The fundamental duty of the State is to maintain law and order for an orderly society and civilized existence of its citizens. It is also equally important to protect the rights of the people, security of their persons and property. In the words of Chief Justice Parker, “Protection of society and stamping out criminal adventure must be the object of law and this must be achieved through a criminal justice system and sentencing policy.”
Therefore, penal law must be effective to respond to societal needs failing which it will lead to anarchy and life and liberty of the citizens will be in constant jeopardy. Similarly, if punishment is uncertain, harsh and disproportionate, people’s faith in the justice delivery system will be shaken. Over the years, there is sharp increase in the incidence of crime and new crimes like terrorism, drug trafficking, internet offences, cyber crimes, gangster-ism and sexual violence of women. There is also staggering backlogs of criminal cases. The most disquieting feature is that there is sharp decline in the rate of conviction and acquittal has become a normal feature in criminal trial. Now the rate of conviction is 41 per cent which is the national figure. Therefore to revamp the criminal justice system, Malimath Committee had submitted 158 recommendations to the Government of India to bring about reforms so far as police, prosecution, prison and correctional services are concerned.
The committee also suggested having a fresh look at the criminal jurisprudence in its attempt to secure more number of convictions while safeguarding the interest of the accused and ensuring fair trial. We have adopted “Adversarial System” of criminal justice, whereas in some countries like France and Germany, inquisitorial system of trial is followed. In the “inquisitorial system”, investigation is supervised by experienced Magistrate. In India the investigation is vested with the police and the trial of criminal cases are vested with the magistrates and sessions judges. Our criminal justice system is based on Anglo-Saxon Jurisprudence. In our system the cardinal principle is that the prosecution must prove its case beyond all reasonable doubts to warrant a conviction. In other words, the accused is presumed to be innocent until the contrary is proved. In our country, the State is the prosecutor and no private person / party has any right to prosecute an accused. It is a remarkable feature that the constitutional right of an accused from not being compelled to be a witness against himself flows from Article-20 (3) of the Constitution which acts as a safety valve against “self incrimination” or “testimonial compulsion”. This Constitutional safeguard has found its best expression in the judgment of the Supreme Court in the landmark case of Nandini Satpathy verses Pl Dani where the Supreme Court followed the famous American case of Miranda vrs State of Arizona
In inquisitorial system of criminal trial, the burden of proof shifts to the accused to prove his innocence once a charge sheet is filed by the State against the accused and therefore, in that system, there is more number of conviction. In our adversary system, there must be proof of guilt of accused beyond all reasonable doubts in criminal cases and there is preponderance of probability which is the standard of proof adopted in civil cases. Malimath Committee has suggested a via media which is the standard of proof lower than that of proof beyond reasonable doubts and higher than the standard of proof on preponderance of probability. The Committee has also suggested to adopt a third course which says that “in criminal case unless otherwise provided, a fact is said to be proved when after considering the matters before it the court is convinced that it is true” and the duty of the court is to actively pursue the quest for truth for punishing the guilty and protecting the innocent.
In this backdrop, if the investigation is defective, the advantage is taken by the accused and the case ultimately ends in acquittal. Investigation becomes defective for various reasons like influence of the accused, callousness, inexperience and lack of in-service training of the investigating officer. They are not very much equipped with modern scientific knowledge and training like brain mapping test, use of lie detector, DNA test and collection of forensic evidence etc. All police officers have no expertise to investigate into complicated economic offences like bank fraud, cheating, forgery and cyber crime etc. So far the investigation wing has not been separated from law and order section and VIP security duty in spite of Supreme Court’s direction in Prakash Singh (former DGP) case in 2006 for police reforms. The criminal trial is delayed mostly due to non-availability of the investigating officer, medical officer and expert witness etc for many reasons. Although there is a Director of Public Prosecution, in most cases, the public prosecutors are not answerable for their acts of omission and commission which results in failure of prosecution in many cases. It is a known fact that mostly public prosecutors are appointed on political patronage.
One striking feature is that the victim of crime and violence is left in the lurch and the State is only satisfied traditionally by punishing the offender. Recently by amendment, provision has been made for payment of compensation to the victims of crime according to the mandate of Section-357 (A) of CrPC. Odisha has also made victim compensation scheme – 2012 in pursuance of the mandate of law. This has also provided for victim compensation fund which is a step in the right direction to mitigate the suffering of the victims particularly in cases of sexual violence on women and children who would get compensation through State legal Services Authority. The Malimath Committee has also suggested that the victim has right to participate during trial and can file appeal if dissatisfied with the quantum of punishment. It is significant that there is provision of “plea bargaining” recently added to the code of criminal procedure where in criminal cases in which the punishment is below seven years of imprisonment, the accused may plead guilty voluntarily for a lesser sentence provided he agrees beforehand at the time of conferencing of the trial judge, public prosecutor, investigating officer and the victim / complainant to give adequate compensation to the victim. If this procedure is implemented in letter and spirit with the assistance of prosecution and prison authority, it would go a long way to reduce pending criminal cases. Another aspect is that this is high time witness protection system had to be strengthened in our country and witness must feel safe to testify at the time of trial. In absence of this minimum guarantee and assurance given to the witness by the State, in many cases, the witness who is intimidated or influenced or gained over by the adverse party, either turns hostile or conceals truth about the incident which contributes a lot for acquittal of the accused. Therefore regulatory mechanism has to be evolved for perfect coordination between prosecution and investigating agency to place foolproof evidence during trial. Increase in the strength of trial judges, establishment of fast track courts for trial of offences like sexual offences, crime against women, atrocities on members of SC/ST and minorities and special court for cyber crimes and terrorist violence are absolutely necessary in the changed scenario. Investigation of such offences should be entrusted to special police units and prosecution to be conducted by specially-appointed prosecutors.
In conclusion, any reforms in criminal justice system must ensure a fair trial and respect for human rights of the accused as well as of the victim in conformity with the International Human Rights norms.
(The writer is a former Special Judge, CBI, Bhubaneswar and a former Professor of law, lal Bahadur Shastri National Academy of Administration, Mussoorie)