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?Law should provide level playing field to both sides?

IT APPEARS that Jessica Lall?s apparently senseless murder by the power-drunk sons of politicians would turn into a sacrifice for reform in the archaic criminal justice system of our country. Acquittal of the culprits due to retraction of their earlier statements by the witnesses has shaken not only the conscience of the nation but even that of the politicians.

india Updated: May 15, 2006 00:48 IST
Mahesh Chandra DEWEDY
Mahesh Chandra DEWEDY

IT APPEARS that Jessica Lall’s apparently senseless murder by the power-drunk sons of politicians would turn into a sacrifice for reform in the archaic criminal justice system of our country.

Acquittal of the culprits due to retraction of their earlier statements by the witnesses has shaken not only the conscience of the nation but even that of the politicians. It is to be noted that such retractions are neither new nor few, and therefore, for decades the police officers as well as Police Reform Commissions have been crying hoarse for reforms in the Criminal Procedure Code & Evidence Act. So far, apparently the politicians had little reason to ‘waste’ their ‘precious’ time on such politically unimportant affairs as protection of the society against depredations by criminals. The public outcry in Jessica Lall’s case and our humane President’s remarks seem to have woken up our politicians from their slumber.

However, from the present indications and my experience as a police officer, I am not very hopeful of any such amendment being enacted as would be pragmatic, workable and helpful in getting the criminals convicted. The Cr.PC was amended in 1973 and all concerned officers know that the amendments brought out by way of anticipatory bail, independence of prosecutors etc. have only further helped the culprits to go scot-free. No amendment was made with a view to make conviction of the culprits reasonably easy, while ensuring liberty of the innocent.

The reason for accused –friendly- amendments only being enacted is that on legal issues the governments often take and accept the advice of only those persons who are or have been defense lawyers. The law commission, which is the standing body for recommending amendments, also consists of only such person-almost exclusively.

Unfortunately these luminaries have had no experience of investigating criminal cases and the difficulties faced therein, as well as dealing with prosecution witnesses and the difficulties in keeping them firm on their statements during the entire course of trial, which usually prolongs for year.

To illustrate the abovementioned point let us dispassionately consider the workability of a recently made recommendation of the law Commission to rein in witnesses, “It is necessary to amend section 164 CrPC to make it mandatory for the investigating officer to get statements of all material witnesses questioned by him during the course of investigation recorded on oath by the magistrate.”

This recommendations, if accepted, will need manifold increase in the number of investigating officers because then the task of investigator will be not only examination of the witnesses but also of taking them before the magistrate and getting their statements re-recorded.

This will also need manifold increase in the number of magistrates, because they will have to find time not only to record the statements on oath during investigation but also to confirm them during trial and face cross-examination by defense lawyers, if they so desired. It is to be considered that even today the police is extremely hard pressed for time to register and investigate the cases at hand, and, in the courts substantial number of witnesses summoned are returned unexamined daily due to paucity of time, then how will they find time for this additional work.

And then, who will stop the witnesses from retracting their statements during trial on the excuse that they had given earlier statement under the threat from the magistrate or the court’s staff. And this excuse may not always be imaginary, because I remember that in a trap case against a policeman I was summoned as a witness and my statement was recorded in the court-room by the court staff while the judge was sitting or may be sleeping in his chamber. In such a circumstance the witness can easily be threatened or misled by any person present in the courtroom.

If we are serious about the security of the society and justice to the victim of crime we should adopt simple and workable procedures. Our CrPC prohibits the IOs (investigating officers) from getting the statements of witnesses signed by them. This provision should be done away with, as it does not exist either in English Law or in the laws of any civilized democracy. Instead, it should be made mandatory for the IOs to get the statements of the witnesses signed by them.

Witnesses signatures will give some sanctity to the statements recorded by the IO and may deter the witnesses to some extent from retracting. Further, our Evidence Act provides that the statement recorded by the IO can be used during trial only for contradiction and not for corroboration–meaning thereby that it can be used to help the accused and not for strengthening the prosecution.

Why should the judge be not given liberty to consider the statements dispassionately and take a fair view on them? Again our Evidence Act prohibits the confessions of the accused persons recorded by or in the presence of police officers from being produced before the court, while in all western countries confessions made before police officers are not only admissible but are generally the mainstay of the magistrate who is also not authorized to record the confession immediately, but is duty bound to allow him advice of advocate and give him reasonable time for rethinking before recording his confession. This provision makes confessions by the culprits near impossibility. It is obvious that a culprit is more likely to confess and come out clean at the initial stage when he faces a police officer, rather than later when he gets tutored by an advocate.

And since in any case the accused has the liberty to retract his confession during trial, why the confession recorded by a police officer be not admissible as evidence? Further, the judge is not bound to convict the accused on the basis of confession before a police officer, then why deprive the judge the right to consider it.

Unfortunately, there has been a trend of further strengthening the laws based on distrust of police offices enacted by the British during the Raj. Nobody thinks why the same British people enacted different laws in their own country during the same period. If the aim is to provide justice to victims of crime also while ensuring liberty of the innocent, then trustworthiness of both-the prosecution as well as the defense- will have to be kept in mind while making laws. All knowledgeable persons know that if police officers use dirty tricks to get an accused convicted, the defense counsels use dirtier tricks to get criminals acquitted. Real protection to witnesses lies in conviction of criminals. If after the trial the criminals have the last laugh, no witness protection program will succeed.

The laws should be amended so that they provide a reasonably level playing field to both sides- the prosecution and the defense. I shall not be surprised if even this time amendments made on suggestions of ill-informed persons would only make the investigations and prosecutions more accused-friendly.
This will be like making Ganges more unclean through Ganges Action Plan.

(The writer is former
Director General of Police.)

First Published: May 15, 2006 00:48 IST