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Who will prosecute the prosecution?

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

“We hold that the Investigating Agency in the given case should be made responsible/accountable for their negligent, cursory, and inefficient actions,” the Rajasthan High court said in its order on 29th March, 2023. Is there anything new? Have we been here before?

It was on  May 13, 2008, when bombs went off one after another at Manak Chawk Khanda, Chandpole Gate, Badi Chaupad, Chhoti Chaupad, Tripolia Gate, Johri Bazar and Sanganeri Gate. The explosions left 71 people dead and 185 injured.The Ashok Gehlot government has promised an appeal. Can they get a  reversal  of the order? We wait with bated breath, as always.

“In the given case, for the reasons stated above, in spite of the case being of heinous nature, 71 persons losing their lives and 185 persons sustaining injuries, causing unrest in the lives of every citizen, not just in the city of Jaipur, but all across the country, we deem it appropriate to direct the Director General of Rajasthan Police to initiate appropriate Enquiry/Disciplinary Proceedings against the erring officers of the Investigating Team,” observed the court while acquitting the accused persons.

“The circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the present case(s), the prosecution has failed to do so, resultantly, the Court is left with no alternative but to acquit the accused,” the order said.

Remember the 2G judgment of a Special Court, Delhi where CBI was stated to have ‘miserably failed’ to prove the charges’ against 21 accused. The Supreme Court has said on multiple occasions reminded State to ensure ‘professional investigation’. State of U.P. v. Ashok Kumar Srivastava (1992), a landmark verdict highlighted the importance of a fair and thorough investigation by the police in criminal cases. The Court observed that the accused cannot be held guilty merely on the basis of suspicion and conjecture, and that the prosecution must prove its case beyond reasonable doubt.

In the same year, in State of Haryana v. Bhajan Lal (1992), the apex Court laid down guidelines to be followed by the police and the courts, in cases where the investigation is not conducted properly. The Court observed that the failure of the police to investigate a case properly can itself be a ground for quashing the proceedings.

And in Ram Bihari Yadav v. State of Bihar (1998): In this case, the Supreme Court held that the prosecution cannot rely solely on the statements of witnesses if the investigation is found to be defective. The Court observed that the prosecution must provide independent and reliable evidence to prove its case.

Then came the classic in Zahira Habibullah Sheikh v. State of Gujarat (2004) where the top court observed that the failure of the police to conduct a proper investigation can result in a grave miscarriage of justice. No dearth of  precedents,you see. We can multiply such instances by the dozens.

These judgments have emphasized the need for a fair and thorough investigation by the police in criminal cases, and have suggested that if poor investigation led to derailment of justice, there must be ‘consequences’ ‘accountability’ on the prosecution.

The Supreme Court of India, in the landmark judgment of Prakash Singh v. Union of India (2006), held that the police force in India must be made accountable for their actions and non-actions in the investigation of crimes. The court emphasized the need for police reforms in the country and directed the central and state governments to implement several measures to ensure the independence and accountability of the police force.

One of the key aspects of the judgment was the establishment of State Security Commissions (SSCs) in each state, which would be responsible for ensuring that the police force is functioning independently and efficiently. The SSCs were directed to lay down broad policy guidelines and give directions for the performance of police duties.

The judgment also directed the central and state governments to implement several other measures to ensure police accountability, including the establishment of a Police Complaints Authority (PCA) at the state and district levels to inquire into complaints of police misconduct, the separation of the investigation and law and order functions of the police, and the setting up of a National Security Commission (NSC) to oversee the functioning of central police organizations.

The Prakash Singh judgment emphasized the need for police reforms in India and laid down several measures to ensure the independence and accountability of the police force. The judgment was hailed as a significant step towards ensuring the rule of law in the country.

We are deeply touched that it is only 16 years since, as the Prakash Singh directions continue to gather dust. “Not much dust has gathered to disturb the peace of the political and police administration, we suppose’, a mischievous tweet ran, after the tragic Jaipur acquittals. Cynicism and sarcasm are hardly ‘Justice’ for the victims. Do we care?

CBI said on  21st Dec,2017, date of 2G verdict, “The judgement has been prima facie examined and it appears that the evidence adduced to substantiate the charges by the prosecution has not been appreciated in its proper perspective by the learned court.” And we wait for a final imprimatur from the Delhi High Court.

It is singularly unfortunate that our criminal justice system is not just  ‘creaking but plain simple broke’ as jurist Harish Salve said, and needs not band aid fixes, but desperate surgical remedies.

Now that Chief Minister Ashok Gehlot government has said much the same thing as CBI said in 2017, We the People shall have to wait for the Supreme Court to pronounce for the nth time!
 
In the meanwhile, can we at least shed a tear for the victims please?
 
(Narasimhan Vijayaraghavan, writer, is practicing advocate in the Madras High Court)

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court
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