In every developed country, crime investigation department is a separate wing. In the United States of America, the Federal Bureau of investigation is an independent organization for investigation of serious crimes and it has come into existence much earlier. The Bureau of investigation was created on July 26, 1908, to work for a new investigative agency. In 1932, it was renamed as the United States Bureau of Investigation and then as the Division of Investigation. It became an independent service within the Department of Justice in 1935 and in the same year, its name was officially changed from the Division of investigation to the present-day Federal Bureau of Investigation. In London also separate division for investigation started functioning much earlier. The London Metropolitan Police detective branch was set up in 1842. The Criminal Investigation Department in its present form dates back to 1877 and is almost a separate establishment from the rest of the police set up. Same is the position in most of other modern countries as well.
The Law Commission in its 154th report says:
“There should be a separate and exclusive cadre of investigating agency to investigate grave offences in every district subject to supervision by the higher authorities. When a case is taken up for investigation by an officer of such agency, he should be in charge of the case throughout till the conclusion of the trial. He should be in charge of the case throughout till the conclusion of the trial. He should take the responsibility for production of witnesses, production of accused and for assisting the prosecuting agency. The police official entrusted with the investigation of grave offences should be separate and distinct from those entrusted with the enforcement of law and order and other miscellaneous duties. Separate investigating agency directly under the supervision of a designated superintendent of Police be constituted. The hierarchy of the officers in such agency should have adequate training and incentives for furthering effective investigations. The respective Law and Home departments of various State Governments may work out details for structuring and betterment of their conditions of service”.
In India, Police establishment as an organization was set up as per provisions of the Police Act, 1861. Separation of investigating wing from the law and order wing in the Kerala State Police is not a new demand. When Police Act, 2011 was enacted, Section 23 was added in the following form:
“23. Separation of investigation from law and order:- (1) The Government may, having regard to the population of an area or the circumstances prevailing in an area, by order, separate the investigating police from the law and order Police in such area as may be specified in the order to ensure speedy, effective and professional investigation”.
But the system is not changed and the said provision still remains in the statute book only.
It may be a peculiarity of Kerala that whenever a serious crime is committed, there will be an uproar for CBI investigation, if not in hours, certainly, within days. Why is it so happening ? Is it due to the lack of efficient investigation in our police service ? The immediate reason, in my view is our inability to engage intelligent and efficient police investigators on time. While deciding S.C. No. 151 of 1997 of the Sessions court, Thalassery, I had to observe about an officer of the crime Branch who completed investigation and submitted final report as under:
“... There is reason to think that PW 17 committed offences punishable under sections 201 and 204 IPC. The investigation is not the concession of the police officer. It is the public duty cast on him by law and he is bound to do that in the proper manner. I may say, PW 17 had scant respect for the rule of law, administration of justice or even the justice delivery system...”
I also said,
“The Government should certainly consider setting up Special Investigation Team attached to each police station or at least, police circle and comprising officers of proven integrity, efficiency and aptitude for criminal investigation. Such S.I.T. should consist of sufficient number of C.I.s and officers below that rank and could be headed by the Dy.SP/Asst. Commissioner as the case may be, at sub divisional levels. These units must be under the direct control of the concerned superintendents of Police, with an effective supervisions and monitory system. The S.I.T. must also be made accountable for their commissions and omissions. Now the situation is that once a case is entrusted to the particular officer, it is his fieldom, he can do anything as he wished, there is no proper monitoring or Supervision of his work and what may happen to the case, be it on account of his own commissions and omissions, wilful or otherwise, he is not answerable to anybody. Even when the Government directed a case to be investigated by an outside agency like the CBI, it is after the local police or Crime Branch investigated that case for sufficient length of time and by commissions and omissions made loop holes in the case that it is handed over to such agency for further investigation. We have umpteen examples of such cases in this state itself and the CBI, not being able to prove the case. If S.I.T. as suggested above is constituted for each police station circle, the moment cases for grave crimes including murder are registered, such SIT can straight away start the investigation. One excuse, justifiable or lame, that many of the investigating officers say for the sorry state of affairs is that they had no time to investigate the case as they were involved in law and order maintenance duty. To avoid that, it is necessary that S.I.T. must be delinked from the law and order maintenance wing of the police. There must be also some guidelines for the transfer and posting of officers constituting the S.I.T. such as, except for compelling reasons, they shall not be transferred in the course of investigation of a case. This, I say because, in this court itself, a senior police officer stated on oath before me in another case involving murder that the day he arrested few of the accused and recovered the blood stained weapons (in November, 1998) he was transferred on wireless message. Certainly, that was not in appreciation of the work done by that officer. If the Government failed in its responsibility to bring the culprits to light, private retribution will set in and that will be disastrous to the society”.
I may recall my experience as judicial commission enquiring into the Marad Massacre. Marad Massacre had caused a public uproar against the apathetic approach of the investigating agency and mushrooming of a new breed of religious fundamentalism in the Kerala State. I submitted the report in February, 2006. In the report, I have made certain suggestions. One of the suggestions was:
“A state bureau of Investigation at the state level and crime Investigation Units under it at the district level separated from the law and order maintenance wing must be established. Persons having skill, intelligence and aptitude for intelligence collection, crime detection and investigation should be posted in that bureau and Units strictly on merit basis, after conducting aptitude test, personality and intelligence test. Cases involving major crimes should be investigated by the State Bureau of Investigation and the Units under it.”
I had to express my anguish in the matter as a judge of the High Court Kerala. In Joseph Kuncheria Marattukulam v. State of Kerala and Ors. I observed:
“I am coming across a large number of petitions where, for some reason or the other, correct or not, parties are approached this court requesting to transfer investigation from the State Police to the CBI. Is it because people of this state have no confidence in investigation of their cases by the State Police, or is there anything defective in the investigation by the State Police ?”
We have enough skilful and sharp investigators in our police force. But, often they are looking into other duties like security of VVIPs or law and order problems. Police Officers of proven quality, integrity and skill are not available for investigation even in very serious and sensitive crimes.
Can we afford to such a situation for long ?
In the national level we have specialized investigation agencies viz., Central Bureau of Investigation and National Investigation Agency. Can they be the Substitutes for the state investigation agency ? No. We know the limitations of such agencies. The CBI does not take up investigation of conventional crimes like murder, theft, robbery etc. Unless directed by the Supreme Court or the High Courts or referred by the State Governments. The CBI’s power to investigate cases is derived from the Delhi Special Police Establishment act. The CBI can investigate the offences notified that Act in the Union Territories and with the consent of state Governments, in the States. Since the CBI is a small force, it is not expedient for the CBI to investigate conventional crimes in the routine. NIA, in contrast can investigate only the scheduled offences which do not include the traditional crimes.
There is another aspect of concern. Often investigation of cases is taken over by the CBI after the local police and the crime branch investigated the case at sufficient length. Much time must have lapsed before the CBI could initiate investigation. Any delay in the conduct of investigation of a crime, inevitably, has the effect of destruction or disappearance of evidence. Such intervening period helps the culprits to efface evidence. There are umpteen number of examples before us.
It is worthwhile to note the view taken by the Apex Court and the High Court of Kerala in the context of such delay and defective investigation. It was in Didhrtha Vashist alias Manu Sharma v. State (Delhi) CD statements of 3 eye witnesses were not recorded on time. The investigating officer offered explanation that two murder cases occurred in the meantime leading to a lot of commotion and communal violence and the delay was beyond his control. What the Supreme Court held is that the testimony of the said witnesses should be thrown out on account of the delay.
Prakash Singh, a retired police officer, petitioned the Supreme Court under Article 32 urging for the issue of directions to the government of India to frame a new Police Act on the lines of the model Act drafted by the Law Commission in order to ensure that the police is made accountable essentially and primarily to the law of the land and the people. The petitioner attributed abuse of power and inefficient functioning of the police to archaic structure and organization outlined in the Police Act, 1861. Considering the gravity of the problem and total uncertainty as to when police reforms would be introduced, the Supreme Court observed that it could not further wait for the Governments to take suitable steps for police reforms.
Justice K.T.Thomas committee constituted by the Supreme Court in pursuance of the directions in Prakash Singh v. Union of India filed its final report. Regarding the directions to separate investigation from law and order the report said,
“provision has, albeit, been made in the executive orders, in most of the states, but those remain only in paper so far. No concrete seems to have been taken to implement the directive on the ground level. Indeed, such separation would involve some augmentation of police man power and this has been projected as a’ difficulty’ by some state Governments. Some others have, on the other hand, taken steps to sanction additional manpower and promised that the separation would be effectively implemented once the new manpower is in place after recruitment and training”.
In the said celebrated case, Prakash Singh & Ors. V. Union of India and Ors. The Supreme Court observed in paragraph 12,
“The Commitment, devotion and accountability of the police has to be only to the rule of law. The Supervision and control has to be such that it ensures that the police serves the people without any regard, whatsoever, to the status and position of any person while investigating a crime or taking preventive measures. Its approach has to be service oriented, its role has to be defined so that in appropriate cases, where on account of acts of omission and commission of police, the rule of law becomes a causality, the guilty police officers are brought to book and appropriate action is taken without any delay.
The Quality of Criminal Justice system in the country, to a large extent, depends upon the working of the police force..”
The Supreme Court directed, as regards separation of investigation as under:
“The Investigating police shall be separated from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people. It must, however, be ensured that there is full co-ordination between the two wings. The separation, to start with, may be effected in towns / urban areas which have a population of ten lakhs or more, and gradually extended to smaller towns/urban areas also”.
The Supreme Court directed setting up of a state security commission, Police Establishment Board, Police Complaint Authority, National Security Commission and issued guidelines for the selection and tenure for the DGP, IG of police and other officers.
Absence of Specialized investigation agency has been felt while hearing so many cases. Even in serious crimes like murder, I saw several lapses on the part of the investigating agency. Most often ignorance and many times bias resulted in distorted way of investigation.
On coming across such a situation in Joseph Kuncheria Marattukulam v. State of Kerala and Others which was referred to above I observed:
“Investigation should not only be fair but also seen to be fair. It is the duty of the State to provide fair investigation. The Citizen has the fundamental right for fair and proper investigation. If the state fails in that duty, it will have an adverse bearing on the administration of Criminal Justice and that ultimately may lead to private retribution which no civilized society can afford to bear. If the present investigation system is not able to rise to the expectations of the people and conduct investigation in a fair and proper manner bringing the culprits to book, it is high time that the State Government thought of making necessary amends.”
Emphasising the need to have effective investigation, the Supreme Court held in Rubabbuddin Sheikh v. State of Gujarat & Ors , it is necessary to ensure that investigation should not only be fair but should also be seen to be fair in order to instil confidence in the mind of victims of crime and the general public. I may quote the most relevant words of Lord Denning as observed in Miller v. Ministry of Pensions (1947  All ER 372):
“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of Justice”.
The same is the state of affairs everywhere. The Director General of Prosecution of the State reported before the division bench of the Kerala High Court which has been monitoring implementation of the directions regarding strengthening of the investigation agency in the State that dearth of adequate police personnel as the difficulty for bifurcation. Financial burden of the state Government was said the main reason for enhancing the strength of the Police personnel.
I want to emphasis one more thing in this regard. There are so many instances where the police officers are transferred on wireless message immediately on their arresting the accused or recovering the material objects. Certainly, this was not in appreciation of the work. We must remind ourselves that if the state mechanism fails in its responsibility to bring the culprits before law, people will resort to private retribution, which will be disastrous to the society.
I may stop suggesting the following:
Investigation and law and order wings should be separated. It is the need of the hour. The government should set up special investigation team attached to every police station, if not possible in every police circle. Such special investigating agency should consist of sufficient number of police personnel. Each special investigation unit must be under the direct supervision of Supt/Commissioner of police. The Special investigation unit must be made accountable for their actions. There must also be some guidelines for the transfer and posting of officers constituting the investigating units. Except for compelling reasons such officers shall not be transferred in the course of investigation of a case. What happened to the case, be it on account of his own acts or omissions, wilful or otherwise, he should be answerable.
Members of such investigating agency must be given sufficient training and equipped in the modern scientific methods. They must be made available modern weapons and equipments to combat any kind of situations and emergencies.
Financial problems cannot be a reason or excuse for the strengthening of the investigating agency since this is an issue having direct bearing on the life of the citizen.
Justice Thomas P Joseph is a Judge in High Court of Kerala.This is the text of his Puthoor Gopalakrishnan Memorial Lecture 2013