AMIYA K SAMANTA, The Statesman, Friday, March 24 2006
In a hurried response to the media blitz and furore in Parliament following the acquittal of the accused in the Jessica Lall murder case, the Union home minister has promised that soon the government will amend the Criminal Procedure Code to provide for witness protection because in this case all the witnesses turned hostile. In the past when British judges, in exasperation, used to generally observe on the Indians’ scanty regard for truth, we had loudly protested against such “imperialist slander” and “colonial racism”! Yet in those days retractions were few and far between. In recent times many high profile cases, arising out of mass murder and mayhem in Delhi in 1984, Bhagalpur in 1989 and Gujarat in 2002 have failed primarily because the witnesses turned hostile. Notwithstanding the retraction by complainant Zahira Sheikh, the Best Bakery case has been saved due to intervention by the Supreme Court. But in less publicised cases in the states, in which the magnitude of violence is quite high, the number of such retractions and consequent acquittals is alarmingly large and frequent.
It is difficult to quantify the extent of retraction accurately; but some survey results are revealing. Some time ago a study group in the National Police Academy conducted a survey and found that 60 to 70 per cent witnesses retract their statements during trial. The Malimath committee has made a cautious assessment that above 55 per cent witnesses retract. In a study commissioned by the Bureau of Police Research and Development, Government of India and undertaken by the National University of Juridical Sciences, Kolkata, the retraction rate has come to 60 per cent.
Way back in 1958 the Law Commission in its 14th report dwelt on the “growing unreliability of human witnesses”, and in its 154th report recommended that witnesses should be protected from the wrath of the accused. While the Malimath Committee (2003) has suggested a comprehensive witness facility and protection programme, the Supreme Court commented in 2004: “The witness protection programme is imperative in view of an alarming rate of somersault by witnesses”. In this context the proactive and prompt assurance given by the government for witness protection has evoked some hope and some apprehension too.
Only recently the CrPC Amendment Act (2005) has been passed making some additions and alterations in some of the existing provisions which do not, however, add much to the efficiency of the system. Presently the government’s haste in bringing about legislation gives the erroneous impression that witness protection is the panacea of all the ills of the criminal justice system. It is still not clear what kind of protection will be provided to the witnesses. Selective protection may not always contribute to the cause of justice. If it is physical protection by deputing policemen for all witnesses, then evidently an enormous number of policemen will be required and, on the face of it, the proposition appears to be an untenable one.
To a common man police protection may have an undesirable fallout and as such it is likely to be a discouraging factor in being a witness. Security can be better ensured if the general security ambience in the society is improved by curbing the growing influence and control of the civil society by the mafia-politician-administrator-police nexus. While a witness facility and protection programme is a welcome move, a holistic view of the criminal justice system has to be taken instead of resorting to piecemeal and lackadaisical measures.
Statements of witnesses
The Law Commission and the Malimath Committee have suggested that to obviate the possibility of retraction, the magistrate may record the statements of the crucial witnesses, and to minimise the chance of retraction, the witnesses may sign the statements made before the police. The existing law for perjury needs amendment as it is seldom invoked. In the adversarial system that we have in India, the guiding principle is to let hundred criminals go scot-free but let not one innocent person be punished. While it will be a mockery of justice if an innocent person is convicted, the system will not cover itself with glory if hundred criminals are let off. Besides such a situation is disastrous for the society.
In the context of such an unbalanced principle, the dictum of “proof beyond reasonable doubt” has been reduced to creation of doubt by clever defence counsel, providing an escape route for the judge. It is much less exacting to release a prisoner than to convict him, as awarding punishment requires knowledge and hard work in analysing the weighing evidence. In this state of criminal trial in the country, it is perhaps necessary to adopt certain aspects of the inquisitorial system so that the judges can play a little more proactive role within the framework of the law and the procedure of trial.
In view of human evidence becoming increasingly fragile, almost all the committees and commissions set up or toning up various components of the criminal justice system during the last 25 years have recommended that more reliance should be placed on circumstantial and scientific evidence. But the government has remained largely insensitive to them. Almost total dependence placed on eyewitness evidence by the Indian courts has created a mindset in the investigators and prosecutors that other evidence may be neglected without jeopardising the prosecution case. The hassles associated with collection and dispatch of forensic material and delay in obtaining reports from the FSLs are some of the discouraging factors.
To give importance weightage to forensic evidence its collection should be made mandatory by suitably amending the law on investigation (Section 257 CrPC) and the procedure for collection and dispatch may be simplified by amending some ancillary laws like Identification of Prisoners Act, 1920. In the 2005 amendment of CrPC, DNA typing has been included in the list of expert evidence (Section 293 CrPC); but laboratory tests in a few other relevant scientific areas produce universally accurate results and as such they should also be included in the list. More importantly, the Indian judiciary may set certain guidelines in this regard, as the US Supreme Court has done by enunciating the Daubert principles for testing reliability and admissibility of scientific evidence.
But the crucial issue is to statutorily ensure the independence and efficiency of the state-level investigating agencies, without which investigation cannot be carried on impartially and fearlessly. Investigation being a quasi-judicial function, investigating officers should have the freedom to function in accordance with the law only. Efficiency and continuity in investigating can be ensured, to a great extent, by separating this responsibility of the police from the public order duties. Permanent separation may be problematic, but periodic interchangeability of officers between the two wings can be worked out.
More important and urgent is to sanitise the investigation from pernicious influence of various extraneous groups. This can be done by suitably amending the Police Act of 1961 and placing the investigation wing of the police under a statutorily constituted body, which may be designated as Police Functions Review Committee or any other suitable nomenclature. The committee consisting of judges, administrators, professors and police officers of integrity, may be tasked to protect the investigation from interference, threats and inducement.
Many commissions and committees such as National Police Commission, National Human Rights Commission, West Bengal Police Commission, Malimath Committee have recommended creation of such bodies during the last 25 years without any result. Now that the Union home ministry has taken an init
iative, it may take the advice of the Administrative Reforms Commission and the National Human Rights Commission for the purpose of a more comprehensive criminal justice reform than merely for a witness protection programme of doubtful consequences.