Author Name:   Shayesta Nazir

Ours being an adversarial system of criminal justice, role of police in arena of criminal investigation and marshalling of evidence for trial is active one. With area of investigation and collection of evidence left to investigating officers and prosecution at pre-trial stage and judiciary being itself hands-off in such matters

Unsophisticated Arena of Criminal Investigation: Loopholes and Repercussions

Out of the given and recognized criminal justice systems of world i.e. ‘adversarial’ and ‘inquisitorial’ systems or what Herbert L.Packerproposed in his own terminology as ‘Due process’and ‘crime control’models, India opted for common law based ‘adversarial’ system of criminal justice administration. Unlike Inquisitorial system of justice administration, in ‘adversarial’ system, judge plays a neutral role and has no interference at pre-trial stage i.e. in investigation matters and investigation is left wholly and solely to investigating agencies and they along with prosecution play key role in collection and marshaling of evidence for trial. Judiciary considers itself hands-off in such matters. From time to time Supreme Court also nudges judiciary as to its confined arena and cautions it as to encroachments. Like in Popular Muthiah v State, Represented by Inspector of Police, Supreme Court laid down:
‘When a power under section 173(8) [of Cr.PC] is exercised, the court ordinarily should not interfere with the statutory powers of the investigating agency. The court can’t issue directions to investigate the case from a particular angle or by a particular agency.’

Thus under ‘adversarial’ system of criminal justice administration, judge plays a neutral role like that of an umpire in a football match and not active one like ‘inquisitorial’ system as to ‘quest for truth’. So in our system of ‘criminal justice administration’, investigation arena is wholly the domain of police, of investigating agencies, who play a very crucial role in a criminal trial, a link in search of justice. Matters of ‘liberty’ and ‘justice’ both from constitutional as well as humanitarian angle are very delicate matters and any compromise of any sort with them is their very causality in a democracy. When investigating agencies are given discretion in such matters like in ours to go about them, there is huge duty cast on them by law of land to adhere to constitutional mandate to uphold flag of ‘rule of law’. Compromise or negligence of any sort would cost huge to ‘rule of law’ and more importantly to justice. Investigating agencies and prosecution left with this important duty of collection and marshalling of evidence need to be all vigilant and need to ensure transparency in their approach. They need to appreciate everything that will facilitate their cause of reaching to conclusion and thereby discovery of truth. Since modern technology has now so reduced ‘risk’ factors involved in criminal investigation matters be that in advancements in forensics -‘fingerprinting’, DNA typing and analysis etc that from time to time courts appreciated their probative value leading changes to evidence law to the effect of their admissibility in criminal trials, our investigating agencies should realize their ‘probative’ value and understand their importance as a facilitator towards conclusion and truth in a particular criminal case and should not at any cost overlook its importance. Like importance of advancement in modern technology could be gauged from Supreme Court observation in Murari Lal v State of M.P., wherein it observed that:

‘The science of identification of fingerprints has attained near perfection and the risk of incorrect opinion is practically non-existent.’

And also lately in a paternity row shrouded in mystery, after 6-yr battle, N D Tiwari, former Uttar Pradesh chief minister and governor of Andhra Pradesh admitted Rohit Shekhar as his biological son and mystery was solved by DNA samples.

So in no case shall its importance be undermined by investigating agencies and there really is need for them to appreciate its value which is why a need as to this realization on their part in this paper is explored as any loophole in investigation is going to cost huge to justice, as already mentioned.

II. Importance of Physical Evidence and Role of Modern Technology

The value of the physical evidence traced out at the crime scene is enormously high so far as its evidentiary value is concerned, though found even in small quantity at the place of occurrence.A close study of the crime and the criminal indicates that after the commission of an offence the criminal leaves something at the scene or takes away something from the crime scene or from the person of the victim. The physical evidence found at the crime scene provides:-
(1)One or more links in the chain of evidence
(2)Strengthens weak link or links in the sequence of evidence
(3)Establishing the accuracy or otherwise of the statements made either by the suspect or a material witness or the victim
(4)It helps in assessing guilt or innocence of a person
(5)It helps the investigator in locating the criminal

In the age of technology, there is tremendous development of science in every area of human life including police investigation. The crime rates are showing higher trend and the strength of the police attending investigation is remaining almost constant. More and more complicated cases the police have to handle unless the scientific aids as available in the State are taken by the police, the mystery of the crime is very difficult to uncover by the police investigator within the permissible time limit.

III Procedural Technicalities: Adhered to or Undermined?

Now that we know importance of ‘modern technology’ in investigation and also how much important it’s for investigating agencies to take each step with caution to further the cause of justice even though it may be onerous, tough and challenging. Question is ‘are procedural technicalities adhered to or overlooked and compromised in investigation?’ Our criminal justice system, at present, narrates sordid tale – of shoddy and loop holed investigations. Of compromise with standard of justice, as the very basis – the investigation phase – is compromised. More often than not we hear the cases of fabricated stories, cooked up by police and investigating authorities which have no factual truth at all. Honest submission here would be that not every case ends up in acquittal but at the same time what could be argued is that not every case ends in conviction. There is something wrong. Some elephant in room being ignored. Question that looms large on horizon is ‘Where lies the fault in system?’ What really is being ignored which needs urgent attention, otherwise? We talk so much about police reforms. So many commissions sat right from National Police Commission (which came up with so many recommendations suggesting wide ranging reforms. The Commission produced eight reports between 1979 and 1981, suggesting wide ranging reforms in the existing police set-upand could be without exaggeration called as ‘treatise’ on Police reforms) to Ribeiro Committeeto Padmanabhiah Committee on Police Reformsto guidelines of Supreme Court in Prakash Singh case.

In its September 22, 2006 verdict in the Prakash Singh v. Union of India case, the court sought to achieve two main objectives: functional autonomy for the police through security of tenure, streamlined appointment and transfer processes and creation of a “buffer body” between the police and the government; and enhanced police accountability, both for organizational performance and individual misconduct.

But nothing really worked on ground and situation is still the same – status quo maintained, to put precisely. Question is whether this is happening unwittingly where police unintentionally delay the investigation or show poor response to sophisticated era of modern technology because they feel so overburdened to show adherence to niceties of procedural technicalities in a criminal case. This too could be argued as somewhere a contributing factor. After all we have given them so much tough tasks to do that single handedly they are expected to handle ‘law and order’ situations, maintain public peace, handle investigation arena and also be ‘service providers’ – who would impart impartial services to people in democratic polity – and also not forget about their role as police force, which is quite ironical as people can’t be expected to show confidence in ‘police force’ doing the job of rendering impartial services. Which is why so many commissions stressed the need to demarcate ‘law and order’ and investigation work and lighten police of burden and stressed its role as ‘service provider’ in democratic polity than its less credible image as ‘force’ as latter doesn’t go well in democratic polity. Supreme Court guidelines in Prakash Singh Case as highlighted above too stressed on same.

IV Response to NPC's Recommendations:

The major recommendations of the NPC have remained unimplemented. There is a deep seated and strong resistance to the idea of police reforms. Politicians and bureaucrats have developed a great vested interest in retaining control and superintendence over the police organization. Indicative of the deeply entrenched resistance to police reform is the fact that a letter written on the subject in April 1997 by Shri Indraji Gupta, the then Union Home Minister to the Chief Ministers of all States exhorting them to rise above narrow partisan or political considerations and introduce police reforms on the lines recommended by the NPC failed to produce even a single response. Within the police establishment also, there are those who are content to retain the status quo. Closely associated with powerful interests, they acquiesce in and allow the system to continue. The existing system is unacceptable. It has resulted in subverting the rule of law and in obstructing the growth of a healthy and professional system of policing. It must change.

It won’t be stating anything new if it’s said that real problem lies in ‘lollypop’ of promotions and transfers – the real ploy in the hands of politicians to make police move on their gestures and follow their instructions and orders and carry their mandate and tend to them than the law of land. Pliant attitude could be said to be the real problem and this subordination to executive is because of this ‘honey trap’ executive has been gifted with under our system. It’s these ‘promotions’ and ‘transfers’ which make police (investigating agencies) work like play toys in the hands of executive, makes them dance to the tune executive plays.

VI Conclusion and Suggestions
Although all Commissions on Police Reforms along with Supreme Court inPrakash Singhcase stressed on need to recast Police Act and highlighted its redundancy suggesting model Police Act but after perusing all relevant material on matter what would be best to break this unholy alliance would be to revert back to earlier position – when in Presidencies police force, was under judiciary. This suggestion would definitely be a long time process but then Rome too was not built in a day. We can go about this in a phased manner starting first with ‘investigation’ arena to be placed under ‘judiciary’. We have to think of rehabilitation of police till time this model is implemented which is why we have to go about it in a phased manner. It would be sheer naïveté to think that it’s as easy as that to announce: ‘that from now on police is going to be under ‘executive’ and not ‘judiciary’’. But if worked out in a phased manner, it will restore confidence of public in police. We do have to see long and far reaching implications it will have if implemented than being idealist planning it in cuckoo land. First and foremost, ‘lollypop’ of promotions and transfers will go and there will be restoration of actual spirit – to tend to law of land than to any influential master you are subordinate to and work for.

Since we borrowed ‘best’ out of ‘inquisitorial system’ like fast track trials to bring reforms in our system, still we were not able to lessen backlog of cases nor we could improve plight of ‘under trial prisoners’ and although much was suggested about reform in police system but nothing really worked out and we are still in mess on that. Problem is as mentioned in Part IV and V of this paper also, that we still continue with British ideology. Despite our Independence decades ago, we are still not out of ‘British hangover’. Result is we are still guided by British gift for Police Organization – ‘Bible of Police Organization’ – Police Act, 1861. And since we never thought of revising or doing away with this ‘imperialist’ law based on expediency and convenience of British at that time, and failed to bring up a law based on ‘democratic aspirations’ of people in a democratic polity, we got caught in a mess as root problem is the very concept of ‘Police under executive’ – and this was at that time ‘necessity’ of British but situation is not same now. So suggestion is ‘transition’ or call it ‘reversion’ back to earlier position as was in erstwhile Presidencies, as aforesaid, when Police was part of ‘judicial system’. To my view this transition could be best solution to protect ‘liberty’, to prevent crime or restore order, to reform police system, and above all to provide relief to ‘under trial prisoners’ by lessening the backlog of cases and by not making ‘investigation’ process redundant. This will also boost our economy where we play lazy techniques in ‘identification parades’ and investigation itself and delay the case, causing lots of inconvenience to accused and also adding to suffering of s ‘under trial prisoners’. That money could be spent on useful services to people.

Problem with our system is that we first expect Police to make case anyhow – as it is under the mandate of executive – and even if police officer knows there is no prima facie case made out against accused. Result is in such cases so much time of police is spent on investigation and so much of accused’s liberty is compromised by tortures and extraction of confessions, just to prepare that challan, which Investigating officer must submit to Magistrate (even though it may be cooked up) and this valuable time of police which could have been spent on ‘services’ that police are expected to render to people in a democratic polity is lost in an investigation which is just cooked up and lastly rebutted, countered and nullified in open court.

Here it’s submitted that every case may not end in acquittal at last, but my point is why waste time in ‘police investigation’ – which happens under the patronage of executive when their version is least believed by court? Why not instead take “investigation” function from police and form an “investigation” wing which would collect facts of case but under the directions of judiciary, much on lines with inquisitorial system. But here what needs to be put in black and white is that unlike ‘inquisitorial’ system, let our system have role of ‘defense lawyers’ actively to rebut version of ‘prosecution wing’ under judiciary. This way unlike ‘inquisitorial system’, our justice won’t be mechanical and we can protect ‘liberty’ also. I even suggest making whole police system come under ‘judiciary’ to reform it. Judiciary may not have ultimate transparency to its name but to some extent it’s still considered credible and impartial.

Though this would be long term suggestion but we can go about it in a phased manner in which first step would be to establish this ‘investigation cum prosecution’ wing under charge and supervision of judiciary. It should be headed by a judicial officer and its members may be even ‘investigation officers’ of present police system or ‘persons with legal know how and who would know procedure of going about investigation and with expertise on matter.’ This would for now at least discharge police of one function of ‘investigation’ and they can focus their time on being ‘service providers’ – like in big cities we have much dearth of police officials who would come on time to save victims from heinous crimes like rape and murder, Nirbhaya case being case in point and exemplary of it. This would also lessen backlog of cases and thereby provide relief to many (who wait on periphery of ‘life and death’) while their fate hangs in balance as suggested wing would take investigation on priority. And lastly this would save our exchequer from bleeding profusely on sluggish investigation and that money could be put to proper use. So real solution would be ‘judicial police’ but again it should remain transparent and should be put under radar constantly so as to keep the day from coming when it too will turn to unholy scene.

End-Notes
# A famous and eminent Stanford Law School Professor.
# Herbert L. Packer, “The Limits of the Criminal Sanction”, (1966), P.1.
# Ibid.
# (2006) 7 SCC.
# AIR 1980 SC 531.
# Available at:http://m.hindustantimes.com/india-news/article1-1190213.aspx,(accessedon 15/12/2016).
# DEV, H.L.,Laws of Police Investigation &Scientific Aids, P.193.
# DEV, H.L.,Laws of Police Investigation &Scientific Aids, P.193.
# Ibid.
# DharamVeer Committee set up by Central Govt. in 1977 on Police Reforms.
# Available at:http://www.humanrightsinitiative.org/(accessedon 27/1/2017).
# Set up by Central Govt. on Police Reforms in 1998 on the directions of Supreme Court.
# Set up by the Ministry of Home Affairs, Government of India in January 2000.
# AIR 2006 SC.
# Availableat:http://www.humanrightsinitiative.org/(accessed on 27/1/2017).
# AIR 2006 SC.

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