The Maxim “Justice should not only be done, but seem to have been done” finds its place in the Constitution of India as enshrined in Article 21 of the Constitution wherein its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
Now let us find what the stages are in a criminal trail and the importance of each stage in reaching the Justice.
First stage in any case is the registration of the complaint i.e. FIR in case of cognizable offences, but sometimes even if the complaint discloses prima facie a cognizable offence the police still fails to register an FIR for the reasons best known to them despite the specific instructions of the Hon’ble Supreme Court in this regard in “Lalita Kumari vs Govt.Of U.P.& Ors” dated on 12 November, 2013.
Second stage after the registration of the FIR is the investigation which the sole prerogative of the Police and the police can either file a charge sheet or closure depending upon the information given, evidence collected, statements recorded and so forth (In case the closure report is filed the complainant can file the protest petition against that closure and get the case registered after recording their statements). But as a matter of fact every day the fresh cases seeking transfer of case to some independent agency for “fair, honest and complete investigation” is being filed because of the investigation by the state police lacks credibility and is biased.
Hon’ble Supreme Court in “K.V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai and others” has held that transfer of investigation to some independent investigating agency like CBI only in rare and exceptional cases and the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating only when the high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instill confidence in the investigation or where the investigation is prima facie found to be tainted/biased.”
Third stage after the filing of the charge sheet is the trail where in the courts frame the charge (the accused can get discharged as well), lead evidences, record the statements of the accused, record the final arguments and pass the judgment. Despite the right to speedy trial the courts fail to conclude the trail in a timely manner the courts fails to do so because of the factors like absence of adequate number of judges in trial courts and no timely appoint of public prosecutors proportionate to the cases pending. Serving of summons is done by the police and they could not effectively do it. Frequent and long adjournments, leave of absence by presiding officers and boycott of courts by advocates are the other reasons. However the parties facing delay in trail can approach the Hon’ble Courts seeking dead line to complete the trail as held by Hon’ble Supreme Court in “Katar Singh v. State of Punjab” that right to speedy trial is an essential part of fundamental right to life and liberty.
Therefore the precautions which can be taken for a fair investigation, trail could be as follows:-
1. If the police fails to register an FIR, file the complaint to the immediate senior officials as provided in 154(3), thereafter file an RTI seeking reply for the action taken on that particular complaint. If nothing results fruitful file a complaint U/S 156(3), 200 Cr.P.C before the magistrate.
2. If apprehending unfair and biased investigation file a petition before the Hon’ble courts under Article 226 or Article 32 for fair investigation.
3. If there is delay in the trail approach the Hon’ble Court seeking dead line with the justified reasons to put a dead line for the completion of the trail (Matrimonial as well as Criminal trials)
Kapil Chandna Advocate