Guest Post - The Chhawla Judgment and an Urgent Need for Reforms

(This is a guest post by Jeetendra Vishwakarma. An earlier and modified version of this post appeared on The Quint)

On the 7th of November, in a stunning reversal, the Supreme Court in Rahul v. State Of Delhi Ministry Of Home Affairs & Anr (Crl. Appeal no. 611 of 2022) acquitted all three persons accused of raping and murdering a 19-year-old in the “Chhawala Gang Rape Case” of 2012. The order setting aside the conviction by the trial court and ratification by the Delhi High court raised eyebrows and enraged the victim’s parents and many others. The case triggered public furor because of the gruesomeness of the offence. The deceased was partly burnt, horribly mutilated, and signs of torture were still visible when her body was found four days later. 

The reasoning of the three-judge bench of Supreme Court while reversing the acquittal is that there is no "clinching and clear evidence" against the accused. As per the court, there were various "glaring lapses" in the investigation, depriving the accused of their right to have a fair trial. This post takes a closer look at the law on lapses in procedure as grounds for acquittal. It also considers how one can hope to avoid a repeat of such outcomes in the future. 

Lapses in Procedure as the ground of acquittal

The law in respect of what is the impact of procedural errors / faulty investigations on a case is broadly well-settled, inasmuch as the court has identified these to have a bearing only where it can be shown that real prejudice resulted from the error. 

In the case of Iqbal Ismail Sodawala v. State of Maharashtra, the court noted that no order of a competent court could be set aside merely on the ground of the irregularity in the procedure unless it is prejudicial to the accused resulting in a miscarriage of justice. The court said that the objective of procedural law is to ensure that the accused gets a full and fair trial, and if this purpose is fulfilled, minor omissions can be ignored. Further, in the more recent case of Pradeep Wodeyar v. State of Karnataka, the court held that whether an irregularity or infraction is causing prejudice to the accused is a question of fact, and the court will look into the seriousness of the offence, the intention to prolong the proceedings and stage of the challenge. Thus, the test which emerges is that no lapse of procedural criminal law will lead to reversal or acquittal unless prejudice is caused to the accused leading to a miscarriage of justice.

In the case of Sunil Kundu v. State of Jharkhand, the court has held that acquitting the accused merely on the ground of lapse in the investigation is tantamount to putting a premium on the depreciable conduct of an incompetent investigation agency at the cost of the victim encouraging the perpetrators of the offence. The test of when investigation can be ground for acquittal is laid down in C Munniappan v. State of TN. In this case, the Supreme court has held that if there is negligence on the part of the investigation agency resulting in the defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapse to find whether such evidence is reliable and whether such lapse is affecting the finding of truth. Thus, we can infer that conclusion of the trial cannot rest solely on the probity of the investigation, and the court can ignore lapses if, despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality.

Glaring lapses in the Investigation

The Supreme Court felt compelled to overturn the verdict on account of the 'glaring lapses' in the prosecution. As seen above, these must have been of a nature that demonstrated some prejudice being caused to the accused. So, just what were the lapses? I outline them below:

• The evidence about the arrest of the accused person is not clear
• The identification of the accused by the witnesses was not made by the police
• The discovery and recovery of the incriminating article are not done diligently
• The DNA sample of the accused, which matched that of the victim, was not sent for examination for two weeks and kept in suspicious circumstances raising the possibility of tampering.
• The trial court acted like a “passive umpire” and was content with several witnesses for the prosecution being left without cross-examination.

The non-identification of the accused, the possibility of tampering with the DNA samples, and suspicion over the incriminating material are causing prejudice to the accused. The evidence was highly shaky leaving it impossible for any court to arrive at a conclusion of guilt with any degree of moral conviction. Excluding these circumstances meant there was not much more left in the prosecution case for it to meet the burden of establishing guilt beyond reasonable doubt. The approach of the Court in reversing the verdicts, therefore, cannot be faulted in law.

To Do Justice, We Need Reforms 

One way to think about the judgment is that the accused have got away on technicalities, giving us yet another “No One Killed Jessica” scenario. The anguish of the victim’s parents (they have decided to file a review petition as per news) is unimaginable. Another way to think about the scenario is that the law required Delhi Police and the prosecution to meet a basic threshold to bring home a conviction, and by sticking firm to that threshold the Court despite the horrific facts of the case, the Court reaffirmed the notion of a rule of law. There are no right answers.

What is inescapable is that to avoid such scenarios in the future, some concrete steps are necessary to reform the practices of the police. This is perhaps one way in which justice could be done for the victim’s family. The issue of faulty investigations has come into focus many times before and invited strictures from courts. In State of Gujrat v. Kishanbhai, the Supreme Court has ordered the home department of every state to examine the order of acquittal and reasons for the failure of prosecution by appointing a standing committee of senior police officers to record the mistakes during the investigation or prosecution. In the case of Ankush Maruti Shinde v. State of Maharastra, the Supreme Court came down heavily on a lousy investigation in facts similar to those at hand. The Court held that the investigating or prosecuting officer responsible for acquittal must be identified, and the erring officer must face appropriate departmental action. Further, the Court also proposed a 6-month investigation training to officers to ensure that persons handling sensitive matters are trained to handle the same.

The Justice JS Verma Committee, appointed in the aftermath of the Nirbhaya Gang Rape case to look for reform in the criminal justice system to provide speedier justice in cases of sexual assault, also touched upon the issue of investigation. The Committee in its report, taking a view similar to the Supreme court in Prakash Singh, recommended separating the investigation police from the law and order police. According to the Committee, this would ensure speedier investigation, better expertise, and improved rapport with the people.

However, the orders in Kishanbhai and Ankush Maruti are hardly implemented anywhere, and the JS Verma Committee Report on various aspects, including investigation, continues to gather dust due to a lack of political will. It is of utmost necessity that =orders relating to departmental action against erring officials and investigation training are implemented on the ground with its non-compliance inviting contempt of the court. Separation of wings of police between investigation and law and order can also improve the efficiency and quality of the investigation. Moreover, specific and heinous crimes like rape or sexual assault should not be left to be investigated by traditional daroga due to the sensitivity of the matter. Specialized police personnel needed to be trained and deputed to handle such matters in order to improve the quality of evidence during the investigation.

The police machinery is not the only area of interest when we consider reforms. The Supreme Court noted that the magistrate was a ‘passive umpire’ in the entire trial process. The court condemened the reticence on the part of the magistrate as 10 out of 49 material witnesses were not cross-examined for the accused and not posed questions by the magistrate either despite the power being vested in court. 

In stressing the idea of an ‘active’ judge, the Supreme Court is only returning to what is the clear position in our laws. The Indian criminal process does not envision the case as a bout between two sides with the judge as referree. Rather, right from the investigation, the court has an active role to play. In the present case, the fate of the police investigation might have been different had a magistrate taken a keener interest in the case diaries shown during investigation. In not taking an interest in the fate of the prosecution case, by posing questions or calling for additional evidence, the initial errors were cast in stone. This passive attitude must be discarded to ensure ensure no failure of justice occurs.

Conclusion

A decade after Nirbhaya, which shook the country and led to a widespread uproar against the incidences of sexual assault against women, thousands of rapes are still reported annually. Criminal law is envisaged as a deterrent for crimes by punishing those who commit the same. However, the low level of conviction, which stands at only 28% in cases of rape, showcases the failure of our criminal justice system to deter such offences.

Overhauling the investigation procedure and more proactive magistracy cannot be a panacea to our criminal justice system and is unlikely to lead to a swift upturn in the conviction rate. However, reforming the investigation procedure is the only justice we can do for 19-year-old victim. It will send a message that we learn from the failure of our justice delivery system. In a crime as heinous as the Chhawla rape case, we can never allow omissions or negligence in criminal procedure to strangulate the delivery of justice.