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Filling of FIR: Its Efficacy and Importance

An Empirical Study of Districts of Srinagar & Jammu

Bureau of Police Research University of Kashmir And Development, & Hazratbal Campus,, Ministry of Home Affairs Srinagar, Kashmir, Govt. of India, New Delhi Jammu & Kashmir

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Filling of FIR: Its Efficacy and Importance

An Empirical Study of Districts of Srinagar & Jammu

Principal Investigator Dr. Mehraj Uddin Professor of Law, Faculty of Law, University of Kashmi r. Investigator Qazi Rais LL.M.

Bureau of Police Research University of Kashmir And Development, & Hazratbal Campus, , Ministry of Home Affairs Srinagar, Kashmir, Govt. of India, New Delhi Jammu & Kashmir

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Contents

I. Introduction II. The present Study

III. Research Methodology IV. Statistical Analysis

01. Age Group,

02. Educational Background,

03. Family Background,

3.1 Family and Marriage, 3.2 Marital Status, 3.3 Number of the Children, 3.4 Number of the Dependents,

3.5 Conjugal Relationship.

04. Length of the Service,

05. Income and Expenditure. 5.1 Salary,

5.2 Other Sources of income.

06. Property owned,

07. Savings and Loan Position,

08. Residential Status,

8.1 Place of Origin, 8.2 Status of Accommodation, 8.3 Nature of Accommodation, 8.4 Nature of Neighbourhood

09. Impact of Surrounding Environment,

10. Job Profile

10.1 Nature of the Work, 10.2 Duration of the Work, 10.3 Impact of the Job Profile, 10.4 Frequency of the Visits to Home

11. Police Personality,

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12. Police Behavior,

13. Police Transfers,

14. Job Risks and Threats and Police Families,

15. Morale amongst Police the Families,

16. Education of the Children.

17. Public and Police Personnel.

18. Ex-gratia Relief.

V. Conclusions and Suggestions

VI. Notes and Reference VII. Annexures

7.1 Questionnaire/Interview Schedule 7.2 List of the Tables

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I. Introduction

Crime is as old as mankind in itself. There is hardly any civilization in the

world which has not witnessed the upward trend in the crime graph. The forms

of crime and the pattern of commission of crimes has varied from place to place

and at the same place from time to time. The uneven development, greed,

malpractices, high handedness, corruption at every level, uneasy money,

defective educational system, deterioration of the values, broken homes, busy

schedule of the parents, teaching shops of the teachers and what not has

become order of the day.

Crime is on increase through out the globe and there is no scientific

apparatus to record the actual number of the crimes committed, as most of the

crimes are not reported at all and out the crimes reported to the police only a

small portion of the crimes is registered. An analysis of Crime in India 2006, the

report complied by National Crimes Record Bureau (NCRB) reveals that Delhi has

the most murders, rapes, dowry deaths, kidnappings and molestation cases. The

National Capital remains unsafe for women. The City recorded 31.2 percent of all

the rape cases reported in major cities and had a high number of dowry deaths

(120) and molestation cases (629).

Among the States, Madhya Pradesh recorded the highest number (1,94,711)

followed by Mahrashtra (1,91,788), Andhra Pradesh (1,73,909), Tamil Nadu

(1,48,927) and Rajasthan (1,41,992) during 2006. Madyha Pradesh earned the

distinction of having the highest number of rapes 7.4 percent in 2002 to 8.2

percent during 2006. The report reveals a new trend, as young people in the

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country are taking to crime. As many as 44.6 percent of all the criminals arrested

in 2006 were between 18 to 30 years, a sharp rise from 2005, when the figure

was 44.0 percent.

State of Jammu and Kashmir which was known as paradise on the earth is

now showing sharp upward trend in the crime graph. Crimes against women are

also on increase. As per the data available with the Women’s Police Station,

Rambagh where most of the victims lodge their complaints, the crimes against

women are on rise in Kashmir. Dowry, eve-teasing, molestation, abduction,

harassments and treachery dominate the complaints that the Women’s Police

Station registers. In the year 1998 only 04 cases of crimes against women were

reported at Ram Bagh Police Station which touched 32 in the year 2007. The

graph showed upward trend with 10 cases in the year 1999, 17 cases in the year

2000, 19 cases in the year 2001, downward trend with 14 and 05 cases

registered in the women police station in the years 2002 and 2003 respectively.

The number of the registered cases again touched 17, 15 and 23 in the years

2004, 2005 and 2006. The number in the year 2007 shot up to 32. The number

has further shot up in the year 200-2010.

The task of crime deduction, prevention, control and collection of evidence,

belongs to the Police, which is an important segment of the Criminal Justice

System. The Police has a vital role in the criminal justice process, which starts

with the lodging of a complaint what is known as First Information Report (FIR).

FIR is very important in the criminal justice process and has a direct bearing on

the case. In India and other developing countries, it has been found that people

by and large are reluctant to file the FIR or pursue the case to the logical end.

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II. The Proposed Study

2.1 The Basic Premise

The proposed pilot study “Filing of FIR: Its Efficacy And Importance.”

[An Empirical Study of the Districts of Srinagar and Jammu] is a modest attempt

to study as to what extent people report the commission of the crime to the

nearest police station and to examine the factors which influence the people not

to report the crime when ever it is committed. Moreover, efficacy and importance

of lodging FIR is also brought within the purview of the study.

The basic premise of the present study is to identify the factors which

discourage the people to report the commission of the crime to the police and

the reasons which at times influence the police not to accept the FIR.

The following key issues shall form part of the study; a) The perception of the people especially victim regarding importance of FIR; b) The difficulties faced by the people in lodging the FIR; c) The motivational factors related with the FIR; d) The awareness of the people regarding efficacy and importance of FIR; e) The perception of the police personnel regarding the importance of the FIR; f) The co-relation if any between the correctness of the FIR and rate of conviction; g) The training of the police personnel regarding reporting of the FIR.

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2.2 Statement of the Problem

The civilized society from the time immemorial devised various methods of

punishment to control and contain the increasing crime rate and the main

apparatus for this purpose is Criminal Justice System, which comprises of Police,

prosecution, presiding officer and others. In the adversary system of Criminal

Justice all the segments of the system have a very vital role in the judicial

process. Victim, accused and the society are equally important in the process.

It is a matter of fact that whenever a crime is committed, the judicial

process can not come into motion unless some one reports the incident. It is true

that police is the first agency in the Criminal justice System and is expected to

extend protection to every individual and take the cognizance of a crime,

whenever committed in their jurisdiction. But due to the vast and diverse

dimensions of their jurisdiction coupled with population explosion and migration

of the people from one area to another, it is practically not possible to protect

every individual. Moreover, police is not an angle to know about each and every

incident which takes place in their jurisdiction.

People have an onerous responsibility to report whenever any criminal act is

committed in their area and the police is expected to swung into action with out

losing any time. However, it has been found that in most of the cases people do

not report commission of the crime or movement of the criminals or their evil

designs to the police. Further, it is also found that in most of the cases, police

are reluctant to file FIR whenever a crime is reported to them. It is a small

percentage of the crimes actually committed which are reported to the Police,

most of the cases go un-noticed or are not reported at all. There are numerous

factors which are responsible for this approach.

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2.3 Objectives of the Present Study:

The present study has been under-taken with the following basic objectives;

a) To examine the factors which influence the people in not filing First Information Report (FIR);

b) To identify the factors which influence the victim to remain away from filing the First Information Report (FIR);

c) To identify the factors which are confronted by the people/victim while lodging the First Information Report (FIR);

d) To examine role of the police in encouraging or otherwise, the victim or people at large in submitting the First Information Report FIR;

e) To examine the difficulties faced by the Police in recording the First Information Report (FIR);

f) To examine the impact of socio-economic status of the victim in filing the First Information Report (FIR);

g) To examine the impact of socio-economic status of the accused in filing the First Information Report (FIR);

h) To examine impact of the educational status of the victim/his or her family members in filing First Information Report (FIR);

i) To examine impact of psychological status of the police personnel in reporting the crime. 2.4 Research Methodology: The study being primarily empirical in nature and the data for the purpose

has been collected with the help of a structured questionnaire/ interview

schedule.

The universe for the proposed study has confined to the two cities of the

State of Jammu and Kashmir i.e. Srinagar and Jammu and two towns namely

Ganderbal and Samba of the two districts. The sample has been selected at

random from both the cities and towns. A cross section of the lawyers,

prosecutors and public has been also brought within the purview of the proposed

study.

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The data has been collected by the Investigator and principal investigator.

Further, the Investigators also availed the opportunity of an interaction with all

concerned. The Principal Investigator also had a brief interaction with the senior

lawyers, prosecutors, judges, police personnel and victims or their family

members.

The study no doubt has been confined to two cities and two towns, but there

are some inherent limitations in the Study as in most of the cases, the Police

personnel did not open on the important issues frankly and the Investigators

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III. State of Jammu & Kashmir The State of Jammu & Kashmir comprises of three provinces viz. Kashmir,

Jammu and ladakh with Districts. The total population of the State as per the

Census of 20 was . The main occupation of the people is handicrafts followed by

tourism. However, due to the turmoil in the valley which continued for a long

span of time, damage has been caused not only to the economy of the State, but

the basic fabric of the society as a whole has been also damaged.

Crime was at a very lowest ebb in the State of Jammu & Kashmir, but with

the turmoil the crime graph went up. However, the rate of traditional crimes

continues to be under control. The police personnel, especially at the top level

are well educated and approach the problem with human angle. The scenario

over the years, has changed and the gap between the people and the police has

widened and the gap becomes wider as we proceed from top to the bottom.

There is a sort of alienation and suspicion at every level and it is difficult for the

police to seek public co-operation and equally difficult for the people to trust

upon the police.

The State has its own Jammu & Kashmir Police Manual which among other

issues also deals with the Information to the Police [Ch. XVIII] and Investigation

[Ch. XIX]

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IV. First Information Report [F.I.R.]

4.1 The Perspective

F.I.R is the abbreviated form of the ‘First Information Report’ The word

‘First Information Report’ has not been defined in the Cr.P.C. It means the

information relating to the commission of a cognizable offence that reaches the

officer in charge of the Police Station first in point of time. It is very valuable

document and is of utmost legal importance from the legal point of view. It is

important to both prosecution and defence. It constitutes, the foundation of the

case in the first instance and the entire case depends on it. If the foundation is

weak, then the prosecution case is bound to be weak, but on the other hand, if it

is strong it will counter the attacks by the Defence Counsel.

a) What is an F.I.R. ?

F.I.R. is a written document prepared by the Police when they receive

information about the commission of cognizable offence. It is a report of

information that reaches the police first in point of time and that is why it

is called first information report.

b) F.I.R. is generally a compliant lodged with the Police by the victim of a

cognizable Offence or by some one on his or her behalf.

i) Cognizable offence:

A cognizable offence is the offence in which the Police may arrest a person

without a warrant. They are authorized to start investigation so motto into

cognizable cases and do not require any orders from the court to do so.

ii) Non-cognizable offence:

Non-cognizable offence is an offence in which police has no authority to

arrest with out a warrant. The police cannot investigate the offence

without the permission of the court.

c) Any one can report the commission of the cognizable offence either orally

or in writing to the police. Even a telephonic message can be treated as

F.I.R.

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d) Why is F.I.R. important:

First Information Report (F.I.R.) is very important document as it sets the

process of criminal justice in motion. It is only after the F.I.R. is registered

in the Police station that police takes up investigation of the case.

e) Who can Lodge an F.I.R.

Any one who knows about the commission of a cognizable offence can file

F.I.R. It is not necessary that only the victim of the crime should file an

F.I.R. Any police officer who comes to know about the commission of

the cognizable offence can file an F.I.R. himself or herself. In other words,

any person can file a F.I.R;

Against whom the offence has been committed;

Who knows an offence has been committed;

Who has seen the offence is being committed;

Who has any information about the commission of an offence.

4.2 Procedure for Filing an F.I.R The Procedure for filing an F.I.R is prescribed in S.154 of the Cr.P.C. 1973.

a) When the information of commission of an offence is given orally, the police must write it down.

b) The complaint has a right that the information recorded by the police

is read over to him. He has also a right to demand a copy of the complaint as recorded by the police.

c) Once the information is recorded by the police, it must be signed by

the person giving information. d) The complainant should sign the report only after verifying that

the information recorded by the police is as per the details given by him.

e) People who cannot read or write must put there left thumb impression

after being satisfied that it is correctly recorded. f) Always ask for a copy of the FIR, if the police do not give it to you. It

is your right to get it free of cost.

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4.3 What should be mentioned in the F.I.R

F.I.R. is the back-bone of the criminal investigation. It is therefore, essential

that the following points should be mentioned in the F.I.R. in a clear terminology

with out any ambiguity.

Name and Address of the complaint;

Date, Time and Location of the incident which is being reported;

The true facts of the incident as they occurred;

Names and descriptions of the persons involved;

Witnesses if any.

V. Crime Investigation

5.1 F.I.R. and Investigation

Crime investigation is most important and crucial in the Criminal Justice

System. It has a direct impact upon the society in general and the accused in

particular. The slightest lapse or error or inadvertence or willful negligence on

the part of the investigating officer can be helpful to the offender in securing an

acquittal and may also reflect upon the functioning and reputation of the police.1

Crime investigation is the back-bone of the entire system. It is highly

technical and professional in its nature and beyond the perception of a common

person, particularly when a good number of the present law breakers, by and

large, are not only highly qualified and influential but are also very intelligent

holding very important positions in the social set-up and enjoying very high

social status in the society.

The crime has necessitated the development of investigative techniques

which could make available evidence to identify the guilty and exonerate the

innocent.2 The basic purpose of the criminal investigation is to provide answers

to certain questions relating to crime. These among others include;

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To identity the victim,

To find out he exact place at which the offence occurred,

To find out the manner in which the crime has been committed,

To find out the means employed in the commission of the crime,

To find out the time of attack,

To identity of the offender or offenders,

To collect all the relevant evidence,

To record all the facts relevant to the commission of the crime, and

To connect the chain of events as per their occurrence and

To frame the case on the factual foundation.

5.2 Search for Relevant Evidence

Crime investigation is also employed in the search for relevant evidence,

questioning of material witnesses who are able and willing to give competent

and relevant testimony against the suspect or offender, and in the reconstruction

of all the facts connected with the crime. Investigative techniques are essential

to ensure that at the trial of the accused a true picture of the events may be

produced and presented so as to leave no doubt in the minds of the trial judge

regarding the guilt or innocence of the accused.3

Investigating agency is expected to collect each and every piece of relevant

evidence, resort to the scientific methods in the investigation of the case and

collect the best possible and relevant evidence, which can enable the prosecution

to help the court of law to arrive at the correct conclusions.

The evidence collected by way investigation provides the best possible clues

to the prosecution and prosecution has to built up the case on the inputs

provided by the investigating agency and the prosecution success depends to a

great extent upon the relevant in-puts provided by the investigating agency.

Criminal investigation is now a well established part of the Criminal Justice

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System and it has developed in every part of the world with the growth of the

modern science.

5.3 Power to Investigate Investigation is carried out by the police and the law has given ample

powers to the investigating agency to conduct the investigation and no one can

challenge the powers of the investigating agency to investigate the case, even

High Court can’t stop the investigating agency from investigating the case nor

can there be any direction to the investigating agency to change the course of

investigation.

Law has vested ample powers in the investigating agency to carry out the

investigation. In India, under Chapter XII of the Criminal Procedure Code4 the

police have a statutory right to conduct investigation.5 The police have the

bounden duty to collect the evidence for the sake of evidence.6 They have power

to investigate the cognizable offences even without the prior permission of the

Magistrate concerned. S.156 of the Criminal Procedure Code7 in this respect

provides:

1. Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

2. No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

3. Any Magistrate empowered under S.190 may order such an

investigation as above mentioned. 5.4 Interference by the Courts The police under Sections 154 and 156 of the Criminal Procedure Code have

the statutory right to investigate a cognizable offence without requiring the

sanction of the court, and the court has no power to interfere with such

investigation, provided it related to cognizable offence. Thus in case of a

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cognizable offences, the police may carry on investigation irrespective of any

order of the court.8 The courts have no control in such cases over the

investigation or over the action of the police in holding such investigation.9

However, in order to investigate non-cognizable offences, prior permission of the

Magistrate concerned is to be obtained.

The functions of the judiciary and the police are complimentary to each

other and the combination of individual liberty with due observation of law and

order is only to be obtained by leaving each to exercise its own functions10 The

Supreme Court in S.N. Sharma V. Bipin Kumar Tiwari and others11 observed;

“...the power of the police to investigate any cognizable crime is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case, that the Magistrate can intervene and either direct an investigation or in the alternative, proceed himself or depute a Magistrate subordinate to him to proceed to investigate the matter…”

The Code of Criminal Procedure, no doubt gives to the police unfettered

power to investigate all cases where they suspect a cognizable offence has been

committed. Even the High Court does not interfere with such investigation,

because it would be impeding investigation and the jurisdiction of the statutory

authorities to exercise power in accordance with the provisions of criminal

procedure code.

However, in appropriate cases, an aggrieved person can always seek a

remedy by invoking the power of the High Court under Art. 226 of the

Constitution. The High Court in such cases can issue the writ of mandamus,

restraining the police officer from misusing his legal powers. Further, in Hazari

Lala Gupta V. Rameshwar Prasad12 it was laid down, that the High Court can

quash proceedings, if there is no legal evidence or if there is any impediment in

the investigation or continuance of proceedings.

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The policy of non-interference in the investigation was well explained by the

Privy Council in King Emperor Vs Khawaja Nazir Ahmad13 in the following

terminology;

“…just as it is essential that everyone accused of crime should have free access to the court of Justice, so that he may be duly acquitted, if found not guilty of the offense of which he is charged, so it is of utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which law imposes on them the duty of inquiry..”

5.5 Right to Re-open the Investigation Ordinarily, the right and duty of the investigating agency, comes to an end

with the submission of the report under S.173(1) of the Criminal Procedure

Code, as there was no express provision under the old Criminal Procedure Code14

to reopen the case. However, it has been generally thought by many High Courts

that whatever, fresh facts come to light after submission of the report the

investigating agency is not barred from further investigation.

The right of police officer to make repeated investigations, was recognized

by the Madras High Court in Diwakar Singh V. Rammurthy Naidu15 Justice Phillips

and Justice Krishana in this respect observed;

“...The number of investigations into a crime is not limited by law and that when one has been completed, another may being on further information received….”

Further in Mohd. Nawaz V. The Crown,16 the Lahore High Court, consisting

of Justice Din Mohmad and Justice Cornelius, cited with approval the above

decision of the Madras High Court. In Prosecuting Inspector V. Ninaketan

Mahato,17 the High Court of Orissa held that the police had the right to re-open

an investigation even after the submission of the charge sheet, if fresh facts

came to light. In Rama Shankar V. State of U.P.18 a Division Bench of the

Allahabad High Court took the view that submission of fresh charge sheet after

submission of the report under section 173 of the criminal Procedure Code was

not illegal.

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In H.N. Rishbud V. The State of Delhi,19 the Supreme Court, contemplated

the possibility of further investigation, even after the court had taken cognizance

of the case. The court observed:

“… it does not follow that invalidity of investigation is to be completely ignored by a court during trial…if brought to the notice of the court. The court will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re-investigation as the circumstances of an individual case may call for…”

These decisions are clear authority for the view that further investigation is

not altogether ruled out, merely because the cognizance of the case has been

taken by the court. But some High Courts, took the view that with the

submission of charge sheet under section 173(1), the power of the police to

investigate came to an end and the Magistrate’s cognizance of offence started.

In Ram Gopal V. State of West Bengal20 it was further observed that any further

investigation by police would trench upon the magisterial cognizance. In

Hanuman V. State of Rajasthan21 the court laid down that when a case was

pending before a Magistrate, the action of the police in resuming investigation

was unauthorized and unlawful. In State V. Mehar Singh,22 the court observed

that the police became “functus officio”, once the court took the cognizance of

an offence, on the submission of the charge sheet by the police and thereafter,

further investigation by the police officer was not permissible.

The Law Commission23 realized the difficulties of the investigating agency

and observed;

“A report under Section 173 of the Old Criminal Procedure Code, is normally the end of an investigation, some times, however, the police officer after submitting the report, comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears that courts have sometimes taken the narrow view that, once a final report has been submitted, the police cannot touch the case again and re-open the investigation.”

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The Law Commission24 found that the view taken by different High Courts

placed hindrance on the investigating agency, which could be unfair to the

prosecution and for that matter, even to the accused. The Law Commission25

recommended that the competent police officer be authorized to examine such

fresh evidence and send a report to the Magistrate. Copies concerning the fresh

report must, of course, be furnished to the accused and accordingly, a new

provision section 173(8) was introduced in the Criminal Procedure Code,26 which

reads as follows:

“Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and where upon such investigation, the officer-in-charge of the police station obtain further evidence in the form prescribed; and the provisions of sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to report forwarded under sub-section (2)“

Thus under the new Criminal Procedure Code, the police have a right to

reopen the investigation, even after the report has been submitted to the

Magistrate concerned. In Om Prakash Narang V. State (Delhi Administration).27

The Supreme Court while highlighting the right of the police to reinvestigate,

emphasized on co-ordination between the different segments of the Criminal

justice. The court in this regard observed;

“..in the interests of independence of the Magistracy and the Judiciary, in the interests of purity of administration of criminal justice and in the interests of the various agencies and institutions entrusted with the different stages of such administration, it would ordinarily be desirable that police should inform the court and seek formal permission to make further investigation when fresh facts come to light.

It is clear that under the new Criminal Procedure Code, the police has a right

to reopen the investigation, even after the report has been submitted to the

court. In my opinion the provision continues to have its operation even after the

court has given its verdict. For instance, if an accused person is convicted and

sentenced for committing an offence and subsequently if it is found that he had

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not committed the offence for which he stands convicted. The case is to be re-

opened with the fresh facts. The courts can’t close their eyes to the facts which

of course surface subsequently and presiding officer can not escape from his

duty unless he extracts facts from the manipulated and fabricated evidence.

06. Presumption of Innocence

The basic foundation of the criminal justice process is that every accused

person is presumed to be innocent unless proved otherwise. The onus to prove

every ingredient of the offence against the accused lies on prosecution. The

Supreme Court, in Tika and Others V. the State of U.P.28 laid down;

“The case of prosecution is to be established independently of the defence version and in a case which depends for its proof on direct testimony, falsity of defence will not help the prosecutor to establish its own case.

The Supreme Court again in Kali Ram V. State of Himachal Pradesh29 observed;

“... Leaving aside the cases of statutory presumptions, the onus is upon the prosecutor to prove different ingredients of the offence and unless it discharges, that onus, the prosecution can not succeed. The Court may of course, presume as mentioned in S.114 of the Indian Evidence Act, the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events and human conduct…. Other presumptions of similar kind in similar circumstances can be made under the provisions of the section itself... Whether or not a presumption can be drawn under the section in particular case depends ultimately upon the facts and circumstances of each and every case…..No hard and fast rule can be laid down. Human behaviour is so complex that a room must be left for play in the joints. It is not possible to formulate a series of exact propositions and confine human behaviour within the strait jackets. The raw material is far too complex to be susceptible of precise and exact propositions…”

The Indian Criminal Justice system is adversary in nature and the

prosecution has to establish the case of the accused beyond reasonable doubt

and the Defence Counsel is at liberty to examine or cross-examine the

prosecution version. It is also an established rule of law, that in case of

reasonable doubt regarding the guilt of the accused, the benefit shall go to the

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accused. The apex Court in S.S. Bobade V. State of Mahrashtra30 struck the note

of caution in the following terminology:

“The Cherished principles or golden thread of proof beyond reasonable doubt, which through the web of our law, should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go out but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubt belongs to the accused.”

The doubt regarding guilt of the accused, no doubt must be reasonable

doubt. It is not merely the doubt of mind, which either so vacillating that is

incapable of reaching a firm conclusion, or so mind that it is hesitant and risky to

take things to their natural consequences. Further, the rule regarding the benefit

of doubt also does not warrant acquittal of the accused by resort to surmises,

conjectures or fanciful considerations. The trial judge has a vital role in this

respect.

Statistical Analysis And Interpretations

The study no doubt is empirical in nature, but due to certain inherent

limitations, all the segments in the target group could not be covered.

Nevertheless, every effort has been made to solicit co-operation from all the

concerned and first-hand information has been tracked and analyzed, despite

the fact that in the given circumstances, it was extremely difficult to seek

co-operation from all the segments of the law enforcement agencies. The cross

section of the society viz. lawyers, citizens and students have been also brought

within the purview of the study and their observations have been also noted. The

data and information so collected in a right perspective.

The statistical analysis and the interpretations thereof, no doubt is a tip of

the ice-berg and by any standard can not be of universal application, but the

findings provide a deep insight regarding the functioning of the Criminal Justice

System and are an eye-opener. The investigators raised a number of issues and

responses from a cross section of the society viz. police, lawyers, citizens and

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students were sought on a structured questionnaire and the observations on

other related issues were also recorded. The structured questionnaire no doubt

was confined only to the four responses i.e. strongly agree, inclined to agree,

agree and strongly disagree but in the cases where the respondents were

inclined to respond on the structured questionnaire their observations were also

recorded. The main issues revolved around the following points;

01. Lodging of complaint with or with out hesitation;

02. Difficulties confronted in lodging F.I.R.;

03. General impression about the police in accepting the F.I.R.;

04. Police hesitate, because of the witnesses turn hostile;

05. Police hesitate, because of non-cooperation of the public;

06. Impact of delay in investigation and lodging of F.I.R.;

07. Status of F.I.R. in the Criminal Justice Process;

08. Role and importance of F.I.R. in the Criminal Justice Process;

09. Influence/pressure regarding lodging of F.I.R.;

10. People’s inclination to file F.I.R.;

11. Impact of lack of legal awareness and filing of F.I.R.;

12. Felling of the people when police response is delayed;

13. Preference to the alternative means of redressal;

14. Impact of delay in the police investigation;

15. Impact of corruption in the judicial system;

16. Impact of delays in the Criminal Justice Process;

17. Impact of socio-political scenario in seeking justice;

18. Impact of hostile attitude of the witnesses;

19. Nature of the complaints lodged with the Police;

20. Observance of the guidelines issued by the judiciary;

21. Search process and attitude of the public and

22. Powers of the police to record confessional statement.

23

01. Accepting Complaints With or Without any Hesitation

Police is the first agency in the Criminal Justice System and the First

Information Report has a very important place in the criminal justice process. In

other words, if the F.I.R. is lodged in time with the proper sequence of facts and

clear narration of all the events in a simple terminology, it shall be helpful to

settle the issues in the right perspective. The investigators sought to know from

the respondents as to whether the police accept the lodging of complaints from

the victims or concerned persons with out any hesitation.

The responses are given in the following table.

Table No. 1 (in percentage) Accepting complaints without any Hesitation

Response Police Personnel

Teachers Students Average

Strongly agree

66.6 - 16.6 27.7

Inclined to agree

16.6 - 16.66 11.10

Agree 16.6 10 - 8.86

Strongly disagree

- 90 66.66 52.2

NR - - - -

02. Police Difficulties in Lodging F.I.R.

The second question was addressed to the fact as to whether, police

confront any type of difficulty in lodging F.I.R. There is a common perception

that police face a number of difficulties in accepting the F.I.R. Here we have not

discussed the different type of difficulties, the police confront, but we have

simply sought to know as to whether they face any problem in this regard. The

responses are given in the following table.

24

Table No. 2 (in percentage) Police Difficulties in Lodging F.I.R.



Strongly agree

- - 16.6 5.53

Inclined to agree

16.66 20 16.6 17.73

Agree 16.66 50 66.6 44.4

Strongly disagree

66.6 50 - 32.2

NR - - - -

03. Police Attitude vis-à-vis the Complainant

Police attitude is very important in encouraging or discouraging the victim or

any person to file a complaint. If the complainant finds the hostile attitude in the

police station, he may be scared and may forget the important facts or

information pertaining the case. On the other hand, if he finds the attitude

favourable and atmosphere comfortable, he may be in a position to submit the

factual position of the incident or crime which has been committed against him

or any one else. Therefore, the behavior and attitude of the police at the time of

filing the F.I.R. is very important. There is however, a common impression that

police do not encourage the complainant to file F.I.R. In order to know whether

attitude of the police in this regard is favourable or not, we sought to know from

the police as well as from a cross section of the society, about their

impression/feeling regarding the attitude of the police while accepting the

complaints from the victims or concerned persons. The responses are given in

the following table.

25

Table No. 3

(in percentage) Police Attitude vis-à-vis the Complainant



Strongly agree

- 20 83.3 34.4

Inclined to agree

- 20 - 6.66

Agree - 60 16.6 25.5

Strongly disagree

100 - - 33.33

NR - - - -

04. Attitude of the Witnesses and Its Impact

Witnesses are equally very important in the criminal justice process and in

case the witnesses are sincere, honest and firm in their conviction and

commitment and stand for truth and nothing else, there are the chances that

facts will surface and justice will prevail. It is however, a common practice that

witnesses at the time of occurrence of the crime or incident are very much

emotional and ready to co-operate to any extent, this may be primarily because

their attachment/relation with the victim or plight of the victim or gruesomeness

of the crime or due to any other reason, but with the passage of time most of

the witnesses try to maintain distance from the criminal justice process and at

times turn hostile. There are a number of reasons for the witnesses for turning

hostile or not co-operating in the criminal justice process and this factor remains

utmost in the mind of the police officer while accepting the complaint as First

Information Report.

We sought to know from the police as well as from a cross section of the

society, as to whether they agree that the Police do not entertain the complaints

from the victims or concerned persons because witnesses often turn hostile or

witnesses do not co-operate. The responses are given in the following table.

26

Table No. 4 (in percentage) Attitude of the Witnesses and Its Impact



Strongly agree

16.66 - - 5.53

Inclined to agree

33.3 - - 11.10

Agree - 40 16.6 18.86

Strongly disagree

50 60 83.3 64.4

NR - - - -

05. Police-Public Co-operation and Lodging Complaints

Police personnel are part and parcel of the society. They can’t be different

from their fellow beings working in the different segments of the society.

Moreover, the Police personnel can’t work in isolation. They to a great extent

depend upon the public co-operation. In fact, Police can not be effective in their

mechanism to control and prevent crime and criminality in the society, unless

they get full support and co-operation from the public at large. It has been often

found that there is wide gap between the police and the public, especially in the

conflict situations, and police in most of the cases fail to seek public co-operation

in obtaining the clues or collecting the evidence or in substantiating the evidence

so collected. They at times even fail to get co-operation in other related matters.

In view of this experience, which Police confront in most of the cases, Police are

usually in double mind while accepting the complaints, as they are conscious that

unless the inputs are substantiated in the court of law, the given inputs shall be

of no utility. We sought to know from the respondents as to whether they agree

that police hesitation to lodge First Information Report, because they know

public co-operation in establishing the facts beyond reasonable doubt may not

come forward. The responses are given in the following table.

27

Table No. 5 (in percentage) Police-Public Co-operation and Lodging Complaints



Strongly agree

- - 16.6 5.53

Inclined to agree

- 40 - 13.3

Agree 66.6 10 16.6 31.06

Strongly disagree

33.3 50 66.6 49.76

NR - - - -

06. Impact of Delay in Police Investigation

Police investigation is extremely important in the criminal justice process

and the police investigation, in itself depends upon the inputs collected by way

the complaint or First Information Report lodged. However, delay in the criminal

investigation discourages the victim or the person concerned to file the complaint

with the police. People, by and large, feel that there is no fun to file the

complaint as the police investigation takes a lot of time and the concerned

person may forget the chain of events and thereby the purpose of filing the First

Information Report may in itself be defeated. We sought to know from a cross

section of the society, as to whether they avoid filing of the complaint because

there is a long delay in police investigation. The responses are given in the

following table.

Table No. 6 (in percentage) Impact of Delay in Police Investigation



Strongly agree

16.66 20 50 28.86

Inclined to agree

16.66 10 16.6 14.42

Agree 33.33 50 33.33 38.8

Strongly disagree

33.33 20 - 17.7

NR - - - -

28

07. Status of First Information Repor

Status and importance of First Information Report in any legal system can’t

be under-estimated. Each fact, each sentence and even sentence formation is

very important in the criminal trial. A slight error in recording of the facts or any

missing link may land the entire investigation process in trouble and provide an

opportunity to the Defence Counsel to reap upon the loopholes. We sought to

know from the police and a cross section of the society, as to whether they

agree that First Information Report is the foundation of the entire Criminal

Justice Process. The responses are given in the following table.

Table No. 7 (in percentage) Status of First Information Report



Strongly agree

100 10 83.3 64.4

Inclined to agree

- 30 - 10

Agree - 30 16.6 15.53

Strongly disagree

- 30 - 10

NR - - - -

08. Importance of First Information Report

First Information Report plays a very important role in the entire criminal

Justice Process and as pointed out in the preceding part that slight lapse in

recording the facts or in drafting First Information Report can provide an

opportunity to the Defefence Counsel to give twist to the prosecution version and

prosecution case may become weak and lead to the acquittal of the accused

person. We attempted to cross check from all the concerned as whether they

agree that First Information Report plays a very important role in the criminal

justice process. The responses are given in the following table.

29

Table No. 8 (in percentage) Importance of First Information Report



Strongly agree

100 30 50 60

Inclined to agree

- 10 16.6 8.86

Agree - 40 33.3 24.4

Strongly disagree

- 20 - 6.6

NR - - - -

09. Pressure/Influence And Accepting of First Information Report

Police personnel being part and parcel of the society can’t be immune from

the pulls and pressures of the society. There is a common feeling among the

masses that when ever a crime is committed, big guns in the society are directly

or indirectly involved and they try their best to exert pressure upon the different

segments of the Criminal Justice System, especially police. The big guns try to

interfere in the process and try to pressurize or influence the police not to accept

the complaint or modify the complaint or change the names or pressurize the

victim or complainant to withdraw the complaint. The opinion of the Police and

other concerned is given in the following table.

Table No. 9 (in percentage) Pressure/Influence And First Information Report



Strongly agree

- 50 - 16.67

Inclined to agree

- - 16.6 5.53

Agree 33.3 40 83.3 52.2

Strongly disagree

66.6 10 - 25.3

NR - - - -

30

10. People And Filling of First Information Report

Police-Public cooperation is very important to arrive at the logical

conclusions. It is only through public co-operation that police shall be in a

position to collect all the relevant inputs for onward transmission to the

prosecution. Moreover, it is only through the public co-operation that the

prosecution can establish his case in the court of law. However, it is a common

practice that in majority of the cases, people do not come forward to provide the

first hand information and they by and large try to maintain the distance, as a

result of which the police investigation suffers a set back.

We sought to know from a cross section of the society, as to whether

people hesitate to file the first hand information with the police, the responses

are given in the following table.

Table No. 10 (in percentage) People And Filling of First Information Report



Strongly agree

- 40 33.3 24.4

Inclined to agree

16.66 20 - 12.2

Agree 83.33 30 66.6 59.9

Strongly disagree

- 10 - 3.3

NR - - - -

11. Legal Awareness and Filling of First Information Report Legal awareness is very important in any civilized society and it is through legal awareness that people come to know not only about their rights and obligations, but also about the legal importance of various matters including that of filling First Information Report. We sought to know from the respondents, as to whether they are conscious of legal importance of the First Information Report. The responses are given in the following table.

31

Table No. 11 (in percentage) Legal Awareness and Filling of First Information Report



Strongly agree

50 20 50 40

Inclined to agree

16.6 20 16.6 17.7

Agree - 40 16.6 18.8

Strongly disagree

33.3 20 16.6 23.3

NR - - - -

12. Delay in Police Response and Public Disappointment Police response to the public grievances is very important and delay in the

police response is not only detrimental to the police investigation, but also

creates a sort disappointment among the people and makes them to remain

away from the legal process. We sought to know from a cross section of the

society, as to whether delay in the police response to the public grievances

creates disappointment among the public. The responses are given in the

following table.

Table No. 12 (in percentage) Delay in Police Response and Public Disappointment



Strongly agree

16.66 80 66.6 54.4

Inclined to agree

- - - -

Agree 66.6 20 33.3 39.9

Strongly disagree

16.66 - - 5.53

NR - - - -

32

13. Alternative Means of Redressal People in general and aggrieved persons in particular are always keen to seek quick disposal of their cases. The protracted, expensive and ineffective judicial process creates a sort of illusion among the masses and they try to seek alternative means to redress their grievances. In fact in most of the metropolitan and industrial towns alternative means of justice is gaining momentum. We sought to know from a cross section of the society, as to whether they agree that people do not like to approach the police, when they feel that the matter can be resolved by any other means. The responses are given in the following table. Table No. 13 (in percentage) Alternative Means of Redressal



Strongly agree

- 60 50 36.67

Inclined to agree

16.6 10 - 8.8

Agree 83.3 30 33.3 48.8

Strongly disagree

- - 16.6 5.5

NR - - - -

14. Delay in Police Investigation: Its Impact

Delay in the police investigation creates multiple problems which compound

together to frustrate the basic concept of justice. People are fed up due to the

inordinate delays and they loose their faith in the Criminal Justice System and

seldom don’t to file first hand information. We sought to know from a cross

section of the society, as to whether due to delay in the police investigation,

people do not like to file First Information Report. The responses are given in the

following table.

33

Table No. 14 (in percentage) Delay in Police Investigation: Its Impact



Strongly agree

16.6 40 33.3 29.9

Inclined to agree

50 10 - 20

Agree - 50 66.6 38.8

Strongly disagree

33.3 - - 11.1

NR - - - -

15. Corruption in the Judicial System: Its Impact Corruption in the judicial system is the main impediment which widen the gap between the people and the Police and with the passage of time, people lose their faith in the judiciary. Corruption at almost at every level in the system keeps people away from approaching the Police. We sought to know from a cross section of the Society, as to whether corruption in the judicial system creates a sort of illusion among the masses and they avoid to file F.I.R. The responses are given in the following table. Table No. 15 (in percentage) Corruption in the Judicial System: Its Impact



Strongly agree

16.6 10 16.6 14.4

Inclined to agree

16.6 30 16.6 21.1

Agree 33.3 40 50 41

Strongly disagree

33.3 20 16.6 23.3

NR - - - -

16. In-ordinate Delay in Criminal Justice Process: Its Impact

It is but obvious that criminal trials take a lot of time and the matters are

resolved at

XXXX

34

We sought to know from a cross section of the society, as to whether police

accept lodging of the complaints from the victims or concerned persons with out

any hesitation. The responses are given in the following table.

` Table No. 16

(in percentage) In-ordinate Delay in Criminal Justice Process: Its Impact



Strongly agree

- 50 66.6 38.8

Inclined to agree

16.6 30 - 15.53

Agree 83.3 10 16.6 36.6

Strongly disagree

- 10 16.6 8.86

NR - - - -




17. Present Socio-Political Scenario: Its Impact

Table No. 17 (in percentage) Present Socio-Political Scenario: Its Impact



Strongly agree

16.6 10 33.3 19.9

Inclined to agree

- 30 - 10

Agree 66.6 40 66.6 57.7

Strongly disagree

16.6 20 - 12.2

NR - - - -

35




18. Hostile Approach of the Witnesses: Its Impact

Table No. 18 (in percentage) Hostile Approach of the Witnesses: Its Impact



Strongly agree

- 10 16.6 8.8

Inclined to agree

16.6 40 16.6 24.4

Agree 83.3 40 66.6 63.3

Strongly disagree

- 10 - 3.3

NR - - - -

19. Another question was addressed as to whether complaints lodged with the

police are always frivolous the responses are given in the following tab

Table No. 19 (in percentage) General Nature of the Complaints



Strongly agree

- 20 16.6 12.2

Inclined to agree

33.3 30 - 21.1

Agree 33.3 20 - 17.7

Strongly disagree

33.3 30 83.3 48.8

NR - - - -

20. Judicial Guidelines: Its Impact




36

Table No. 20 (in percentage) Judicial Guidelines: Its Impact



Strongly agree

- 30 66.6 32.2

Inclined to agree

- 10 16.6 8.8

Agree 16.6 60 - 25.5

Strongly disagree

83.3 - 16.6 33.3

NR - - - -

21. Search Process and Public Co-operation

We sought to know from a cross section of the society, as to whether during

search process police do not get cooperation from the public .The responses are

given in the following table.

Table No. 21

(In percentage) Search Process And Public Co-operation

Response

Police Personnel


Strongly agree

- 20 33.3 17.7

Inclined to agree

16.6 40 16.6 24.4

Agree 83.33 20 16.6 39.9

Strongly disagree

- 20 33.3 17.7

NR - - - -

22. Police Powers And Confessional Statements




37

Table No. 22 (in percentage) Police Powers And Confessional Statements



Strongly agree

16.6 20 - 12.2

Inclined to agree

- - - -

Agree 33.3 20 33.33 28.86

Strongly disagree

50 60 66.6 58.86

NR - - - -

08. Criminal Investigation and Human Rights

Law no doubt provides un-fettered powers to the Investigation officer to

investigate the crime and such powers in the ordinary course of nature can’t be

controlled even by the Magistrate. The investigating officer, however, is

supposed to operate within the parameters of the professional ethics and give

due consideration to the legal, human rights of all the individuals concerned.

Bhagwati31 has rightly pointed out that the extent to which human rights are

respected and protected within the context of its criminal proceedings is an

important measure of society’s civilization.

The issues regarding the professional ethics of the investigating officers,

rights of the victims and human rights of the accused persons during criminal

proceedings are important issues in criminal jurisprudence. The first and

foremost issue is what are the basic human rights available to the person

charged for an offence. Secondly, to what extent the law enforcement agencies

adhere to the human rights of the accused persons. Thirdly, to what extent the

human rights of a suspect should be respected, when other interests of the

society are at stake. Fourthly, what about the rights of the victims and fifthly, in

case of possible conflict between the interest of a suspect and that of the

society, which of the two should prevail.32 The above identified juristic issues no

doubt are very important, but it is very difficult to answer all these issues to the

38

satisfaction of all the stake holders. The important and relevant human rights

spelled out under the Universal Declarations of Human Rights33 include;

Art. 02 Every one is entitled to all the Rights and Freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Art. 03 Every one has the Right to Life, Liberty and Security. Art. 05 No one shall be subjected to Torture, Cruel or Inhuman or Degrading Treatment or Punishment. Art. 06 Every one has a Right to recognition everywhere as a person before the law. Art. 07 All are Equal Before Law, Entitled to Equal Protection Without any Discrimination. Art. 08 Every one has a right to effective remedy by the Competent National Tribunals. Art. 09 No one Shall be subjected to Arbitrary arrest, Detention, Exile. Art. 10 Every one is Entitled in Full Equality to a Fair and Public Hearing by an Independent and Impartial Tribunal in the Determination of his Rights and Obligations and any criminal charge against him. The above enumerated human rights are conferred by the United Nation’s Charter on Universal Declaration of Human Rights to which India is also a signatory. In India all these rights are guaranteed by the Constitution in the context of criminal jurisprudence and are mainly contained in the Articles 20, 21 and 22 of the Constitution.34 Art. 20 Prohibits ex-post-facto operation of criminal law and confers immunity against double jeopardy and protection against self-incrimination. Art. 21 Provides that no person shall be deprived of his life and personal liberty except according to procedure established by law.

39

Art. 22 Proceeds to enact protection against arrest and detention in certain cases. Art. 22(1) Provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and be defended by a legal practitioner of his choice, Art. 22(2) Provides that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours and no person shall be detained in custody beyond such period with the authority of a magistrate. Art.(4-7) Provide certain safeguards in case of preventive detention which is accepted as a necessary evil. It is a matter of a fact that in most of the cases investigating officers don’t adhere to their professional ethics and these allegations and cross allegations regarding the violations of human rights. The process and procedure at every level lacks moral, ethical and legal values and usually operates arbitrarily against poor litigants and victims with out any regard to their legal and human rights. There are number of decisions from the various Hon’ble Courts which have thrown light on the above mentioned issues. Cases of Hussain Ara Khatoon, Sunil Batra, Charles Sobraj, Arushi Talwar, Priya Darshani Mattoo, Jassica Lal, Ruschika35 and many other cases are an eye opener in this respect.

09. Police Investigation: Allegations Thereof

Police investigation no doubt is very important in the entire criminal justice process as the clues collected in the police investigation give a final shape to the case, but to what extent the balance is maintained between the interests of the society and the legal and human rights of the accused person while investigating the case is a matter of fact and the material available on this issue speaks in volumes about the functioning of the investigating agency. Further, it is also evident from such material as to what extent the investigating agency adheres to the professional ethics while dealing with the accused persons or victims or their relatives. The allegations which by and large are raised against the police investigating machinery among others include. 01. Delay or Denial in Recording F.I.R; 02. Interpolations & Alterations in F.I.R; 03. Conversion of cognizable offences into

40

non-cognizable offences & vice-versa; 04. Institution of false cases; 05. Fabrication & Manipulation of the Evidence; 06. Arrest of the Innocent Persons; 07. Harassment of the Victim & Victim’s family; 08. Harassment of the Witnesses; 09. Corruption at the Investigation stage; 10. Use of the Touts, Agents & Pocket witnesses; 11. Use of the Third Degree Methods; 12. Irregularities Search & Seizure; 13. Un-due Influence of the powerful persons/Politicians; 14. Discrimination against Poor & Weaker Sections; 15. Custodial Killings/Rapes The verdict of the Hon’ble Court in Priyhadarshini Mattoo Murder Case36 has

shocked not only the Mattoo family but the entire country. The verdict is a blow

not only to the investigation process but to the entire Criminal Justice system.

The gruesome crime which took place on January 23, 1996 at Vasant Kung, New

Delhi still continues to be fresh in the memory of the people.

The observation of the learned Additional Sessions Judge Shri G.P. Thareja that

investigated agency, the CBI, had willfully made a weak case, speaks for itself.

The Central Bureau of Investigation, CBI is regarded as a premier investigating

agency in the Country. It is a matter of policy and practice that whenever, there

is any vital case of criminal nature, it is referred to CBI for investigation, with the

hope that the investigation shall be not only speedy but also impartial. It is

because of this reason that the CBI is preferred over any other investigating

agency. Whenever, in a country of more than one billion people, there is any

heinous crime or some big shot is involved in any criminal activity , people come

on the roads and demand that the matter is got investigated by the CBI. The

demand is also voiced from the floors of various democratic bodies. The people

by and large had faith in the investigations conducted by CBI, as compared to

the investigations conducted by other agencies. The Mattoo’s case has shattered

the confidence of people in the CBI.

41

The case brings the creditability of the CBI and the Delhi Police under clouds and

most important issues in this respect are as under.

1. Why Police ignored misbehavior of the accused ?

It is reported that Priyadarshini Matto lodged first complaint against the accused on February 26, 1995 and the accused continued to demonstrate his vulgar behavior visa- vis the victim. She was intimated and abused on many occasions. The accused on one occasion also tried to break into her house. Every time a complaint was lodged with the police. Why action as warranted under rules was not initiated against the accused ?

2. Why personal search memo was not prepared ?

The investigating officer did not prepare the personal search memo of the accused, which legal requirement. Why this aspect was ignored?

3. Why Key Witness has been ignored ?

Why the key witness was withheld? The Indian Express (December 09, 1999) has tracked the key witness in the Priyadarshini Mattoo’s case and has thereby established beyond reasonable doubt that the CBI has withheld the key witness in the case. The CBI statement in the Court that Mr. Prasad was not examined, because he was not at his native place and his whereabouts were not known to his parents, grandparents and village watchman. It is a false statement, he was never contacted by the CBI. Does, it not amount to misleading the Court? Has the CBI not played a very vital role in the miscarriage of justice?

4. Why investigating officer continued to keep the track ?

The case was transferred to CBI, but the investigating officer continued to keep the track. Why he was dropped at the Mattoo’s residence? What was the purpose of his visit? Was he working under the influence of some boss, just to destroy the evidence, if left any?

5. Who destroyed the vital evidence ?

The postmortem report is very important in any rape and murder case. During the postmortem, one bra, one jeans , one T-Shirt, one underwear and one pair of socks were seized and sealed with seal of safdarjung hospital and handed over to the CBI inspector and investigating officer . Samples of the vaginal swabs were also taken and two slides prepared.

42

Why evidence on this count has been concealed. Who is responsible for this tampering with evidence?

6. Where the 8 ml blood has gone ?

It is reported that on 28th January 1996, 20ml of blood was taken from the accused at R.M.L. Hospital, New Delhi. The sample reached Hyderabad Laboratory on 2nd February 1996. The blood at the time of analysis was sound just to be 12ml i.e. short of 8ml. Is that the sample has been tampered with or replaced, as no one could explain as to where the 8.0 ml. blood has gone?

7. Who has changed the blood group ?

The diary describes the blood group of he accused as “O” positive, but the Central Forensic Laboratory on the analysis found the blood group as “A” . Does it not lead to the conclusion that either the blood sample of the accused or underwear of the accused has been replaced?

8. Why stains emerged subsequently ?

It is reported that at the time of post-mortem, the blue under-wear of the victim as well as her jeans had no stains. However, at the Hyderabad Laboratory both the jeans and under-wear were found to have white stains, but no semen was found in the stains. The court has rightly pointed out that the presence of stains came into existence after the postmortem, when the exhibits were in the custody of the CBI. What does it suggest ? Ruchika’s Molestation case(2009) is yet another example of the criminal investigation.

10. Police Investigation: Some Difficulties The police is a most vital part of the Criminal Justice System. They have to

function as the second line of defence in the country and in that they have to go

in for tight-rope walking very often. On the one hand they are answerable to

their own officers and on the other they are often taken to task by the elected

representatives of the people. The police are the instruments in the society

which may have the greatest influence.37 However, the investigation of any crime

43

imposes heavy responsibilities upon the individual assigned that function.38 the

main objectives of the police investigation are;

To collect evidence for the purpose of evidence;

To inspect the place of occurrence;

To collect all the articles used in the commission of the offence;

To record statements of all those who have witnessed the commission of the offence;

To identify and apprehend the suspect;

To trace out the background or motive for commission of the offence;

To recover stolen property if any;

To establish that in fact a crime has been committed and

To assist the State in prosecuting the party charged with the offence. The scene of crime is the most fruitful source of physical evidence which when

examined in the forensic science laboratory would provide valuable information

to the investigating officer.39 Moreover, the weapons used, motive of the offence

and statement of the eye witnesses are of paramount importance in the criminal

investigation and can help the investigating officer in arriving at the roots of an

offence.

It is true that the police is an important pillar of the Criminal Justice Process and

its functioning has an important and direct bearing on the case, but police being

part of the society can’t work in isolation and nor can it be immune from the

pulls and pressures prevailing in the society. Some of the difficulties which police

often face while dealing with the criminal cases among others include;

01. Non- Cooperation of the Public; 02. Under-staff to carry out the investigation; 03. Un-skilled staff to carry out the investigation; 04. Inadequate modes of communication; 05. Inadequate means of Transport; 06. Hostile Attitude of the Witnesses; 07. Unnecessary Adjournments;

44

08. In-ordinate Delays; 09. Ineffective Prosecution; 10. Negative Role of the Prosecution. 11. Over Burdened with ...VIPS / PP 12. Mafia Dons and their Nexus. 13. Black Money and Black Economy, 14. Criminalization of Politics. 15. Criminalization of Occupations / Professions.

11. Conclusions and Suggestions

Crime no doubt is as old as the mankind in itself and the manifestation of

violence in the different forms has through out the human history been an

important issue to be dealt with. However, the pattern, magnitude, gravity and

modes operandi of such violence has changed from society to society and in the

same society from time to time. It is imperative that the investigating agency

should be well versed with the different types of criminality and for this purpose

they should be provided every possible opportunity to upgrade their knowledge

about the changing scenario of crime and criminality.

The Society at present is over-burdened with scams and scandals. Every day we

hear about one or another scam or scandal. The materialistic considerations have

penetrated very deep in our society and every segment of the society is infected

with corruption.

A close review of the 20th Century reveals that the criminal justice system

through out the world has been in a flux and the technological revolution has

brought the system under constant and tremendous pressure from every sector.

The criminals are more equipped than the police personnel. The investigating

agency should be well trained to counter any sort of corruption or pressure or

influence. The investigating agency should be insulated against any sort of

corruption and they should trained to collect the best possible evidence.

The process and procedure of the criminal justice system, right from the filing of

first hand information (FIR) to the stage of conviction or acquittal, is not only

costly, long-drawn, cumbersome, exploitive, property oriented, inaccessible for

45

the poor and weaker sections of the society, but is also ineffective and

dehumanizing at almost every level. The investigating agency should

demonstrate their conviction to human rights of the accused persons and should

operate with their professional ethics.

Investigating agency usually comes under the influence of the big guns and the

direction of the investigation is changed and the material evidence is hardly

collected. (Priya Darshani Mattoo murder case, Jessica lal’s murder case, Delhi

Tandoori murder and many other cases) and the case fails in the court of law.

Investigating agency should be well equipped to counter any sort undue

influence and must discharge their duty with out any favour or fear.

Investigating agency is often accused that the evidence is cooked-up or evidence

is fabricated and pocket witnesses are arranged, as a result of which the

conviction rate considerably goes down. Investigating agency should collect each

piece of evidence in a scientific manner and under any circumstances should not

resort to any unfair or extra-legal practice.

The investigation should be separated from the police. Investigating agency

should be well equipped with the modern technological tools and investigation

team should be well trained in carrying the investigation in a proper and

scientific manner. Investigation should be carried with out any fear and favour.

Prosecution is duty bound to assist the court of law to arrive at just and right

conclusions, but this is possible only when the prosecution is provided proper

and relevant inputs by way of evidence by the investigating agency and there is

a continuous chain of events in the logical sequence with out any falsity of facts

or fabrication of the evidence.

Prosecution has to put the entire evidence in a proper legal frame work in the

form of charge sheet and any loophole in the charge sheet or evidence is bound

to create a room for doubt in the prosecution story and the benefit of doubt

always goes in favour of the accused person and prosecution version is bound to

46

collapse. There should be a close co-ordination between the police, investigating

agency and prosecution to sum up the case in a proper perspective.

12. Notes and References 01. Mehraj Uddin Mir,The Indian Police Journal Vol. XXIX No.4 (April-June 1983) 46-51

See also (in) Criminal Law & Criminology (ed.) Gaur; K.D. 2002)

02. Encyclopedia Americana, Vol. 15 (1965) p. 287

03. Encyclopedia Britanica, Vol. 12(1966) p. 476.

04. Ibid.

05. Act No. 2 of 1974

06. State of Bihar vs. J.A.C. Saldanna and others, A.I.R. 1980, S.C. 326.

07. Basu D.D, Criminal Procedure Code 1973 (1979), p.440.

08. Rathan Lal, M. & Sarkar, A.K: The Code of Criminal Procedure 1973 (1975)

09. Emperor v. Nazir Ahmad (1944), 47 Bom. L.R. 245-A1945, P.C.18.

10. Basu, D.D. Supra note 7.

11. A.I.R. 1970 S.C.786 See also State V. Balram Singh and another A.I.R. 1970 Orissa 107.

12. A.I.R.1970 S.C. 484 See also R.P.Kapur V. State of Punjab A.I.R.1960,S.C.866 and State of West Bengal V. S.N.Basak,A.I.R. 1963,S.C.447

13. (1944) 71 Ind.App.203

14. Act V of 1998.

15. A.I.R. 1919, Mad.751 sees also re-Palaniswami Goudan A.I.R. 1946,

Mad.502

16. (1947) 3. L.J.774

17. A.I.R. 1952, Orissa 350, See also re State of Kerala 1973, Cri.L.J. 1288

18. A.I.R. 1956 All.525

19. (1955)I.S.C.R. 1150 See also Tara Singh vs. State (1951), S.C.729

20. A.I.R.1969 Cal. 316

21. A.I.R. 1951 Raj 131

47

22. 1974 Cri.L.J.970

23. Forty first Report of the Indian Law Commission (Sept.1969)

24. Ibid.

25. Ibid.

26. Act No. 2 of 1974

27. A.I.R. 1979 S.C.1791

28. A.I.R. 1974 S.C. 155

29. A.I.R. 1973 S.C. 2773

30. 1973 Cri. L. J. 1783

31. Bhagwati;P.N. ‘Human Rights in the Criminal Justice System’ (in) Criminal Law & Criminology (ed.) Gaur; K.D. 2002)

32. Ibid

33. Universal Declaration of Human Rights.

34. Constitution of India

35. Hussain Ara Khatoon, Sunil Batra, Charles Sobraj, Priya Darshani Mattoo, Arushi Talwar, , Jassica Lal. See also Mehraj Uddin, Crime and Criminal Justice System in India (1984)

36. Mehraj Uddin; Priyadarshani Mattoo Murder:A Case of Miscarriage of

Justice.

37. Paramaguru Pon, Police in Enforcement of Social Legislation, Indian Journal of Criminology. Vol.7 (July 1979), 202

38. Swanson, C.R. and Others, Criminal Investigation (1977), 202.

39. Pitchandi, N: Role of Police in changing Society; Scientific Methods of Crime Investigation, Indian Journal of Criminology, Vol. 6, No.2 (July1978) XXXXXXXXXX

48

Conclusions & Suggestions Criminal Justice System is an important pillar of the civilized society. The success

of the State to a great extent depends upon the quality and performance of the

Criminal Justice System in discharging the important functions of the crime

deduction, crime prevention and maintenance of law and order.

Criminal Justice System comprises of Police, Investigating Agency, Judiciary,

Prosecution, Defense Counsel, Prisons, (now known as correctional Institutions)

and other segments. All these segments are very important components of the

system.

Criminal Justice System and its effectiveness to a great extent depends upon the

functioning of each segment of the system and the co-ordination of all these

segments with each other.

The different segments of the Criminal Justice System rather sub-systems are by

no means exclusive of one another, but are inter-related and inter-dependent.

They inter-play and inter-act with each other at many levels in the criminal

justice process and what is done in one sub-system has a direct bearing upon

the another.

The inevitable inter-play and inter-action of sub-systems with each other has a

tremendous impact so far as the plight of the victim, victim’s family, witnesses,

accused person and family of the accused person is concerned. The ethical

values of the professionals working in each segment, has an extra-ordinary

impact upon all those who are directly or indirectly concerned with criminal

justice process in general and the accused person in particular.

The effectiveness and impact of the judicial process, therefore, can be both

negative as well as positive depending upon as to what extent the

aforementioned segments of the criminal justice system adhere to the minimum

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standards of moral, ethical and legal values with due regard to the constitutional

mandates and human right’s considerations.

FIR Subash Kumar v. State of Uttarakhand AIR SC 2490 S. 154 Cr.P.C. (1974) FIR is not be treated as an encyclopedia. The statement given in the FIR at the earliest point should be given primacy, but it would not be probably proper to accept that all particulars in regard to the commission of offence in detail must be furnished.

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