AN OBSERVATION ON THE FAILURE OF CRIMINAL JUSTICE SYSTEAM

IN KANDHAMAL

As we know in most of the cases already tried in the Fast Track Courts in
Kandhamal the accused persons have been acquitted. This is nothing but a great
failure of the criminal justice system which has miserably failed to give justice to the
victims of the communal violence. At this juncture there is an urgent need of critical
analysis of the factors responsible for the failure. Though nothing much should be
expected from a judicial forum in a communal society, but we need to have a self
introspection to develop a strategy for the upcoming days.

To understand the different factors responsible for the failure it will be

convenient to have a minimum idea on the chain/ stages on which the justice
delivery process runs. And we can then find out what were the difficulty and also
the lacuna from the side of the victim in different stages.

The stages of criminal cases in series:

(1)Occurrence of the Incident--- (2)FIR--- (3)Investigation( includes arrest of the

accused & Submission of Charge-sheet)--- (4) Magistrate( who commits the case to
the competent court)--- (5)Trial ( includes Framing of Charges, Summon to
Witnesses, Testimony by the witnesses, Argument & Judgment)--- (6) Appeal

Difficulties & Lacunas in different stages

(1) Occurrence of the Incident

- Many of the victims are not eye witnesses as they fled away to the jungle just
before the incident happened.
- As the investigation started very late the proofs and marks of violence had
disappeared or washed away.

(2) FIR
- Non- registration by the police
- The names of the accused persons are not mentioned
- Delay in filing
- In some FIR the offence in specific is not disclosed
- In most of the cases copies of the FIR not given to the victim
- The informant himself is hostile in some cases.

(3) Investigation
- No proper investigation but a stereotyped process adopted by the police.
- Non- examination of the important witnesses
- Accused examined as the witnesses.
- Non- arrest of the accused persons ( particularly the king pins) till date
- The property of the absconding accused persons could have been attached
(Sec 83 of Cr.P.C.) which could compel them to surrender.
- Proper sections of IPC not mentioned in the Charge-Sheet
- Delay in filing of Charge-sheet helped the accused persons to get bail.

(4) Magistrate
- The lawyers for the victim could have put their objection before the
magistrate, before whom the charge-sheet is submitted, on the non-
mentioning of appropriate sections of IPC in the Charge-sheet. ( Section 216
of Cr.P.C)

(5) Trial
- Most of the independent witnesses were hostile as they were threatened by
the accused persons in the village.
- The court atmosphere is not conducive for free and fare trial.
- The judge and the public prosecutors lacks judicious mind.
- Deficiency of trained lawyers in comparison to the number of cases.
- Lacuna in the part of the lawyers engaged on behalf of the victim.
No effort to build up the case in favor of the victim, only tutoring of the
witnesses on their previous statement of the police is done. The lawyers could
have done as the following.
- Effort could have been made to cover up the lacuna in the FIR as well as the
statement before the police, while giving testimony before the trial court.
- The witness/ victim could have been prepared on the point on which the
defense lawyer is striking.
- Proper caution could have been taken to avoid major discrepancy between
the testimonies of the major witnesses.
- Petition could have been laid to examine the important witnesses who are not
charge-sheeted. ( Section 311 of Cr.P.C)
- Written argument could have been filed in each case at the time of final
argument. (It must be kept in mind that if the lawyer has not filed the
Vakalatnama from the initial stage then he may not be allowed to file written
argument in the final stage.)
- Even though most of the witnesses are becoming hostile, the victim and the
family members could have been properly guided before giving testimony.
Because law is well settled, the sole testimony of the victims / the eye
witnesses, if inspires confidence and appears to be natural and truthful and
also corroborated by the documentary evidences, is enough to convict the
accused.

(6) Appeal
- No appeal preferred in most of the cases where the accused were acquitted.
- Appeal should be preferred in conviction cases as in the said case conviction
is done for only few accused persons and most of them are acquitted.

The cause of the lacuna in the part of the victim’s lawyers

1- Lack of sufficient number of lawyers.
2- Lack of coordination between the lawyers groups.
3- No specific strategy made out
4- The lawyers and their organizations do not allow the interference /
suggestion from others.
5- No proper guidance / training of the junior lawyers.

WHAT CAN BE DONE

1- Initiation of civil society intervention

2- Initiation of a common strategy to regulate the legal intervention. and all the
groups should be requested to follow that
3- Filing of transfer petition in important cases where the accused and the
victims are severely under threat.
4- Filing of general petition for retrial of the cases. Because appeal to some
extent will not suffice the expectation, as in appeal generally no further
testimony is taken. The appellate court only decides on the testimonies
already given in the lower court. And if the testimonies in the lower court are
not properly given then the same result will come out from the appellate
court. But in retrial the testimonies will be recorded again and we may get
scope to cover up our latches. But for this it requires serious study and
analysis to convince the High court / supreme court that for why retrial is
required.
5- Petition in the High court / Supreme Court against the lacuna in police
investigation and for a direction to proper investigation in the forth coming
cases.
6- Petition for attachment of property of the absconding accused persons.

Prepared by :
Rasmi Ranjan Jena
Advocate
Phone- 09438532435
Email: rasmijena@gmail.com