BY ADV. CLEOFATO ALMEIDA COUTINHO

With the police failing to gather plausible evidence and prosecutors failing to fight cases in earnest, it is perhaps time that the justice system is revamped.

GOA, WHICH shot into prominence as a seaside holiday destination, is slowly turning into a place which is famous for dance, drugs and crime. The paradox is that, with the advancement and progress in the tiny state, conflicts and tensions have increased in direct proportion. It is the job of the state to deal with these conflicts and tensions and, in case of crimes, to bring the offenders to book.

With every passing day, the local newspapers are flooded with news of rape and murder and, on the other side, criminals courts have been acquitting the offenders accused of crime. In most cases, the courts seem to hold that police have botched up the investigation in a manner that suggests design. Take any high profile case, like the alleged terrorist Bhatlo case, the Scarlette Keeling case, the case involving the attack on the church at Vasco or the murder of the priest at Macazana. All the cases and many others have ended up in acquittals and, in each of these cases, the police and the prosecution have bungled up the investigation leading to them getting egg/s on their face.

JURISPRUDENCE

WE, in our country, have accepted some of the finest principles of criminal jurisprudence like ‘the person accused of offence is innocent until there is proof of guilt beyond doubt’ and that ‘it is okay to err in favour of the offender in case of a doubt in the mind of the court’. Besides, the rights of various offenders are protected in many ways. Failure of the police and the prosecutors to prove the guilt of offenders in the court of law, however, has led to the collapse of the criminal prosecution system. The extent of failure is such that there is total cynicism in the mind of the general public. There was a time when the principle of ‘bail not jail’ was taken as a great principle at the investigation stage where the offender was required to be in custody only in rare cases, but that principle has taken a huge beating and the common man is looking to ‘punishing’ the alleged offenders through denial of bail, considering that the cases, in any case, end in acquittal. The case of John Fernandes involving the alleged rape of a Russian lady is a good example.

For a long time now, the police have been the centre of the criminal justice administration. The police is entrusted with the duty of ‘law and order’ and the law has also entrusted the job of investigation i.e. ‘finding out the truth’ to the police. There can be no two opinions that the police have failed in their responsibility as ‘finders of the truth’. Investigations or finding out the truth is certainly a skilled function and why that function was entrusted to an ‘officer in charge of a police station’ is not known. Prior to liberation in the state of Goa, the system of investigation was superintended by a ‘Delagado’ who was not functioning under the police, but was an independent investigator.

That the police have been messing up investigations by sheer incompetence or by design is well known, but the other wing of bringing home the truth, i.e. the prosecution, has also failed miserably. The criminal procedure code does not provide for minimum skill for the police, but prosecutors are certainly trained in law. With prosecutors not under police and police not under prosecution wing, the blame game goes on unabated.

PROSECUTION

With the continuous failure of police and prosecutors to bring home the guilty to book, society feels cheated by the system of prosecution led by the police and backed by prosecutors. Certain new tendencies seem to be now developing. For a long time now, it was expected that the prosecution would be fair, but they needlessly tolerated the defence adopting tactics that cannot be called fair — like buying witnesses, ‘threatening witnesses’, etc. These methods have long been considered to be the prerogative of the defence, however, as society cries for justice these tactics are increasingly adopted by certain prosecutors and the police themselves! It is said that the prosecutor who claims almost hundred percent success in Mumbai would not be in a position to achieve the same without resorting to such methods, a totally dangerous tendency since life and liberty of citizens cannot be put in peril through doctored witnesses. Resorting to tutored witnesses through bribing, threatening and other means shall only do extensive damage to the system that has been nurtured over a long period. The civilised criminal jurisprudence cannot be permitted to be sacrificed at the altar of expediency.

But then the dismal conviction rate and the citizens cry for justice has led the law makers to take a new look through something called ‘Malimath Committee’ proposals for reforms in criminal justice system which attempts to dramatically increase the power of judges and the police by changing certain principles of criminal jurisprudence. We have already seen how controversial laws like the Prevention Of Terrorism Act (POTA) and the Maharashtra Control Of Organised Crimes (MCOCA) have altered the general criminal justice system and played havoc with innocent citizens and were used against certain communities.

Hard cases always lead to bad law. The criminal prosecution system has become a hard law. The police, who were entrusted with the responsibility of truth-finding, have failed in that respect. As stated earlier, either due to incompetence or by design, reading some of the judgements passed by criminal courts, it is clear that there has been failure even in proving the minimum. The police could not even prove that Scarlette lived in the premises rented out to Julio Lobo. It could not be proved that Bhatlo was arrested at the Margao railway station or that the offenders in the church attack case had anything to do with the organisation they were accused of belonging to. The police have always blamed the courts for acquittals. The courts have laid the blame at the door of the police or the prosecutors but finally, for society, it is the failure of the justice system.

UNFAIR FALLOUT

AN extremely dangerous situation led by the citizen’s cry for justice is leading to unfair prosecutions and clamour by the police to make statements by the offender admissible in court and lowering proof beyond doubt to proof that is true i.e. doing away with the great principle of erring in favour of the offender when in doubt. Instead of addressing the issue of overhauling investigation by the incompetent police and shoddy prosecution, citizens’ cry for justice may cause major damage to our criminal administrative system.

There is no doubt that offenders have come to occupy important and sensitive positions in public life and crimes going unchecked shall only lead to anarchy. We have seen some high profile cases involving the high and the mighty collapse like a pack of cards. The famous cases involving the son of the Education Minister and the attack on Aires Rodrigues are now not heard of. The cases filed by the then BJP government against Somnath Zuwarkar and Mauvin Godinho stand withdrawn. The cases filed against various steel rolling factories for power theft have also met a natural death.

But if fairness in law and law itself has to prevail, the truth must come out and the quest for truth ought to be by a credible system. Civilised societies cannot increase conviction rate at the cost of truth brought out by fair procedure. In case society’s thirst for justice is met by methods which could be dubbed as not fair or uncivilised, we run the risk of having POTA convictions which do not inspire confidence of society and the remedy shall be worse than the disease.

The police ought to be divested of the job of finding of truth, which is certainly a skilled function and this job must be entrusted to investigators with skill (not the police) as it has been proved that they are incapable of their function. The investigators must be supervised by prosecutors, who will have to be in constant communication with the investigator in proving the facts before the court. Investigation and prosecution must not be separated and, in that case, the blame game shall also end.