manipulation of records by Police/prosecution

The prosecution is inefficient, the Judiciary is sluggish and the jails have become dens of corruption. But it is the failings of the police- Its feudal character, archaic style, growing politicization and even links with the underworld- which are causing the greatest anxiety. It would be no exaggeration to say that police constitutes the central pillar of the structure, and its failures and weakness could bring about a collapse of the criminal justice system. ²¹

In India, the criminal justice system is a quadrilateral structure with four supporting pillars, each of which derives and, in turn, lends immense strength to the other. These are the police, prosecution, judiciary and the jails.

Judicial corruption is not confined to the inside of the courts. Corrupt lawyers, prosecutors, police and bailiffs are all in a position to distort the course of justice. Police and prosecutors’ offices, which are often branched of the executive, can be vulnerable to government or business pressure in carrying out criminal cases. They may collude by tampering with evidence, distorting the facts in a case, losing files, deliberately ignoring credible lines of enquiry, in the worst case, extracting confessions under torture. Lawyers play a different role in creating the context for a free and fair trial. They may take bribes to present a sub-standard defence, bribe court staff to delay a case, or pay the judge to rule in favour of their client.

Every case depends upon the evidence produced before the court. But that evidence is not pure all the time. In fact that is produced being manipulated mostly. When protectors from crime become the perpetrators of crime, then where can one expect justice and redressal of grievances? This is the most basic and critical question that faces any law abiding citizen.

“You commit a crime and there is 93.5 percent possibility – if it is heinous – that you will get away with it.” This observation was made by Arun Jaitly, the Law minister in 2002. He effectively underlined the poor conviction rate in Indian Courts as for as serious crimes like homicide are concerned- a mere 6.5 percent of the cases put up for trial.³

India has an independent judiciary wielding enormous powers. Our Supreme Court has established itself as one of the greatest courts of the world for protecting individuals and the state against crimes and defending and preserving the true spirit of the constitution. The administration of justice is simple, the state investigates the allegation against the accused and if there is substance in accusations it takes him to the court to get the charge proved in a fair trial. But sadly these days, we the people of independent India are not getting justice because our justice delivery system is not in sound health. It has become lopsided and weak because the judicial process is being allowed to be abused, misused and mutilated by subterfuge and vested interests. ²

Criminal trials are being reduced to mock trials or shadow- boxing of fixed trials. Several very transparent cases, like daylight murders, the moving down of pavement sleepers by high profile drunken drivers or cases of rape where the culprits are identified by the victims and the rape is proved by medical evidence, are delayed and complicated by false evidence to give the accused the benefit of doubt.

Many factors, inextricably interconnected with each other, are responsible for the sorry state of affairs. They cannot be rectified because of the vested interest of the state, the apathy of the investigating agencies, the string pulling by influential persons and the muscle power of the offenders etc. To that can be added the ignorance of law and a general reluctance on the part of the police officers, who form the first line of defence, to record a proper FIR. The police investigations are faulty. Investigations are seldom scientific. The investigating agencies function under the executive and in the most of cases the investigations are perfunctory. There is hardly any attempt to ascertain the truth and bring the real offenders to book. In a majority of cases the police officers manipulate the evidence and get false witness to prove their case. They rope in wrong people as the accused and purposely delay the recording of FIR; their shoddy investigation helps the manipulators to destroy evidence. The police routinely bribe and threaten the real witness or simply persuade them to keep away from the trial.^{4 3}

This judicial corruption within the justice system can be broadly classified into two general categories. First, internal court corruption occurs when court officials (judges and support personnel) engage in procedural, substantive or administrative behavioural patterns for private benefits. Examples include cases where court users pay bribes to the court’s support personnel in order to alter the legal treatment of files or evidentiary material; where users pay bribe to court employees to accelerate or delay a case or to illegally alter the order in which the case is to be attended or heard by the judge; or where court personnel embezzle public or private property that is in court custody. In civil, administrative and commercial law cases, the large economic interests frequently involved in litigation, present an opportunity for court staff and judges to abuse their administrative or procedural discretion when, for example, issuing notifications to parties in dispute, calling witnesses, issuing injunctions or allowing procedural delays bases on frivolous motions.

The second main type of corrupt practices involves justice sector corruption where the inter –action between the courts and other justice sector institutions (i.e. higher courts, police, prosecutors or prison domains) explains the occurrence of corruption. This type of corruption can also involve politically motivated court rulings or undue changes of venue where judges, police and prosecutors stand to game economically or professionally as a result of corrupt action. This judicial corruption is also prevalent at international level. Studies of justice-sector corruption in Nigeria and Venezuela show that the most common manifestation of judicial corruption involves the tampering with evidence by prosecutors for material or financial gain. Prosecutors usually act in concert with the police in these cases.^{5 4}

When the case gets to court, judges are either pressured to stay silent and thus avoid the application of rules of evidence, or may collude with prosecutor for personal gain. In this context any kind of pressure by prosecutors on judges or court personnel. (e.g. with the connivance of political actors, members of parliament or the executive branch) tends to translate into abuse of substantive or procedural discretion in handling a case.

Most corrupt police officers probably believe that they are decent officers who are just making a few extra quid for themselves or leveling out of odds against the criminals. This appears to be so –called ‘noble- cause’ corruption, where an officer will simply lie, exaggerate or invent evidence in order to convict a suspect he ‘knows’ is ‘well at it.’ There police officers who complain about seeing criminal walks free from the court are in truth only serving the noble cause of their own careers. But as well as noble – cause corruption there are also exits just out and out went officers selling secrets for cash, stealing evidence, bribing suspect and so on.⁶

Charles Reith in ‘The Blind Eye of History⁷⁵ has observed as under:

“More communities have perished by their inability to enforce laws than have been destroyed by nature or hostile aggression. In the history of communities, absence or weakness or effective law enforcement machinery can be seen to be, very frequently, the true call for failure in battle.”

The failure of prosecution in a spate of cases in recent times once again focused public attention on our justice system. The low credibility of lawyers and the police contributes to the problem of false evidence. Police is the primary institution and the courts are the second institution, involved in the enforcement of criminal justice in India.

The role of police as the primary institution of the criminal justice system is, law enforcement and management of law and order, security, crime prevention and crime detection are essentially enforced and performed by the police authorities. But what will happen if police authorities instead of performing its duties, are manipulating the evidence or favouring one accused to get some personal benefits?

Sections 217 to 223 and Section 225A of the Indian Penal Code deals with disobedience on the part of public servant in the respect of official duty. Section 217 speaks about public servant disobeying direction of law with intent to save person from punishment or property from forfeiture. He shall be punished with imprisonment of either description for a term which may extend to two years or with the fine or with both.

Following steps shows the process of criminal justice i.e. When crime occurs, by resorting following steps, one can get justice.⁸

Step 1

Registration of the FIR:

As soon as the police receive information about a crime committed (‘Cognizable offence’, to be more accurate), they write the First Information report.

Step 2

The police officer in-charge of the case starts the investigation. This includes examining the suspects and witnesses, recording of statements, collecting evidence, making arrests and interrogation.

Step 3

The in-charge police officer prepares a report on the case and sends it to the area magistrate (and thereby, to the court). This report is either in the form of:

- A charge sheet (when sufficient evidence is available to proceed against the accused) or

- A final report (when sufficient evidence is not available).

Step 4

Once the charge sheet is received, the court takes cognizance and initiates trial.

Step 5

The charges are framed against the accused:

- The prosecution has to prove charges beyond a shadow of doubt.

- Accused is given full opportunity to defend himself.

Step 6

The court gives out its verdict on the case and the accused can either be set free or convicted. If convicted the sentence (Punishment) for the accused is also specified. ⁶

When a crime occurs the police have the powers to record the statement of a person, who is acquainted with the facts and circumstances of the case being investigated by him under Section 161 of the Code of Criminal Procedure, 1973, under Section 164 a police officer is to produce the witness before a Magistrate and make the Magistrate record the statement.

The statement recorded by police officer under Section 161 Code of Criminal Procedure is not admissible in the court of law. The rationale behind this is that the police coerce witnesses into making statements and such statements should not be adduced as evidence. Hence, the witness is required to appear before the court at the time of trial and restate what he stated to the police at the time of investigation.⁷

The Supreme Court of India’s judgment in Zahira Habibullah Sheikh & Another v. State of Gujarat & Ors.,^{9 8}which is popularly known as the Best Bakery Case is a great intervention to deal with the manipulation of information, a common feature of criminal trials in many countries where basic elements of criminal justice-police investigation, prosecution and judicial making- have become dysfunctional to varying degrees. The Best Bakery case has raised fears of blatant violations of citizens, especially those belonging to the minority communities, fundamental and human rights in states that all run by fascist regimes. The case has highlighted the importance of appointing politically and ideologically neutral public prosecuters to ensure justice and retain people’s faith in judicial system. There is ample evidence to prove that no genuine attempt was made by the Gujarat government to secure justice for the aggrieved parties in the various cases relating to the Gujarat riots. It is shocking that most public prosecutors appointed by the Gujarat government in important riot cases belong to the saffron brigade or their supporters and sympathizers. They are associated either with the VHP, RSS or BJP in various capacities. In this situation how can one be assured of receiving justice?^{10 9}

Commenting on the decision of the trial court in the Best Bakery Case, The Supreme Court observed: “In fact when a large number of witnesses turn hostile in any case, it should raise the reasonable suspicion in the mind of the judge that the witnesses are being threatened or coerced”. ¹¹

A new Section 195A has been inserted in the Indian Penal Code by the Criminal Law (Amendment) Act, 2005 which is a step in the direction of giving punishment to the person who threatens or induces the witness to give false statement. The Section describes that “Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both;

and if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extend such innocent person is punished and sentenced.”

The person threatening may be a private person or may be a public officer, will have to bear the punishment for the offence.

The working of the judicial system reveals that in most of the cases the public prosecutors, who are appointed to help the court in giving justice, do not act in manner befitting their position. They do not take any step to nail the guilty and the investigating agencies are most callous in investigating the cases and collecting clinching evidence. In the Best Bakery Case, the Gujarat government showed total reluctance to cooperate with the judiciary.

Situation is not different in the case of State (through CBI) v. Santosh Kumar Singh ¹², ¹⁰Which is popularly known as Priyadarshini Mattoo case. The status of the accused Santosh Kumar Singh , who was son of a former Police Inspector General resulted in substandard investigation and the anxiety to protect the culprit was responsible for granting the accused benefit of doubt by the trial court. But under Media pressure, the CBI succeeded in getting an early hearing of the appeal by the Delhi High Court and the judgement of the trial court was overruled. Death penalty was awarded to Santosh Kumar Singh on October 30, 2006. The Court said that the brutal rape and murder does fall in the bracket of “rarest of rare” cases.

A Criminal trial involves questions of great importance for the individual complainant, witness or accused, the trial is a matter of justice. If information is manipulated during the trial, resulting in a distortion of what was actually happened, injustice is served. For society, the trial is a test of faith in the justice system. If the system is seen to deal with the crimes through the manipulation of information rather than a committed statement of facts, the credibility of the system is undermined. Moreover, manipulative habits enter into the process of criminal investigation, prosecution as well as judicial intervention. The trial in such cases becomes nothing but a game, a parody. When this process of criminal trials is commonly understood in society unscrupulous individuals will take to crime. Organized crime then becomes an important and decisive factor in

societies, to the extent that attempts to reform both the process and the institution are hampered. Ordinary citizens gradually lose faith on the judicial process. It is inevitable that the criminal justice system breaks down under the circumstances, and it is no easy task to restore it again. ¹³

Defence lawyer Rebecca Mammen says, “Its not just the rich and influential who manipulate the law. Officers of the state are at times dishonest in the means they use to get a conviction. They substitute good investigation with false evidence”. Public prosecutors too are ill-paid, tempting most talented lawyers to avoid prosecution and opt for defence. ¹⁴

The Indian Evidence Act puts the burden of proving guilt on the prosecution which must prove it “beyond reasonable doubt”. Unfortunately in the present Indian scenario, this well recognized principle, aimed at preventing misuse of power by government officers, leads to investigators being bribed, witnesses suborned and material facts altered.

In India even after more than 60 years of India’s independence, the lives of commonfolk is becoming worse year after year. The criminals in power are looting the state exchequer and are posing a greater threat to unity and integrity of India than the terrorists and foreign powers. The politicians, bureaucrats, police in power are treating commonfolk like slaves. Fair judicial decisions are not delivered to the common people. There are poor innocent people wrongly convicted and behind bars and much more number of criminals outside. Judges are also using corrupt methods for personal gains. When the fence itself eats into the crop which it has to protect, when the police and judge supposed to give justice, protect the citizen, himself meats out injustice, where to appeal? ¹¹

In India, justice, equality and democracy are all illusion. All these words are only there is in statute books, but not in practice. The rich and mighty crooks are committing gravest crimes and escaping from the hands of law by manipulating evidences, by bribing the public servants to create favourable government reports, records. Poor people who have suffered injustices are not getting justice due to lack of evidence and government reports, records to prove their cases.

Nowadays, there are reports of corruption among the judiciary itself. If a complaint against a judge is made out then a level ground is not provided to put up one’s case in the court or cross examination of one party is not allowed. The recent scandals involving judges in several states render the basic premise of judicial impartiality irrelevant. Police officers extracts bribe from criminals for destroying prosecution’s case, for manipulating evidence, to fix up innocents in cases while letting free the real criminals, where a judge takes money for giving favourable judicial orders to the real criminals. ¹⁵¹²

One of the cardinal objectives of any criminal justice system is to protect society from crimes by binging offenders to justice and preventing offences by virtue of the sanction of criminal law. But today offenders are walking free without any fear and victims are suffering because of manipulation of evidence by police and prosecution. Our criminal justice system is vulnerable to manipulation. The constitution of country is governed by laws and not by men and women. But the judges and lawyers have developed a practice of moulding and folding the constitution to suit their needs. This is the true reflection of the decline in our justice delivery system.

Solution to crime does not lie in the streets. It lies in the justice process; in saving the criminal investigation process, the prosecution process and the subsequent trials from acquired habits – often institutionalized – in manipulating information. We need police force which is non-partisan, which functions according to law and is accountable to the people. An independent prosecuting agency too has to be created. The appointment of Public prosecutors should not be politically driven and instead should be made by the independent agency. Only a genuine improvement in the justice delivery system will help speed up the process of trial and curb crime. The certainty of punishment will help improve the system and make the judiciary truly powerful, independent and effective.

Police officers should perform their duties faithfully instead of preparing false statements and records. Prosecution should also prosecute the case on true facts. They should try to curb the menace of giving or preparing false evidence.

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Author:  Ravinderpal Kaur, LL.B. LL.M, Doing Ph.D