Issue 60 Vol III, March 31, 2008

L A W  &  J U S T I C E

When Law Fails, Society Suffers
Joginder Singh Toor

ON the complaint of a Canadian wife that her newly wed husband from India had assaulted and threatened her, the Canadian Court inquires from the husband who in turn gives his own version, that she locked herself in room in India when he first approached her and when they moved to Canada, she did not want him in her room except with her permission. The Judge observes:-

“I suppose there are cultural values at work here that I do not understand which would permit this kind of activity to go on, but it is not something that I have any familiarity with. And so it does cause me some difficulty in terms of assessing the nature of the relationship that you two had after you were married. I think it is fair to say, and I do not mean this in any pejorative sense or any negative sense. I am not suggesting any impropriety, but sometimes arranged marriages do generate issues in the context of living in the Canadian culture; issues that confront the whole basis or underpinnings of arranged marriages. And that may explain to some extent the fairly bizarre behaviour, or as I see it, that you describe.”

Discussing evidence, the Judge finally says:-

“I am not satisfied, when I consider all of the evidence that you in fact made the threat that it is alleged you made or that you assaulted her in the fashion it was said you assaulted her, and accordingly, I acquit you.”

The battle then moves beyond seas and reaches India where, the husband and the family are booked for cheating and cruelty and misappropriation of dowry articles.

The related questions repeatedly haunt the sociologists, reformists, and law makers but remain unanswered. Irresistible urge to find better opportunities abroad, lack of suitable match in foreign countries for girls, an Indian youngman  would agree to marry a lesser qualified bride. Two unequal persons tie the nuptial knot. Equally foreign settled boys, more often than not mislead the Indian girls, into an un-adjustable match. Lot of cheating is going on. Consequently marriages  are breaking at a faster speed and in larger number. The litigation is the necessary consequence.

On given facts, how law in Canada and India would move, needs a close study.

In Canada, after a complaint is made to police, the witness is supposed to sign a warning before the Investigating Officer, read out to him that-

“This statement will be taken by oath, solemn affirmation or solemn declaration, and will be videotaped.

You must understand that it is a criminal offence to mislead a Police Officer during an investigation. You may be liable to prosecution under Section 140 of the Criminal Code of Canada if you mislead a Police Officer during this investigation, and if convicted, you could be sentenced to up to five years in jail.

You must also understand that it is a criminal offence to attempt to obstruct justice during a police investigation, and if you do so, you could be prosecuted under Section 139 of the Criminal Code of Canada, and if convicted be sentenced to up to ten years in jail.

You must further understand that you may be a witness at a trial concerning the events you describe in your statement. If at any time you change your statement, or claim not to remember the events, the contents of the statement you now give may be used as evidence at the trial. In such circumstances, you may be liable to prosecution for fabricating evidence under Section 137 of the Criminal Code of Canada, and if convicted you could be sentenced to up to fourteen (14) years in jail.”

As against it, in India, an investigating officer, although has the authority to summon any witness acquainted with the facts and circumstances of the case for the purpose of examining him, but is not required to administer warning to the witness or even record his statement. It is his discretion to reduce or not to reduce in to writing the substance of the facts emerging out of oral examination. A witness is , however, “bound to answer truly” all questions put to him by the Police Officer but in the event he resiles from his statement in the court, he can only be confronted with his statement made before the Police Officer. No offence for misleading the Investigating Officer is prescribed.

The statement neither made before the police in India is neither on oath or solemn affirmation nor videotaped nor to be signed by the witness. Getting signature of the witness on the statement is rather barred under section 162 of the Code of Criminal Procedure. It may be for its own reasons that police in India is always able to get signatures on any paper from witness or the accused. The general belief that the investigating agencies in India are manageable is not only a slur on the face of law enforcing agencies, but a blot on the nation as a whole and a loss to the people at large.

Making false statement before court, termed as ‘perjury’ is punishable. It is only a mental satisfaction because the court finding a witness having made false statement is not authorised to convict rather, it has to make a complaint to another court of almost equal jurisdiction that the person be tried and punished for perjury. It renders the court a complainant and witness which the presiding officers generally prefer to avoid. Now an amendment made in 2005 in the code of criminal procedure empowered the court to authorise any other person to file complaint on its behalf.

Another amendment made in 2005 by adding section 195-A in the Indian Penal Code that asking or compelling any person to give false evidence in court is liable to be punished for 7 years imprisonment. And if any person is convicted on the basis of false evidence, the person found to have given false evidence is liable to be punished for equal punishment that the other person has been awarded on that  basis. This is also an illusory provision. Once a competent court convicts a person on the basis of statements which are believed by the court to be true  resulting in conviction of the accused, which other court would re-open the case and give a contradictory finding as to the truthfulness of the same witness is quite vague.

The need of an effective law and efficient justice delivery system becomes paramount.

[Joginder Singh Toor, Advocate, jogindersingh_toor@yahoo.com Mobile 91- 98151-33530]

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