Why higher acquittals?
Recent cases of Gujarat riots and other cases of Delhi, UP and Bihar have come to raise undue expectations from the Supreme Court to single-handedly rescue the country from the almost total failure of the criminal justice system. CJI Sabbarwal has rightly said that the responsibility has to be shared by the executive and the legislature with the judiciary.
It cannot be a mere coincidence that the high percentage of acquittals was unknown in British times or even in the first two or three decades after Independence. Nor that many of our elected leaders have come to have close links with criminals, and some even themselves fall in that category and have been prosecuted more than once for heinous crimes like murder, attempt to murder, gangsterism, rape, etc. and yet that our criminal law has under the pressure of " liberals" been made even softer for the criminals by the Criminal Procedure Code of 1973.
The Cr. PC of British times, which was already more anti-prosecution than its British, European and American counterparts (due mainly to greater distrust of police in our country) and had been suitably amended by eminent lawyer Home Minister Dr. Kailas Nath Katju in 1956 was unnecessarily given a short shrift in 1973-74 and replaced by the new code which became even more pro-accused. Unlike the British and Americans, our politicians still insist that it is good enough even to tackle the terrorists. In taking this stand are the claimants to the legacy of Indira Gandhi (the author of TADA) trying to show that they are even wiser and just than her?
Looking at the present police-criminals-politicians nexus it does make sense that police generally cannot be given many more powers. But the solution lies in the recommendations of the National Police Commission, which was headed by distinguished bureaucrat Dharam Veera and had among its members UP's own eminent police officer NS Saxena among others.
Those recommendations have been put in cold storage, and ex-DGP Prakash Singh has had to approach the Supreme Court (without any success so far) with a PIL for directing the government to act on the report. At present the police officers hold their postings and security of tenure at the pleasure of the CM, which in the present scenario of insecure majorities means the local legislator. So the darogha takes his orders from the area neta and can even defy his SSP and other higher-ups with impunity. The investigators are changed mid way during an important investigation.
Investigators cannot arrest the culprits without clearance from the top. Investigation is meanwhile so much distorted that the courts feel helpless. In the latest case of Mehar Bhargava no one even attempted during her month-long stay at the hospital to get her dying declaration recorded.
Only the CBI and State's STF has so far succeeded in some cases, but in cases in which higher-ups in the political corridors are interested the process can be brought to a halt or a successfully progressing investigator may be sent away on promotion or on a foreign sojourn. Acceptance of recommendations of the Police Commission should help bring an end to this sad state of affairs.
Our Cr. PC says that the court may examine the accused but must not put any questions to him in the nature of cross-examination.
Why? It is also provided that he is not obliged to speak the truth. Why? If the victim of crime can be punished for not speaking the truth why not the culprit? Even video graphed confessions of the accused or statements of witnesses if recorded by the police cannot be admitted as evidence. Why?
English law for the last hundred years provides that if some facts were within the special knowledge of the accused he is expected to depose to and explain those facts on oath.
He can then be fully cross- examined. If he fails to give evidence on oath and face cross-examination an adverse inference can be drawn against him. This has been approved by the House of Lords and also by the European Court of Human Rights. But we steadfastly refuse to adopt a similar provision. Why? The status quoists say that such provision will amount to forcing him to give incriminating evidence against himself.
The English and European courts have held no, it is totally consistent with the requirement of a fair trial. Top lawyer Fali S. Nariman has also supported such an amendment. As for hostile witnesses if the court wants to order prosecution of a witness for perjury it must first give him opportunity to show cause why such an order should not be made. What is the need of this extra opportunity when he will get the opportunity at the trial itself? There is also an unnecessary opportunity to appeal even against the order to prosecute.
This can be done away with and the trial court itself be given summary powers, even though the severity of sentence may be less than at present. Besides why should the court be required to send the case to another court and not try such prosecution itself?
All this has already been recommended by the State Law Commission as far back as in Dec. 2001. Has any action been taken on it since? If not, why not? Has anyone even cared to read the comprehensive report on Criminal Justice Reform?