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

Prof. Nageswar Rao, Hon’ble Mr.VijayaRama Rao, Mr. Prasad, Mr.Ramachander Rao, well I am supposed to give my views these are well known to every body the question is what is the wrong with the system. Have we failed the system or whether the system is failed. Well from the attendance of the audience I think the system has not failed because every body satisfied that is why very poor gathering is here and atleast if some are present here you think that they system might not have failed but it is on the verge of collapsing. Something has to be done.

Now I think the expression autonomy may not be the correct expression or the correct approach. My limited knowledge our system, democratic system is bound by the constitutional limitation. There are only three organs. Executive, Judiciary and the Legislature. Under each organ there are several agencies. That is why Judiciary is independent, Legislature is independent and the Executive is also independent if it acts within the limitations but if there excesses and violative of the constitutional limitations, then it can be questioned in a court of law which an independent wing has to decide whether it is ultravires of the Constitution or not, these are what the broad lines.

Now coming to the investigation. It is a part of the executive. It is some thing like for instance of course the system is ultimately is the mind that controls the other links of the body but every limb likes to act independently in the sense granting it autonomy what leg has to do if the hand tries to do and what the hand has to do if the leg tries to do, a system within the constitutional frame work cannot work. That way perhaps there can not be autonomy in the sense which is understood like autonomous institutions. For instance in the judicial system if the magistrate is the committing magistrate, he thinks that I am independent have committed or convicted it should not be questioned there should be some autonomy for me as to which cases have to be discharged and which cases should not be discharged perhaps that may not be thing which can legally be permissible.

Therefore, what we have to understand here is in the criminal justice system the four agencies namely investigating agency, the prosecution agency, and the court ultimately the respective limitations or the respective role which they have to play in bringing the system to a success. As we all know that a criminal trial is a voyage in the quest of truth and justice and for a peaceful existence of the society which is a basic thing in a democratic set up, the criminal justice should be effective but now there cannot be two opinions that the system has not been successful and it has failed or is about to fail. So naturally a time has come when we have to carefully examine the laws that are applicable or within the frame work of which this system has to work as we all know the simple thing when a crime takes place, to start with the crime may be offence against a person, offence pertaining to property or as Mr.Vijayarama Rao has elaborated as Corruption and against the public as such in some certain ways. So when a crime takes place or an offence is committed, any one of the ways that is pertaining to property etc somebody has to move in the matter, it is there that what you call the first information it may be by way of a report, it may be by way of his own knowledge then the law is set to motion.

Therefore it is the investigating officer that comes into the picture at the earliest movement and so far our procedural law is concerned Substantive law is there of course various punishments are there under these substantive laws like the IPC and other substantive laws, penal provisions pertaining to other offences like prevention of Corruption Act, Narcotic Drugs Act so on and so forth. They come they are applied at a later stage when the conviction is upheld or when the offence is proved in the court of law. It is the job of court. But earlier these are the important stages which rather have to be very competent alert of course if the system has failed no doubt we cannot go to each wing and blame on the other. But if the first two wings viz ., the investigating and prosecution they discharge their duties properly to the expectations then comes to the before the court no doubt that the judiciary has to do very systematic in rendering speedy justice that is another aspect.

Before the present day topics are concerned now we are concerned only with investigation and the prosecution. As I said there cannot be, we cannot think autonomy in the sense one sense investigating agency being autonomous not being subject to surveillence of any other wing I am not able to comprehend how you can structure that . What is being thought of is nothing new, I will place the material before you this has been discussed for the last atleast two or three decades but no body has come forward as any notice the recommendations made by the expert bodies and see that certain changes are brought about. Because a question of anybody or any wing being autonomous is not contemplated in the broad system of administration in the democracy of our constitutional system because there are all checks and balances each has to move within its limitations.

Take for instance even the Parliament for matter of that if any law is made which effects the fundamental rights, the Supreme Court immediately steps in and says that this law is invalid why that is to say there are checks and balances there is no question of any wing being autonomous in the sense that will work, I mean that is not what is contemplated atleast appreciated or can be thought of in a democratic system particularly which our Constitution contemplates and has ushered in. Because I am simply reminded of in an idealist way. It is an accepted fact that in every human being there is an instinct of harming or destroying unless it is controlled by certain measures may be education or may be other violative measures it cannot be completely wiped out. So what we are concerned now is not that idealism in the sense saying that everybody is corrupt, so if the executive says corrupt, they will say the legislature is corrupt and I will agree with Mr.Ramachander Rao, the present situation but the question is what is the remedy for us. So Now I have heard the earlier speakers and the as you have noticed Prof. Nageswar Rao has given the broad outlines of the topics which has been very enlightening and Justice Venkatrami Reddy has touched all the four roles to be played by all the four agencies Mr. Prasad contemplates of what is happening in the other countries has really given a very educative that is about system in various countries which are also having democratic system and it is very enlightening and Mr.Vijaya Rama Rao has rightly touched upon the large scale corruption herein again this organized crime which hitherto was some what alien to our country now it has got a deep routes.

It is a very dangerous thing, very alarming and as we learnt from the experience of the other countries the organized crime is dangerous to the very sustainance and the very democratic set up itself. Therefore, these economic offences have to be dealt with in a very scientific manner, in the sense what the investigating agencies do require certain specialization now Mr.Ramachander Rao of course though he calls himself a citizen he knows because he has been an Advocate General he knows about how the Govt. has been working and when he said about the political corruption I am sure he must have had a first hand knowledge and naturally he is justified in lamenting as to what has happened.

Now so far I will confine my self, it may be a little bit of academic in the sense because I am only asked to give my views, see these things have been considered in various seminars before the various law commissions as well as other expert bodies so the advantages of having an independent agency for investigation as I just thought it same when once somebody goes to the police station and then reports about the commission of a crime the officer has to make an entry and then see it is something like an out patient department at that stage whether it is a cognizable offence or a non-cognizable offence a bailable offence or a non-bailable offence, then according to that he enters in his cases diary and the next step is if it is a grave crime then he has to send a grave crime report, it is in respect of these grave crimes that there is any amount of complaints and dissatisfaction the way the police have been functioning therefore, it was mooted long time back and as a matter of fact there was an important seminar at Bangalore where the several top officers have participated and to do very systematic in rendering speedy justice that is another aspect. Before the present day topics are concerned now we are concerned only with investigation and the prosecution. As I said there cannot be, we cannot think autonomy in the sense one sense investigating agency being autonomous not being subject to surveillence of any other wing I am not able to comprehend how you can structure that . What is being thought of is nothing new, I will place the material before you this has been discussed for the last atleast two or three decades but no body has come forward as any notice the recommendations made by the expert bodies and see that certain changes are brought about. Because a question of anybody or any wing being autonomous is not contemplated in the broad system of administration in the democracy of our constitutional system because there are all checks and balances each has to move within its limitations.

Take for instance even the Parliament for matter of that if any law is made which effects the fundamental rights, the Supeme Court immediately steps in and says that this law is invalid why that is to say there are checks and balances there is no question of any wing being autonomous in the sense that will work, I mean that is not what is contemplated atleast appreciated or can be thought of in a democratic system particularly which our Constitution contemplates and has ushered in. Because I am simply reminded of in an idealist way. It is an accepted fact that in every human being there is an instinct of harming or destroying unless it is controlled by certain measures may be education or may be other violative measures it cannot be completely wiped out. So what we are concerned now is not that idealism in the sense saying that everybody is corrupt, so if the executive says corrupt, they will say the legislature is corrupt and I will agree with Mr.Ramachander Rao, the present situation but the question is what is the remedy for us. So Now I have heard the earlier speakers and the as you have noticed Prof. Nageswar Rao has given the broad outlines of the topics which has been very enlightening and Justice Venkatrami Reddy has touched all the four roles to be played by all the four agencies Mr. Prasad contemplates of what is happening in the other countries has really given a very educative that is about system in various countries which are also having democratic system and it is very enlightening and Mr.Vijaya Rama Rao has rightly touched upon the large scale corruption herein again this organized crime which hitherto was some what alien to our country now it has got a deep routes.

It is a very dangerous thing, very alarming and as we learnt from the experience of the other countries the organized crime is dangerous to the very sustainance and the very democratic set up itself. Therefore, these economic offences have to be dealt with in a very scientific manner, in the sense what the investigating agencies do require certain specialization now Mr.Ramachander Rao of course though he calls himself a citizen he knows because he has been an Advocate General he knows about how the Govt. has been working and when he said about the political corruption I am sure he must have had a first hand knowledge and naturally he is justified in lamenting as to what has happened.

Now so far I will confine my self, it may be a little bit of academic in the sense because I am only asked to give my views, see these things have been considered in various seminars before the various law commissions as well as other expert bodies so the advantages of having an independent agency for investigation as I just thought it same when once somebody goes to the police station and then reports about the commission of a crime the officer has to make an entry and then see it is something like an out patient department at that stage whether it is a cognizable offence or a non-cognizable offence a bailable offence or a non-bailable offence, then according to that he enters in his cases diary and the next step is if it is a grave crime then he has to send a grave crime report, it is in respect of these grave crimes that there is any amount of complaints and dissatisfaction the way the police have been functioning therefore, it was mooted long time back and as a matter of fact there was an important seminar at Bangalore where the several top officers have participated and Section 24 also provides for appointment of such PPs by the Central Govt in special cases. However, there is a common complaint that the reqired number of Prosecuting Officers have not been appointed and the prosecutions have been conducted effciently and in the manner expected. In this regard there are several things to be considered that there should be cadre and what should be educational qualifications and what should be the experinece whether same conditions,which are applicable for the recruitment to the judicial officers for instance the district, munsif level should be made applicabe to the appointment of the APPs then what should be the qualifcations or whether these people some of them were by way of sneiority can be promoted as the PPs of the sessions level. Then there is also certain sugestions to the Law Commission, means whether the prosecution agencies in the sense as we are using the word autonomy can be independent in the sense the prosecution has been duty the investigating officers completes his investigation, prepares what is called a charge sheet within a resaonble time that is because the present code 1973 certain amendments are made, that in case of certain offences the charge sheet should be filed within particular time, otherwise it is not entertained, to that extent it helps a speedy investigation in respect of certain offences. So far the grave offences are concnered there is no such limitation. But still it is there in that in respect of the grave offfences the investigating authoities shoudl be more careful more viigilance and more experienced in investigating those cases. So after investigation is completed he gives the report. Now I am proceeding on that basis, suppose there is such investigation it has an important role to play and Police report prepared by such an investigating agency should naturally be of great value and of some acceptable order.

So yet there are certain aspects which he has to consult with the PP. Therefore, it is recommended that there should be a director of prosecutions in each state and the sytem of hierarchy that is Prosectuors at the district level and the magistrate level should be there in that cadre and providing promotional avenues but the delicate question is the coordination between the independent invesigating agency and the independent director of prosectuion agency. So far this aspects are concerned some guidlelines to bring about this understanding, cooperation and cooordination between the two agencies have to be worked out.

Now I sum up by saying there is noq uestion of autonomy of either of the wings being independent but autonomy in the sense working in its own way without any thing to do with it or not having any cooperation or understanding with the other agency. So far investigation and prosecution are concerned they are independent in the sense they are not answerable to the Govt or the Political Agencies. But so far the investigation agencies are concerned they should not be misxed up with other agencies, rather if I may use the word get contaminated which is very apporopiate by coming into contact with other people mostly politicians, or business people whatever it is where they have to provide law enforcement, security.That is how the approach has been made so that the public may have confidence that whenever a complaint is made about the commission of a grave offence this independent investigating agency will take it up, they will be one attached depending upon the crime rate in that particular area they will proceed wiht the investigation and the public will have confidence.

After all I may wind up by saying that any investigation if it is to be efficient without the cooperation of the public it cannot succeed and likewise after sincere invetigation if a report finds its way to the Court unless the Prosecutor is independent and is not at the beck and call of the higher authorities or amenable to influene can independenly prosecute it, the tiral cannot have a success and the truth will not come out and the success of the tiral and proper concviction or proper acquittal whatever it is those have great effect and confidence in the public which they show for the system. These are all very detailed you cannot just cover within a schedule like this but the more intense study and deliberations by experianced participants representing all the four wings would be very much necessary and I wish our APLSPL would concentrate on that and they can take the help of a training is also necessary for a police officer because the relationship is betwen the student and the teacher and he has been there in the institution.

Likewise Mr.Vijayarama Rao had vast experience as an officer and he has given his views and so far the judiciary is concerned Mr.Venkatrami Reddy has given an over all picture and above all Mr.Ramachander Rao has pointed out several deficiencies which from the public point of view naturally they are very much relevant and Mr.Nageswara Rao has effciently summed up the whole thing and I cannot have any different views because the system is there, the question is you can bring about some what you call a stich in time perhaps that has not been done. That is how the present scenario has come to this viz.. the result public have lost confidence in the criminal justice system. Some thing has to be done. It is very imminent and every one of us have to believe in the democratic way of system Govt has a duty to play becasuse anybody seeing a crime any one of us is prepared to go to a police station and give a report no. Is anyone of us is prepared to come as a witness. The system also can't independently work unless there is public cooperation.But it is in that area somehow come to a standstill. The Police they are not able to win the confidence of the public and the public are not reposing out the confidence that is required out. Therefore a time has come that both have to understand each other and in that line perhaps is setting up an independent investigating agency and seperate prosecuting agency may help go a long way in regaining the confidence of the public.

Editor.