As in the lines of Rudyard Kipling, “OH, East is East, and West is West, and never the twain shall meet,” the decision of the Hon. Supreme Court in Sarala v. Velu AIR 2000 SC 1732, rendered the final push in tearing apart the two arms of the criminal justice system – prosecution and investigation. First the 1973 amendment to the Criminal Procedure Code extinguished police supervision...
As in the lines of Rudyard Kipling, “OH, East is East, and West is West, and never the twain shall meet,” the decision of the Hon. Supreme Court in Sarala v. Velu AIR 2000 SC 1732, rendered the final push in tearing apart the two arms of the criminal justice system – prosecution and investigation. First the 1973 amendment to the Criminal Procedure Code extinguished police supervision over prosecution. Then the decision in Sarala ended the practice of consultation between the police and prosecutors at the investigation stage and prior to formation of opinion by the investigating officer (on laying of charge sheet or final report) under 173(2) of the CrPC.
Cases are today investigated by the police and subsequently prosecuted by the prosecution with hardly any cooperation between the two(The Malimath Committee Report on Reforms of the Criminal Justice System, 2003 at p21).
With the two agencies of criminal justice having nothing to do with one another the quality of trials has deteriorated and hurt the administration of justice adversely. While conviction rates in countries like USA, UK, France and Japan are in range of over 85%, conviction rate in India is in the 40% range. For serious cases like murder (39.1%), dacoity (22.7%), Robbery (30.9%) and rape (28%), it is even lower.
An opportunity has now come up to correct this anomaly through the decision of the apex court in State of Gujarat v Kishan Bhai (2014) 5 SCC 108. In this case out of sheer frustration at the miserable investigation and prosecution in a case of a gruesome rape, mutilation and murder of a minor girl, the Hon. Supreme Court was forced to come out with a tough decision suggesting corrections in the work of these two agencies. The court speaking through Kehar J. made a significant direction which after 13 years of divorce ordained by Sarla could well sound the end of the impasse. Justice Kehar’s direction reads, “...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.” This direction needs to be welcomed and accepted in the right spirit by the police and prosecution in order to improve both the quality of investigation and prosecution. A new chapter in cooperation should be given effect to between the two crucial instrumentalities of administration of justice.
Sarala was a review by the apex court of the order of the Madras HC asking the police to take back a case and to consult the Public Prosecutor and submit a fresh charge- sheet in tune with the opinion of the Public Prosecutor. This the Hon. SC held was not permissible on the grounds of the independence of investigation. While there is no quarrel that in the formation of opinion at the end of investigation and also in the normal course of investigation the police has to work with complete independence, the basis on which the apex court arrived at the decision - it is respectfully submitted is flawed. The Hon. court based its decision on the premise that “investigation and prosecution are two different facets in the administration of criminal justice. The role of Public Prosecutor is inside the court, whereas investigation is outside the court.” The court also stated, “Normally the role of Public Prosecutor commences after investigating agency presents the case in the court on culmination of investigation,” except in cases where a bail petition is moved during investigation.
In arriving at the above conclusion Justice Thomas writing the decision in Sarala relied heavily on the classic Abhinandan Jha v. Dinesh Mishra AIR 1968 SC 117. In this case the court was called upon to decide whether a magistrate could direct the police to lay a charge-sheet in a case. While holding that the magistrate had no such power, the court emphasised that the functions of the police and the court are entirely different. In the Sarala case it seems that Justice Thomas has merely substituted the ‘magistrate’ in Abhinandan Jha to ‘prosecutor’ to create the fiction of independence of the prosecution vis-a-vis investigation. In doing so while on the one hand the court has equated a prosecutor to a judge, on the other hand it has overlooked the symbiotic work relation between a prosecutor and an investigating officer.
While a prosecutor is an officer of the court, who helps the judge arrive at the right decision, she is also an officer of the executive branch of the state with the onerous responsibility of prosecuting criminals who violate the law. Ensuring justice by securing conviction for wrong doers is his or her primary duty. However, to say that the same prosecutor has no business to put in a word relating to investigation of that very same case which becomes her responsibility in court is rather strange. Similarly, though open for police to consult with the prosecution in relation to the numerous legal questions and evidentiary technicalities that arise during investigation, the practice has fallen into disuse following court decisions that encourage separateness and exclusivity.
Reviewing the sufficiency of evidence collected, whether the ingredients of the offence has been established and whether established against each of the accused, whether the appropriate provisions of the applicable law has been applied, whether key witness required to prove an offence have been arrayed, further, in cases without direct evidence, whether circumstances to establish an unbroken chain has been established are all among important discussions that need to be taken up between prosecution and police. Only that end product would be best in court that comes from the combined labours of investigation and prosecution. Given the technicality of crime today and the varied nature of criminal offences, it is important to involve prosecutorial advice from the earliest stages of investigation.
Our criminal justice system is heavily loaded in favour of the accused. Throughout trial there is a presumption of innocence of the accused and cases have to be proved beyond reasonable doubt by the prosecution. Accused have a constitutional right to remain silent and say nothing during investigation or trial. Victims have no say at all in trials except to come forward as a witness. There is a neutral umpire in the form of a judge to ensure fair trial of the accused. To add to all this we can ill afford another agency to also act as a neutral, impartial instrument professing “let ten accused go unpunished but no innocent be punished.” We cannot agree with the 197th report of the Law Commission of India wherein a totally independent status has been sought to be conferred upon the prosecutor - the position of a second judge during trial, a “minister of justice.” The law Commission opined that a prosecutor is not responsible if there is an acquittal. It is exactly this ambiguity in the role of a prosecutor that has led to such a fall in the conviction rate in serious offences in the country. The problem is so acute today that the confidence of the people in the people in the criminal justice system of the country is on the verge of collapse.
World over there is an emphasis on police and prosecution working together. While we have not adopted the system of the police working under the prosecution like is the case in several countries, our criminal jurisprudence also does not contemplate parallel functioning of the two agencies. In order for successful prosecution a close working arrangement between the two is needed. This is the practice in the CBI and in state anti-corruption agencies. In the CBI prosecution is an integral part of that agency and the two branches - investigation and prosecution work together at every stage.
Chapter 22 of the CBI Manual dealing with prosecution contemplates vetting of the charge-sheet by the Branch Public Prosecutor. The CBI Manual states, “Investigating Officers should realise that their duty does not end when the investigation has been completed. They should render all possible assistance and facilities to the Prosecutors during the conduct of the cases in Courts.” Needless to say the high conviction rate in the CBI of 69% in 2014(CBI Annual Report 2014) is owing to this close cooperation between the two agencies.
In the above discussed State of Gujarat v Kishan Bhai the Supreme Court directs, 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.”
As directed by the Hon. Court if prosecutors and investigators are going to be penalised for their lapses (as should rightly be done as today there is simply no accountability on either the investigator or prosecutor if a case ends in acquittal) then it is important to create an enabling system whereby they can collaborate and consult and thus minimise lapses.
Looking ahead, firstly, a system of collaboration between the prosecuting officer and investigating officer to consult each other both during investigation and formation of opinion at the end of investigation must be established. The separate and detached functioning of the two agencies must be a practice of the past.
Secondly, in order to improve the general quality of investigations there is a need for a team of legal advisors from the ranks of Public Prosecutors and Assistant PPs to be attached to the office of the Superintendent of Police in every district of India. Today the police in the districts have no access to legal advice in the cases they investigate. It is high time that in each district investigating officers have the facility of consulting legal advisors. There needs to be at least 3 legal advisors attached to each of the 688 districts of India. The country employing about 2000 legal advisors would be a great investment to qualitatively improve the standard of investigations and increase convictions.
To ensure the supremacy of the rule of law and to ensure security and order in society, it is important to ensure that criminals do not go unpunished. While every single innocent should be protected, every single criminal should also be punished. With every crime it is not only the criminal laws that are being undermined but also the constitutional right of the victim to life, liberty and to be treated equally. Urgent corrections are required and the first step here is for prosecutors and police to start working in cooperation.
Ajit Joy is an Advocate practicing at Thiruvannthapuram and Kochi. He is also a former IPS Officer. Views are personal of the author and does not reflect Live Law’s views.