Guest Post: Prosecutorial Control over Investigations — A New Paradigm for the Criminal Justice System in India

(I am delighted to present a post by Mr. Divyang Thakur. Mr. Thakur has been working as a Public Prosecutor for three years in Delhi, and was practising law across trial courts in Delhi before that. The views expressed here are entirely personal.)

The traditional view and status quo, at least in Delhi NCR, on the role played by prosecutors during the investigation process is as follows: An FIR gets registered, the police conducts investigation, and upon finishing the investigation, the Investigating Officer ["IO"] prepares a Chargsheet / Cancellation Report [under Section 173 Cr.P.C.], as the case may be. If the IO thinks a person should be tried for a crime, that Chargesheet is submitted with the area Prosecutor for comments. The Prosecutor raises objections (a sort of Due Diligence), and the file goes back to the IO. After this, the matter is out of the Prosecutor's hands: The IO may or may not choose to address the concerns of the Prosecutor, and then forward the file for this to eventually go before court. 

It is evident that, currently, a Prosecutor plays a minimal role during the investigation; his objections are like non-binding directives, his views on sufficiency of material on record to secure a conviction mere observations, which have no impact on either how the investigation proceeds or how it ends. 

Through this post, I will argue that we need to move away from this status quo, towards a model where prosecutors are more involved with the investigation. Such a model, I think, stands a much better chance of doing justice to all stakeholders in the Criminal Justice System. 

The Goals of a Criminal Justice System 

When I argue that my model will help secure justice, what do I mean? I mean that such a model will help ensure four broad goals are fulfilled more regularly: 

• First, prosecutions are launched carefully to ensure that persons face trial only when there is a reasonable shot at conviction, thus avoiding unnecessary prosecutions, for the process is often the punishment. This also ensures that victims are not left short-changed, when the seemingly “open and shut” cases end up in acquittals. 
• Second, ensuring that no person is deprived of liberty unless essential. 
• Third, completing investigations in a time-bound manner, as having your life under the cloud of a criminal investigation can be a traumatic experience—for both an accused and the victim. 
• Fourth, and flowing from these goals, is the idea of lessening the number of trials themselves, to ensure that our judges are not tasked with gargantuan dockets and can apply their mind to cases rather than simply treat them as an issue of processing files. 

Currently, India’s Criminal Justice System is far from achieving any these goals. We need to change this status quo. 

The Classical Approach to Prosecutorial Involvement 

The standard legal position on the role of Prosecutors was discussed in an earlier essay on the Blog, and so I need only mention the Supreme Court’s decision in R. Sarala v. T.S. Velu & Ors [(2000) 4 SCC 459), “Sarala”], where the Court discussed the issue of Prosecutors being involved in the decision to file a Chargesheet. The Supreme Court said that they cannot be so involved, for the Prosecutor’s role was triggered only after a case reached court. The possible benefit of nipping unfair prosecutions in the bud was seemingly met through the power of prosecutors to withdraw cases under Section 321 Cr.P.C is what the Supreme Court held. 

This logic of limited involvement can also be seen in the Standing Orders of the Delhi Police [See the order dated 25.10.2010], which outlines the process that I described at the start of this post, where the Prosecutor’s role is somewhat similar to that of the President in our electoral democracy. The Chargesheet goes to the prosecutor for comments, who can send it back pointing out gaps. Regardless of the police agreeing or disagreeing, the Chargesheet can then be sent to court directly, and “should ordinarily not be sent to the prosecutor” again. 

When the Delhi High Court tried to pull away from this view of limited involvement of prosecutors in Court on its Own Motion v. State [Writ Petition (Criminal) 1352/2015, order dated 05.04.2018], the weight of the views in Sarala forced the Court to beat a hasty retreat, for by an order dated 28.05.2018 it stayed its observations that had mandated prosecutorial approval before a case goes to court, and that is where matters stand today as the case is still pending. 

Kishanbhai’s Case: A New Paradigm 

It would be apropos to now cite the following lengthy excerpt from the Supreme Court's decision in State of Gujarat v. Kishanbhai [(2014) 5 SCC 108, “Kishanbhai”]. The observations were made by the Court in a case where investigative lapses and poor prosecution led to an acquittal. Presumably under its extraordinary powers, the Court stated: 

The situation referred to above needs to be remedied. For the said purpose, adherence to a simple procedure could serve the objective. We accordingly direct, that on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation. It should also be ensured, that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case. This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigours of criminal prosecution. By following the above procedure, in most criminal prosecutions, the concerned agencies will be able to successfully establish the guilt of the accused.

The further directions given by the Court are too long to extract here but well worth a read. 

The Supreme Court in Sarala had observed that any consultation with “legal experts” was optional. But after reading Kishanbhai, it seems as if the Court has taken a U-Turn. Kishanbhai suggests that consultation and opinion of the prosecution has been made mandatory after the completion of the investigation. Moreover, the prosecuting agency may require further investigation [not to be confused with the statutory provision of Section 173(8) Cr.P.C.] to be made to rectify deficiencies in the charge sheet. 

I would argue that Kishanbhai must become the lodestar for future discussions on the issue of a Prosecutor’s role in the Criminal Justice System. Following this, we must shift the status quo to a model where Prosecutors are associated with a case from its inception, can assist the IO during the investigation to help avoid gaps and errors, and must have a say on whether the case should go to trial or be closed. 

Below, I cull out some instances of how prosecutorial involvement at the investigation stage can help make a difference: 

1. Loss of Relevant Evidence: In law, today, an IO is required to appreciate nuances of evidence law surrounding the material gathered during an investigation. But is it reasonable to leave such a determination to only an IO? By the time that a Chargesheet is prepared, an innocent man may be known as an accused, avenues of investigation might go unexplored forever, valuable evidence might be lost and the prosecution might not be able to meet the required standard of proof. I would argue that the involvement of Prosecutors can help streamline this process and avoid errors, by creating a system of checks and balances and taking away the sole authority of police. And, arguably, a more effective method than burdening courts with taking "action taken reports" in sealed covers. In my own experience, countless times I have asked an IO to investigate, where possible, for CCTV footage, and countless times the reply received is that the footage even if initially available, has since been deleted as 15 days have elapsed. By the time a court acquits on the ground that the best evidence has not been placed on record, the proverbial "open and shut" case is lost, and justice remains elusive. 
2. Setting Standards and Boundaries to create an Institutional Check and Balance: A very simple example will speak volumes. In our criminal jurisprudence the Courts generally acquit for offences like Section 33 of the Delhi Excise Act 2009 (possession of illicit liquor), Section 25 Arms Act 1959  (possessing firearm without a valid licence) and Section 411 IPC (dishonestly retaining stolen property) on the ground that public persons were not made witnesses to the recovery despite their availability. As a Prosecutor, I know that there is a slim chance that such recoveries will be proved and an accused convicted. However, I must allow cases to continue, as there is a prima facie case and police witnesses cannot be doubted beforehand. In a system, where the Prosecutor is involved in the decision of whom to prosecute, I would never bring such a case to trial unless the police convince me that no public person was available (recovery was in a remote region etc.) or that those public persons who refused to join were sent a notice for their non-cooperation and that action was taken. The effect of my refusal to act on such a recovery as a Prosecutor is what I call the setting of standards and boundaries. It is a precedent which sends a message to the Institution as a whole – though I personally might believe that the police officers did recover contraband, however, the Prosecutor as an institution sets standards for how an investigation is conducted or a recovery / raid completed. The Police scarcely care that the end result of an investigation is a perfunctory acquittal. However, stopping the Police from incarcerating (however temporarily) and filing a Chargesheet against a person on basis of a recovery that the court ultimately does not rely on might have a cascading effect and lead to the creation of a more transparent culture. 
3. Enforcing Public Policy: Another example is appropriate. One of my colleagues encountered a case where a firefighter was driving a truck in a narrow lane where a building had caught fire. He hit one man near the building, causing him grievous injuries. The firefighter was charged for the offences u/s 279/338 IPC. Consequently, he lost his government job and was suspended without pay for many years before the matter came up in court for arguments on charge. I did not ask about the fate of the case, but considering the facts as a whole, my colleague and dear friend did not feel that it was a particularly egregious case of rashness or negligence, in fact the police did not even cite anything in the charge sheet to show that state of mind. The firefighter argued that he could not even see properly, it was dark and a narrow lane had to be navigated to reach the building which was on fire. Now, is it not a case where a Prosecutor at the very outset could and should have decided not to file a charge sheet against the firefighter as a matter of policy? Of course, the prosecution can be withdrawn, but it is already too late — the firefighter is now an accused, and his colleagues have been delivered with a message that they too could be prosecuted for an accident while on duty. And so by the time help comes from the courts or the Prosecution, it is too late to avoid mental agony. If we have to become a mature economy and country, we have to move towards a policy of mindful prosecution keeping the larger picture in mind, rather than the mindless chargesheeting as displayed in the example above. We must at least start the discussion on going through the rigours of a cost-benefit analysis of non-prosecution where it might have an unintended chilling effect on a certain group of persons and activity etc. 
4. The Relationship between the Prosecutors and Witnesses: I related in my previous post that witnesses are often bewildered when they arrive for the first time to depose before courts. A Prosecutor can be invaluable in giving psychological and logistical support to a witness and in counselling them on the future course. We have the beginnings of a Witness Protection Scheme and considerable jurisprudence and legislation has already amassed with respect to the Victim Compensation Scheme. A Prosecutor could provide valuable input for implementing both these schemes in letter and spirit. But this requires the Prosecutor and witness to interact during the initial stage itself, at the time the crime has taken place. Moreover, it could help the Prosecutor in deciding on the credibility of the witness and in advising the IO to run background checks so that he is not surprised by the defence if the matter goes to trial. Most importantly, talking with the witness can help a Prosecutor decide the manner of the examination in chief, rather than having to improvise and, even worse, declaring a witness hostile based on minor technicalities. I find it amusing and sad that a Prosecutor, in whose hands the trial lies, is the one most surprised by the turn of events when the trial starts. Witnesses often state that the police never took their statement or that they never joined the investigation. The sad truth is that this is often true, and when a witness states on the stand that the police officer merely noted his address and name and never read out their statement, I believe them. 
5. Due Diligence: No company invests without a detailed due diligence by well-paid lawyers who painstakingly go over each and every document, prepare requisition lists and ask the questions that need to be asked of an investee. Should then a person be charged with a crime, lose his reputation in society and be called upon to answer to a charge of a crime at the drop of a hat? Chargesheets are shoddily prepared, with documents hither thither, without any explanation for why a particular document is placed on record, its relevance and value, link to the crime, how it shall be exhibited if a photocopy, its admissibility, what part of the same needs to be proved and by whom — these and many other questions remain unanswered even at the stage of trial. IO’s seem to have bigger fish to fry and are either transferred, or have retired / resigned from service by the time of trial, and so have no accountability or stake in the outcome. So, does the system have trained lawyers who can do the necessary checks and direct how the brief can be presented in Court? You know the answer already.

Conclusion 

The Prosecution Department must be seen as an accountable institution, separate from others like the Police and Judiciary. The Prosecutor, if he prosecutes, must have no qualms about the innocence of the accused at the outset itself. I firmly believe in this. Of course, anything may change during trial. But at the outset, the Prosecutor must be sure of the evidence, the quantity and quality thereof, and then take the decision to prosecute. The decision to prosecute or not could always be communicated to the victim, concerned parties and of course, the public at large. This is by no means infeasible in today’s day and age. Moreover, it is important that a decision to prosecute is not made by the Investigating Authority or Government of the Day, but a separate, independent institution, insulated from interference. Such a setup promotes institutional complacency, corruption and inequity in a vast number of cases.

A decision to prosecute affects the life and liberty of the accused and his family. It irrevocably leaves an imprint on their lives. Moreover, it affects institutions and their cultures, and the society at large. On the other hand, a crime darkens the life of the victim. A faulty investigation which lets the guilty party scot-free is a blot on the system, as much as the prosecution of an innocent. It is essential that no single institution is granted this exceptional power to affect lives without sufficient and timely checks and balances. As I have argued, the Prosecution Department, is best placed to address the current iniquities prevailing at the stage of the investigation. Moreover, a decision to prosecute can only be taken by the Prosecutor after having being involved during the course of investigation, being sure that no other explanation is available, that no avenue unexplored. 

For all these reasons, I argue that the system needs change, and needs it immediately.