law and justice

Criminal Law Reforms: Will the Government Wake up
Joginder Singh Toor

Everybody shivered to the spine to hear that all the nine accused in Jessica Lal murder case are acquitted despite prosecution having furnished a list of 100 witnesses. The already dwindling faith in justice delivery system is shaken. A sense of insecurity prevails. A process of rethinking starts. Is our legal process harmless for the pecunious of society? Is law only meant for the impecunious or is this a bias coming to the surface when a rich or empowered is acquitted whereas other acquittals in larger number go unnoticed.

As public outrage over the collapse of some high profile cases, like the Jessica Lal murder case mounted, the heads of the Executive and the judiciary, Prime Minister Manmohan Singh and Chief Justice of India Y.K.Sabharwal felt that the justice delivery system needs a change. In the conference of Chief Justices and Chief Ministers, Justice Sabharwal was candid enough to admit, "Justice delivery system appears to be on the verge of collapse" but shifted the responsibility on to the executive and the legislature. Manmohan Singh reflected on the inadequacy of existing procedures pointing out as well to problem of corruption, which was affecting the judicial system.

The acquittals are attributable to three factors. One. It is better to acquit nine persons than to convict one innocent person – the dictum followed by courts as a safeguard. Two. It is the duty of the prosecution to prove the charge beyond reasonable doubt. The benefit of doubt if any shall go to the accused; the interpretation that favours the accused shall be followed. Three.  No person shall be compelled to be a witness against himself (Art. 20(3) Constitution of India) thereby prohibiting the court from eliciting information which the accused possesses and can be helpful for the fair determination of the case, the accused has a right to keep silent except for limited questions till whole of evidence against him is recorded.

Beyond this is the connivance of the investigating agency with the accused in large number of cases. A fractured investigation, a battered challan, a designed hole for the accused to pass through, for a pecuniary return or an administrative reward instead of reprimand and then the overburdened courts, with dubious characters all around and some tainted persons in the chair supposed to do injustice to the chair, the office, the authority, the institution and system as a whole, the worst of the enemies, the shakers of the faith, throwing the wronged to revenge murders and chain of other offences, the money, the power being the main players.

Jessica Lal a ramp model, while tendering bar, in a large party, largely attended by the glitterati of the capital, refused to serve liquor past midnight April 30, 1999 to Manu Sharma son of Haryana Minister Vinod Sharma accompanied by Vikas Yadav son of former Rajya Sabha Member D.P.Yadav, as the duo had joined when the party was over, was shot point blank allegedly by Manu Sharma with his licensed revolver. Among others challaned were former pace bowler Yograj Singh father of cricketer Yuvraj Singh and Shyam Sunder Sharma, a kin of former President of India, Shankar Dayal Sharma.

The police presented a battered challan, without recovering the weapon of offence, sending to Forensic Lab. mutilated material, without action against the bar owner for washing the blood thereby destroying evidence, by altering the list of guests attending the party, originally containing the names of high police officer and other men in authority who vanished from the scene instead of being in control thereof, till the police arrived, late by one hour. And above all 20 key witnesses turned hostile, paving the way for the acquittal.

The inadequacy of procedural law, is evident from the existing provisions (in Sections 161, 162, 164) authorizing a police officer to record the statements of witnesses, without obtaining their signatures, which statements along with other material collected by him, shall form basis for submitting a report to the Illaqa Magistrate; whether the offence complained of is or is not made out. The statements cannot be used as evidence against accused. These can at the most be used for contradicting a witness if he attempts to make a different statement.

The Investigating Officer has the option, in his discretion, to produce the witness before a Magistrate for getting the statement of the witness recorded. The Magistrate has the power to administer oath to him before recording the statement. Even the statement so recorded cannot be used as substantive evidence.

The Investigating Officer can record the statement of the accused also but not his confession. Any confession made to a police officer is not admissible in evidence. However, an accused can be produced before a Magistrate for a confession who will caution the accused to rethink as the same can be used against him. The procedure thus leave, a scope for the witness to say that he never made the statement so recorded by the Investigating Officer as the same does not bear his signature. This in turn might have been done because of the fact that it is not difficult for the police to have the signatures of the accused on any paper. Even a confession from an innocent person has more than once been procured by the police under threat of third decree methods.

In view of this complex situation, reforms in the criminal law are inevitable. Here Justice V.S.Mallimath Committee report is of great relevance. It had recommended: -

(i) The statement by any person to a police officer should be recorded in the narrative or question and answer form;

(ii) In case of offences where the sentence is more than seven years it may also be tape/video recorded. The statement should be read over and got signed by the maker of the statement and be used for contradicting or corroborating;

(iii) Confession recorded by the Superintendent of Police or officer above him and simultaneously audio/video recording be admissible in evidence subject to the condition the accused was informed of his right to consult a lawyer;

(iv) The witnesses be given protection and laws available in other countries for witness protection be also enacted in India;

(v) Committee had made recommendations with regard to crime against women, organized crime, federal crime, terrorism, economic crime etc and a catena of other recommendations like the choice of both the judicial systems being followed in the world, the Inquisitorial System and the Adversarial System. The first being followed in countries like Germany and France, where investigation in criminal case is done under the supervision of a Magistrate and after collection of material warranting trial of the accused, the burden by and large shifts to the accused to prove his innocence. The other i.e. Adversarial System obligates the prosecution to prove the charge beyond reasonable doubt and entitle the accused to keep silent till entire evidence is recorded. The accused is not to put up his defence on any earlier stage. The Committee has recommended that the accused be obligated to put up his defence in response to the charge framed against him instead of keeping silent and the court before recording evidence, should determine controversial points which the accused has not admitted and require evidence.

The standard of burden to proving a charge beyond doubt should be reduced to the satisfaction of the court and it should be above the standard of proving by preponderance of probabilities.

Regarding offences against women the Committee recommended that a person marrying second time, during subsistance of the first marriage should not escape his liability to maintain his second wife on the ground that the second marriage is void in law. Living together for a considerable period as husband and wife should be considered as valid proof of marriage and the woman should not be burdened to prove the performance of rituals of the marriage. In the case of adultery the woman should likewise be punished if she has sexual intercourse with another married man, which the present law does not permit.

These recommendations need immediate and serious attention.  The Government must respond positively to bring much delayed reforms in criminal law.

The writer can be reached jogindersingh_toor@yahoo.com