Victim's Plight Blinds Criminal Justice

The Hon’ble Supreme Court in Dharam Pal v. State of Haryana & Ors. [Criminal Appeal No. 85 OF 2016] dated 29.01.2016 had ordered transfer of investigation to CBI (Central Bureau of Investigation) in a murder case, where Hon’ble Punjab & Haryana High Court refused to do so, on the ground that the stage of trial is advanced and the charge sheet & supplementary charge sheets have already been filed by the Police and examination of several witnesses has concluded.

Unquestionably, the judgement in clothed in the jargon of Late Justice V. R. Krishna Iyer. He lives through the jargon used in this judgement though not through his wisdom unfortunately. It was sort of a treasure hunt, extracting ratio decidendi of this case from a reading of this judgement along with English, Latin & French dictionaries. Whenever I was about to reach ratio of the case, the facts cautioned me otherwise & a bit vice- versa. Prefatory note, indicates the balance of justice having taken a Desi inclination towards the victim’s saga. Maybe the balance of justice is pure, but the gravity around the scales vary.

The only legally decent phrase that’s been overused is ‘fair and just investigation’. However, what is utterly amusing is the phenomena where not a single argument of the accused is mentioned in the 21- page long judgment (hoping he was there in the “ors.” part of the title, fingers crossed). Not to mention, there is no whisper of collusion of investigating agency with the accused. I have long been under the illusion that a fair and just investigation is a boon for accused, since our criminal justice delivery system is so adversarial in nature that even constitution reeks of inviolable fundamental rights mirroring those, around Articles 20, 21 & 22 of Constitution of India. Though our Hon’ble Supreme Court has just about termed every virtual concept in jurisprudence & 21^st century fashion as basic structure of the constitution, but not Articles 20 & 22 (also the procedure part of Article 21 in criminal trials). When the Supreme Court can be negatively choosy about rights of the accused, who am I to blame the unlearned public of holding grudges based on ‘once accused, forever tainted’ principle. Delivering this judgement, the Supreme Court was mindful of everything except the rights of the accused in the midst of the trial. According to the author’s legal knowledge, once a trial has started the only person whose rights are in question are the accused’s, since there is no one else who has anything material/ tangible to lose or ‘not lose’ (there is absolutely no gain for the accused in either case).

Coming back to the facts of the case at hand, it seems to be a case of rape of a minor & subsequent murder of her mother (who happened to belong to a community, against whom committing an offence is seen in Indian law as a much graver offence than when committed against general public). The rape was reported more than a month later, which is excusable in law & facts, though not absolutely. The murder is alleged to have happened from strangulation & head injury (presumably from throwing off bridge). Of course, the facts shock me as well. But then I am mindful of the fact that every rape and murder is as ghastly an act as another. There is nothing more or less decent about it. But, it shocked the Supreme Court more in this particular case, despite the acquittal of common accused in the rape case by Court of Sessions. I have cautiously noted that despite the accusation of lackadaisical attitude of the police, the trial of rape case had concluded in 18 months (considered very speedy as per national standards) and the appeal is being heard by the High Court, [compare it to the most widely reported Delhi ‘Braveheart’s rape & murder case’ of December, 2013, where the trial concluded in 20 months]. However, the Supreme court has carefully chosen to avoid the evidence (almost unchallengeable in law) of witnesses in rape trial resulting in acquittal, on the pretext of pending appeal before High Court.

In short, the investigation is treated as tainted, but without mentioning a single factual allegation. What is astonishing is that the Supreme Court has largely relied on the facts mentioned in the police report to justify the warranting of CBI enquiry. The Court has no other reliable facts before it on record. Supreme Court observes that certain material witnesses have not been examined. Supreme Court must not only preach judicial discipline, but must lead by example. It is highly objectionable for the Supreme Court to delve into assessment of witnesses in the midst of a trial, especially where High Court didn’t opine as such. The trial Court itself is competent to judge the same and is also empowered to summon witnesses & documents it deems necessary during trial.

Two of the Police officers have faced departmental enquiry; one of whom has been demoted as Head Constable from Assistant Sub- Inspector; another one transferred; both on the basis of appellant’s complaint. It is also a matter of record that the appellant was provided security personnel on basis of threats being received by him for entering into a compromise in the rape case, and for change of his version in the murder case of his wife. The appellant cannot be taken to be a helpless person without any political influence. Of course, that shouldn’t go against him, but deserves to be mentioned since the Supreme Court has painted him as disillusioned/ disappointed & frustrated victim.

The Supreme Court, concludes that stage of trial is not a governing factor since the “purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided”. So we have it established, that rights of accused (such as Fundamental Right under Articles 20, 21 & 22) cannot come in way of 'purpose of justice', which in this case is fair trial from the thirst-quenching perspective of victim, as opposed to commonly understood concept of fair trial from the perspective of accused, which plays the second fiddle at best.

The judgement further reads- “As has been stated earlier facts are self-evident and the grieved protagonist, a person belonging to the lower strata. He should not harbor the feeling that he is an “orphan under law”.” I wonder, I only wonder, what difference does it make which strata of society the victim belongs to? A crime is a crime. It should be treated as a crime. The crime may have its flavours, but it only changes the nature of crime, not the grief of victim or criminality of the criminal. This is where the judgement gets infected with impurity. On one hand, the Supreme Court assumed appellant’s highlighted ‘orphanage under law’, on the other hand, it ‘orphaned the accused under law’. A judgement such a this by Supreme Court has an effect of adding great propensity to conviction of accused, no matter what the evidence. The appellant becomes privileged in the whole judicial process, and any court or authority (such as CBI) has to think twice before rejecting applications or other courtesies to him, which would have been unusual otherwise. The other side i.e. the accused is the natural loser, slowly, but surely.

CBI enquiry is normally ordered when there are influential Government Servants as accused or likelihood of State/ Government’s involvement etc. It is seldom ordered for negligent/ inefficient Police Investigation, for the very simple reason that as a matter of principle or unwritten legal fiction, a police force as an organ of state instrumentality cannot be treated as perpetually & irreversibly negligent or inefficient. A handful of negligent police officers cannot be allowed to hijack the ‘manageable’ working of whole police force, especially when their negligence is acted upon and they are penalized accordingly (as it happened in this case). Otherwise, what is the occasion for other victims of rape/ murder to be subjected to inefficient & negligent investigations by the same police force in that state? Why are they to be treated in unfair manner? Don’t they deserve CBI enquiry as well? Let there be CBI enquiry for all offences. And frankly, what’s so special about CBI enquiry, especially in regular offences? They don’t create magic or evidence for that matter. Or Do they? Of course, they will be under pressure to fish something extra, since there is a direction from Supreme Court itself. In that way CBI never disappoints, they are good at fishing extra evidence, come what may. Paucity of facts has never deterred CBI from going those extra miles and pulling the crucial witnesses/ documents out of its Hat. It never has. So the 80-year-old eyewitness (history of CBI) tells us.

And by the way, if it ever crossed reader’s mind that the accused might find it hard to cross those extra sets of prosecution witnesses, no need to worry, an innocent accused always braves his way out of any daunting trial. Multiple investigations do not deter him/ her. It has nothing to do with high conviction rate in CBI cases, or for that matter the low acquittal rate in special court set up especially for CBI investigated cases. There is no pattern, justice is just blind to biases. It doesn’t even matter that the courts have power to order further investigation/ re- investigation, if they are not satisfied with the evidence pointing towards the innocence of the accused. (The author would eb happy to learn of cases where the Court has ordered re- investigation on the pretext of biased investigation alleged by the accused).

To conclude, the Hon'ble Supreme Court finally reversed the High Court's order and stayed the trial till CBI investigates and submits report to the trial Court, which will then deal with the same in accordance with law. 'Forum Shopping' is yet to go out of fashion, and these kinds of judgements are already promoting 'investigation shopping'. 

The author strongly feels that there is a need in Indian Criminal Justice System to give legal recognition of "double jeopardy" in half a trial.  

[The judgement can be accessed at http://sci.nic.in/FileServer/2016-01-29_1454066052.pdf]