Vous êtes sur la page 1sur 31

National Law Institute

University,
Bhopal

cr.p.c i
ACCOUNTABILITY OF THE POLICE TO THE PUBLIC

Submitted to:
Submitted by:
1

Mr. P.K. Gupta


Anshuman Nayak
2008 B.A.LL.B.
(Hons.) 81
TABLE OF CASES:
Cases Cited
1.
2.
3.
4.

P. Vijayan v. State of Kerala and Anr., AIR 2010 SC 663


Rubabbuddin Sheikh v. State of Gujarat and Ors., MANU/SC/0024/2010
Vineet Narayan and Ors. v. Union of India, 1996 (2) SCC 199
Union of India v. Sushil Kumar Modi, 1998 (8) SCC 661

5.

Delhi Domestic Working Womens Forum v. Union of India

6. H. N. Rishbad v. State of Delhi, MANU/SC/0049/1954


7. Nandini Satpathy v. P.L. Dani and Anr., (1978)2 SCC 424
8. Allenet de Ribemont v. France, 1995, Series A, No. 308, p. 16, para. 35
9. Kantilal Shivabhai Thakkar v. state of Gujarat, AIR 1994 SC 178
10. Baleshwar Rai V State Of Bihar, (2001)3 SCC 56
11. Harkirat Singh v. State of Punjab, AIR 1976 SC 1272

Committee & Conventions Report


Mallimath committee report on criminal justice system
International Covenant on Civil and Political Rights, UN General Assembly resolution
2200A (XXI), December 16, 1966, entered into force March 23, 1976
Universal Declaration of Human Rights, (UN General Assembly resolution 217A (III),
December 10, 1948

STATEMENT OF THE PROBLEM


Through this paper I will emphasize the accountability of the police to the public, for the
way that police treat people in the light of police investigating power vis--vis the idea of
fair trial. I have analysed three leading cases on the subject, namely the landmark case of
Nandini Satpathy v. P. L. Dani and the recent 2010 cases, P. Vijayan v. State of Kerala and
Rubabbuddin Sheikh v. State of Gujarat.

CONCEPTUAL FRAMEWORK:
In this project, I have dealt with two concepts or doctrines:
1. Police investigation, and
2. Fair trial.
The principal agency for carrying out the investigations of offences is the police; and to
make this agency an effective and efficient instrument for criminal investigations, wide
powers have been given to the police officers.
The right to fair trial is seen as an essential right in all countries respecting the rule of
law. A trial in these countries that is deemed unfair will typically be restarted, or its
verdict quashed. The right to a fair trial is explicitly proclaimed in Article Ten of
the Universal Declaration of Human Rights, the Sixth Amendment to the United States
Constitution, and Article Six of the European Convention of Human Rights, as well as
numerous other constitutions and declarations throughout the world.

OBJECTIVES:
Through this project I aim to:
1. Discuss the power given to police force to investigate a case vis-a-vis the scope of
just and fair trial to the common man.
2. Discuss different suggestions which in my opinion is essential to provide just and
fair trial to the common masses.
3. Highlight the doctrine of fair trial in the light of Indian scenario and the power
distributed to different agencies to investigate a case.
4. Analyse some leading cases on the topic.

HYPOTHESIS:
My project work basically deals with the judicial scrutiny of the concept of police
investigation and the right to a just and fair trial for the accused or the victims relatives.
Police investigation and fair trial are two intertwined concepts that have to coexist during
the process of investigation and trial. A proper and efficient investigation is required to
bring out the truth and a fair and just trial is also a necessity in order to ensure that the
offender is punished. Hence, police investigation and right to a fair trial have a profound
relationship or influence on each other.

CHAPTER I
INTRODUCTION
In democratic societies, the police are accountable for many things. Most prominently,
police are accountable for the effectiveness with which they deal with crime and disorder,
as well as for the legality, professionalism, and respect with which they treat people. But
the most important question before us is to whom are police accountable? While
authoritarian police are accountable only to their superiors, democratic police are
accountable to a multiplicity of bodies. In addition to their superiors, democratic police
are accountable to the legislature, to the courts, to members of the public who seek their
assistance, and to society as a whole through the press and organizations of citizens.
Through this paper I will emphasize the accountability of the police to the public, for the
way that police treat people in the light of police investigating power vis--vis idea of
fair trial. The creation of mechanisms for the routine oversight of police conduct on
behalf of the public, mechanisms that curb or correct abuses of power, is a common
project of democratic societies.
The right to a fair trial is a norm of international human rights law designed to protect
individuals from the unlawful and arbitrary curtailment or deprivation of other basic
rights and freedoms, the most prominent of which are the right to life and liberty of the
person. It is guaranteed under Article 14 of the International Covenant on Civil and
Political Rights (ICCPR)1,

which

provides that everyone shall be entitled to a fair and

public hearing by a competent, independent and impartial tribunal established by law.


1

International Covenant on Civil and Political Rights, UN General Assembly resolution 2200A (XXI),
December 16, 1966, entered into force March 23, 1976

The right to a fair trial is applicable to both the determination of an individual's rights and
duties in a suit at law and with respect to the determination of any criminal charge against
him or her. The term suit at law refers to various types of court proceedingsincluding
administrative proceedings, for examplebecause the concept of a suit at law has been
interpreted as hinging on the nature of the right involved rather than the status of one of
the parties2.
India has inherited the colonial legacy of police system which was a tool in the hands of
colonial masters in order to curb the nationalistic feelings or the revolutionary movement.
It is in the light of this factor police were invested with a lot of power. This system
continues due to lack of political will among the policy makers. It is in the light of all this
we find that police enjoys nearly unlimited power regarding investigating a case which
comes before it. This unbridled power of the police had put a shadow over the common
citizen to get a just and fair trial which was also envisaged in our constitution3.
The right to a fair trial is a basic human right. When this right is violated, people innocent
of any crime face conviction, imprisonment and even execution. The justice system itself
loses credibility. The essential ingredients for a fair and just civil trial must include a
competent, neutral and detached judge (an independent judge); the absence of any
intimidation of witnesses and ideally, an equal weight of arms, i.e. a level playing field in
terms of legal representation, such as a right to counsel for criminal defendants
It is in the light of all these arguments that I will emphasize on the issue that it is
fundamental to democratic societies that police power, including the powers to arrest, to
question, and to use lethal and non-lethal force, be closely regulated, often through the
mechanism of an independent judiciary, and ultimately be subject to civilian control
through democratic institutions. In such societies, a continuing challenge is to create
practical mechanisms for ongoing oversight that curb or correct the occasional abuses of
police power.
2

Dominic McGoldrick, The Human Rights Committee, Its Role in the Development of the International

Covenant on Civil and Political Rights (Clarendon Press, Oxford: 1994), at 415.
3

http://www en.wikipedia.org/wiki/Right_to_a_fair_trial

We find that legal system, in theory, provides mechanisms to enforce fundamental rights
and to redress persons whose rights have been violated. Remedies for the abuse of police
power are scattered throughout the legal system and are applied in both criminal and civil
law contexts. An independent judiciary is meant to be the guarantor and enforcer of
fundamental rights. The judiciary is timid, and political imperatives or other demands of
the state may on occasion override judges and the law. Remedies for abuse of police
power are often weak or inconsistently enforced.
Thus through this project I will discuss the power given to police force to investigate a
case vis a vis scope of just and fair trial to the common man. Through this project I will
also discuss different suggestion which in my opinion is essential to provide just and fair
trial to the common masses. At the same time I will also highlight the doctrine of fair trial
in the light of Indian scenario and the power distributed to different agencies to
investigate a case.

CHAPTER II

POWER OF POLICE TO INVESTIGATE


The expression "investigation" has been defined in Section 2(h) of the Code as under :
"(h) "investigation" includes all the proceedings under this Code for the collection of
evidence conducted by a Police Officer or by any person (other than a Magistrate) who
is authorised by a Magistrate in this behalf;"
The term investigation has been defined in the case of H. N. Rishbad v. State of Delhi 4,
where the meaning and the scheme of the Code with regard to investigation have been
laid down. In that case court also looks into the scope of police power to investigate a
case. Under the Code "Investigation" consists generally of the following steps:(1) Proceeding to the spot,
(2) Ascertainment of the facts and circumstances of the case
(3) Discovery and arrest of the suspected offender,
(4) Collection of evidence relating to the commission of the offence which may consist
of (a) the examination of various persons (including the accused) and the reduction of
their statements into writing, if the officer thinks fit ( b) the search of places or seizure
of things considered necessary for the investigation and to be produced at the trial,
and
(5) Formation of the opinion as to whether on the material collected there is a case to
place the accused before a Magistrate for trial and if so taking the necessary steps for
the same by the filing of a charge sheet under section 1735.
The scheme of the Code also shows that while it is permissible for an officer in charge of
a police station to depute some subordinate officer to conduct some of these steps in the
investigation, the responsibility for every one of these steps is that of the person in the
situation of the officer in charge of the police station, it having been clearly provided in
S. 1686 that when a subordinate officer makes an investigation he should report the result
4

MANU/SC/0049/1954, at para 16, visited on 06th jan, 2007


Report of police officer on the completion of investigation
6
report of investigation by subordinate police officer
5

to the officer in charge of the police station. It is also clear that the final step in the
investigation, viz., the formation of the opinion as to whether or not there is a case to
place the accused on trial is to be that of the officer in charge of the police station. There
is no provision permitting delegation thereof but only a provision entitling superior
officers to supervise or participate under S. 551.
The principal agency for carrying out investigation of offences is police. Police can
proceed to investigate(1) On the information received from any other person as the commission of any
cognizable offence.
(2) Even without such information, but police have the reason to suspect the commission
of any non cognizable offence
(3) On receiving any order from any judicial magistrate empowered to take cognizance of
any offence under sec. 1907.
Furthermore according to sec 39 duty has been cast on the every person to inform the
authorities if he has any information as to the commission of any offence. A person is
however exempt from his duty if he has a reasonable excuse for not giving information.
In this the burden of proving the existence of such an excuse is on the person required to
give such information. It has been further provided that if a person intentionally omits to
give any particular information than that person will be punishable under sec 176 and 202
of Indian penal code. Furthermore Sec. 40 cast a duty on the village officers and village
residents to report certain matter to the nearest police station because most of the villages
are located at the far flung areas from the police station. At the same time Sec 37 cast a
duty on the individuals to assist the police if such assistance is demanded.
When an individual gives any information regarding commission of any cognizable
offence to the officer-in- charge of a police station having Jurisdiction to investigate the
case. Then that information given by that individual is recorded according to the sec 154 8
of the CrPC. The information recorded under section 154 is usually known as First
Information Report (FIR)9.
7

cognizance of offences by magistrate


information in the cognizable offences
9
R.V.Kelkar, Lectures on Criminal Procedure (Eastern Book Co., Lucknow, 2004)
8

If on the basis of FIR the station house officer has reason to suspect the commission of a
cognizable offence, he is required to for with to send a report to the magistrate concerned.
Unreasonably delay in sending the sending the occurrence report to the magistrate is
bound to caste some shadow on the prosecution case and might lead to interface adverse
to the prosecution case.
On the other hand in the case of non cognizable offence are considered as private wrongs
therefore code enjoins that a police officer shall not investigate a no cognizable offence
without the order of the competent magistrate. But when such an order was given by the
magistrate than the police will enjoy the same power as in the case of cognizable offence.
Furthermore where a case relates to the two or more offences and one of the case is
cognizable in nature than the case shall be deemed to be a cognizable case even though
the other offence is non cognizable offence.
Under sub-section (1) of Section 154 of Cr. P.C., it shall be within the power and duty of
the police officer to register only a cognizable offence. Though under Section 155 of Cr.
P.C. a police officer can make an entry in the appropriate register about the information as
to non-cognizable offence, such police officer shall not investigate a non-cognizable
offence without the order of the Magistrate. As a necessary corollary, it must be
concluded that any effort on the part of the police 'to look into' any complaint by any
person which does not contain allegations of commission of cognizable offences would
not only violate the various provisions of the different acts.
After registering the case in the case of cognizable offence the station house officer shall
proceed in person or depute a subordinate to investigate the facts and circumstances of
the case and if necessary to take measures for the discovery and arrest of the offender.
The power to investigate a cognizable offence is uncontrolled by the magistrate, and is
only in the case of where the police decides not to investigate the case that the magistrate
can intervene and direct investigation of the case10.
Now the police have been given special power in order to investigate the case. Police is
empowered to call for and to secure for the attendance of the persons who are likely to
have relevant information. It is in this respect station officer has given power under sec
10

http://www.unhchr.ch/html/menu2/i2adjrft.htm

10

160(1) of CrPC to make the presence of attendance of an individual before him. Non
compliance of with the summons issued by the police officer could entail initiation of
proceeding under sec. 188 of IPC11.
Police were also given power to interrogate in order to facilitate the collection of
evidence and therefore can interrogate a person orally in order to gather evidences
regarding the case. Such a person is required to answer truly all the questions relating to
the case but was not compelled to give the answer. If a person legally bound to answer
truly all questions relating to such a case, refuses to answer any question demand of him
he is liable to be punished under section 179 of IPC. Furthermore if he gives false
information which he knows it to be false than he will be punished under section 193 of
IPC. In the decision of Nandani Satpathy v. P.L.Dani12 it has been held that any person
supposed to be acquainted with the facts and circumstances of the case in section 161(1)
includes an accused person.
Furthermore in order to facilitate the collection of evidence the investigating agency has
been given power to examine orally any person who supposed to be acquainted with the
facts and circumstances of the case. The concerned person is expected to answer all the
questions truly and if it is found that the concerned person has given wrong information
then that person can be punished under various sections of IPC13.
Now coming to the evidently value of statements made to the police by the person. We
can classify the statement made to the police in three broad categories:-(1) a statement which has been recorded as FIR
(2) statement recorded by the police during the course of investigation
(3) Statement recorded by the police but not falling under above (1) and (2) category.
Though the FIR is not a substantive evidence; it can be used to corroborate the informant
under section 157 of the evidence act, or to contradict him under section 145 of that act,
if the informant is called as a witness at the time of trial. FIR has a better corroborative
11

http://www.unhchr.ch/pdf/CHAPTER_6.pdf

12

(1978)2 SCC 424


Justice Y.V. Chandrachud & Justice Aladi Kuppuswami (Eds.), Ratanlal & Dhirajlal

13

Evidence (Wadhwa & Co., Nagpur, 20th edn., 2002)

11

The Law of

value if it is recorded before there is time & opportunity to embellish or before the
informants memory fail. A check has been made in this regard that if the FIR is
confessional nature it can not be proved against the accused informant, because according
to section 25 of the evidence act no confession made to the police officer can be proved
as against a person accused of any offence.14
As regard to the evidentiary value of the statement recorded by the police in the course of
investigation we can say that such statements in general not recognized as evidence by
the law. The main object of this was to protect an individual from the overzealeous police
officers and untruthfulness witness. If a person whose statement is recorded by the police
in the course of the investigation is called as a defence witness, his previous statement
before the police can not be used for contradicting him. The reason would have been that
it would be improper to allow a witness to be contradicted by a record prepared by the
opposite party.15
Section 162 CrPC helps the accused to contradict the witness if during trial in a court the
witness makes contradictory statement. And it is not impossible for the police to record
contradictory statement even in the case of a truthful witness who must have said the
same thing to the police as well as in the court. This statement in the case diary often
helps the accused to get acquitted if the court does not handle the issue carefully. This
becomes evident from examination of some recent decisions of the courts. The decision
of the Supreme Court in the case of Harkirat Singh v. State of Punjab16 provides an
instance where the court may acquit an accused because of the infirmity in recording the
statements.
Regarding the evidentiary value of statements made during the period of investigation but
not during the course of investigation we find that restrictions imposed by sec 162 of
CrPC on the use of statements are applicable only to such statements as are made to the
police during the course of investigation. Any other statement, though made during the
time investigations were going on is not hit by the prohibitory rule created by sec 162 of
CrPC. Therefore, such statement can be used for corroborating or contradicting purpose
14

Kantilal Shivabhai Thakkar v. state of Gujarat, AIR 1994 SC 178


Baleshwar Rai V State Of Bihar, (2001)3 SCC 56
16
AIR 1976 SC 1272
15

12

according to the normal rules of evidence contained in Sec 145 and Sec 157 of the
Evidence Act.
Thus from the above arguments we find that police enjoys a very wide power regarding
investigating a matter. Police superior position can be traced in both cognizable as well
as non cognizable offences. Even the different legislation in force at present confers very
wide powers on the police forces for investigating any case. It is in the light of all these
arguments we can find that this excessive power to the police force has posed a challenge
for conducting a just and fair trial because all the powers have been concentrated in the
hand of police and it depend on the whim and fancies of a police officer to proceed in a
particular case.

13

CHAPTER III

SCOPE OF FAIR TRIAL IN INDIAN


SCENARIO
The Right to a fair trial is an essential right in all countries respecting the rule of law. It is
explicitly proclaimed in Article Ten of the Universal Declaration of Human Rights, the
Sixth Amendment of the US Constitution, Indian constitution and Article Six of the
European Convention of Human Rights, as well as numerous other constitutions and
declarations throughout the world. The right to a fair trial can be termed as a basic human
right. When this right is violated, people innocent of any crime face conviction,
imprisonment and even execution. The justice system itself loses credibility17
The essential ingredients for a fair and just civil trial must include a competent, neutral
and detached judge (an independent judge); the absence of any intimidation of witnesses
and ideally, an equal weight of arms, i.e. a level playing field in terms of legal
representation, such as a right to counsel for criminal defendants.
The standards against which a trial is to be assessed in terms of fairness are numerous,
complex, and constantly evolving. They may constitute binding obligations that are
included in human rights treaties to which the state is a party. But, they may also be
found in documents which, though not formally binding, can be taken to express the
direction in which the law is evolving. In order to avoid possible challenges to the legal
nature of the standards employed in evaluating the fairness of a trial, monitors should
refer to norms of undisputedly legal origin.
These are:
(i) the laws of the country in which the trial is being held;
(ii) the human rights treaties to which that country is a party, and
17

http://www.legislationline.org/?tid=105

14

(iii) norms of customary international law18.


The right to a fair trial on a criminal charge is considered to start running not only upon
the formal lodging of a charge but rather on the date on which State activities
substantially affect the situation of the person concerned. This could obviously coincide
with the moment of arrest, depending on the circumstances of the case. Fair trial
guarantees must be observed from the moment the investigation against the accused
commences until the criminal proceedings, including any appeal, have been completed.
The distinction between pretrial procedures, the actual trial and post trial procedures is
sometimes blurred in fact, and the violation of rights during one stage may well have an
effect on another stage19.
It can be further said that every person has the right to a fair trial both in civil and in
criminal cases, and the effective protection of all human rights very much depends on the
practical availability at all times of access to competent, independent and impartial courts
of law which can, and will, administer justice fairly. In Addition to this the professions of
prosecutors and lawyers, each of whom, in his or her own field of competence, is
instrumental in making the right to a fair trial a reality, and we have the legal pillar of a
democratic society respectful of the rule of law.
An important aspect for free and fair trial is independent and impartial Judiciary capable
of ensuring fair trial proceedings is not only of importance to the rights and interests of
human beings, but is likewise essential to other legal persons, including economic
entities, whether smaller enterprises or large corporations, which often depend on courts
of law, inter alia, to regulate disputes of various kinds. Furthermore, it is beyond doubt
that in countries where aggrieved persons or other legal entities can have free access to
the courts in order to claim their rights, social tension can more easily be managed and
the temptation to take the law into ones own hands is more remote. By contributing in
this way to defusing social tensions, the courts of law will contribute to enhancing

18

The provisions of the Universal Declaration of Human Rights, (UN General Assembly resolution 217A
(III), December 10, 1948
19
P.M. Bakshi and S.C. Sarkar, The Law of Criminal Procedure, (India Law House, New Delhi, 8th edn.,
2004)

15

security not only at the national but also at the international level, since internal tensions
often have a dangerous spillover effect across borders.
Indian constitution consists of several provisions in order to ensure provide the citizens
with free and fair trial. The first important thing is the Art 20 of the constitution of India
which gives right to an individual to not to be witness against itself. Again this article
provides a person the safeguard not to be punished twice for the same offence. Similarly
this article provides that no person shall be punished with the offence more than that
prescribed in the law at the time of occurrence of the crime. Thus we found that Indian
constitution provides for the basic safeguard to its citizen in order to provide them with
just and fair trial.
The Supreme Court in the case of Nandany Satpaty 20 considered the parameters of sec.
161(2) of the CrPC and the scope and ambit of Art 20(3) of the constitution. Court held
that section 161enables the police to examine the accused during investigation. The
prohibitive sweep of Art 20(3) goes back to the police interrogation not, as contended
commencing in court only. The ban on self accusation and the right to silence, while one
investigation on trial is underway, goes beyond that case and protects the accused in
regard to other offences pending or imminent , which may deter him from voluntary
disclosure of criminatory matter.
Similarly there are several other provisions in different statues which put a check on the
investigating power of the police and provides right to the general public so that there
should not be infringement of an individual rights. The first and foremost is the nonrecognition of the statement given by an individual before the police during the time of
interrogation. In short that means statement given by the individual before the police
while the police had no evidently value. Secondly, there is express bar on the police or
the investigating agency to get the information through any illegal means like coercion,
physical or mental torture etc. supreme court and different high courts have already held
that if any evidence has been received either through torture or any illegal means then
that evidence will have no evidence value in the eye of law. At the same time court has
20

Fields Commentary on Law of Evidence (Revised by Gopal Chaturvedi, Delhi Law House, Delhi, 12th

edn., 2001)

16

also held that police officer or the investigating officer who are part of that illegal act will
have to face the wrath of law and will treated as a criminal21.
Thirdly, it was provided that the individual arrested by the police or any investigating
officer must be produced before the magistrate within 24 hours of his arrest. Fourthly, a
person should have immediate recourse to his lawyer so as to get legal advice from his
layer. Similarly a duty have been cast on the state in order to provide free legal aid to
those people who cant avail the services of lawyer on their own 22. At the same time code
of criminal procedure does not confer the power to investigate on every police officer.
According to sec. 156 only an officer- in charge of a police station is empowered to
investigate23.
The principle of equality before the courts means in the first place that, regardless of
ones gender, race, origin or financial status, for instance, every person appearing before
a court has the right not to be discriminated against either in the course of the
proceedings or in the way the law is applied to the person concerned. Further, whether
individuals are suspected of a minor offence or a serious crime, the rights have to be
equally secured to everyone. Secondly, the principle of equality means that all persons
must have equal access to the courts.
As noted by the Human Rights Committee in General Comment No. 13, the
principle of presumption of innocence means that:-the burden of proof of the charge is on the prosecution and the accused has the benefit

of doubt. No guilt can be presumed until the charge has been proved beyond reasonable
doubt. Further, the presumption of innocence implies a right to be treated in accordance
with this principle. It is, therefore, a duty for all public authorities to refrain from
prejudging the outcome of a trial.
It is in the light of all these factors we can say that the right to be presumed innocent until
proved guilty is another principle that conditions the treatment to which an accused
person is subjected throughout the period of criminal investigations and trial proceedings,
up to and including the end of the final appeal. The right to presumption of innocence is a
right which, like other rights contained in the Convention, must be interpreted in such
21

supra note 18
Art 39(A) of the constitution of India
23
supra note 19
22

17

a way as to guarantee rights which are practical and effective as opposed to theoretical
and illusory24
Thus we found that there are some provisions made for free and fair trial of an individual.
But looking at the overall situation we find that the powers of the police and other
investigating agencies are comparatively very much taking into the account of provision
of just and fair trial. Therefore the need of the hour is to revamp the overall the whole
situation so that the system prevalent becomes much more people friendly.

24

Eur. Court HR, Case of Allenet de Ribemont v. France, judgment of 10 February 1995, Series A, No. 308,
p. 16, para. 35

18

CHAPTER IV

SUGGESTIONS TO ENSURE FAIR TRIAL


After analyzing the different rights available to the common masses and at the same time
power given to the investigating agencies are quite wide. It is in the light of all these
factors that law commission and different other committees have made several
recommendations in order to make the system more people friendly. Mallimath
committee in its recommendation has suggested several measures in order to make the
system more transparent and more accountable.
In my opinion law should be dynamic so that it should able to incorporate the new things
which are happening so that the system prevalent should able to keep pace with this rapid
changing world. If the law or the system will be stagnant and could not able to cope up
with the change then it may result into the breakdown of the system. In my opinion
several things need to be incorporated in the present system and law so that it could able
to face the challenges of the present time.

Establishment of E-crime Clearing House which will be useful in early


detection of electronic crimes and computer for offences and violations:- in the
present day with number of white collar crimes are increasing at the very rapid
rate. With the coming of digital age in the country it is the need of the hour police
force should be equipped with laws so as to deal with the matter with the more
effective ways. In this way Establishment of E-crime Clearing House will be be
an important step because it will help in the early detection of the white collar
crime. It is strange to know that police forces lack the basic requisite to deal with
such type of crime.

Separation of investigation from police:- since investigation is a specialized


mater therefore investigation should be done by a separate agency so that the
power of police can be restricted and at the same time professionalism could be
introduced in the investigation process with the introduction of separate agency
for the purpose.

19

Right to appeal against the adverse order of court:- at present victims only
enjoy only one right ie engaging a lawyer only for assisting the prosecution.
Therefore victim should be given right to engage lawyer of their choice and even
appeal to the superior courts in case of adverse judgment by the lower court.

Need to train the police in human rights and sensitise them with regard to
civilian rights of the ordinary people: - according to me the second step should
be giving police the basic training in order to deal with the matter so that they
could be mode more accountable. It is because in most of the case the main
problem is the attitude problem of the police officers. this training can be done by
thorough transcendental meditation so as to change the mindset of police

Curb the misuse of power of arrest by police:- The National Police Commission
had even observed in its third report that the power of arrest is one of the sources
of police corruption. One of the main reasons for abuse of this power is the
manner in which the source of this power i.e. the Criminal Procedure Code is
worded. Section 41(1) of this Code provides that a police officer may arrest a
person. (a) Who has been concerned in any cognizable offence, or against whom a
reasonable complaint has been made, or credible information has been received,
or a reasonable suspicion exists, of his having been so concerned. The first part of
the section regarding being concerned in a cognizable offence is totally objective,
but in the remaining portions of Section 41(1), one finds a combination of
objective facts coupled with a certain amount of subjective evaluation. The
objective element is highlighted by its repeated use of adjectives, such as
reasonable and credible. But it is not necessary to establish objectively that the
person proposed to be arrested has been concerned in a cognizable offence. This
leaves a lot of scope for misuse of power and this amendment was the right
opportunity to make the law governing arrest more clear and explicit in order to
do away with unjustified powers exercised by police officers to discreetly arrest
innocent people to earn a few extra bucks or undeserving favors.police power to
arrest the person during investigation should be curbed because in this regard
police officers have been given wide discretionary powers in order to deal with
20

any case. This power of the police can be restricted by a new law which clearly
provides for the ground on which a person can be arrested. Incorporation of the
Supreme Court guidelines issued in Delhi Domestic Working Womens Forum v.
Union of India25 and the Malimath Committee recommendations 26. The guidelines
include, inter alia, the directive to police to maintain a list of lawyers capable of
handling the case of rape victims and to provide them help in rehabilitation.

To codify the guidelines issued by the supreme court in several cases to prevent
abuse of the authority and protect the rights of people arrested:- another major
step should be codifying the decision of the supreme court as given by the code
from time to time regarding police power and just and fair trial. This codification
of decisions will help in making awareness among the common masses as well as
among the police and investigating agencies because most of the people as well as
investigating officers are found to be ignorant about their rights and duties as well
as the rights of common masses and their duties.

Providing a copy of the FIR to the accused so that he could send it to the
advocate friend of his choice within 12 hrs:- another step which could be taken in
this regard is providing a copy of FIR to the accused so that he could send it to the
advocates and thus able to get proper legal assistance and thus makes proper
action for his defense. At the same time providing FIR within 12 hours will ensure
that no further manipulation is done with the report.

Making police personally responsible for abuse and excesses:- if a police officer
is found to be guilty of torture either physical or mental or in other way tries to
influence the accuse which is forbidden by the law in order to get his statement
then that police personal will be made personally liable for that act. In my opinion
this step will make the police force more accountable to his work.

Compensation for the victims of abuse of power and for health services within
the police station like mandatory medical examination after the arrest:- this step

25
26

AIR 2001 SC 2762


SUBMITTED ITS REPORT IN 2001, PART XI, Sec 4 talks about the same problem

21

ha also suggested by Mallimath committee in his report. According to this


suggestion there should be provision of compensation for the people who have
suffered from the abuse of power of investigating agencies as well as those who
have suffered from committing of that crime. This provision has been made so as
to provide some helping hand to those people who have to undergo physical as
well as mental agony due to committing of crime. This is because people who
have to suffer physically mentally or physically will got a helping hand and will
help in proper rehabilitation of these people.

Include the details of medical examination to be recorded into the custody, copy
of which should be given to the accused:- this step will go a long way in order to
clear the picture regarding the health of the person and will act as the deterrence
against those police personal who restore to physical torture in order to get
information from the accuse. At the same time it will give the accused the basic
information about his health in the police custody.

If we able to implement these suggestion then we can say that we could able to establish
a well settled dynamic system which is capable of dealing with all the matters.

22

23

CHAPTER V

CASE ANALYSIS
LANDMARK CASE:

Nandini Satpathy v. P.L. Dani &

Anr . 27
A complaint was filed by the Deputy Superintendent of Police, Vigilance (Directorate of
Vigilance), Cuttack, against the appellant, the former Chief Minister of Orissa under
Section 179 I.P.C., before the Sub-divisional Judicial Magistrate, Sadar, Cuttack.
Thereupon the Magistrate took cognizance of the offence and issued summons for
appearance against the accused. Aggrieved by the action of the Magistrate and urging that
the complaint did not and could not disclose an offence, the agitated accused-appellant
moved the High Court under Article 226 of the Constitution as well as Under Section 401
of the CrPC, challenging the validity of the Magisterial proceeding. The broad
submissions, unsuccessfully made before the High Court, was that the charge rested upon
a failure to answer interrogations by the police but this charge was unsustainable because
the umbrella of Article 20(3) of the Constitution and the immunity Under Section 161(2)
of the Cr. P. Code were wide enough to shield her in her refusal. The plea of
unconstitutionality and illegality, put forward by this pre-emptive proceeding was
rebuffed by the High Court.
JUDGMENT:- The Court held that under Articles 20 (3) and 22 (1) of Constitution of
India no person can be compelled to be witness against himself. This right operates in
police interrogation also. Since police is authorized to examine witness by virtue of
Section 161 but such authority does not extend to compel such witness to give testimony
against him. It can be said that right of witness to keep silence extents to other matters
also if it expose him to criminal charges in other cases. Court further held that compelled
testimonies cannot be admitted as potent evidence.

27

(1978)2 SCC 424

24

ANALYSIS:- From the above facts it is clear from the judgment from the case that this
case puts the individual right on the new dimension. This decision puts the victim right
on the different footing. This case puts the superiority of the fundamental rights of an
individual over the procedural laws. Court in its judgment also puts the level of criteria
for just and fair trial on different footing. This case will go a long way in defining the
individual right vis a vis right of the investigating agencies.

CASE 2:

P.Vijayan v. State of Kerala and Anr. 28

The appellant is a retired IPS officer aged about 85 years. He enjoyed a considerable
reputation as an IPS officer and had retired as the Director General of Police, Kerala. In
the course of his tenure as a senior police officer, he controlled the Naxalite militancy
which was rampant in Kerala in the 1970s. In the 1970s, Naxalites under the banner of
CPI(ML), a militant organization, had taken up the cause of the poor through armed
appraisal and violence. The said organization committed various brutal murders and
dacoities including attacking police stations and murdering innocent policemen.
Naxalite Varghese was a prominent leader of the CPI (ML) in Kerala during 1970s. He
was an accused in cases relating to murder of landlords as well as attack on policemen.
Since, he was wanted in many grave criminal offences, he was hiding. A special team
consisting members of the Kerala Police as well as CRPF was formed to nab Naxalite
Varghese. On 18.02.1970, the police received a tip off that he was present in the hut of
one Shivaraman Nair and based on the said information, the special team rushed to the
spot and broke open the door of the said hut and arrested Naxalite Varghese. However,
while he was being taken to the police station in a police jeep, he tried to escape and
attacked the policemen resulting in clash between the police party and Naxalite Varghese.
During the said clash, in order to prevent Naxalite Varghese from escaping, the police had
to fire and in the shootout he was killed. The capture of Naxalite Varghese was
highlighted as one of the achievements of the Kerala Police at that time and the police
28

AIR2010SC663, decided on 27-01-2010.


25

personnel involved in the said operation were given out of turn promotions and
increments in appreciation of being part of the team. The appellant had also received
various medals while in service for his role in tackling the naxalite militancy in Kerala.
During the period from 1970 till 1998, there was no allegation that the said encounter was
a fake encounter. Only in the year 1998, reports appeared in various newspapers in Kerala
that the killing of Varghese in the year 1970 was in a fake encounter and that senior
police officers are involved in the said fake encounter. Pursuant to the said news reports,
several writ petitions were filed by various individuals and organizations before the High
Court of Kerala with a prayer that the investigation may be transferred to Central Bureau
of Investigation (CBI). In the said writ petition, Constable Ramachandran Nair filed a
counter affidavit dated 11.01.1999 in which he made a confession that he had shot
Naxalite Varghese on the instruction of the then Deputy Superintendent of Police (DSP),
Lakshmana. He also stated that the appellant was present when the incident occurred. By
order dated 27.01.1999, learned single Judge of the High Court of Kerala passed an order
directing the CBI to register an FIR on the facts disclosed in the counter affidavit filed by
Constable Ramachandran Nair. Accordingly, the CBI registered an FIR on 03.03.1999 in
which Constable Ramachandran Nair was named as accused No. 1, Mr. Lakshmana was
named as accused No. 2 and Mr. P. Vijayan, the appellant, was named as accused No. 3
for an offence under Section 302 IPC read with Section 34 IPC. After investigation, the
CBI filed a charge-sheet before the Special Judge (CBI), Ernakulam on 11.12.2002
wherein all the above mentioned persons were named as A1 to A3 respectively for an
offence under Sections 302 and 34 IPC.
By pointing out various reasons, his meritorious service and nothing whispered for a
period of twenty years, the appellant filed a petition on 17.05.2007 under Section 227 of
the CrPC for discharge. The learned Trial Judge dismissed the said petition and passed an
order for framing charge for offence under Sections 302 and 34 IPC. Aggrieved by the
aforesaid order, the appellant filed a Criminal Revision Petition before the High Court of
Kerala. The learned single Judge of the High Court dismissed the said Criminal Revision
Petition.

26

The main issue was whether the Trial Judge as well as the High Court committed any
error in rejecting the claim of the Appellant. The Supreme Court held, after evaluating the
materials produced by the prosecution and after considering the probability of the case,
that there exists sufficient grounds against the Appellant and another accused to frame a
charges. It affirmed the order of the Trial Court and the High Court.

CASE 3:

Rubabbuddin Sheikh v. State of Gujarat &

Ors. 29
This case relates to the killing of the appellants brother, Sohrabuddin Sheikh in a fake
encounter and disappearance of his sister-in-law Kausarbi at the hands of the Anti
Terrorist Squad (ATS) Gujarat Police and Rajasthan Special Task Force (RSTF). The
Director General of Police, Gujarat, directed Ms. Geetha Johri, Inspector General, Police
(Crime), to inquire about the incident. The writ petitioner seeks a direction for
investigation by the Central Bureau of Investigation into the alleged abduction and fake
encounter of the brother of the writ petitioner Sohrabuddin by the Gujarat Police
Authorities. The writ petitioner further seeks a writ of habeas corpus to produce Kausarbi,
the sister-in-law of the writ petitioner.
Later due to pressure from the State Government, Ms. Johri was replaced by Mr.
Rajneesh Rai, Deputy Inspector General, as the Investigating Officer in respect of the
fake encounter relating to the incident of Sohrabuddin's case and disappearance of
Kausarbi. The Writ Petitioner had, on an earlier occasion, filed a petition under Article 32
of the Constitution of India, praying for a direction to the Gujarat police to produce
Kausarbi and for a fair and impartial investigation in both the episodes by the CBI so that
the matter goes beyond the influence of the local police.
According to Mr. Gopal Subramaniam, Attorney General for India, it would be difficult
for the Investigating Agency of the State of Gujarat to make proper and thorough enquiry
29

MANU/SC/0024/2010, decided on 12-01-2010.

27

and therefore, it was a fit case for handing over the investigation to CBI from the State of
Gujarat. Mr. Ahmadi, learned Counsel appearing on behalf of the writ petitioner also
submitted that this Court should direct the CBI to take over the investigation at the same
time permitting Ms. Johri and Mr. Rajneesh Rai to make the investigation jointly and
submit a report to this Court.
Investigation was conducted and it was found that the body of Kausarbi was cremated on
29th of November, 2005 in Illol village. The motives for killings was attributed as
"name, fame and promotion", in case of Sohrabuddin's death and "destruction of
evidence", in Kausarbi's case. Ms. Johri also stated that the investigation had been
carried on in a fair and impartial manner under her direct supervision.
After eight Action Taken Reports were submitted, the writ petition came up for final
hearing for the purpose of deciding whether in the facts and circumstances of the present
case, it would be just and proper to transfer the case to the CBI Authorities for the
purpose of investigation into the allegations made on behalf of the writ petitioner. After
hearing the learned senior counsel and after going through the eight Action Taken Reports
and other materials on record, two questions were articulated by the learned Counsel for
the parties - one is whether after the charge sheet was submitted by the police and the trial
was going on, under that circumstances whether the investigation can be transferred to
the CBI Authorities. Secondly, it was argued that in respect of the fact that eight Action
Taken Reports were submitted but from the said reports, it would be clear that the Police
Authorities of the State of Gujarat were not taking proper action in the matter although
some of their high police officials were taken to custody.
Accordingly, the learned senior counsel appearing for the writ petitioner submitted that
even if the charge sheet was submitted it was still open to the court to direct investigation
to be made by the CBI Authorities and accordingly in view of the above position in law,
this Court, considering the facts and circumstances of the present case, should direct the
CBI Authorities to investigate the offences alleged to have been committed by some of
the police authorities of the State of Gujarat and submit a report if this Court is of the
view that the State Police Authorities who had already filed eight Action Taken Reports

28

had not done such investigation in the proper direction nor had they investigated in a fair
and proper manner.
The learned senior counsel for the State of Gujarat contended that it was not open for the
Court under Article 32 of the Constitution to direct the CBI Authorities or any other
independent agency to investigate into the matter when the police authorities are
proceeding with the trial and charge sheet has already been submitted.
The Honble Supreme Court after having heard the learned senior counsel appearing for
the parties and after going through the eight Action Taken Reports submitted by the State
Police Authorities, who are themselves involved in such crime, came to the conclusion
that they are unable to accept that the investigation at this stage cannot be handed over to
the CBI Authorities or any other independent agency.
This decision clearly helps the writ petitioner for handing over the investigation to the
CBI Authorities or any other independent agency. It is an admitted position in the present
case that the accusations are directed against the local police personnel in which High
Police officials of the State of Gujarat have been made the accused. Therefore, it would
be proper for the writ petitioner or even the public to come forward to say that if the
investigation carried out by the police personnel of the State of Gujarat is done, the writ
petitioner and their family members would be highly prejudiced and the investigation
would also not come to an end with proper finding. Hence, it would be proper and
interest of justice would be better served if the investigation is directed to be carried out
by the CBI Authorities, in that case CBI authorities would be an appropriate authority to
investigate the case. It cannot be said that after the charge sheet is submitted, the court is
not empowered, in an appropriate case, to hand over the investigation to an independent
agency like CBI.
Hence the Court held that the CBI authorities shall investigate all aspects of the case
relating to the killing of Sohrabuddin and his wife Kausarbi including the alleged
possibility of a larger conspiracy.

29

CONCLUSION
Across the globe, democratic governments articulate and guarantee general, fundamental
rights of citizens in relation to the police, but in some places, the legal and institutional
structures to enforce those rights are incomplete. In some places, remedies for abuse of
police power can be weak or inconsistently enforced.
The development of strong, effective civilian oversight represents an effort to strengthen
those remedies and provide more consistent enforcement of basic rights. But the
construction of these oversight mechanisms raises a wide range of issues of practice and
principle. Some of the practical questions have been raised, but deeper issues of principle
underlie many of the discussions about these practical issues need to be dealt with
effectively so as to come to a solid conclusion.
It is in the light of all the arguments we can find that to strengthen the expertise,
resources, and independence of civilian oversight of police, democratic governments are
increasingly creating specialized, permanent structures to undertake this work. These
include the police ombudsmen appointed in several states of Brazil as well as in Northern
Ireland, the civilian complaint review boards, monitors, and inspectors general
established in many cities in the United States, and the Independent Complaints
Directorate established as part of the South African constitution.
Therefore we can say that Just and fair trial is very important ingredient of judicial
system and the same have been recognized by our constitutional framers. Therefore we
can trace the seed of fair trial in the various provisions in the constitution like art 20 and
22. The same have been recognized by the Supreme Court as well as different high courts
as the essential ingredient for the establishment of full flagged dynamic legal system
which can effectively face the challenges of the modern times.
Though the prevailing system consists a very wide area and tries to cover all the sphere
but with the changing time the need has been felt to amend the present system so that it
becomes more dynamic and could able to withstand the pressure put on this system due
to changing situation. It is in the light of this aspect that Mallimath Committee has been
set up which gives up its recommendation in order to reform the justice system of the
country.

30

BIBLIOGRAPHY
WEB SITES VISITED

http://www.westlaw.com
http://manupatra.com
http://www.unhchr.ch/html/menu2/i2adjrft.htm
http://www.unhchr.ch/pdf/CHAPTER_6.pdf
http://www en.wikipedia.org/wiki/Right_to_a_fair_trial
http://www.chomsky.info/articles/20040125.htm
http://www.abc.net.au/news/newsitems/200702/s1843508.htm
http://www.legislationline.org/?tid=105
Books:

1. Fields Commentary on Law of Criminal Procedure (Revised by Gopal Chaturvedi, Delhi


Law House, Delhi, 12th edition, 2001).
2. Justice Y.V. Chandrachud & V. R. Manohar, Ratanlal &Dhirajlal The Code of Criminal
Procedure (Wadhwa & Co., Nagpur, 17th edition., 2009).
3. P.M. Bakshi and S.C. Sarkar, The Law of Criminal Procedure, (India Law House, New Delhi,
8th edition, 2004).
4. R.V.Kelkar, Lectures on Criminal Procedure (Eastern Book Co., Lucknow, 2004)

31