Context

These are highly contentious times for India’s criminal justice system. With sensational criminal cases, controversy erupts almost every day.

Criminal justice system

• The judiciary enjoys a certain insularity. It is not required to be overly communicative. Thus it can stay away from direct confrontation with others. 

• Prosecutors and investigators face an issue of trust. 

• In the defence team, a few private lawyers hired by influential accused persons enjoy an immunity.

• In all this, investigators have no mechanism to air their grievances. 

• The prosecution lawyers and investigating officers are in an unequal battle against the defence. 

Supreme Court judgement

• A bench of the Supreme Court recently observed that probe agencies such as the Enforcement Directorate and the Central Bureau of Investigation (CBI) needed a free hand to conduct their investigations.

• Recently certain defence lawyers requested that courts should scrutinise every piece of evidence collected by the agencies before passing any orders, including ones related to the granting of bail.

• The court believed that investigators should not be pressured to compromise on the confidentiality of evidence they have gathered during the process of data collection.

Changing the nature of criminal investigations

• In the early 1980s and 1990s, arrests were rare. 

• Now, given the volume and complexity of investigative processes linked to multi-layered economic crime and pressure from the public and the executive, the pressure that the CBI should produce instant results is telling. 

• The charge against the CBI is that it has been selective in its targets, pursuing a campaign of a vendetta at the behest of its political masters. 

• Two issues were flagged in court recently:

                     the right of an accused to get bail

                     the need for custodial interrogation by probe agencies. 

• Although the maxim that ‘bail is the rule, and jail is an exception’ was held since Justice V.R. Krishna Iyer, the growing volume of crime and the dexterity of offenders have induced a change in judicial thinking. 

• Courts at all levels now believe that granting bail cannot be a routine and mechanical process and that certain cases deserve an application of mind while ordering bail. 

• This has led to lengthy hearings before a bail application is disposed of. While the application of an ordinary offender is summarily rejected, the rich and the famous are able to persuade judges to devote several sittings to decide on the bail application.

• Courts now demand and peruse prosecution documents to satisfy themselves that no injustice has been done to a bail applicant. 

• Neither the prosecution nor those accused can complain of judicial caprice or arbitrariness in the matter.

Custodial interrogation

• There is a controversy over the need for custodial interrogation of an accused person. 

• The complexity of present-day crime and the ease with which the many details of a crime can be hidden enhance the need for the custodial examination. 

• While courts are convinced of its utility they sparingly grant such custody. 

• This could also lead to possible misuse in questioning under controlled conditions. 

• Police custody is a serious responsibility for the investigating officer. Any pressure tactics or attempted physical violence on the person in custody is fraught with serious consequences. 

• There are reasonable guarantees including accountability to the judiciary for civilised treatment of an accused in police custody.

Conclusion

Criminal law and its contours are evolving. It is easy to criticise and accuse police agencies charged with efficient solving of crime with arbitrariness. The attempt should not be to choke them. There’s a need for allowing them more freedom to be professional without diluting the controls that are already in place.