HOSTILE WITNESSES AND THE LAW

There is perhaps no better test than the efficiency of the judicial system to test the excellence of the government. Since judiciary is the custodian of the rights of the citizens, any maladministration would result in jeopardy of civil liberties. As Bryce has put it succinctly; “if the lamp of justice goes out in darkness, how great is that darkness.” Drawing from herein, one cannot neglect the role of a witness in the administration of justice in a country. Justice Wadhwa in Swaransingh v. State of Punjab (AIR 2000 SC 2017) termed the witnesses to be the basis of both direct and circumstantial evidences which form the edifice of any criminal investigation. Simply put, witnesses therefore become the eyes and ears of the Court and thus their protection becomes paramount to the judicial decision being rendered.

Interestingly, hostile witnesses form a glaring reality of the criminal justice system at present. And it is to be noted that the issue is not a new one. There are everyday instances of witness retracting from their statements recorded by the police, thereby changing the outcome of a rather important judicial decision. However, with the landmark judgements of Best Bakery and Jessica Lal being delivered by the Apex Court, the case of hostile witnesses seems to have captured the limelight.

At the outset, it is to be noted that the statements made by the witnesses to the police officials are not admissible in the Court of Law by virtue of the safeguards provided by the Code of Criminal Procedure, 1973. Thus, the statements made by a witness required to be restated in the court and any event of retraction from the earlier made statements results in the witnesses turning hostile. And this is turning out to be a great menace posing a hurdle in the path of administration of justice. The reasons for the witnesses turning can be myriad. The most commonplace among them is the intimidation and manipulation the witnesses are subjected to. All of this results into a mockery of the Rule of Law.

It is also to be noted that the undue delay in the disposal of a case also furthers the cause of the witnesses turning hostile. As a step to get rid of the constant harassment faced due to the repeated summoning, the witnesses decide to turn hostile. The same has been acknowledged by the National Police Commission Report as early as 1980.But clearly, not enough action has been taken in this regard to remedy the situation. Even the Malimath Committee report (2003) acknowledged the fact of treating the witnesses with respect as they are the edifice of the justice system but unfortunately, there seems to be no formal law in place to take care of the concerns expressed.

First and foremost, what needs to be understood and appreciated in this regard is the fact that witnesses, especially the hostile ones, are a special category of victims. Therefore, the enactment of any formal legislation needs to ensure that a witness is treated as a potential and possible victim in order to facilitate the framing of the laws which are tailored to their needs. Also, the fact that there exists absolutely no protection rendered to the defence witnesses needs to be taken into consideration. Interestingly, the Constitution of India provides for a right to remain silent to the accused under the provisions of Article 20 (3) whereas the same is not extended in case of the witnesses. Hence, such a hostile attitude towards the witnesses also contributes to the further hostility exhibited by them.

In a consultation paper released by the Law Commission in 2004, the need of the hour, i.e a formal witness protection programme was recognised. In the course of framing a formal legislation in this regard, it needs to be taken into consideration that both the evidence of the witness and the witness himself requires protection. It is the second aspect which requires a careful consideration and is thus open to debates and deliberations. In the opinion of the researcher, witness anonymity is perhaps the first step to ensure such protection. Drawing from the US model and Witness Protection Act, 1970, the government should also try and relocate those witnesses and give them a new identity, thereby minimising the risk of the witnesses being victimised. Further, it is also to be noted that the laws enacted in this regard should call for a balance between the rights and duties of the witnesses. Whereas it is a right of the witness to be protected against harassment, it is also onerous upon the witness to testify before the court as and when required.

It is high time that the law makers shed a lackadaisical way of work and realise the urgent need of the protection of the witness. It is also to be ensured that the faith of the citizens as well as the witnesses in the criminal justice system is restored. The need of the hour is not only providing protection to witnesses from turning hostile but also granting a criminal sanction against the ones who turn hostile. The Supreme Court has emphasised over and again, through a plethora of judgements about that fact that such legislative measures have become imminent and inevitable in the present order of the day. This in itself point towards the imperative need of such legislations. Witness protection measures are vital for the furtherance of justice and in this regard the consultation paper submitted by the Law Commission regarding the Witness Identity and Witness Protection Programme is indeed a welcome step. However, a mere policy directive is not sufficient and it is the participation of the populace who strengthen the forces of democracy which will make the administrative attempt successful. Finally, to sum up, witness protection programmes have been a long over due but that too shall remain in a state of inactivity till the investigative agencies are made independent and free from any political colour. Till then, hostile witnesses will continue to be an epidemic and an endemic in India.
Shayonee Dasgupta, Director SACJ 2009-10

A CLARIFICATION ON CORPORATE CRIMINAL LIABILITY AND AN INTRODUCTORY COMMENT ON A CASE OF MURDER DURING COMMUNAL RIOTS

One may find that the scope and ambit of corporate sanctions is growing. One may also relate the issue of corporate criminal liability to the Satyam fiasco. However, I intend to clarify that in the case of Satyam the attempt is to identify and punish the individuals who have committed wrongs, and any form of sanction for Satyam as a company itself is not intended, which is why the issue becomes one of white-collar crime, that is, crime by individuals who are employed in respectable jobs in society, by misusing the resources offered to them by their jobs, and not about crimes by a company.

I shall discuss in greater detail on another topic, which surfaced last year before the Supreme Court, that is, the issue of crimes committed during times of riots. It is interesting to note that the Supreme Court has recently decided a case titled Harendra Sarkar v. State of Assam, which is a case on murder committed during the time of the Babri Masjid riots in 1992. A Division Bench of the Supreme Court, comprising Justices S. B. Sinha and H.S. Bedi disagreed in its conclusions on the case as a result of which, it has been referred to a larger bench for adjudication on all the issues raised by it. All the issues framed were regarding the appreciation of evidence- whether delay in lodging an FIR vitiates the investigative process itself, whether medical evidence is to be given higher weight than ocular or eyewitness’ evidence, whether the entire statement of a witness is to be disbelieved if some parts of it are found to be inconsistent or unreliable were raised. A certain relaxation was permitted in the rigours of the principles of evidence by Justice Bedi. Justice Sinha stated that the principles of appreciation cannot be relaxed even in time of riots. He opined that the relaxation of the principles of evidence could be done only on the presumption that the investigation was not of the standard that it would have otherwise been in a normal situation and because that was not the case.

At the outset, it may be noted that the conclusion of the entire case revolved on this general principle of appreciation, based on which the evaluation of individual issues would be done. Therefore, if at all there was any disagreement, a reference framed on this issue of law could have been made to a larger bench, which could have decided on these issues and then referred the matter back to the bench for adjudication accordingly. However, adjudication of all the issues by the smaller bench, with a reference to the larger bench to decide all the issues again shall result in wastage of time as it requires repetition of all the arguments that were raised before the smaller bench earlier, in a case relating to the facts of an event already seventeen years old. Secondly, the relaxation of appreciation itself is not a general rule as the Court has with itself the discretion, as per the Evidence Act, to be satisfied after taking all the matters before it into consideration, that certain facts have been proved. Thus, the Court has some level of discretion to appreciate the facts of every case in light of the circumstances of that case itself. Further, in interpreting any case, the Court may make certain presumptions of fact, as per the situation of that case. This would apply to a case of riots as well. The present case was one of a crime committed by a member of the majority against the religious minority during communal riots. In interpreting the present case it was clearly observed that the investigation had started even before the lodging of the FIR, something which should not ordinarily be done as per the law. Though this was an irregularity, the fact was used to conclude that since the investigation had commenced swiftly, an inference that the investigation was shoddy or biased cannot be raised. This amounts to negation of the possibility of one illegality by proving another illegality. It is clearly possible for the investigation to have started earlier and to have still been shoddy, if not biased. Thirdly, the case has used an incorrect interpretation of the meaning of presumption. To presume something implies to consider it proved, unless and until it is disproved. In the instant case, a relaxation of the rules was done to only recognise the possibility that the investigation may not have been up to the mark in all respects, but not to consider it proved for the time being that the investigation had indeed not been up to the mark. Therefore, in my opinion, relaxation of the principles of appreciation did not require one to presume the condition that the investigation was tainted.

For the above reasons, I support the judgment of Justice Bedi, affirming the conviction of the accused. In any case, I think if there was a disagreement, the case could have been referred to a larger Bench as restricted to the broader issue which formed the subject of disagreement, and not all its subcomponents, on the ground that it would result in wastage of resources and delay of justice.

Abhyudaya Agarwal, Director SACJ, 2009-10

Amended Cr.P.C Bill- A National Debate

The eight Bills passed by Lok Sabha on December 23 without a debate in 17 minutes flat included a radically revamped Criminal Procedure Code, which divests the police of the usual arrest powers in all cases where the maximum possible sentence is seven years or less. The new Criminal Procedure Code, which divests police of arrest powers in cases where maximum sentence is upto seven years, becomes law with President Pratibha Patil finally giving her assent this month. The presidential assent, which came nearly three weeks after the bill was sent to her after getting it passed from Parliament, has now paved the way for the government to notify it. This amendment is expected to improve the human rights record of India and greatly reduce the corruption and extortion in police stations. This will also reduce false complaints and will stop people using police for settling personal and political scores and vendettas.

Instead of putting the accused behind the bars in cases including attempt to commit culpable homicide (Section 308 IPC); voluntarily causing grievous hurt (Section 325); cheating (Section 420); outraging a woman’s modesty (Section 354); death caused by negligence (Section 304A); and assaulting the President (Section 124) - the police will now have to issue a ‘notice of appearance’ to the individual concerned who will be expected to ‘cooperate’ with the investigation. Only if the accused fails to respond to the ‘notice of appearance’ can the police have recourse to arrest- by which time the accused would get as far as possible out of the reach of the arms of the law.

The Bill incorporates the recommendations of the Law Commission, the Justice Malimath Committee report and guidelines issued by the Supreme Court from time to time to prevent overcrowding of jails with undertrials. The amended Section 41 of the Cr.PC. says: “No person concerned in a non-cognisable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned shall be arrested except under a warrant or order of a magistrate.” However, arrest can be made without a warrant, after recording the reasons in writing, if the police officer is satisfied that it is necessary for proper probe, or to prevent the person from committing any further offence or making any inducement, threat or promise to anyone acquainted with the facts of the case. The amended law says a police officer who is making an arrest will have to bear his identification badge or tag. Besides, a memorandum of arrest shall be prepared, witnessed and countersigned. The person arrested shall be told that he has the right to inform a relative or friend. It mandates the State government to establish police control rooms at the district and State levels and display on noticeboards kept outside the control rooms the names and addresses of the persons arrested, and the names and designations of the police officers who made the arrests. The law provides for payment of compensation to victims for illegal arrest and police harassment.

However, the Supreme Court Bar Association is opposed to the amendments made in the Cr.P.C giving discretionary powers to police not to arrest a person who is involved in an offence having maximum sentence of seven years. There is widespread belief among lawyers that these amendments would give a free hand to frauds, unscrupulous elements, extortionists, those demanding dowry and other offenders without any fear of being arrested, leaving law-abiding citizens at the mercy of anti-social elements, police and politicians with criminal track records.

Allaying those concerns, home minister P Chidambaram wrote to all CMs explaining why it was necessary to bring such changes in the Cr.P.C. Referring to Section 41 of the Act, Chidambaram said in his letter, "This provision was severely criticised as capable of being misused and, in fact, was being misused." He advised CMs to refer to reports of the Law Commission and the Malimath Committee and also the judgment of the Supreme Court in D K Basu case which laid down guidelines for effecting arrest. Advising CMs to see the amendments in the light of those suggestions and guidelines, Chidambaram, however, assured them that the government was ready to revisit the provisions, if it became necessary, in the next session of Parliament. Moreover, the amended bill will also help ease the huge logjam of pending cases in the courts and the stifling congestion in jails and prisons. It should significantly reduce prison populations and costs.
Tissya Mandal, member SACJ 2009-10