He said in recent times, “arrests are made without even seeing if it is required or actually needed.”
The ex-CJI also said that, “80 per cent of the prison population comprises undertrials and the conviction rate is just about 27 per cent which is roughly less than 30 per cent. If the rate is applied to the 80 per cent undertrial, you would have that 56 per cent would finally get acquitted for some reason or the other and yet they are languishing in jail.”
He was speaking at the Justice K T Desai Memorial Lecture at the historic central court room of the Bombay high court. The topic was “Making Criminal Justice Effective”.
The Ex-CJI who retired this month, pointed to several dimensions of the problem which he said include how the condition for grant of bail in certain statutes is ‘very onerous’. “Hence, the prospect for release on bail is rather bleak,” he said.
Yet another dimension to the problem is that criminal matters in the Supreme Court comprise only 10-15 per cent today they are almost 45 per cent.
He said the solution lies in addressing five perspectives—investigating machinery, process of probe, the prosecution, role of magistracy, role of trial court and the appellate remedy as well as statutory implications. “Some of these areas need some course correction,” he said.
Speaking at the event Bombay HC Chief Justice Dipankar Datta said, “criminal justice system is the backbone of civilised society and bail is a rule and jail, the exception,” adding, “while a motivated and biased criminal justice system would lead to unjustified arrests and conviction of innocence, an indifferent system could result in denial of justice and succour to countless victims.”
The ex-CJI also questioned if the investigators today have the expertise to handle or probe the kind of complex crimes that take place with rise in white collar crimes with scientific facets. “We must have a force which is professional in its approach and very very adequate when it comes to training, more than adequate… and the zeal to arrive at the truth rather than suppress something and present it before the court.”
We must have an investigating machinery that is ‘very very strong’, ‘completely independent’, ‘completely professional’, ‘adept to scientific methodology and well versed in methods of investigation’
In another suggestion for a solution to the problem he said, “every investigator has smart phones… why don’t we have video recording of the crime scene?” He said police abroad carry a digital device to record the crime scene and it gets simultaneously recorded in the control room said, “We must also have the scientific methodology and the material to back investigating machinery and the team. It is only then that the truth will always be before the court rather than what is padded up and what is presented by the prosecution. Maybe they are forced to do it or maybe they consider that this is part of their duty,” added the ex-CJI.
The role of a prosecutor, “unfortunately” in India mostly starts–except CBI cases–s only when the chargesheet is filed. “What happens then is that the prosecution then is left handling a baby which perhaps has not been nourished by investigating machinery…the monitoring issue or its facility is denied to the entire investigation… the prosecutor is acting on behalf of the entire population, the underlying principle is to unravel the truth and present it before the court…” said ex-CJI Lalit. He added that the SC itself had laid down that the prosecutor’s material be considered not the version of the accused, as a result “day in and day out the accused are not allowed to produce any kind of document or material to say I am being wrongly prosecuted and you can nip the prosecution in bud and discharge me.”
Significantly, ex-CJI Lalit said, “As a student of law I consider it that a discharge from a criminal matter the man can still be tried if material comes to knowledge of investigating machinery later, but on a lame charge if you allow the trial to go the whole hog and the man gets acquitted acquitted then he can never be tried for the same offence going by the Constitutional guarantee…”
“So where exactly does the balance lie,” he asked in a rhetoric before answering that it lies perhaps “in the prosecutor being more vigilant and trying to nip something in the bud rather than getting a whole course for the particular prosecution.”
“What is potentially helpful to an accused, it must be shared but in India we don’t take that as a mandate, he said adding that the SC recently laid down that it must– to ensure that “sunlight can be thrown on entirety of the matter.”
On magistracy, the ex-CJI said, “most of the times what we see is that it is a mechanical exercise by the concerned magistrate. I have never seen a magistrate who is vigilant and asking questions” regarding the necessity of custody to the investigators.
“The extra vigilance that is required by a magistrate is unfortunately not displayed by the magistracy,” he said adding, “Very rarely do you have amagistrate that looks into these matters.”
“Maybe it is the explosion on the docket front” that the magistrate is pressured by the high number of cases, he suggested.
He said on default bail it is found now that agencies file a chargesheet and in the last two lines say they reserve their right to file additional chargesheet, and this is done to deny a man his right to default bail.
He said his own view was that as and when request is made by accused of there are documents that can be considered before charge is framed ‘perhaps magistrates must be liberal’ and accept such request to accept documents and despite 40 years having passed after a landmark judgment in death penalty cases he said he has not seen a trial court asking the prosecutor what its views are on the mitigating circumstances.
Lastly, he said the “trial courts must be vigilant” on the issue of juvenility of an alleged offender at the initial stage itself as “on many occasions what we see in the SC is that documentation is fabricated, after about 10 years.”
In certain special laws where bail provisions put a “reverse burden on the accused” the accused may find that they are not in a position at the pre-trial stage to show that there is no proof. He also said before making some amendments there must be “some impact assessment done.” And finally referring to an analogy that a senior counsel at the SC had given of ‘cats’– police machinery– chasing ‘rats’ –offenders–, the ex-CJI Lalit said, if after 10 years the cat finds that what he was pursuing was a rabbit, it is not good for the society. It doesn’t reflect well on the society of 56 per cent who are presently in prison … to keep them behind bars is not subserving societal good.”