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Delay in justice and low rate of conviction are major flaws

When, more than 47 years ago, I joined the faculty of law at Lucknow University in 1958, the name of Rabindra Nath Mitra, more popularly known as Robin Mitra, was vibrating in students circles. He had been secretary of the Lucknow University Students Union in the year 1953-54 and later its president in 1954-55. He was a student of law of Lucknow University and after completing his studies joined the bar in the year 1955 as a junior to late Babu Har Govind Dayal Srivastava. He left a mark in the university and was remembered as a courageous student leader, who possessed excellent qualities of an orator.

india Updated: Jan 09, 2006 00:47 IST

When, more than 47 years ago, I joined the faculty of law at Lucknow University in 1958, the name of Rabindra Nath Mitra, more popularly known as Robin Mitra, was vibrating in students circles. He had been secretary of the Lucknow University Students Union in the year 1953-54 and later its president in 1954-55. He was a student of law of Lucknow University and after completing his studies joined the bar in the year 1955 as a junior to late Babu Har Govind Dayal Srivastava. He left a mark in the university and was remembered as a courageous student leader, who possessed excellent qualities of an orator.

During his student days at the Lucknow University, he not only led but also controlled an agitation against government's initiation of a plan to make membership to the university unions voluntary for the students. He, thus, gave a new direction to the students' movement.

While at the bar, he was known to be a fair and fearless lawyer. He also served as the deputy government advocate of Uttar Pradesh. Those, who practiced with him at the bar, bear testimony to the fact that he was respected both by the bench and the bar for his advocacy, hard work and fairness. In the year 2000, he was designated as a senior advocate of the prestigious Allahabad high court. Though a very busy lawyer, he always had time for the juniors. He gave a helping hand to his juniors and was very popular with them.

He was available to them whenever his guidance was sought. His contemporaries remember him as a kind and affectionate human being who possessed great values of head and heart and as a sincere friend.

Robin Mitra married Smt. Maitrayi Mitra, a lady belonging to Bengal. He had great affinity with the Bengal culture and literature and during his days at the Lucknow University, he remained associated with Lucknow's Bengali Club and Young Men's association.

The Bengal Club was like a second home for him. His organising capacity was used to the hilt by the club for organising various sammellans, conferences and drama competitions and he headed the organisation on a number of occasions. It can truly be said of Robin Mitra that he believed in Gandhian ideology, perhaps inherited from his father late Shri Anant Lal Mitra, who was a known Gandhian.

He departed for his heavenly abode on April 1, 2004, I must congratulate Robin Mitra memorial society to organise lectures to commemorate the memory of late Robin Mitra. These lectures provide an occasion to reflect on the legacy of the person in whose memory they are held and provide inspiration to the younger generations. It was therefore, with great pleasure that I accepted the invitation to deliver the second memorial lecture today, which I dedicate to the memory of Robin Da.

Now to the topic.
Criminal Justice Delivery System-Need For A Re-Look

The history of crime is as old as of mankind itself, but in the primitive period "a tooth for a tooth, an eye for an eye and a life for a life", was the essence of criminal justice. As the civilisation developed, new ideas regarding individual's rights and his corresponding duty to his fellow human beings took shape. The crime was no longer considered an offence against the individual only, but a revolt against the norms of an organised society and an attack on the civilisation of the day. Soon the state took upon itself the right to identify and punish the offenders.

Under our Constitution, it is the primary responsibility of the state to maintain law and order so that the citizens can enjoy peace and security. The state discharges the obligation to protect life, liberty and property of the citizens by taking suitable preventive and punitive, measures which also serve the object of preventing private retribution so essential for maintenance of peace as well as law and order in the society. It is, therefore, an obligations of the state to identify and apprehend the offender, subject him to a fair trial and if found guilty, to punish him. Substantive penal laws enacted, prescribe punishment, whenever there is an invasion of those rights of the citizens. In the prevailing system of criminal justice whenever a crime is reported, it is the state, which gets the crime investigated by its agency, move the court for trial of the offender and prosecute him in a court of law. The right to a fair trial is a constitutional imperative.

"Criminal Justice Delivery System" in India, which stems from the Anglo-Saxon system, is essentially concerned with the offender, his activities, his rights and his correctional needs. The purpose of criminal justice system appears, at present, to be confined to the simple object of ascertaining guilt or innocence of an accused. Unfortunately rights of victim of crime are not given any importance. In order to find out whether the criminal justice system in India has so far been effective in imparting justice to all the stakeholders it is necessary to introspect.

On analysis of the functioning of criminal justice delivery system in India, one finds that despite sufficient penal laws, exhaustive procedural laws and elaborate rules of evidence", the system suffers from several flaws, resulting in violation of rights of the stakeholders i.e., the accused and the victims. Delays in trial and low rate of conviction being the main flaws. The old adage of "justice delayed is justice denied" is dangerously close to coming true in the Indian courts. People are losing faith in the criminal justice system. The problem has reached a stage where it can no longer be ignored.

The main components of criminal justice delivery system are detection and investigation of crime, inquiry, prosecution, defence, trial, punishment, correction, probation, parole and the like. Broadly, the criminal justice system is constituted by the following processes.

1)Investigation;
2)Prosecution;
3)Trial.
I shall briefly deal with the human resource-operators of processes.

Investigation
The foundation of criminal trial is the investigation by the police. The investigation machinery is set into motion, by the victims of crime, as soon as the commission of a cognisable offence is brought to the notice of the police. This is when the victim of a crime gets his first contact with the justice delivery system. The atmosphere in the police station is generally hostile and indifferent. The police officers are rude, insensitive, and callous towards the victim or the witness who are given an impression that they have committed some wrong by approaching the system for redressal. Not only this, there is a tendency amongst the police officials to avoid registering an FIR with a view to manipulate crime data. Even if the person succeeds in getting the FIR registered, it is often recorded for lesser offences. This frustrates a victim of crime. Even the amendments made to the code of criminal procedure in the matter of registration of cases does not appear to have produced the desired results because the mind set of the police has not changed.

Investigation in detection of crime is an important factor in administration of justice. Investigation of a crime lays the foundation of a criminal trial, which is the vehicle of justice delivery.

To achieve the ends of justice it is important that investigation of a crime is done in a fair and impartial manner. It has often been observed that the investigation being conducted by the police is tardy and superficial. The oral evidence of eye-witnesses is very important to solve a crime but unfortunately unfriendly and hostile image which the police has created for itself, discourages the public to come forward with the information that they might have about the commission of crime.

This makes the job of investigator difficult and gives rise to the tendency of introducing stock or false witnesses who obviously cannot stand the test of veracity during trial. The net result is acquittal of the accused and denial of justice to the victim of crime. In this connection I would also like to point out that the investigating agency must realise its responsibility of examining witnesses on the date fixed for it.

Asking witnesses to come again and again for getting their statements recorded discourages them and gives rise to avoi dable criticism and shortcomings.
Many a time, the Criminal Justice Delivery System is also a casualty to the unholy practice of torture by the police. Unfortunately, the practice of torture is still very much in vogue in day-to-day policing even though it is universally accepted that torture is perhaps the worst crime in any civilised state. It is a misconception that criminals will fear the police when they are dealt with an iron hand.

What the criminals dread, most is not torture but uncompromising and proper legal action. Often the information extracted by use of torture is incorrect and misleading. Torture merely hardens the criminals and brutalises the police. This also makes the innocent and law abiding citizens wary of the police. The crimes, which are claimed to have been solved by the police by way of torture rarely, result in the conviction of an accused at the trial because the evidence collected through hard interrogation techniques often suffer from legal infirmities.

It is a matter of grave concern that despite its condemnation on paper by the authorities concerned. It has apparently only remained to be a lip service. Experience has shown that torture at hands of the police causes major setback to the criminal justice system. The police leadership in India is required to do some soul searching and whole-heartedly commit itself to end this menace. There should be zero per cent tolerance for violence of the police.
(To be continued)
The writer is Chairperson, National Human Rights Commission.

First Published: Jan 09, 2006 00:47 IST