Miscarriage of Justice
Akhter Rasool Dar
Jammu and Kashmir has been from past facing the wrath of Almighty Allah from all quarters – political, social and financial. The incidence of heinous crimes in the State has reached all time high. From acid attacks, bride burning to unnatural offences (Sodomy), the State has become victim of heinous criminality. The criminal deviance has eclipsed the morality and individual conscience. A religious leader (Imam) from Pulwama was charged by the Police for unnatural offence (Sodomy). Added to this apathy is our defective and defunct Police investigatory machinery.
Jammu and Kashmir is among the list of six Indian states where the criminal conviction rate hovers merely at around 10 per cent. Because of defunct investigation, deviants like Mushtaq Peer, Gulzar Peer, and now, Imam Sahab, will enjoy the benefits of acquittal.
The conviction and acquittal affects the State’s exchequer. Government invests handsome amount of its recourses on the investigation processes in the State for the sole purpose of prevention and incidence of crime. If the State’s Investigatory machinery fails to secure a bare minimum of convictions, after spending a lot of money and resources from the State’s exchequer, miserably enough, such expenditure goes as waste.
Is this not a crime to waste public money without any useful purpose being served? The current investigatory system promotes miscarriage of justice rather carriage of injustice.
One of the cardinal objectives of any criminal justice system is to protect society from crimes by bringing offenders to justice and preventing offences by virtue of the sanction of the criminal law. In absence of knowledge of clear cut provisions of law and inaction from the members of investigating machinery, it cannot be argued that the current criminal justice system in Jammu and Kashmir offers good number of criminal convictions even in appropriate cases. Arguably, more than 90 per cent of the criminal cases end up with acquittals. The conviction rate is almost less than even to 10 per cent.
Every acquittal means that the objective of the criminal justice system is defeated and to that extent, the system is found to be responsible for promoting and propagating miscarriage of justice in society.
The Jammu and Kashmir Code of Criminal Procedure, Samvat, 1989 (1933 A.D) empowers the State Police to undertake the investigative processes. An officer-in-charge of a police station is empowered by section 156 of the Code to investigate any cognizable offence which occurs within the limits of his jurisdiction. An “investigation” means search for material and facts in order to find out whether or not an offence has been committed. The detailed and step by step procedure governing investigation has been laid down by the Jammu and Kashmir Police Rules, 1960, consisting of more than 850 rules. Thus, for the clear understanding of the law relating to “Police Investigation”, the Jammu and Kashmir Code of Criminal Procedure, Samvat, 1989 is to be read with the Jammu and Kashmir Police Rules, 1960.
The defunct investigatory machinery prevailing in the State makes it highly impossible for the prosecution branch to command expected number of convictions from appropriate criminal cases. From the above analysis, it is worthwhile to note that the inaction on the part of investigating staff and ignorance of relevant rules form the prime factors responsible for the failure to command criminal convictions. Besides above mentioned prime factors, following are the other factors responsible for the acquittals in appropriate criminal cases:
- Delay in registering the FIR
- Delay in inspecting the scene of crime
- Defective and unprofessional inspection
- Delay in sending preliminary reports to appropriate authorities
- Haste and Ill-compiled preliminary reports
- Heavy work of police officials
In Jammu and Kashmir, the legal framework dealing with the criminal investigation is comprehensively enough, for the purpose of speedy, effective and professional investigation. What is lacking is not the legislative sanctions rather the official activism. Ignorance of law (legal illiteracy) on the part of investigating staff affects the quality of investigation.
A constable who has been promoted to the post of Sub-Inspector cannot be expected to know the whole legal spectrum regulating the investigation. The need is to incorporate the long pending recommendation of segregation between investigation and law and order. Section 87 of the draft Jammu and Kashmir Police Bill, 2013 attempts to incorporate that change within the system but unfortunately, the Bill has been pending post its publication.
Till the time the Bill becomes an act, the need is to incorporate certain requirement-based measures. The researcher suggests for the creation of new post within the current Jammu and Kashmir Police system, dealing exclusively with investigation tasks, designated as Investigating Officer (IO). Thus, by creating a distinct and specialized post of IO, the segregation will be automatic and effective. Further, this will reduce the work load and will bring in the system of investigation quality, effectiveness and professionalism.
If the police are not trained, professional, and serious in conducting investigation of crime, the sufferer is always the criminal justice system. The beneficiary in all such defective investigation is doubtlessly the accused in the crime.
The author is an Advocate at High Court of Delhi and can be mailed at info.akhterrasool@gmail.com
