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Time Ripe For Using Press Reports/Photos/Videos As Evidence In Communal Riot Cases: Delhi HC Suggests Reforms [Read Judgment]

Apoorva Mandhani
28 Nov 2018 12:16 PM GMT
Time Ripe For Using Press Reports/Photos/Videos As Evidence In Communal Riot Cases: Delhi HC Suggests Reforms [Read Judgment]
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The Delhi High Court, on Wednesday, upheld the jail terms of more than 80 people for their involvement in the 1984 anti-Sikh riots.

While handing down the verdict, Justice RK Gauba lamented the delay witnessed in the case, noting that 34 years have passed since the incident, and 22 years have elapsed since the trial court verdict.

“Is this what we call a potent and effective criminal justice system? Is our judicial apparatus at all equipped to deal with the crimes of such magnitude? Do we have lessons to be learnt from this sordid experiment in the name of criminal law process? It is indeed a matter of lament that there has been no meaningful thought spared till date to usher in reforms in the judicial process to effectively deal with the cases of communal riots which are engineered, more often than not, by those who have clout or influence– of various kind,” the court observed.

It, in fact, asserted that the manner in which the case was handled at the stage of committal proceedings before the Magistrate, was designed to ensure that the case would not proceed with the promptitude it deserved. It, therefore, added that this case should serve as a lesson in how the criminal justice process should never take course, asserting,

“The law and order machinery had broken down. The police forces, and the civil administration did not take timely or effective action to prevent the riotous conditions from spiralling out of hand. The criminal law process began, but hesitatingly and belatedly. The fact that these cases have continued to linger in the courts at the stage of trial or appeals or revisions till date itself is an indicator of the reality that the response of the law has been tardy, ineffective and highly unsatisfactory.

“…The manner of prosecution of the case at hand would undoubtedly go-down in judicial history of this country as an example of criminal law process that must never be emulated. From this perspective, and in the expectation that those at the helm draw lessons from here, one hopes that this case is never forgotten.”

The court further noted that the sheer number of accused in the case made it difficult for all authorities involved to conduct the proceedings. For instance, it pointed out that neither were police stations equipped for so many accused, nor were court resources adequate to deal with them during hearings.

It then acknowledged the fact that general criminal law has proven ill-equipped for “dealing with the challenge of such crimes of mammoth proportion, particularly when they invariably are perceived to be engineered by those holding control over certain power centers.”

The court therefore suggested enacted of a special law for dealing with cases involving communal riots, observing, “The court hopes and trusts that the legislature will consider enactment of a special law to deal with such crimes effectively at an early date. The court also hopes and trusts that as and when such special legislation is put in position, it would include provisions to arm the investigating and prosecution agencies, as indeed the criminal courts, with requisite powers, laying down special procedure and rules of evidence for fair, timely and effective dispensation of justice.”

Additionally, it recommended the following reforms in the criminal law system to deal with such cases:

Amendments to Commissions of Inquiry Act

  • Suitable amendments (with necessary subordinate legislation) to the Commissions of Inquiry Act, 1952 and the Protection of Human Rights Act, 1993 may be considered to entrust the responsibility of taking note of the cognizable offences committed in communal riots and for investigation in accordance with law thereinto may be through SITs specially constituted under their respective control with further responsibility to oversee the prosecution in the wake of such investigation through Special Public Prosecutor(s) (SPP) to be engaged by them.

  • Though the Commissions referred to above would have their own investigative machinery to carry out the necessary probe in an effective manner, they might need to avail of the assistance of Legal Service Authority (LSA) for reaching out to the victims (or witnesses), and for instilling a sense of trust and confidence, coupled with such witness-protection measures as may be deemed proper for the given situation, and also of the judicial magistracy for mandatory recording of statements of such victims, or witnesses, under Section 164 Cr.P.C. at the earliest inasmuch as provisions for this would make the effort more comprehensive and effective.

  • The neutral agency of the Commissions, entrusted with the added responsibility of taking such case(s) to prosecution would ensure that no charge-sheet is brought to the criminal court for taking of cognizance, or trial, unless it has been properly vetted dispassionately by those well-trained in criminal law such that it is free from any defect, inadvertent or otherwise.

Special courts

  • The law on the subject of communal riots cannot be a complete answer to the challenge unless it also establishes special courts with suitable amendments to the general criminal law procedure as indeed the rules of evidence.

Utilisation of Media videos and photographs as evidence

  • Given the technological advancements that have been made and the rise of media – print and electronic – as an effective fourth pillar of the democracy, there is a strong case for utilizing as evidence the press reports, supported by photographic material or video footages put in public domain in trials of criminal cases arising out of communal riots. Such material or video coverage are generally seen to be depicting the specific role of various individuals who form part of the riotous assembly as indeed those leading or provoking such mobs. Time has come for availing of the same, may be in corroboration of oral evidence, in criminal trial process. For this, the law must mandatorily require media persons or houses to share the product of their efforts with the investigating agency in all cases of communal riots, it being also their bounden duty thereafter to prove such material at the trial.

Change in procedural rules for communal cases

  • As has been highlighted in this judgment, frequent absences from the court hearings on the part of accused persons has been one of the major causes for delay in the judicial process. There is no reason why general law of criminal trial being held in the presence of the accused be permitted to be abused. For purposes of trial, particularly at the stage of recording of evidence, in cases under Prevention of Corruption Act, 1988, there is an exception carved out by Section 22(c) which permits such witnesses as are in attendance to be examined even if the accused is absent subject, of course, to his right to seek recall for cross-examination once he re-appears. Similar rule of procedure in cases of trial in communal cases involving large number of accused would have a salutary effect.

Read the Judgment Here

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