A.P. Legal Services Pvt. Ltd.

Lecture Series - I

Convergence and Divergence on
Autonomy of Investigation
and Prosecution
in Criminal Justice System.

09-07-2000

Inuagural Address - Mr. Justice P.VENKATARAMA REDDI

Mr.Nageswar Rao, Respected Jayachandra Reddy, Mr. Ramachandra Rao, Mr. Prasad, Learned Advocates , officers, participants and invitees,

Firstly I thank the organisers and those associated with the A.P. Legal Services for giving me this opportunity to share some thoughts with you on a topic of great relevance and importance. Of course I do not claim any expertise in criminal law nor can I claim that I was closely associated with or watching the functioning of investigating and prosecuting agencies at any time but my brief inaugural speech which is really a formality is based more on experience rather than expertise.

Ladies and gentlemen, the topic which is going to be discussed today as I said is of utmost relevance in the present day scenario of crime and criminology and criminal justice. Any talk of reform in the system of policing and in the system of justice delivery and any talk of tightening of the laws to punish the offenders should start with the investigation process and the prosecuting machinery. These are the two things which set the rule of law in motion and if they go on the right lines they tend to instill confidence and respect for law in the esteem of general public. The functioning of the systems which are meant to ensure the implementation of rule of law and the protection of rights and liberties of the people, reflex the social order, the social awareness and cultural ethos of the people at a given point of time. If there are deficiencies and weaknesses in the system, primarily it is on account of the maladies afflicting the society at large. The incidence of crime and weakness in the criminal justice says is no exception to this trend. Amongst other things the progress of a civilized nation is measured by the effectiveness of the criminal justice system. A good and effective legal system provides an important infrastructure for the growth of the nation. How far we have been able to achieve this is the question.

We have excellent laws, we have talent to administer these laws. Still the gap between the laws and implementation of laws has been the vain of the society. Such gap in implementation and ineffective and effectiveness of criminal justice system are parts of the same problem and if you start identifying the causes , they overlap. The Present day phenomenon presents a challenge to the legal and policing system and all processes associated with it, unfortunately the crimes are increasing, Violation of human rights are mounting, the trial is getting delayed, Notorious criminals and antisocial elements are able to elude the net of law and very often emerging victorious at the conclusion of a long drawn process of trial. Crime prevention and crime investigation is neglected and has become contributing factors for the rise in the crime and feeling of indifference to the rule of law. A law abiding citizen wonders whether he is in the primitive age of' might is right' and whether a law abider gets due justice.

The courts are often blamed for the tardy progress of trial and the offenders going scot-free. But it must be remembered that law courts are only a part of the larger system. Criminal justice system cannot be regarded as nothing more or nothing less than dispensation of justice by courts. Dispensation of justice by courts is no doubt a predominant aspect of legal system. But it cannot be viewed in vaccum without regard to the complimentary and supporting systems. A wholistic perspective is needed to appreciate the problem. It is here that not only the role of courts but also the role of investigators, and the prosecutors lawyers and the general public has to be analyzed and appreciated. If we start a process of identification of causes for delays and ineffectiveness of justice system what we notice is a case of passing on the buck ethos and throwing the blame on each other . We are reminded of old grand mothers stories. You ask a Magistrate or a Sessions Judge as to why there is delay in trial. First he will say the court is overburdened, over loaded with work and then he says warrants are not executed for months and years together by the police. Summons to witnesses are not served, accused or witnesses are not produced, there is no prosecutor for the court, proceedings are stayed by the superior courts, advocate for the accused has sought adjournments and he could not be too strict towards them to avoid unnecessary confrontation. So this is what the Magistrate or the Sessions Judge says. Then you ask about the delay in trial, and then you ask the presiding officer as to why an apparently good case for prosecution is lost. He will say that the prosecution has not done its job well , witnesses have turned hostile, police have not evinced any interest in proper investigation, requisite material has not been placed before the court leaving many missing links in the chain. Then you ask the prosecutor he will say police is not cooperating with him, police could not secure the presence of crucial witnesses that such disposition on the part of the witness is in tune with the general character crisis. Then he will say that the court is not prompt enough to deal with the case. Then you go to the investigator. "What is wrong with you (that is the police officer) then his version is, where is the time for me. I am preoccupied with multifarious duties including attendance on VIP security, bandobust duties, we are facing the problem of inadequate staff strength, the number of police constables remains the same for decades, then lack of facilities for carrying out scientific investigation, delay in getting reports from chemical examiners and other experts, pressures from highly placed persons and the tampering of organized groups who have political clout or potentials to create mischief. And they also say that they are not adequately trained in legal procedures.

Some of these reasons are genuine and some of them are meant to cover up their own lapses. But these stark realities cannot be ignored. Then you go to the Govt. and ask them why all this is happening. Their first answer would be financial crunch and their inability to expending their high amount on non-plan expenditure such as police and force. At the same time they will say with certain degree of justification that they are providing staff, infrastructure and training programmes and courts to the extent possible within the limited resources available to them. The political executive will also plead that it is not possible to check the intervention by MLAs and other political leaders because they are people's representatives. They will also say that there could be larger repercussions if organized groups indulging in violence or crime in the name of demonstrations and agitations are dealt with sternly. So these are the excuses given at the level of the Govt. and the political executives. Thus various agencies involved in controlling the crimes and administering the criminal laws pass on the blame to each other. Ultimately the court is the main target of public criticism for the delay of any crime and acquittal of known criminals. That is not to say and I am not saying that the courts dispensing the criminal justice are perfect and irreproachable from any angle.

Courts have to take their share of blame. Inefficiency of officers lack of proper court management system or case management go to say and blacksheep amongst the judicial officers cannot be overlooked. The net result is delays in trails hapazard and wishy-washy investigation failure to promptly produce material evidence in courts, handicapped prosecutors, disappearance of evidence sufficient to sustain conviction. These have become normal features of the day. There is neither respect for law nor fear of law. That is the situation today. Utility and effective ness of criminal justice system is thus put on trial.

The society in general expects better performance on all fronts and from all these agencies. The police and prison officials, the bar and the judiciary should act in unison to ensure that all the factors responsible for the delays are eliminated. An environment has to be created for fostering better work culture and every one of the agencies should be attuned to respond to the societal needs. Our democracy wedded to the rule of law and the ideals enshrined in the preamble to the constitution needs to be vitalised by taking effective measures for strengthening the policing and legal systems. Investigation opens gate way for more efficient and more effective criminal justice system.

Any talk of reform should start first with investigation with equal emphasis on crime prevention and necessary infrastructure and environment as to be built up for this purpose. The need for prompt speedy scientific and comprehensive investigation aimed at identifying the culprits at the earliest and gathering evidence necessary to sustain the conviction in a court of law cannot be over emphasised. There can be no gain saying that conventional old fashioned and decrepit methods of investigation are still haunting the police force especially in the muffisil areas. The accent and concentration should be to secure clinching circumstantial evidence more than the oral evidence. That is only possible if there is scientific investigation and the personnel are trained in that direction. To facilitate scientific investigation the infrastructure should be provided in every district headquarters and in due course in every divisional headquarters. Investigation should not be a part time business.

Time has come to set up a separate investigation department with sufficient well trained personnel which does not attend to any duties other than the investigations and liaison with the prosecutors. Investigation department should be well trained in drafting work and they should have sufficient comprehension of laws. Facilities for obtaining legal advise should be provided. Investigation department should not be regarded as a haven for unwanted police personnel. That could only be possible when the officers are required to work compulsorily in the investigation department for a prescribed period without any relaxation.

On the question of autonomy of investigation department my personal view is that it is an impracticable or unworkable concept at this functure. The investigating department of the State police cannot be compared with apex investigating agencies like CBI or the Enforecement Directorate or the Vigilance Commission. First of all the very idea of autonomy for the investigation wing in each district will not be relished by the political executive of any party in power. A democratically elected Govt. could not like to loose complete control over the police when the power to administer the police is confided to the stage by the Constitution. Moreover the autonomy may become counter productive unless you are able to find suitable personnel who are known for integrity, efficiency and dedication. How may of them are available and if such personnel are wanting the autonomy, the concept of autonomy is bound to result in failure. What is required is improvement and strengthening of the investigation process and the department incharge of the investigation. Certain amount of checks and balances by minimizing the discretion in certain areas for the political executives can be thought of but not a complete autonomy of investigating agency at every level in the state, district level and state level.

Of course the prosecution agency could still be made autonomous that is feasible for instance already in our state there is directorate of prosecution headed by a senior district judge. But it has no teeth. For everything it had to depend on the Govt. there are cases in which Director of prosecution has recommended initiation of disciplinary action against the erring APPs. There are cases in which he recommended for transfers. But the proposals are lying in cold storage in the Secretariat. So that should not happen. It is desirable that each region when once this autonomy is conceded it is desirable that each region the joint directors of prosecution of the rank of district judge they should be deployed on region-wise basis at various places and not merely at the headquarters so as to effectively monitor the performance of the prosecutors at each court or group of courts should be provided with sufficient number of police personnel who exclusively attend to court related duties such as protection of accused, service of processes to the witnesses and making the witnesses available in the court. They should be under the direct control of the PPs and they should be accountable to them.

As regards the question whether investigation should be entrusted to the Magistracy? Mr. Nageswar Rao has breifly touched on it I do not want to air my views on that subject, as it is somewhat controversial subject and a sitting judge is not be expected to express his views. Of course the deliberations that follow will take care of that aspect. I am sure that the conference will come forward with more concrete suggestions to preserve the autonomy of prosecuting agency especially in the context of new dimensions added to criminal justice system by Rajdev Sharma's case and Common cause case which preceded it. The Supreme Court in order to achieve the noble ideal of speedy trial which has been held to be a fundamental right going flowing from article 21 of the Constitution gave series of directions to see that the trial is not prolonged for unduly long time so that the accused does not languish in the jails without trial being commenced or progressed and in order to put a stop to the delays arising from the lethargy of prosecuting agencies or the state machinery. The prescription of time limits for trial was not agreed to by one of the learned Judges, Justice Shaw in his Dissenting view expressed that unless there is radical simplification and streamlining of criminal procedure code as well as methods of investigation we could not be just and reasonable to close the prosecution evidence solely on the ground of delay in trial ,(but that is a dissenting view. )

Side by side with improving and streamlining of investigating and prosecuting agencies appropriate amendments to CPC, Cr PC should also be thought out to ensure that the accused does not take undue advantage of the safeguards provided to him and by his deliberate absence the trial does not get delayed. Already the Law Commission headed by Justice Jayachandra Reddy has made lot of exercise on it and I am sure Mr.Jayachandra Reddy will enlighten you on that aspect. The delaying tactics on the part of the accused or his counsel or the prosecution should be sternly curbed. What is needed ultimately is a unified and wholistic approach and I do hope that thought provoking ideas and meaningful suggestions will emerge as a result of the deliberations of today.

Editor.