I would like to start this subject with respectfully citing the recent Judgment of Hon’ble Supreme Court in CRIMINAL APPEAL NO. 1485 OF 2008 State of Gujarat Versus Kishanbhai Etc on 7-01-14. This Judgement was described as a jolt to Gujarat Investigation and prosecution, more particularly media questioned up on governance by this judgment. But after considering Alfa and Omega of the verdict being a member of criminal justice delivery system, I feel it appropriate to share some of noble and novel suggestions in expectation of improvement not only of investigation and prosecution but in appreciation of evidence also.
In verdict of kishanbhai case apex court ordered guidelines to all state’s home departments for improving investigation and prosecution.
The subject matter of the case which was preferred in SC by Government Of Gujarat was a criminal appeal up on a A complaint was lodged at Navrangpura Police Station, Ahmedabad, alleging the kidnapping/abduction of a six year old girl child It was alleged, that the accused had enticed victim girl with a “gola” (crushed ice, with sweet flavored syrup), and thereupon had taken her to nearby field, where he raped her. He had murdered her by inflicting injuries on her head and other parts of the body with bricks. In order to steal the “jhanjris” (anklets) worn by her, he had chopped off her feet just above her ankles. The complaint was lodged, after the body of the deceased was found from field, at the instance of the accused. On the receipt of the above complaint, the first information report came to be registered thereafter the Sessions Court to which the matter came to be assigned, for trial, framed charges. Since the accused Kishanbhai denied his involvement in the matter, the court permitted the prosecution to lead evidence.
The prosecution examined 14 witnesses. The statement of the accused was thereafter recorded under Section 313 of the Code of Criminal Procedure. In his FS, the accused denied his involvement. Even though an opportunity was afforded to accused, he did not lead any evidence in his defense. After examining the evidence produced by the prosecution, the Trial Court vide its judgment, arrived at the conclusion that prosecution had successfully proved its case beyond reasonable doubt. By a separate order the Trial Court sentenced Kishanbhai to death by hanging, subject to confirmation of the said sentence by the High Court of Gujarat under Section 366 of the Code of Criminal Procedure.
In the The criminal appeal filed by the accused, it was accepted by the High Court. Accused was acquitted by giving him the benefit of doubt. Dissatisfied with the order passed by the High Court, the State of Gujarat approached SC by filing Petition for Special Leave to Appeal which was pronounced in the acquittal of accused and further directions for fair and fruitful investigation and prosecution in the Whole of India. Hon’ble Apex court has ordered to circulate copy of the judgment to all State Governments.
I would like to incorporate Hon’ble SC’s pain and feelings as it is by quote it in verbatim in order to fully justify their Lordship’s words.
“15. The investigating officials and the prosecutors involved in presenting this case, have miserably failed in discharging their duties. They have been instrumental in denying to serve the cause of justice. The misery of the family of the victim xxx has remained unredressed. The perpetrators of a horrendous crime, involving extremely ruthless and savage treatment to the victim, have remained unpunished. A heartless and merciless criminal, who has committed an extremely heinous crime, has gone scot-free. He must be walking around in Ahmedabad, or some other city/town in India, with his head held high. A criminal on the move. Fearless and fearsome. Fearless now, because he could not be administered the punishment, he ought to have suffered. And fearsome, on account of his having remained unaffected by the brutal crime committed by him. His actions now, know of no barriers. He could be expected to act in an unfathomable savage manner, uncomprehendable to a sane mind.
16. As we discharge our responsibility in deciding the instant criminal appeal, we proceed to apply principles of law, and draw inferences. For, that is our job. We are trained, not to be swayed by mercy or compassion. We are trained to adjudicate without taking sides, and without being mindful of the consequences. We are required to adjudicate on the basis of well drawn parameters. We have done all that. Despite thereof, we feel crestfallen, heartbroken and sorrowful. We could not serve the cause of justice, to an innocent child. We could not even serve the cause of justice, to her immediate family. The members of the family of xxx must never have stopped cursing themselves, for not adequately protecting their child from a prowler, who had snatched an opportunity to brutalise her, during their lapse in attentiveness. And if the prosecution version about motive is correct, the crime was committed for a mere consideration of Rs.1,000/-.
17. Every time there is an acquittal, the consequences are just the same, as have been noticed hereinabove. The purpose of justice has not been achieved. There is also another side to be taken into consideration. We have declared the accused-respondent innocent, by upholding the order of the High Court, giving him the benefit of doubt. He may be truly innocent, or he may have succeeded because of the lapses committed by the investigating/prosecuting teams. If he has escaped, despite being guilty, the investigating and the prosecution agencies must be deemed to have seriously messed it all up. And if the accused was wrongfully prosecuted, his suffering is unfathomable. Here also, the investigating and prosecuting agencies are blameworthy. It is therefore necessary, not to overlook even the hardship suffered by the accused, first during the trial of the case, and then at the appellate stages. An innocent person does not deserve to suffer the turmoil of a long drawn litigation, spanning over a decade, or more. The expenses incurred by an accused in his defence can dry up all his financial resources – ancestral or personal. Criminal litigation could also ordinarily involve financial borrowings. An accused can be expected to be under a financial debt, by the time his ordeal is over.
18. Numerous petitions are filed before this Court, praying for anticipatory bail (under Section 438 of the Code of Criminal Procedure) at the behest of persons apprehending arrest, or for bail (under Section 439 of the Code of Criminal Procedure) at the behest of persons already under detention. In a large number of such petitions, the main contention is of false implication. Likewise, many petitions seeking quashing of criminal proceeding (filed under Section 482 of the Code of Criminal Procedure) come up for hearing day after day, wherein also, the main contention is of fraudulent entanglement/involvement. In matters where prayers for anticipatory bail or for bail made under Sections 438 and 439 are denied, or where a quashing petition filed under Section 482 of the Code of Criminal Procedure is declined, the person concerned may have to suffer periods of incarceration for different lengths of time. They suffer captivity and confinement most of the times (at least where they are accused of serious offences), till the culmination of their trial. In case of their conviction, they would continue in confinement during the appellate stages also, and in matters which reach the Supreme Court, till the disposal of their appeals by this Court. By the time they are acquitted at the appellate stage, they may have undergone long years of custody. When acquitted by this Court, they may have suffered imprisonment of 10 years, or more. When they are acquitted (by the trial or the appellate court), no one returns to them; what was wrongfully taken away from them. The system responsible for the administration of justice, is responsible for having deprived them of their lives, equivalent to the period of their detention. It is not untrue, that for all the wrong reasons, innocent persons are subjected to suffer the ignominy of criminal prosecution and to suffer shame and humiliation. Just like it is the bounden duty of a court to serve the cause of justice to the victim, so also, it is the bounden duty of a court to ensure that an innocent person is not subjected to the rigours of criminal prosecution.
19. The situation referred to above needs to be remedied. For the said purpose, adherence to a simple procedure could serve the objective. We accordingly direct, that on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation. It should also be ensured, that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case. This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigors of criminal prosecution. By following the above procedure, in most criminal prosecutions, the concerned agencies will be able to successfully establish the guilt of the accused.
20. Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore, essential that every State should put in place a procedural mechanism, which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. In furtherance of the above purpose, it is considered essential to direct the Home Department of every State, to examine all orders of acquittal and to record reasons for the failure of each prosecution case. A standing committee of senior officers of the police and prosecution departments, should be vested with aforesaid responsibility. The consideration at the hands of the above committee, should be utilized for crystalizing mistakes committed during investigation, and/or prosecution, or both. The Home Department of every State Government will incorporate in its existing training programmes for junior investigation/prosecution officials course- content drawn from the above consideration. The same should also constitute course-content of refresher training programmes, for senior investigating/prosecuting officials. The above responsibility for preparing training programmes for officials, should be vested in the same committee of senior officers referred to above. Judgments like the one in hand (depicting more than 10 glaring lapses in the investigation/prosecution of the case), and similar other judgments, may also be added to the training programmes. The course content will be reviewed by the above committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgments of Courts, and on the basis of experiences gained by the standing committee while examining failures, in unsuccessful prosecution of cases. We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence, when they are made liable to suffer departmental action, for their lapses.
21. On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly we direct, the Home Department of every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months.’’
Apex court express its deep anxious towards lacuna and shortcomings of investigation and prosecution and declare investigation and prosecution both responsible for acquittal in the criminal justice delivery system. As lower cadre courtier of public prosecution I most respectfully accept verdict and so we should work together to fill the gap. Although at this juncture we should not forget the basics of criminal justice delivery system which is consist of investigation, prosecution and trial.
IS IT TRUE THAT, ONLY INVESTIGATION AND PROSECUTION IS RESPONSIBLE WHEN ACQUITAL ON INSUFFICIENT OR WRONG INVESTIGATION HAPPENS
I most respectfully attract attention towards one more failure in the matter of KISHANLAL verdict that Kishanlal was convicted with capital punishment at session court who thereafter acquitted by high court and supreme court. It is a cardinal principle of C.J.D.S. that real and true appreciation of evidence should be performed by trial court, presiding officer who have an opportunity of witnessing whole trial’s opinion should be considered carefully in any appeal. So, when our apex court arrived at the conclusion that investigation and prosecution both committed serious error in their respective duty. Is there no responsibility of trial judge who has admittedly wrongfully appreciate evidence of prosecution and award capital punishment to accused.?
Our criminal justice Delivery system is consists of Investigation, Prosecution and Trial(Judiciary) Is there no any responsibility when non appreciation or wrong appreciation of evidence of trial court establish in appeal..? Though it’s a responsibility of state to investigate and prosecute the crime but when those system not found successful then what is the remedy we as Criminal Justice Delivery System providing to real victim of crime and what action we are taking towards real culprit of crime.?
I feel that, whenever after long procedudure and prolong trial if we are not punishing crime and real criminal it is just unbearable for any democratic society. If we are often raising hue and cry for rule of law and demanding extra status as a members of judiciary then why we are answerless for about more than 90% acquittals in criminal cases. Why every acquittal should not consider failure of Justice and direct reinvestigate or further investigate in order to find out real culprit.
I wanted here to quate sec 165 of evidence act read with section 173(8), 311 of Cr.P.Code. It has entitle and responcible trial judge to carefully consider case of investigation and evidence of prosecution. Material which is deposited u/s 173 before magistrate it’s a duty of every magistrate to carefully consider material and even he has to apply his mind prima facie about the material of charge sheet. Rule of law is now very much cleared by the number of pronouncements of supreme court that magistrate has discretionary power to send file for further investigation. In this matter trial judge not tried to sent matter for further investigate to get DNA profiling of blood samples of which only blood groups obtained by investigation. Even trial court at any stage of inquiry, trial or proceeding entitle to summon any person to produce document or thing..
“SECTION 91 : Summons to produce document or other thing
(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.”
In the proceeding of trial it is duty of prosecution to brought all material before court with being impartial and conduct fair trial, but suppose prosecution does not examine material witness, is it not the duty of Judge casted by legislation to call and examine material witness u/s 311 Cr.P.C.?
“SECTION 311: Power to summon material witness, or examine person present.
Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”
It is also cardinal rule that judge who precide over the trial is not observer or mere recording machine but he has to actively participate in the whole trial he has power to put any question whether or not it is relevant to witness in order to do justice.
“SECTION 165 : Judge's power to put questions or order production
The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:...”
Is it not require to make trial judge also answerable when it found lacuna and shortcomings in trial and wrongful appreciation of evidence results in either acquittal or conviction.
We must not forget real victim of crime remains unjustified when ever acquittal results. In every appeal whenever appellate court arrived at the conclusion that, investigation and prosecution miserably failed to prove guilt of accused, question arise that what is the remedy to victim of the case who is deprived of justice? I would like to attract attention towards most sparking deficiency of our CJDS is, when trial court or appeal court records acquittal case ordered to be closed on never reopen. It is a bitter truth of our judiciary that in most of the cases matter ends in acquittal and drops the curtain.
In the case of acquittal only remedy is appeal by state u/s 377 or 378. But what would be the remedy when trial judge and prosecution opine that evidence of investigation is not sufficient to prove the guilt of accused.?
NEED TO IMPROVE CJDS IN CASE OF EVERY ACQUTTAL
It is failure of justice where crime remains unpunished. We should not forget that one of the reason of police atrocity is we the system not punish culprits. Even unscrupulous violent persons wield authority when we do not judge and punish the crime.
So in order to make efficient CJDS investigation, prosecution and judiciary all should upright their efficiency knowledge and accountability.
A- First and foremost requirement to train Investigators in scientific investigation, criminal procedure with training of concern acts
B- In most of investigation actual direct and real evidence need to be collect.
C- Every investigator shall be equipped with camera, voice recording instruments and all crime investigation should be start with documentary evidences of spot of crime, suspect interrogation.
D- Immediate and scientific spot inspection with video graph should be made compulsory.
E- In each and every investigation if possible electronic evidence should collected or prepared. i.e recovery or discovery.
FOR DETAIL OF ELECTRONIC EVIDENCE SEE MY ARTICLE
F- Investigation shall compulsory comply with Sec.173 and submit all original documents at the time of chargesheet.
G- In the serious cases like murder, rape etc. latest scientific examination should be made compulsory.
H- In preparing Panchnama hostile panch should be avoided and it should be prepared by respectable persons.
I- Police should not bother that all crimes compulsorily be detacted, this hasty and hurried attitude leads towards wrong investigation and some time it happens that police charges numbers of offence on one detected accused.
J- Whenever eyewitness is available his statement should be essentially recorded.
( for detail VISIT my article on http://www.lawyersclubindia.com/articles/Role-of-Panchnama-in-Criminal-Justice-Delivery-System--5702.asp )
A- Independent Directorate of Prosecution answerable to Lokpal or Lokayukta is require to be established.
B- Prosecutors should not be appointed on hired or appointed on contract basis. This system of contractual and political appointment is require to be stop immediately.
C- Prosecutors should be well equipped and their status be put similar to Judges. Equal salary and perks along with office infrastructure should be providing to prosecution.
D- Academy be establish to improve knowledge of law Regular training and study of case law should be regularly done.
E- Prosecutors should be given power to refuse irregular or faulty investigation reports.
F- Prosecutor’s work to be inquires and regulate by the senior officer.
COMBINE SUGGESSION FOR INVETIGATION AND PROSECUTION
A- At every unit i.e Taluka place meeting of Public Prosecutor and Concern Police Officer shall be done every month In which recent judgments should be discussed and suggestions on the law points should be given by Prosecutor to Officer in charge of police station.
A- All judgment compulsory be sent to concern higher police authority.
B- Every judgment of acquittal in which court opined that commission of crime is sure then court shall compulsory order re or further investigation.
C- Whenever it is found verdict of trial judge is lacking judicious mind or true appreciation of evidence, while high court or Supreme court is deciding appeal not only set aside the verdict but accountability of concern Judge should also be fixed, who wrongfully appreciate evidence or done grave mistake of law which results in injustice towards someone who become victim of society.
D- In most of convictions judges awards after routine hearings maximum punishment which is mentioned in the law book. We don’t found any reasonable reasons why this much punishment or why lesser punishment. This tendency leads towards prolong facing of trial and some minor offences offender hesitate to plead guilty.
Hon’ble Supreme Court’s verdict is eye opining for all components of criminal justice delivery system. Let us hope sun rise in our country with no offender remain unpunished. It would be golden day when face of goddess of justice will glitter with the satisfaction that my all Childs investigation, prosecution and judges are integrated struggling for justice, for crimeless country. I hope my dream comes true as early as possible.
DHARMENDRASINH G RANA
ASSISTANT PUBLIC PROSECUTOR
GOVERNMENT OF GUJARAT
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Tags :Criminal Law