Who will guard the Guardians?

“Quis custodiet ipsos custodes?” .... asked Juvenal, 2,000 years ago

Consider these facts:

· A court acquits two accused who were charged with acts of terrorism, citing falsely created evidence.

· A large number of cases are ending with the accused being let off.

· There is a lot of public anger; and no solution in sight.

A week back, a magistrate tore into the police noting that the evidence was concocted with a view to obtain a conviction of two innocent men. It is also a fact that, in a large majority of cases, the accused is let off for want of cogent evidence, wrong charge-sheeting, lackadaisical investigation or plain incompetence.. Are the policemen the keepers or the manipulators of the law?

The two accused that we mentioned were incarcerated for a long time. Their pleas had fallen on deaf ears. Why?

The truth is that most Public Prosecutors are unwilling to put their foot down even when the available evidence does not warrant a trial. Some time back we had carried a story about young girls being arrested in America; their only “crime” was that they thought they were being kidnapped as the cops were in mufti or unrecognisable. In that matter, the District Attorney (our PP) refused to press charges.

This does not happen in India, in spite of the fact that provisions do exist. To our mind it is because of a combination of fear and corruption.

Last week we had a chance to interact with a PP. We asked him why, in spite of the Hon. High Court’s orders, certain cases were not shelved. Why were truly defensible cases clogging the courts? Were not laws, some including those for the protection of women, being misused? His answer told a story that needs repeating.

While he realised that some cases should never see the light of day, he was scared of opening his mouth because he would be put under investigation! So, what does he do? Carries on with the case, his heart never being in it. An acquittal follows. And the papers report that the conviction rate is very low!

One is glad that the rate is low. Otherwise you and I would end up behind bars for no reason at all. But the shoe will pinch only when we wear it.

In the instant case, the men were, per se, wrongly accused. They spent a long time in prison. Their reputation is in tatters. Their family members are not only traumatised but the object of ridicule and derision. The torment is immense. Even out of jail they have nothing to show except wasted years and stigma.

What would you do as a judge?

There are provisions in law where the investigating police have to file what is known as a summary, “A, B or C”, depending on their findings. It is this summary report that eventually leads to prosecution or release. There are also provisions for the victims of injustice in seeking the courts’ help whenever there is malicious prosecution; but not error. There can also be compensation by the state.

Would you initiate investigations against the police? By now, they have been promoted, awarded, feted for catching “terrorists”. Would you order suspension of their benefits until their acts were investigated and their names cleared? They vitiated the rights of the two accused. Did the cops acted maliciously or was it an innocent mistake?

You be the judge.

Would you release a hundred guilty men rather than convict an innocent one? We were once told that this was no more than a cliché. Something that only the romantics mouthed.

Maybe. But the repercussions are wide and varied. When the two innocent men were arrested and tried, the search for real perpetrators ended. That means that the actual culprits are still at large, maybe laughing their heads off. They are also free to carry out more of the violent acts, safe in the knowledge that the prior act is now a forgotten issue. They are emboldened.

What would you do? What should we all do?

Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to bapoomalcolm@gmail.com or mail@moneylife.in

Courtesy By: Moneylife