POLICE-THE PILLAR ON WHICH THE CRIMINAL JUSTICE SYSTEM STANDS
INTRODUCTION
The Police being a vital investigating body though is a wing of the Executive but has a crucial and inseparable role to play in the working of our Criminal Justice System which depends so much on the Police machinery right from the initiation to the culmination of the process of dispensing justice that it can be rightly said that the Police is an inseparable organ of the Judiciary and is in fact the very pillar on which the criminal justice stands. This structure of our Criminal Justice System with the passing of time and the increasing complexities in investigation, has proved to be less than satisfactory to the present needs of the society in tackling crime . A change is definitely needed but any change in the Criminal Justice System to make it more effective and suited to the needs of the Society will be futile and ineffective unless changes in the Police mechanism are also a part of it.
JUDICIAL DEPENDENCE ON THE POLICE FORCE
In Keshvananda Bharti vs State of Kerala, the independence of judiciary was regarded as the basic feature of our Constitution. The role of the Police mechanism though is to assist the judicial process by bringing out the real untarnished truth for the Judiciary to determine the nature of the crime and the quantum of punishment but now the very existence of the Criminal Justice System is totally dependent on this Police mechanism. The very mechanism that forms the basis of criminal investigation in the country needs examination. Various kinds of crimes are defined in law and the guilt is determined through a due process by the judiciary. The laws prescribe serious punishment for many of these crimes. However, to set this judiciary in motion there is a condition precedent as the complaints about criminal incidents go through the channel of police who act as gatekeepers to the criminal justice system. A police officer is solely empowered to investigate the case and he also determines if a criminal incident has taken place thus making the role of the judiciary subsidiary and in spite of not being empowered to act judicially at a very basic level thwarts the process of dispensing justice on which the Judiciary has a role to play only at a much later stage provided the Complaint moves beyond this stage. This act of the Police is a direct infringement on the independence of Judiciary as it denies the Judiciary an opportunity to hear all the grieviences and actually obstructs the process of doing justice.
INFRINGEMENT OF FUNDERMENTAL RIGHTS
The procedure of taking down the complaint and subsequent investigation is governed by the Code of Criminal Procedure enacted in 1862 and amended in 1973. According to Section 154 CrPC a criminal complaint made to the police is reduced in writing and recorded by the station house officer [SHO]. This section stipulates that whenever a citizen informs the police, or the police learn otherwise about the occurrence of a cognizable crime the SHO shall institute a First Information Report [FIR] which initiates the criminal investigation. There are several implications of this seemingly innocuous legal proposition. First, investigation by the police can only be done for a cognizable crime. A non-cognizable criminal incident is a minor infraction of the law where police cannot arrest a person except by the order of the court. In all cognizable incidents however, the police have the power to arrest without a warrant. All major crimes like theft, burglary, robbery, cheating assaults, homicide etc. are cognizable offenses under the Indian Penal Code of 1860. However, the police officer may refuse to believe or reduce the gravity of the complaint to make it non-cognizable. This judgment is significant since for a cognizable offense the officer has no discretion and is obliged to record the complaint and begin investigation. The distinction is generally not known to the citizen who remains under the impression that police will act on his/her complaint whereas the matter may simply have been filed away. The police refuse to act and file thousands of such complaints made by the citizens and simply file them away. Furthermore, many complaints are not recorded or the gravity of offense is minimized to claim that crime is under control. This so-called minimization of crime by the National Crime Records Bureau brings this out in an outrageous is a serious and widespread problem at all the police stations in the country. The Crime in India-1999, a compilation of police crime reports manner. The largest populated state UP, which records high figures for violent and property crimes nevertheless recorded only 43 cases of juvenile delinquency. Bengal has just 4 cases, which is less than the numbers for Goa, and sparsely populated Arunanchal Pradesh. These offenses are about juvenile delinquents of ages 7-18 for both the sexes. Considering that there are around 30-40 million young people in the state, either the figures suggest that in UP and Bengal there are little saints totally bereft of any criminal behavior or else the statistics are terribly inconsistent with the real situation. When small cities like Vadodra (99), Pune (104), Jaipur (87) record more juvenile cases than the large metropolis of Calcutta (only 2 cases) the figures appear horribly wrong and artificial. The police were never intended to be the gatekeepers to the Criminal Justice System as it is their statutory duty to record every information they receives according to Section 154 of CrPC and conduct investigation according to the procedure laid down in the Code of Criminal Procedure. The commonly followed practice of distinguishing between complaints before even registering them, judging their genuineness before proper investigation is arbitrary as it is not based on any rational basis nor has no procedure laid down for it thus violative of Article 21 of the Constitution. Every person (citizen and non-citizen) has a fundamental right of equal protection of law which can only be guaranteed if each grievance is recorded and disposed on merit. This common practice of the Police of not registering the FIR denies people a representation before law and thus an equal protection of law grossly violating the fundamental right guaranteed under Article 14 of the Constitution.
CIRCUMVENTION OF LAID DOWN PROCEDURE AND SUBSTANTIAL FAILURE OF JUSTICE
The law places considerable importance to the FIR. The Courts believes the FIR and accepts it without corroboration and believes it under the assumption that as the police have no knowledge of the incident and thence cannot tailor the story to strengthen the prosecution. Subsequent evidence however, whether oral or written and documented in the crime investigation diary has to be corroborated since the Law makes the assumption that police story cannot be trusted. Indeed, under Section 162 CrPC, the statement of a witness can only be used by the police for contradiction in the Court. Police declare the witness hostile if he or she deviates from the story told earlier. Right from the beginning of the present criminal justice system, around 1860 onwards, the Indian police have developed mechanisms to circumvent these legal restrictions. A common strategy is not to record the FIR immediately as provided by section 154 CrPC. Invariably, the police officers hear the complaint, go to the place of incident, contact witnesses and collect evidence before writing down the FIR. They try to incorporate as much evidence in the FIR as possible since it helps to strengthen the case. This is contrary to Law but a common practice in the country. This leaves the SHOs in a dominant position of determining when and which criminal incident to register and which one to ignore. All this does not lead to a neutral investigation as evidence is suppressed only to make the state case stronger. Also all these organizational practices lead to corruption and misuse of authority. Indeed, citizens commonly experience considerable problems in registering a case at the police station. Frequently, the SHO has to be bribed or approached through some senior officer to lodge the complaint. This practice also leads to substantial failure of justice. The Judiciary has alone been given the exclusive power to determine the evidence on record and in light of this evidence do justice. The Police should have no role to play in strengthening the case as they are only a fact finding body meant to bring out the untarnished truth before the Court. This undue interference of the Police can even be a double edged sword and they even have the power to dilute the case. In my opinion, the Police should be divested of this power to affect the strength of the case as this leaves the Judiciary to play only a procedural role rather than the role its meant to play.
NEED FOR SPEACIALIZING THE POLICE FORCE In our Criminal Justice System offences need to be proved beyond reasonable doubt and an iota of doubt is enough to secure the release of the accused. The system relies wholly on the Police to conduct investigation and collect facts to make a substantive case. The State then files that case supported totally by the proofs provided to them by the Police. The actions or inaction of the Police affects the dispensing of justice and any loop-holes by the Police in investigation can lead to criminals escaping prosecution and to substantial failure of justice. Many a times, criminals are able to take advantage of these built-in limitations of the Criminal Justice System and are able to secure their release. Today the prosecution rate in India is very low. This low rate of prosecution not only allows criminals to commit crime more freely but also encourages others to commit crime. This low rate of prosecution has a major role to play in the increasing crime rate as well as the rate of prosecution is directly proportional to the increase in crime levels. The recent Pereira, case is also an example where though prima facie the accused deserves a greater punishment but the inference after investigation reflects the contrary. The Priyadarshani Matoo case, was also a classic example where this helplessness of the criminal justice system manifested itself in the form of the statement of the judge who went on to remark that though he was convinced that the accused was guilty but he had to be acquitted due to lack of sufficient evidence. This brings in open the limitations of Criminal Law and the fact that even if the mechanism works to its expected levels, it still falls short of the present needs. The whole Criminal Justice system has basic inherent flaws which need to be creased out and removed so that our Criminal Justice system just does not exist for namesake. The work of the Police is not to sit in judgment of the Crime but to bring out the real untarnished truth before the Court and allow the Court to determine the nature of the crime and the punishment to be awarded but instead of that it is the Police Officers which decide the gravity of each case and arbritarily distinguish between them without any procedure and by not registering cases the citizens are denied equal protection of law thus severely violating their Right to Equality guaranteed under Article 14 of the Constitution. Considering the importance of Police in Criminal Justice System and the multi-faceted role which the Police plays it is about time that the Police force is split up into two parts one handling the investigation and the other looking after the law and order situation. RECOMMENDATIONS 1. Considering the importance of the Police investigation plays in the Criminal Justice System it is imperative to specialize the Police force into one handling the investigation and the other handling the law and order to increase the efficiency of the investigative mechanism on which the Judiciary so hugely depends. 2. The crime today is diversifying in various areas like Cyber Crime, Economic Crime among others. To suit the needs of the present the Police investigative wings should be further sub-divided into wings specializing in a particular type of investigation to increase the efficiency of the investigation. 3. The Police should be divested of the role of recording information as in spite of statutory provisions to the contrary to a lot of crime are unrecorded and deny people equal protection of law. Instead a judicial officer of the rank of a Magistrate should record the information so that each grievance gets a representation and is disposed on merit. This judicial officer then forwards the information to the Police who in turn conduct the investigation and submit their report and findings to this Judicial Officer. 4. A lot of Criminal Cases are diluted due to the changing of statements by witnesses on whom the law places considerable importance. To avoid this all witness statements should be recorded in front of this Judicial Officer to make them admissible as evidence. There should also be an amendment that in case the witness is not available for cross-examination then his statement will be admissible as it is. This will save the witness as the life of the witness then becomes inconsequential to the outcome of the case. This practice will also prevent the witnesses from turning hostile. 5. The witnesses should be treated with due dignity and respect and undue harassment by the Police should be avoided. The witnesses should also be given considerable protection. This will encourage people to come forward to give their statements and protect the fabric of the society. 6. The FIR should not be given much importance in Criminal Trial as it is only an information to set the Police machinery in motion. The Honorable Supreme Court has already in its latest judgment taken this course. Rather importance should be given to the version of the statements of the witnesses who can present a much more clearer picture of the case. This will prevent a lot of cases failing due to the anomalies in the FIR and the witness statements. CONCLUSION The Police no doubt has an important and inseparable role to play in the Criminal Justice System as the law places no blame without sufficient evidence which is wholly provided by the Police but it is important for the independence of Judiciary and protecting the right of the people to get equal protection of law that the role of the Police should be restricted to only investigation and placing the untarnished truth before the Court who can then adjudicate the matter in light of this evidence and do justice. Article 50 of the Constitution calls for separation of the Judiciary from the Executive. Though the judiciary cannot work in isolation and needs to be suitably supported by the Executive but the work of the Executive should be of support and should not of a crutch which denies people the right of approaching the Judiciary or infringe on the independence of the Judiciary.
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POLICE-THE PILLAR ON WHICH THE CRIMINAL JUSTICE SYSTEM STANDS
INTRODUCTION
The Police being a vital investigating body though is a wing of the Executive but has a crucial and inseparable role to play in the working of our Criminal Justice System which depends so much on the Police machinery right from the initiation to the culmination of the process of dispensing justice that it can be rightly said that the Police is an inseparable organ of the Judiciary and is in fact the very pillar on which the criminal justice stands.
This structure of our Criminal Justice System with the passing of time and the increasing complexities in investigation, has proved to be less than satisfactory to the present needs of the society in tackling crime . A change is definitely needed but any change in the Criminal Justice System to make it more effective and suited to the needs of the Society will be futile and ineffective unless changes in the Police mechanism are also a part of it.
JUDICIAL DEPENDENCE ON THE POLICE FORCE
In Keshvananda Bharti vs State of Kerala, the independence of judiciary was regarded as the basic feature of our Constitution. The role of the Police mechanism though is to assist the judicial process by bringing out the real untarnished truth for the Judiciary to determine the nature of the crime and the quantum of punishment but now the very existence of the Criminal Justice System is totally dependent on this Police mechanism.
The very mechanism that forms the basis of criminal investigation in the country needs examination. Various kinds of crimes are defined in law and the guilt is determined through a due process by the judiciary. The laws prescribe serious punishment for many of these crimes. However, to set this judiciary in motion there is a condition precedent as the complaints about criminal incidents go through the channel of police who act as gatekeepers to the criminal justice system. A police officer is solely empowered to investigate the case and he also determines if a criminal incident has taken place thus making the role of the judiciary subsidiary and in spite of not being empowered to act judicially at a very basic level thwarts the process of dispensing justice on which the Judiciary has a role to play only at a much later stage provided the Complaint moves beyond this stage. This act of the Police is a direct infringement on the independence of Judiciary as it denies the Judiciary an opportunity to hear all the grieviences and actually obstructs the process of doing justice.
INFRINGEMENT OF FUNDERMENTAL RIGHTS
The procedure of taking down the complaint and subsequent investigation is governed by the Code of Criminal Procedure enacted in 1862 and amended in 1973. According to Section 154 CrPC a criminal complaint made to the police is reduced in writing and recorded by the station house officer [SHO]. This section stipulates that whenever a citizen informs the police, or the police learn otherwise about the occurrence of a cognizable crime the SHO shall institute a First Information Report [FIR] which initiates the criminal investigation.
There are several implications of this seemingly innocuous legal proposition. First, investigation by the police can only be done for a cognizable crime. A non-cognizable criminal incident is a minor infraction of the law where police cannot arrest a person except by the order of the court. In all cognizable incidents however, the police have the power to arrest without a warrant. All major crimes like theft, burglary, robbery, cheating assaults, homicide etc. are cognizable offenses under the Indian Penal Code of 1860. However, the police officer may refuse to believe or reduce the gravity of the complaint to make it non-cognizable. This judgment is significant since for a cognizable offense the officer has no discretion and is obliged to record the complaint and begin investigation. The distinction is generally not known to the citizen who remains under the impression that police will act on his/her complaint whereas the matter may simply have been filed away. The police refuse to act and file thousands of such complaints made by the citizens and simply file them away. Furthermore, many complaints are not recorded or the gravity of offense is minimized to claim that crime is under control. This so-called minimization of crime by the National Crime Records Bureau brings this out in an outrageous is a serious and widespread problem at all the police stations in the country.
The Crime in India-1999, a compilation of police crime reports manner. The largest populated state UP, which records high figures for violent and property crimes nevertheless recorded only 43 cases of juvenile delinquency. Bengal has just 4 cases, which is less than the numbers for Goa, and sparsely populated Arunanchal Pradesh. These offenses are about juvenile delinquents of ages 7-18 for both the sexes. Considering that there are around 30-40 million young people in the state, either the figures suggest that in UP and Bengal there are little saints totally bereft of any criminal behavior or else the statistics are terribly inconsistent with the real situation. When small cities like Vadodra (99), Pune (104), Jaipur (87) record more juvenile cases than the large metropolis of Calcutta (only 2 cases) the figures appear horribly wrong and artificial.
The police were never intended to be the gatekeepers to the Criminal Justice System as it is their statutory duty to record every information they receives according to Section 154 of CrPC and conduct investigation according to the procedure laid down in the Code of Criminal Procedure. The commonly followed practice of distinguishing between complaints before even registering them, judging their genuineness before proper investigation is arbitrary as it is not based on any rational basis nor has no procedure laid down for it thus violative of Article 21 of the Constitution.
Every person (citizen and non-citizen) has a fundamental right of equal protection of law which can only be guaranteed if each grievance is recorded and disposed on merit. This common practice of the Police of not registering the FIR denies people a representation before law and thus an equal protection of law grossly violating the fundamental right guaranteed under Article 14 of the Constitution.
CIRCUMVENTION OF LAID DOWN PROCEDURE AND SUBSTANTIAL FAILURE OF JUSTICE
The law places considerable importance to the FIR. The Courts believes the FIR and accepts it without corroboration and believes it under the assumption that as the police have no knowledge of the incident and thence cannot tailor the story to strengthen the prosecution. Subsequent evidence however, whether oral or written and documented in the crime investigation diary has to be corroborated since the Law makes the assumption that police story cannot be trusted. Indeed, under Section 162 CrPC, the statement of a witness can only be used by the police for contradiction in the Court. Police declare the witness hostile if he or she deviates from the story told earlier.
Right from the beginning of the present criminal justice system, around 1860 onwards, the Indian police have developed mechanisms to circumvent these legal restrictions. A common strategy is not to record the FIR immediately as provided by section 154 CrPC. Invariably, the police officers hear the complaint, go to the place of incident, contact witnesses and collect evidence before writing down the FIR. They try to incorporate as much evidence in the FIR as possible since it helps to strengthen the case. This is contrary to Law but a common practice in the country.
This leaves the SHOs in a dominant position of determining when and which criminal incident to register and which one to ignore. All this does not lead to a neutral investigation as evidence is suppressed only to make the state case stronger. Also all these organizational practices lead to corruption and misuse of authority. Indeed, citizens commonly experience considerable problems in registering a case at the police station. Frequently, the SHO has to be bribed or approached through some senior officer to lodge the complaint.
This practice also leads to substantial failure of justice. The Judiciary has alone been given the exclusive power to determine the evidence on record and in light of this evidence do justice. The Police should have no role to play in strengthening the case as they are only a fact finding body meant to bring out the untarnished truth before the Court. This undue interference of the Police can even be a double edged sword and they even have the power to dilute the case. In my opinion, the Police should be divested of this power to affect the strength of the case as this leaves the Judiciary to play only a procedural role rather than the role its meant to play.
NEED FOR SPEACIALIZING THE POLICE FORCE
In our Criminal Justice System offences need to be proved beyond reasonable doubt and an iota of doubt is enough to secure the release of the accused. The system relies wholly on the Police to conduct investigation and collect facts to make a substantive case. The State then files that case supported totally by the proofs provided to them by the Police. The actions or inaction of the Police affects the dispensing of justice and any loop-holes by the Police in investigation can lead to criminals escaping prosecution and to substantial failure of justice.
Many a times, criminals are able to take advantage of these built-in limitations of the Criminal Justice System and are able to secure their release. Today the prosecution rate in India is very low. This low rate of prosecution not only allows criminals to commit crime more freely but also encourages others to commit crime. This low rate of prosecution has a major role to play in the increasing crime rate as well as the rate of prosecution is directly proportional to the increase in crime levels. The recent Pereira, case is also an example where though prima facie the accused deserves a greater punishment but the inference after investigation reflects the contrary. The Priyadarshani Matoo case, was also a classic example where this helplessness of the criminal justice system manifested itself in the form of the statement of the judge who went on to remark that though he was convinced that the accused was guilty but he had to be acquitted due to lack of sufficient evidence. This brings in open the limitations of Criminal Law and the fact that even if the mechanism works to its expected levels, it still falls short of the present needs. The whole Criminal Justice system has basic inherent flaws which need to be creased out and removed so that our Criminal Justice system just does not exist for namesake.
The work of the Police is not to sit in judgment of the Crime but to bring out the real untarnished truth before the Court and allow the Court to determine the nature of the crime and the punishment to be awarded but instead of that it is the Police Officers which decide the gravity of each case and arbritarily distinguish between them without any procedure and by not registering cases the citizens are denied equal protection of law thus severely violating their Right to Equality guaranteed under Article 14 of the Constitution.
Considering the importance of Police in Criminal Justice System and the multi-faceted role which the Police plays it is about time that the Police force is split up into two parts one handling the investigation and the other looking after the law and order situation.
RECOMMENDATIONS
1. Considering the importance of the Police investigation plays in the Criminal Justice System it is imperative to specialize the Police force into one handling the investigation and the other handling the law and order to increase the efficiency of the investigative mechanism on which the Judiciary so hugely depends.
2. The crime today is diversifying in various areas like Cyber Crime, Economic Crime among others. To suit the needs of the present the Police investigative wings should be further sub-divided into wings specializing in a particular type of investigation to increase the efficiency of the investigation.
3. The Police should be divested of the role of recording information as in spite of statutory provisions to the contrary to a lot of crime are unrecorded and deny people equal protection of law. Instead a judicial officer of the rank of a Magistrate should record the information so that each grievance gets a representation and is disposed on merit. This judicial officer then forwards the information to the Police who in turn conduct the investigation and submit their report and findings to this Judicial Officer.
4. A lot of Criminal Cases are diluted due to the changing of statements by witnesses on whom the law places considerable importance. To avoid this all witness statements should be recorded in front of this Judicial Officer to make them admissible as evidence. There should also be an amendment that in case the witness is not available for cross-examination then his statement will be admissible as it is. This will save the witness as the life of the witness then becomes inconsequential to the outcome of the case. This practice will also prevent the witnesses from turning hostile.
5. The witnesses should be treated with due dignity and respect and undue harassment by the Police should be avoided. The witnesses should also be given considerable protection. This will encourage people to come forward to give their statements and protect the fabric of the society.
6. The FIR should not be given much importance in Criminal Trial as it is only an information to set the Police machinery in motion. The Honorable Supreme Court has already in its latest judgment taken this course. Rather importance should be given to the version of the statements of the witnesses who can present a much more clearer picture of the case. This will prevent a lot of cases failing due to the anomalies in the FIR and the witness statements.
CONCLUSION
The Police no doubt has an important and inseparable role to play in the Criminal Justice System as the law places no blame without sufficient evidence which is wholly provided by the Police but it is important for the independence of Judiciary and protecting the right of the people to get equal protection of law that the role of the Police should be restricted to only investigation and placing the untarnished truth before the Court who can then adjudicate the matter in light of this evidence and do justice.
Article 50 of the Constitution calls for separation of the Judiciary from the Executive. Though the judiciary cannot work in isolation and needs to be suitably supported by the Executive but the work of the Executive should be of support and should not of a crutch which denies people the right of approaching the Judiciary or infringe on the independence of the Judiciary.
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