Magistrates Remand Accused Mechanically In Most Cases : Ex-CJI UU Lalit

Chief Justice of Bombay High Court Dipankar Datta and former Justice Sujata Manohar also attended the event in which Justice (Retd.) Lalit released the book "Judiciary - Its Independence and Integrity: Justice K.T. Desai Round Table – 2021".

Justice Lalit batted for a completely independent investigating agency. "We must have a very very strong investigating arm of the agency. And not just strong arm, must be completely independent, must be completely professional, must be completely adept to scientific methodology, must be completely well versed in methods of investigation", he said in his lecture.

Justice UU Lalit's stated that about 80% of the prisoners are under trial. Normally, about 50 percent of these people are likely to be acquitted; yet they are languishing in jail, he said.

Talking about the increase in criminal matters before the Supreme Court, he said that such matters used to comprise only 10-15% of the cases but have now increased to about 40%.

He noted that in Prakash Singh case, a three-judge bench headed by a former CJI suggested a complete division between the forces which handle the normal law and order situations and the branch which is in-charge of investigation so the branch in-charge of investigation is not burdened with any other work. However, nothing has happened in that behalf, he said.

Justice UU Lalit shared that in his experience, those in-charge of investigations completely lack expertise to investigate various white-collar crimes and cases that have various shades of scientific facets.

"Unfortunately, on that score, most of the investigations do not even present whatever facts or areas which may have come to the attention of the investigators before the court", he said.

Regarding the scientific aspect of investigation, he recalled a PIL he dealt with which sought at least one forensic laboratory for three districts. Nothing materialised despite passing directions, he said.

Regarding collection of scientific evidence, J. UU Lalit highlighted that often, the rape victim is not even taken to hospital where she can be checked. The truth never comes before the court and it has to rely on the oral testimony of the victim or witnesses.

"This is why every time we keep moving around in circles in arrests. Joginder Singh said Justice speaking for the bench that arrest must not be taken resort to as a matter of course. And yet we have arrests which are being effected regularly and as a matter of course without anyone bothering about whether the arrest in that case was required or not", he said adding that most criminal matters are nothing but commercial disputes in the guise of criminal matters.

Most of the matters under s. 420, 467, 468, 471of the IPC are civil litigations being projected as criminal matters, he said. Most bail matters are for these offences, yet arrests are immediately taken recourse of.

He said that charge sheet after charge gets filed involving a provision despite various judgements holding a provision as unconstitutional. "What does that show? Either there is complete lack knowledge on the part of the investigating machinery, or there is complete lack of sensitivity".

He citing a case where the cause of death was suppressed by the investigating machinery and the husband was arrested for culpable homicide not amounting to murder. "We must have a force which is professional in its approach; very very adequate when it comes to training, more than adequate, rather, and the zeal to arrive at the truth rather than suppress something and present it before the court", he added.

He cited the example of USA where investigators have button cameras which record everything the moment they arrest someone. "We must also have the scientific methodology and material to back the investigating machinery and the team", he suggested adding "it is only then that the truth will be before the court otherwise the court will only have what the prosecution provides".

Regarding the prosecution, he lamented that a prosecutor's role comes into play only once the charge sheet is filed, except for maybe the CBI in India.

"What happens then is that the prosecutor is left handling a baby which perhaps has not been properly nurtured by the investigation agency. His role as an advisory or monitory role is never given a full play at the stage of investigation. There could be areas where the prosecutor could advise the investigating agency…..That monitoring issue or the facility of that is completely denied in the entire investigation."

The prosecutor is supposed to acting on behalf of the entire sovereign to lay down the truth. However, often, an accused is not allowed to present material which may help him/her, he said.

Justice UU Lalit shared a recent case in which the issue was whether the investigating agency should share with the accused material which it had come across during the course of investigation which could potentially help the accused. Unfortunately, in India it is not considered a mandate that such material must be shared, he said.

He noted that most of the investigators file charge sheet without full investigation and say that the investigation is underway just to deny bail to accused. He said that he has never seen any magistrate question this.

He said that in death penalty cases, per judgment in Bachan Singh v. State of Punjab, the prosecution has the burden to present all the mitigating circumstances. "I haven't seen a single judgment where the trial court has called upon the prosecutor that what are your views on mitigating circumstances…. whether there is any psychological evaluation of the accused." As a result, the Supreme Court has to deal with all these issues, he said.

While a plea of juvenility can be raised at any stage, extra vigilance at the initial stage itself will take care of these issues, he opined.

He concluded with an analogy between criminals and rats as well as investigating agency as a cat. "After 10 years of rat race, if finally, that cat finds that what it was pursuing was a rabbit, it is not good for the society. It doesn't reflect well on the society. If 56 (out of 100) persons who are presently in prison are finally going to get acquitted; we keep them behind bars, is again not subserving societal good", he stated.