High Court, and has obtained an urgent hearing of his bail petition. While the case has not been the best advertisement for the Indian legal system - especially regarding the handling of evidence and witnesses - it remains testament to the fact that the wheels of justice grind slow, but grind fine. But for the other victims who survived the incident, justice delayed is as good as justice denied. (Abhinav Sekhri is an Advocate litigating on criminal law in Delhi. He runs a blog on criminal law, called The Proof of Guilt. Special thanks to Manish G, at the Centre for Social Justice, for his helpful inputs)