- It is heartening to note that in our country, the conviction rate is less than 40% in the registered cases so much so that in some of the serious and grave offences, this figure is as low is 15% – 20%.
- That one of the major causes for such low conviction rate is the lapses/deficiencies in the investigation conducted by the Police. The manner in which police investigations are conducted is of critical importance to the functioning of the Criminal Justice System. Not only serious miscarriage of justice will result if the collection of evidence is vitiated by error or malpractice, but successful prosecution of the guilty depends on a thorough and careful search for truth and collection of evidence which is both admissible and probative. In undertaking this search, it is the duty of the police to investigate fairly and thoroughly and collect all evidence, whether for or against the suspect. Protection of the society being the paramount consideration, the laws, procedures and police practices must be such as to ensure that the guilty are apprehended and punished with utmost dispatch and in the process the innocent are not harassed. The aim of the investigation and, in fact, the entire Criminal Justice System is to search for truth. To achieve this objective, the investigating officers must be properly trained and supervised and necessary scientific and logistical support should be made available to them.
- The lapses in the investigation are either deliberate or due to the negligence or lack of proper training to the Investigating officers. If the investigation is not proper or is defective, it will result in non-solving the Criminal Cases and can also lead to the acquittal of the Accused. If the criminal case is not solved or the criminal is not convicted and punished due to the defects in the investigation, it not only affects and injure the rights of the victim/aggrieved person/complainant but also degrade the Authority of the State/Govt. and emboldens the nefarious persons. Similarly, if an Accused is acquitted after long length of Trial or at the Appellate Stage, it puts a question mark on the competence and integrity of the Police as well as Prosecution Department. Needless to say, if somebody is acquitted/freed after long duration of incarceration, it also prejudice and violates the rights of the Accused person relating to his life and liberty.
- The Hon’ble Supreme Court of India and different Hon’ble High Courts from time to time have shown their concern with respect to the defects/lapses in investigation by the police and the negative outcome of the same. Recently the Hon’ble Supreme Court in State of Gujarat vs. Kishanbhai etc. (2014) 5 SCC 108 being frustrated by glaring lapses in investigation by the police held that:
- The investigating officials and the prosecutors involved in presenting this case, have miserably failed in discharging their duties. They have been instrumental in denying to serve the cause of justice. The misery of the family of the victim Gomi has remained unredressed. The perpetrators of a horrendous crime, involving extremely ruthless and savage treatment to the victim, have remained unpunished. A heartless and merciless criminal, who has committed an extremely heinous crime, has gone scot- free. He must be walking around in Ahmedabad, or some other city/town in India, with his head held high. A criminal on the move. Fearless and fearsome. Fearless now, because he could not be administered the punishment, he ought to have suffered. And fearsome, on account of his having remained unaffected by the brutal crime committed by him. His actions now, know of no barriers. He could be expected to act in an unfathomable savage manner, incomprehensible to a sane mind.
- The situation referred to above needs to be remedied. For the said purpose, adherence to a simple procedure could serve the objective. We accordingly direct, that on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation. It should also be ensured, that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case. This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigors of criminal prosecution. By following the above procedure, in most criminal prosecutions, the concerned agencies will be able to successfully establish the guilt of the accused.
- Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore, essential that every State should put in place a procedural mechanism, which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. In furtherance of the above purpose, it is considered essential to direct the Home Department of every State, to examine all orders of acquittal and to record reasons for the failure of each prosecution case. A standing committee of senior officers of the police and prosecution departments, should be vested with aforesaid responsibility. The consideration at the hands of the above committee, should be utilized for crystalizing mistakes committed during investigation, and/or prosecution, or both. The Home Department of every State Government will incorporate in its existing training programmes for junior investigation/prosecution officials course content drawn from the above consideration. The same should also constitute course-content of refresher training programmes, for senior investigating/prosecuting officials. The above responsibility for preparing training programmes for officials, should be vested in the same committee of senior officers referred to above. Judgments like the one in hand (depicting more than 10 glaring lapses in the investigation/prosecution of the case), and similar other judgments, may also be added to the training programmes. The course content will be reviewed by the above committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgments of Courts, and on the basis of experiences gained by the standing committee while examining failures, in unsuccessful prosecution of cases. We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence, when they are made liable to suffer departmental action, for their lapses.”
There are many such judgments of the Hon’ble Supreme Court and different Hon’ble High Courts highlighting the need for police reforms but unfortunately, nothing much is done so far in this area despite specific pronouncement of respective Courts and recommendation of Law Commission.
- That in so many cases, the Ld. Magistrates and sometimes the Higher Courts being not happy with the investigation, passes Orders for further investigation or proper investigations by Superior Police Officials or by agencies like SIT, CBI etc but we all know that the time factor in the investigation is very important and if at the initial stage the vital evidence is not collected or is allowed to be wasted and the statements of important witnesses are not recorded, the chances for solving the case in further investigation or reinvestigation becomes minimal.
- Therefore, it needs to be ensured that soon after the information is received by the Police regarding the commission of Non Cognizable Offence, the Police swings into action to investigate the matter effectively, efficiently and with competence leaving no scope for any lapse. It is also required to be ensured that the Victim/Complainant are assured about the proper investigation in their cases. We have to also ensure that the Senior Police Officials/SHO/Prosecution are able to monitor the Investigation in limited time they have from their busy schedule.
- In this regard, in my opinion, every Investigating Officer who is assigned with the Investigation of a case should have a “Check List” with him which prescribes/delineates the steps (in detail) he has to undertake from the commencement of the investigation till the filing of the charge sheet. It is obvious that one Check List cannot cater to Investigation of all the crimes/offences, therefore, different Check List with regard to different category of crimes/offences can be prepared which should be made mandatory for the IO to adhere unless they have justified reasons for not following any specific step.
- The Check List will minimize the chance of mistake/omissions/ errors in the investigation and at the same time it will also highlight the lapses in the investigation at the right time which can be rectified by the Senior Police Officials before it is too late. This practice will also instil the confidence in the Informant/Victim/Complainant that the Investigation is his/her matter is on the right track (which is not available to him so far). The Checklist will make the Investigation more systematic and precise and the same will also be very useful and helpful to the police officers who don’t have much experience of Investigation or who are not expert and well trained in investigation. The Check List will also be helpful to the experts and experienced police officials since it will minimize the chances of human errors which is very common. The Check List will be immensely helpful in cases based on circumstantial evidence.
- That the Check List can be tailor-made keeping in view the kind and area of Investigation and the crimes/offences for example there can be General Check Listand Specific Check List for a) Cyber crime ; b) Anti Terrorist Laws c) organized crime ; d) homicide; e) Economic offences; f) kidnapping g) Automobile theft ; h) burglary etc. etc.
- That the practice of Check List is quite prevalent in the Police Departments of different countries of the world including FBI in U.S. The Checklist will not only make our Investigations which is very important part of Criminal Justice System, more efficient and effective but also make the Investigating officers accountable. It is high time that this system of Check List is formerly adopted by our Police/other Investigation Agencies like CBI etc.
- The General Check List and Specific Check List for Police Investigation is required to be drafted by a team of police officers, trial judges, public prosecutors and defence lawyers etc having experience of trials and appeal, which should comprise step-by-step actions required to be taken for undertaking Investigation of different crimes.
The quality of investigations and response will get a boost with its use, which should contribute towards more effective and formidable Investigation and would also help in improving the conviction rates.
Check Lists prescribing/delineating the steps (in detail) the Investigating Officer has to undertake from the commencement of the investigation till the filing of the charge sheet and make it mandatory for the every Investigating Officer to earnestly follow the same.
-AJAY GARG
Advocate