COLUMN

Police and public opinion

R.K. RAGHAVAN

Facts and myths about investigating crime.

HARDLY a day passes without the police in India getting the stick for lapses or excesses committed while investigating crime. Though some of the criticism may be merited, most of it is not. I am not for a moment holding a brief for the police or trying to cover up their omissions and misdeeds, but I am only exercised over a lot of misinformation on the subject. Unfortunately, there is little by way of communication by the police themselves on what their difficulties are in handling crime. Let us analyse the basics of the law that confers investigation authority on the police. To understand this, one should study Chapter XII (Sections 154 to 176) of the Criminal Procedure Code (CrPC) 1973, which is the Bible for the police. It is unambiguous and clearly delineates the police role. A large body of people believes mistakenly that the police should set the law in motion immediately after receiving a complaint. The fact is that Section 155 prohibits them from acting when a complaint makes out only a non-cognisable case, namely, an offence for which the police cannot arrest the offender without a warrant. (The First Schedule of the CrPC classifies of offences into `cognisable and `non-cognisable'.)

In respect of the Indian Penal Code (IPC), a few offences such as causing simple hurt (Section 323), assault or use of criminal force on grave and sudden provocation (Section 358), simple cases of cheating and forgery as defined under Sections 417 and 465 are non-cognisable. (Causing grievous hurt, assault or criminal force with the intent to outrage the modesty of a woman and cheating by personation for dishonestly inducing delivery of property and forgery of a public document such as a court record or for the purpose of cheating, will all, however, be cognisable offences.) It is an entirely different matter that a few dishonest policemen occasionally dress up the transactions reported to them. Such action is often motivated by a consideration received from the complainant or under illegal direction from a person in authority. Upgrading an offence into the `cognisable' class, leads to a First Information Report (FIR) and thereafter to an arrest. This obnoxious practice has repeatedly been frowned upon by courts, as Section 155 is categorical that non-cognisable offences can be investigated only under the orders of a Magistrate competent to try the case or commit it to trial. The officer in charge of a police station is well within his right to decline investigation. He will do this when he is convinced, for reasons recorded in the Station General Diary, that a complaint does not make out a cognisable offence. Any criticism of the police for not registering a case under these circumstances is unfair and unmerited.

Police authority to effect arrests is no doubt curtailed by the CrPC's classification of offences. It is lamentable that in spite of this constraint the police make more arrests than are warranted. The National Police Commission (1977) was clear that this power should be used sparingly and not as a matter of course. The unwritten law is that arrests should be resorted to only when an accused poses a further physical threat to the victim or others associated with him, or when he is likely to disappear and not be available for investigation or he is likely to tamper with available evidence. Investigating agencies have drawn flak for arresting individuals who are not accused of a violent offence, hold a position in society and display every intention to cooperate with the investigator. This being the case, ironically, the police have been hauled over the coals sometimes also for not arresting persons suspected for a crime. This is especially true of corruption cases. Some courts themselves have been guilty of overstepping. I believe that they should not give a direction, during the investigation of a crime, as to who should be arrested, while they can definitely restrain the investigator from taking into custody a person if the evidence in police possession at a particular stage did not warrant such action. The police have often buckled under judicial direction and gone ahead with an arrest that eventually turns out to be unjustified.

This position is equally relevant to circumstances under which the police are pulled up for not prosecuting an individual connected with a crime. It is the sole prerogative of the police and the public prosecutor concerned to leave out from the charge-sheet an individual against whom the evidence collected is not adequate. This is especially in the context of Section 319 of the CrPC which empowers a court, at any point of time of the trial, to proceed against a person not charge-sheeted by the police but who appears, from the evidence placed before the court, to have actually committed an offence. When such a facility is available, it will be untenable for a court to pull up the prosecution for alleged omission to treat a person as an accused. Under such circumstances the right thing for a judge would be to wait until the conclusion of the case, and if a person not cited in the charge-sheet is eventually found guilty, the DGP (Director General of Police) concerned be directed to inquire into the lapse and take appropriate departmental action against the investigating officer concerned. Open indictment of the prosecution during the trial itself on this count demoralises the police and leads to unjustified inclusion in the charge-sheet of persons suspected for playing some role in the crime but against whom there is no strong evidence. This is notwithstanding the position held by many legal pundits that the prosecution should never take on the role of the judge and it should be content merely with placing all facts before the court.

The police are often squarely blamed for acquittals in court. The criticism of poor investigation is no doubt valid in a substantial number of cases. In my view, however, two factors for which police are not responsible explain the low conviction rates. The first is the relentless pursuit of the dictum that prosecutors should not form part of the police. This flows from Section 25(3) of the CrPC, which states that when an assistant public prosecutor is not available the district magistrate may appoint any person to that position. The only caveat is that such person shall not be a police officer who had taken any part in the investigation of an offence for which an accused person is being prosecuted. Erroneously, this has been interpreted as a stipulation by law that the police and prosecution could never be part of the same agency and they shall stand separated. This is why we have come far away from the days when the police had its own prosecuting inspectors. We have now reached the ridiculous situation where prosecutors and the police operate independently, sometimes at variance with one another, without being part of a well-knit team. Not surprisingly, this dilutes the prosecution case. In addition, because of the separation of the prosecution from investigation, the average investigating officer does not have the benefit of any guidance from the prosecutor during the course of the investigation. This accounts for the many lacunae in investigation, which are difficult to fill at the very late stage when the investigating officer approaches the prosecutor for obtaining a draft of the charge-sheet that is to be filed by the former in court. Any attempt by senior police officers to guide or oversee public prosecutors is also resented. Naturally, such a fragmented prosecution team performs poorly in court.

The second factor is the ease with which prosecution witnesses are tampered with by the defence either by inducement or by threat of physical violence. The police have little control over this phenomenon. Witness protection is still alien to India, whereas it has been successfully practised in many countries, especially the United States, which has a full-fledged Witness Protection Act.

There is an added disadvantage for the police in India because of the prohibition against obtaining signed statements from witnesses. This is laid down by Section 162(1) of the CrPC. While the evidentiary value of any statement made to the police is limited only to the purpose of assessing the veracity or otherwise of a prosecution witness while he deposes in court, it is the belief of many police officers that an unsigned statement to the police promotes a lack of accountability to truth and encourages witnesses to succumb to defence manoeuvres and inducements. This is one major loophole in the current criminal law of the land that allows many guilty persons to escape from punishment. The fear is that if signed statements are legally permitted, the police would intimidate witnesses into supporting the police version of a crime even when such a version may be unfounded. But the fact that the existing embargo on the police permits license to prosecution witnesses to turn hostile in court has caused havoc in the form of unjust acquittals of truly guilty accused persons. The Malimath Committee Report (March 2003) on Reforms of Criminal Justice System was categorical that Section 162 be amended to permit a signed statement, a copy of which could be given to the deponent. This is a far-reaching recommendation that has been denounced by many as one that would lead to widespread abuse. The sharp differences on this issue may never be resolved.

One provision of law, more than any other, that is brought up again and again in forums of policemen to explain the latter's inability to ferret out the truth in criminal investigations is the condition (Section 57 of the CrPC) that no person arrested without a warrant shall be kept in police custody for longer than 24 hours, without a special magisterial order under Section 167. This is considered harsh and impractical. The police demand that they be authorised to hold on to a suspect a little longer, say 48 hours, as in many other countries. This would enable the early unearthing of vital clues. This suggestion has been stoutly opposed by a wide spectrum of individuals and organisations in the country who cite the Indian police's poor human rights record. In their view, any enlargement of the facility available to the police will only encourage harassment of innocent persons. I have always held the view that when there is a provision (Section 167) for obtaining an individual's custody (commonly referred to as police remand) through a magistrate, after convincing him of the fundamental facts of the case, our investigators should not crib about the 24-hour limit. Obtaining lawful custody of a person through the magistrate enhances police accountability to treat such person humanly without resorting to unethical methods. This is far better than holding on to one off the record and illegally, and giving occasion for complaints of torture when he is ultimately produced before the magistrate. It is the experience in India that many suspects who die in police custody are those who had been kept in the police lock-up without record. Many policemen have gone to jail for this lapse flowing usually from overzealousness and some times from a desire to please a superior officer or extort money from a hapless person. Given these circumstances, I do not foresee any drastic change in the law on the subject. This is how it should be, if we believe in the rule of law and in the value of human rights.

What I have said here may be nothing new to many of the readers, especially lawyers and police officers. I, however, felt that fundamental facts need to be reiterated from time to time so that there is clarity in public debate. I am not sure that all those who take part in such debate take the trouble of arming themselves with knowledge of the law on the subject. Ironically, they are the persons who are the most vociferous in denouncing the police or the whole system. The same is true of discussions of the recommendations of the National Police Commission, the most important of which are still gathering dust in government offices. My firm position is that it is this lack of effort to educate oneself on the basics of subjects of vital social importance that frustrates the building of strong public opinion on many a contentious issue in India.

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