Author: V. N. Khare
Publication: The Indian Express
Date: February 23, 2006
URL: http://indianexpress.com/full_story.php?content_id=88403
Introduction: Delink prosecution, investigation
from the state. Change the 171-yr-old CrPC
After the Gujarat riot cases, especially the
Best Bakery case in which I ordered a re-trial as the victim Zaheera Sheikh
changed her statements and witnesses turned hostile, the Jessica Lall murder
case has thrown up a challenge for the country's criminal justice system.
Our criminal jurisprudence requires drastic changes. The Indian Penal Code
(IPC), Criminal Procedure Code (CrPC) and the Indian Evidence Act are over
150 years old. Law, like society, is not static: new contexts demand new solutions.
The rapid advances we have witnessed in technology
and communication, for instance, are indeed revolutions of sorts. The law
cannot be a mute spectator, limping to catch up with these large transformations.
Today, criminals are in power from the taluka to the national levels. In such
a situation, it becomes extremely difficult to procure evidence and produce
witnesses before the court. Even witnesses collected and produced before the
court are vulnerable. They are easily preyed upon by the powerful accused
who may use money or fear.
The very first change I would suggest is that
the prosecution should be an autonomous agency away from the control of the
government like, say, the Election Commission (EC). Since the prosecution
is under the state at present, it follows the lines directed by the state.
I have seen it in Gujarat riot cases: the prosecution and the accused were
hand-in-glove. The time has come for the prosecution to be made an independent
and autonomous agency.
Two, the present system of investigation by
the police must change. We know the police is vulnerable. I have seen cases
of the police distorting evidence. In the present set-up, under the CrPC,
to be precise, it is the duty of the police to collect evidence and produce
the same before the court. If the police officer is aligned with the accused,
it becomes difficult to secure a conviction in a court of law. Hence, the
investigation should be conducted by an independent agency. Alternatively,
the independent autonomous body to be set up along the lines of the EC can
perform the twin jobs of investigation and prosecution.
Three, the statement under section 161 of
the CrPC to be given to the police should be recorded before a judicial magistrate
so that the 'examination in chief' of a witness need not be done again and
the cross-examination by the accused can begin straightaway. As the statement
recorded by the police is not admissible in evidence, it is again recorded
in the examination in chief of the witness before a magistrate. There is every
likelihood of the witness, who could have been influenced in the interregnum,
changing his statement before the magistrate. Once the statement under Section
161 is recorded before the judicial magistrate, the court's time will not
be wasted by having to undergo the examination in chief again before the cross-examination
begins. Further, both the recording of the statement under Section 161 and
the cross-examination must be done through video conferencing. This will ensure
video evidence of a witness who will not be able to change the statement later.
Then, the psychological pressure on a witness constrained to stand in the
witness box in court and record his statement would be done away with.
Four, like in the developed countries, say
in the US, in at least some sensitive cases, witnesses should be provided
protection. This is particularly desirable in India because of long pending
trials in the courts. Under protection, the witness will not be fearful. It
will be difficult to lure him or her by money and other allurements.
Five, the victim must be given the right to
appeal. At present, the right of appeal resides only with the state, which
is the prosecution. A victim can only go for a revision of the order of the
trial court where the victim or the family members cannot argue on facts and
law but only on jurisdiction. Both on the counts of law and fact, the victim
too should be given this right. Finally, the victim or family members should
have the right to have a say along with the prosecution in the trial court
itself.
I would suggest these remedial measures towards
the ultimate goal of revamping the entire gamut of criminal jurisprudence
and criminal justice administration in our country. If these changes are implemented,
a beginning would have been made, there will be some hope for the future.
Consider a small statistic. In 1967, the conviction
rate was 80 per cent. In 2005, the same conviction rate dipped to 22 per cent,
and most successful cases concerned petty crimes. Obviously these petty offences
are committed by the poor who are not in a position to engage an expensive
lawyer. The big fish, on the other hand, can tear their way out of the net
of law.
Lord Macaulay drafted the IPC in 1835 sitting
in Tamil Nadu's summer vacation resort, the famed Nilgiri Hills. It is now
2006. One hundred and seventy-one years have passed by and the IPC, CrPC etc.
remain virtually the same. The time has come to drastically change penal laws,
the criminal justice administration system and criminal jurisprudence itself
given the vast societal changes in these 171 years.
Today, we live in the E-Age. We are in the
middle of an electronic revolution. Psychological, emotional and sociological
approaches to crime have changed. The law must catch up and keep pace with
the changing times. Till then, disturbing occurrences such as the acquittal
of the accused in the Jessica Lall murder case will keep repeating themselves.
The writer is a former chief justice of India