Comment

Striking a blow for investigative credibility

Probe agencies should be given more freedom to be professional without diluting the controls already in place.

These are hugely contentious times for India’s criminal justice system. With sensational criminal cases, many of them involving celebrities, controversy erupts almost every day.

The courtroom presents an interesting picture. The judiciary stands apart, enjoying a certain insularity. It has the advantage of being required not to be overly communicative, which enables it to stay away from direct confrontation with others. Next are the prosecutors and investigators who plough a lonely furrow with none to support them; it is about the issue of trust. As for the defence team, a few articulate private lawyers hired by some influential accused persons seem to enjoy an immunity that encourages them to go overboard, often bordering on contempt, both within and outside court. In their perception, the prosecution team is somehow trying to fix the accused. .

In all this, investigators have no mechanism to air their grievances, and are made to bear the cross when things go wrong. In sum, the prosecution lawyers and investigating officers are pitted in an unequal battle against the defence. I perceive here a certain lack of appreciation for the hard work put in by the former. Most of them try in earnest to place the correct facts before the judge.

In such a backdrop, it is refreshing to note a bench of the Supreme Court, of Justice R. Banumathi and Justice A.S. Bopanna, observing recently that probe agencies such as the Enforcement Directorate and the Central Bureau of Investigation (CBI) needed a free hand to conduct their investigations. This was in response to a demand made by certain defence lawyers, that courts, even at the pre-trial stage, should be in a position to scrutinise every piece of evidence collected by the agencies before passing any orders, including those related to the granting of bail.

The top court’s positive observations permitting a certain latitude to an investigating officer are based on an anxiety that investigators should not be pressured to compromise on the confidentiality of evidence they have gathered during the process of data collection. In my view, the top court’s stand is sensible and reasonable. Investigators are sure to breathe more easy now while discharging their duties, instead of being wary of being bamboozled either by the court or the defence.

These are changed times

I can only reflect on goings-on in the CBI some two decades ago. Back then in the early 1980s and 1990s, arrests were rare. But now, given the sheer volume and complexity of investigative processes, especially those linked to multi-layered economic crime, on the one hand, and pressure from the public and the executive on the other, the pressure that the CBI should produce instant results is telling. As a result, the spotlight is solely on the agencies.

The essence of the charge against the CBI — some recent cases are examples — is that it has been selective in its targets, pursuing a campaign of vendetta at the behest of its political masters. It is strange that critics do not dispute the fundamental facts on which a case has been built against the accused. They harp only on alleged procedural irregularities. The fact is that the latter can be blamed only if during a trial the court finds malicious prosecution actuated by personal motives. During an ongoing investigation, the issue of establishing malice does not normally arise.

Recent events have flagged two main issues in court: the right of an accused to get bail and the need for custodial interrogation by probe agencies. Although the maxim that ‘bail is the rule, and jail is an exception’ has held sway since the times of the noted jurist, Justice V.R. Krishna Iyer, and the courts have been generally liberal in granting bail (this includes pre-arrest or the so-called ‘anticipatory bail’), the growing volume of crime and the dexterity of many offenders have induced a certain 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 slight shift in stance has led to lengthy hearings before a bail application is disposed of. It has rightly invited adverse comments that 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 the fate of their bail application.

In fairness to courts, however, they now demand and peruse prosecution documents to satisfy themselves that no injustice has been done to a bail applicant. When this is the case, neither the prosecution nor those accused can complain of judicial caprice or arbitrariness in the matter.

Custodial interrogation

There is also 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 custodial examination. While courts are convinced of its utility, nevertheless, they are circumspect and sparing in granting such custody. Investigators have been pilloried over this because of possible misuse in questioning under controlled conditions. Custodial questioning is with a view to getting details which have not been obtained earlier under routine examination. It would not be fair to say that such custody is sought only to humiliate an accused person. Police custody casts a serious responsibility on the investigating officer. Any pressure tactics or attempted physical violence (the usual thing in the past) on the person in custody is fraught with serious consequences as far as the investigator is concerned. This must amplify the fact that a request for custodial interrogation is made after due evaluation of the pros and cons. When there are reasonable guarantees, including accountability to the judiciary for civilised treatment of an accused in police custody, I wonder why there is a hue and cry when an accused person is required to be held in police custody for a few days.

Criminal law and its contours are evolving. It is easy to criticise and accuse police agencies charged with efficient solving of crime with arbitrariness. They are carrying out an extremely difficult job under “pressure cooker conditions”. The attempt should not be to choke them. Rather, the accent should be on allowing them more freedom to be professional without diluting the controls that are already in place.

R.K. Raghavan is a former CBI Director

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Printable version | Feb 27, 2020 1:02:29 PM | https://www.thehindu.com/opinion/op-ed/striking-a-blow-for-investigative-credibility/article29394705.ece

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