Suggestions to improve Investigation, Prosecution and Judiciary

I would like to start this subject with respectfully citing the recent Judgment of Hon’ble Supreme Court in CRIMINAL APPEAL NO. 1485 OF 2008 State of Gujarat  Versus Kishanbhai Etc on 7-01-14. This Judgement was described as a jolt to Gujarat Investigation and prosecution, more particularly media questioned up on governance by this judgment. But after considering Alfa and Omega of the verdict being a member of criminal justice delivery system, I feel it appropriate to share some of noble and novel suggestions in expectation of improvement not only of investigation and prosecution but in appreciation of evidence also.

In verdict of kishanbhai case apex court ordered guidelines to all state’s home departments for improving investigation and prosecution.

The subject matter of the case which was preferred in SC by Government Of Gujarat was a criminal appeal up on a A complaint was  lodged  at  Navrangpura  Police  Station,  Ahmedabad, alleging the  kidnapping/abduction  of  a  six  year  old  girl  child  It was alleged, that the accused had enticed victim girl with a “gola” (crushed  ice, with sweet flavored syrup), and thereupon had taken her  to  nearby  field, where he raped her.  He had murdered her by inflicting injuries on her  head and other parts of the body with bricks. In order to  steal  the  “jhanjris” (anklets) worn by her, he had chopped off her feet just  above  her  ankles. The complaint was lodged, after the body of the deceased was found from  field, at the instance of the accused.  On  the receipt of the above complaint, the first  information  report  came  to  be registered thereafter the Sessions Court to which the matter came to  be  assigned,  for trial, framed charges.  Since the accused Kishanbhai denied his  involvement in the matter, the court permitted the prosecution to lead evidence.

The prosecution examined 14 witnesses. The  statement  of  the  accused was  thereafter  recorded  under  Section  313  of  the  Code  of Criminal Procedure.  In his FS, the accused denied his involvement.  Even though an opportunity was afforded to accused,  he did not lead any evidence in his  defense.   After  examining  the  evidence produced by the  prosecution,  the  Trial  Court  vide  its  judgment, arrived at  the  conclusion  that  prosecution  had  successfully proved its  case  beyond  reasonable  doubt.   By a separate  order  the Trial Court sentenced Kishanbhai to death by hanging,  subject to confirmation of the said  sentence by  the  High  Court  of  Gujarat  under Section 366 of the Code of Criminal Procedure.

In the The criminal appeal filed by the accused, it was  accepted  by the High Court.  Accused  was acquitted  by  giving  him  the  benefit  of doubt. Dissatisfied with the order passed by  the  High  Court,  the  State  of Gujarat approached SC by  filing  Petition  for  Special  Leave  to Appeal which was pronounced in the acquittal of accused and further directions for fair and fruitful investigation and prosecution in the Whole of India. Hon’ble Apex court has ordered to circulate copy of the judgment to all State Governments.

I would like to incorporate Hon’ble SC’s pain and feelings as it is by quote it in verbatim in order to fully justify their Lordship’s words.

“15. The  investigating  officials  and  the   prosecutors   involved   in presenting this case, have miserably failed  in  discharging  their  duties. They have been instrumental in denying to serve the cause of  justice.   The misery of the family of the  victim  xxx  has  remained  unredressed. The perpetrators of a horrendous crime, involving extremely ruthless and  savage treatment  to  the  victim,  have  remained  unpunished.  A  heartless  and merciless criminal, who has committed an extremely heinous crime,  has  gone scot-free.  He must be walking around in Ahmedabad, or some other  city/town in India, with his head held high.  A criminal on the  move.   Fearless  and fearsome.   Fearless  now,  because  he  could  not  be   administered   the punishment, he ought to have suffered.  And  fearsome,  on  account  of  his having remained unaffected by  the  brutal  crime  committed  by  him.   His actions now, know of no barriers.   He  could  be  expected  to  act  in  an unfathomable savage manner, uncomprehendable to a sane mind.

16.  As we discharge our responsibility in deciding  the  instant  criminal appeal, we proceed to apply principles of law, and  draw  inferences.   For, that is our job.  We are trained, not to be swayed by mercy  or  compassion. We are trained  to  adjudicate  without  taking  sides,  and  without  being mindful of the consequences.  We are required to adjudicate on the basis  of well drawn parameters. We have done all that.   Despite  thereof,  we  feel crestfallen, heartbroken and sorrowful.  We could not  serve  the  cause  of justice, to an innocent child.   We  could  not  even  serve  the  cause  of justice, to her immediate family.  The members of the family  of  xxx  must never have stopped cursing themselves, for not adequately  protecting  their child from a prowler, who had snatched  an  opportunity  to  brutalise  her, during their lapse in attentiveness.  And if the prosecution  version  about motive is correct, the crime was  committed  for  a  mere  consideration  of Rs.1,000/-.

17. Every time there is an acquittal, the consequences are just the  same, as have been noticed hereinabove.  The  purpose  of  justice  has  not  been achieved. There is also another side to be taken  into  consideration.   We have declared the accused-respondent innocent, by  upholding  the  order  of the High Court, giving him the benefit of doubt.  He may be truly innocent, or he may have succeeded because of the lapses  committed by   the investigating/prosecuting teams.  If he has escaped, despite  being  guilty, the investigating and the prosecution  agencies  must  be  deemed  to  have seriously messed it all up.  And if the accused was  wrongfully  prosecuted, his  suffering  is  unfathomable.  Here   also,   the   investigating   and prosecuting agencies are blameworthy.  It is  therefore  necessary,  not  to overlook even the hardship suffered by the accused, first during  the  trial of the case, and then at the appellate stages.  An innocent person does not deserve to suffer the turmoil of a long drawn litigation, spanning  over  a decade, or more.  The expenses incurred by an accused  in  his  defence  can dry up all his  financial  resources  –  ancestral  or  personal.   Criminal litigation could also ordinarily involve financial borrowings.   An  accused can be expected to be under a financial debt, by  the  time  his  ordeal  is over.

18.    Numerous  petitions  are  filed  before  this  Court,   praying   for anticipatory bail (under Section 438 of the Code of Criminal  Procedure)  at the behest of persons apprehending arrest, or for bail  (under  Section  439 of the Code of Criminal Procedure) at the behest of  persons already  under detention.  In a large number of such petitions, the main contention  is  of false implication.  Likewise, many petitions seeking  quashing  of  criminal proceeding (filed under Section 482 of the Code of Criminal Procedure)  come up for hearing day after day,  wherein  also,  the  main  contention  is  of fraudulent  entanglement/involvement.   In  matters   where   prayers   for anticipatory bail or for bail made under Sections 438 and  439  are  denied, or where a quashing  petition  filed  under  Section  482  of  the  Code  of Criminal Procedure is declined, the person  concerned  may  have  to  suffer periods of  incarceration  for  different  lengths  of  time.   They  suffer captivity and confinement most  of  the  times  (at  least  where  they  are accused of serious offences), till the culmination of their trial.  In  case of  their  conviction,  they  would  continue  in  confinement  during   the appellate stages also, and in matters which reach the  Supreme  Court,  till the disposal of  their  appeals  by  this  Court.   By  the  time  they  are acquitted at the appellate stage, they may  have  undergone  long  years of custody.  When acquitted by this Court, they may have suffered  imprisonment of 10 years, or more.  When  they  are acquitted  (by  the  trial  or  the appellate court), no one returns to them; what  was  wrongfully  taken  away from them. The system responsible for the  administration  of  justice,  is responsible for having deprived them of   their  lives,  equivalent  to  the period of their detention.   It is  not  untrue,  that  for  all  the  wrong reasons, innocent persons are subjected to suffer the ignominy  of  criminal prosecution and to suffer shame  and  humiliation.  Just like it  is the bounden duty of a court to serve the cause of  justice  to  the  victim,  so also, it is the bounden duty of a court to ensure that  an  innocent  person is not subjected to the rigours of criminal prosecution.

19. The situation referred to above needs to be remedied. For the said purpose, adherence to a simple procedure  could  serve  the  objective. We accordingly direct, that  on  the  completion  of  the  investigation  in  a criminal case, the prosecuting agency should  apply  its  independent  mind, and require all shortcomings to be  rectified,  if  necessary  by  requiring further investigation.  It  should  also  be  ensured,  that  the  evidence gathered  during  investigation  is  truly  and  faithfully utilized,  by confirming that all relevant  witnesses and materials for proving the charges are conscientiously presented during the  trial  of  a  case.  This would achieve two purposes. Only persons against whom there  is  sufficient evidence, will have to  suffer  the  rigors  of  criminal  prosecution.  By following the above procedure, in most criminal prosecutions, the  concerned agencies will be able to successfully establish the guilt of the accused.

20.  Every acquittal should be understood  as  a  failure  of  the  justice delivery  system,  in  serving  the  cause  of  justice.  Likewise,   every acquittal should ordinarily lead to the inference, that an  innocent  person was wrongfully prosecuted.  It is  therefore,  essential  that  every  State should put in place a procedural mechanism,  which  would  ensure  that  the cause of justice is served, which would simultaneously ensure the  safeguard of interest of  those  who  are  innocent.   In  furtherance  of  the  above purpose, it is considered essential to direct the Home Department  of  every State, to examine all orders of acquittal and  to  record  reasons  for  the failure of each prosecution case.  A standing committee of  senior  officers of the police and prosecution departments, should be vested  with  aforesaid responsibility.  The consideration at the  hands  of  the  above  committee, should   be   utilized   for   crystalizing   mistakes   committed    during investigation, and/or prosecution, or both.  The Home  Department  of  every State Government will incorporate in its existing  training  programmes  for junior investigation/prosecution officials course- content  drawn  from  the above consideration.  The same  should  also  constitute  course-content  of refresher  training   programmes,   for   senior   investigating/prosecuting officials.  The above responsibility for preparing training  programmes  for officials, should be  vested  in  the  same  committee  of  senior  officers referred to above.  Judgments like the one in hand (depicting more  than  10 glaring lapses in the investigation/prosecution of the  case),  and  similar other judgments, may also be added to the training programmes.  The  course content will be reviewed by the above committee annually, on  the  basis  of fresh  inputs, including emerging  scientific  tools  of  investigation, judgments of Courts, and on the basis of experiences gained by the  standing committee while examining failures, in unsuccessful  prosecution  of  cases. We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive  matters concerning investigation/prosecution are fully trained to handle  the  same. Thereupon, if any lapses are committed by them, they would not  be  able  to feign innocence, when they are made liable to  suffer  departmental  action, for their lapses.

21.   On the culmination of a criminal  case  in  acquittal,  the  concerned investigating/prosecuting official(s) responsible for  such  acquittal  must necessarily be identified.  A finding needs to be  recorded  in  each  case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by  appropriate  departmental  action, whenever called for. Taking  into  consideration  the  seriousness  of  the matter,  the  concerned  official  may  be  withdrawn   from   investigative responsibilities, permanently  or  temporarily,  depending  purely  on  his culpability.  We also  feel  compelled  to  require  the  adoption  of  some indispensable measures, which may reduce the malady suffered by  parties  on both  sides  of  criminal  litigation.  Accordingly  we  direct,  the  Home Department of every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting  officials/officers. All such erring officials/officers identified, as  responsible for  failure of a prosecution  case,  on  account  of  sheer  negligence  or  because  of culpable lapses, must  suffer  departmental  action.   The  above  mechanism formulated would infuse seriousness in the performance of investigating  and prosecuting duties, and would ensure that investigation and prosecution  are purposeful and decisive.  The instant direction shall also be  given  effect to within 6 months.’’

Apex court express its deep anxious towards lacuna and shortcomings  of investigation and prosecution and declare investigation and prosecution both responsible for acquittal in the criminal justice delivery system. As lower cadre courtier of public prosecution I most respectfully accept verdict and so we should work together to fill the gap. Although at this juncture we should not forget the basics of criminal justice delivery system which is consist of investigation, prosecution and trial.

IS IT TRUE THAT, ONLY INVESTIGATION AND PROSECUTION IS RESPONSIBLE WHEN ACQUITAL ON INSUFFICIENT OR WRONG INVESTIGATION HAPPENS

I most respectfully attract attention towards one more failure in the matter of KISHANLAL verdict that Kishanlal was convicted with capital punishment at session court who thereafter acquitted by high court and supreme court. It is a cardinal principle of C.J.D.S. that real and true appreciation of evidence should be  performed by trial court, presiding officer who have an opportunity of witnessing whole trial’s opinion should be considered carefully in any appeal. So, when our apex court arrived at the conclusion that investigation and prosecution both committed serious error in their respective duty. Is there no responsibility of trial judge who has admittedly wrongfully appreciate evidence of prosecution and award capital punishment to accused.?

Our criminal justice Delivery system is consists of Investigation, Prosecution and Trial(Judiciary) Is there no any responsibility when non appreciation or wrong appreciation of evidence of trial court establish in appeal..? Though it’s a responsibility of state to investigate and prosecute the crime but when those system not found successful then what is the remedy we as Criminal Justice Delivery System providing to real victim of crime and what action we are taking towards real culprit of crime.?

I feel that, whenever after long procedudure and prolong trial if we are not punishing crime and real criminal it is just unbearable for any democratic society. If we are often raising hue and cry for rule of law and demanding extra status as a members of judiciary then why we are answerless for about more than 90% acquittals in criminal cases. Why every acquittal should not consider failure of Justice and direct reinvestigate or further investigate in order to find out real culprit.

I wanted here to quate sec 165 of evidence act read with section 173(8), 311 of Cr.P.Code. It has entitle and responcible trial judge to carefully consider case of investigation and evidence of prosecution. Material which is deposited u/s 173 before magistrate it’s a duty of every magistrate to carefully consider material and even he has to apply his mind prima facie about the material of charge sheet. Rule of law is now very much cleared by the number of pronouncements of supreme court that magistrate has discretionary power to send file for further investigation. In this matter trial judge not  tried to sent matter for further investigate to get DNA profiling of blood samples of which only blood groups obtained by investigation. Even trial court at any stage of inquiry, trial or proceeding entitle to summon any person to produce document or thing..

“SECTION 91 : Summons to produce document or other thing

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.”

In the proceeding of trial it is duty of prosecution to brought all material before court with being impartial and conduct fair trial, but suppose prosecution does not examine material witness, is it not the duty of Judge casted by legislation to call and examine material witness u/s 311 Cr.P.C.?

“SECTION 311: Power to summon material witness, or examine person present.

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

It is also cardinal rule that judge who precide over the trial is not observer or mere recording machine but he has to actively participate in the whole trial he has power to put any question whether or not it is relevant to witness in order to do justice.

“SECTION 165 : Judge's power to put questions or order production

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:

Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:...”

Is it not require to make trial judge also answerable when it found lacuna and shortcomings in trial and wrongful appreciation of evidence results in either acquittal or conviction.

We must not forget real victim of crime remains unjustified when ever acquittal results. In every appeal whenever appellate court arrived at the conclusion that, investigation and prosecution miserably failed to prove guilt of accused, question arise that what is the remedy to victim of the case who is deprived of justice? I would like to attract attention towards most sparking deficiency of our CJDS is, when trial court or appeal court records acquittal case ordered to be closed on never reopen. It is a bitter truth of our judiciary that in most of the cases matter ends in acquittal and drops the curtain.

In the case of acquittal only remedy is appeal by state u/s 377 or 378. But what would be the remedy when trial judge and prosecution opine that evidence of investigation is not sufficient to prove the guilt of accused.?

NEED TO IMPROVE CJDS IN CASE OF EVERY ACQUTTAL  

It is failure of justice where crime remains unpunished. We should not forget that one of the reason of police atrocity is we the system not punish culprits. Even unscrupulous violent persons wield authority when we do not judge and punish the crime.

So in order to make efficient CJDS investigation, prosecution and judiciary all should upright their efficiency knowledge and accountability.

INVESTIGATION:

A- First and foremost requirement to train Investigators in scientific investigation, criminal procedure with training of concern acts

B- In most of investigation actual direct and real evidence need to be collect.

C- Every investigator shall be equipped with camera, voice recording instruments and all crime investigation should be start with documentary evidences of spot of crime, suspect interrogation.

D- Immediate and scientific spot inspection with video graph should be made compulsory.

E- In each and every investigation if possible electronic evidence should collected or prepared. i.e recovery or discovery.

FOR DETAIL OF ELECTRONIC EVIDENCE SEE MY ARTICLE

http://www.lawyersclubindia.com/articles/Electronic-Evidence-and-its-admissibility-5703.asp

F- Investigation shall compulsory comply with Sec.173 and submit all original documents at the time of chargesheet.

G- In the serious cases like murder, rape etc. latest scientific examination should be made compulsory.

H- In preparing Panchnama hostile panch should be avoided and it should be prepared by respectable persons.

I- Police should not bother that all crimes compulsorily be detacted, this hasty and hurried attitude leads towards wrong investigation and some time it happens that police charges numbers of offence on one detected accused.

J- Whenever eyewitness is available his statement should be essentially recorded.

( for detail VISIT my article on http://www.lawyersclubindia.com/articles/Role-of-Panchnama-in-Criminal-Justice-Delivery-System--5702.asp )

PROSECUTION

A- Independent Directorate of Prosecution answerable to Lokpal or Lokayukta is require to be established.

B- Prosecutors should not be appointed on hired or appointed on contract basis. This system of contractual and political appointment is require to be stop immediately.

C- Prosecutors should be well equipped and their status be put similar to Judges. Equal salary and perks along with office infrastructure should be providing to prosecution.

D- Academy be establish to improve knowledge of law Regular training and study of case law should be regularly done.

E- Prosecutors should be given power to refuse irregular or faulty investigation reports.

F- Prosecutor’s work to be inquires and regulate by the senior officer.

COMBINE SUGGESSION FOR INVETIGATION AND PROSECUTION

A- At every unit i.e  Taluka place meeting of Public Prosecutor and Concern Police Officer shall be done every month In which recent judgments should be discussed and suggestions on the law points should be given by Prosecutor to Officer in charge of police station.   

JUDICIARY

A- All judgment compulsory be sent to concern higher police authority.

B- Every judgment of acquittal in which court opined that commission of crime is sure then court shall compulsory order re or further investigation.

C- Whenever it is found verdict of trial judge is lacking judicious mind or true appreciation of evidence, while high court or Supreme court is deciding appeal not only set aside the verdict but accountability of concern Judge should also be fixed, who wrongfully appreciate evidence or done grave mistake of law which results in injustice towards someone who become victim of society.

D- In most of convictions judges awards after routine hearings maximum punishment which is mentioned in the law book. We don’t found any reasonable reasons why this much punishment or why lesser punishment. This tendency leads towards prolong facing of trial and some minor offences offender hesitate to plead guilty.

CONCLUSION

Hon’ble Supreme Court’s verdict is eye opining for all components of criminal justice delivery system. Let us hope sun rise in our country with no offender remain unpunished. It would be golden day when face of goddess of justice will glitter with the satisfaction that my all Childs investigation, prosecution and judges are integrated struggling for justice, for crimeless country. I hope my dream comes true as early as possible.

DHARMENDRASINH G RANA

ASSISTANT PUBLIC PROSECUTOR

GOVERNMENT OF GUJARAT