201

CHAPTER – VI

Supreme Court as the guiding light to Special

Investigating Agencies (I) Political Pragmatism in Investigating Agencies

The Central Bureau of Investigation is neither an intelligence agency nor a

security organization. It is an investigating agency having the primary and solo job

of conducting investigations in order to expose rather conceal. The Union

Government‘s decision to exempt certain central investigating agencies from the

purview of RTI Act (Right to Information) has drawn sharp criticism from various

spheres. The investigating agencies have to be open and transparent organizations

with the least scope of concealing. If at all, secrecy is required, that is only and only

in intelligence agencies; not in investigating agencies. It is for the simple reason that

intelligence agencies elicit undercover information‘s which must not reach the

territory of enemies while the investigating agencies use the information gained

from their intelligence counterparts in investigating crimes and also preventing

crimes. It is very clear in unambiguous terms, that investigations in fact need no

secrecy after a certain stage. An accused generally tries to destroy evidence against

him, when he gets premature disclosure of information during investigation.

Investigations, actually demand complete transparency after a definite stage. The

Right to Information Act Clearly states in Section 8(g)m ―…. There shall be no

obligation to give any citizen information which would impede the process of

investigation or apprehension or prosecution of offenders…‖ The provision includes

central investigating agencies together with similar agencies of all the state

governments as well. The above provision makes it crystal clear that the prevalent

laws are quite adequate and providing further secrecy to the investigating agencies is

arbitrary and malicious.

Indian democracy is run on the wheals of ‗Rule of Law‘. By exempting the

investigating agencies from the purview of RTI act, we will be negating the Rule of

Law‘, which our constitution provides. This exemption is nothing but an increased

step towards more corruption and criminality. The Union Government‘s move

offer‘s the government with a fine robe to protect its own bureaucrats, opponents

and people at high places. The public wants to be governed by clean hands and also

they have the right to know who has the dirty hands. There seems to be no rational

202

argument for taking the investigating agencies out from under the RTI Act. No other

country who follows the dictates of ‗Rule of Law‘ has given such exemptions to the

investigating agencies in their countries. Then why do India feels the need to give

such exemptions? It is a retrograde step with undesirable consequences. This step

will gift India with another class of privileged people who would be far beyond the

operation of laws. It is an acknowledged fact that corruption is a matter of concern

for our country and the investigating agencies are not a step behind in increasing

corruption.

Such a move by the Union is in excess of the powers delegated to the Centre.

Section 24 of the Right to Information Act says that the government can exempt

only ―intelligence‖ and ―security‖ organizations from the obligations under the RTI

Act. Whereas the Central Bureau of Investigation and the National Investigation

Agency, both of them do not lie in either category: Both of them are investigating

agencies established by laws of Parliament. Both the investigating agencies and the

politicians are the agents of law in a democratic set-up; and there seems to exist a

trend of criminalization of politics. In a democratic society, which is committed to

social justice, the special investigating agencies are expected to help maintain a just

society. But what is the ‗just system‘ and which ‗just system‘ the investigating

agencies should protect is difficult to decide.

The affluent who are in power and in possession of all the resources may

have different views of the justice system than those, who are the poor deprived

class, which are often victimized by the powerful.267

The demarcation line for the criminals have busted with the globalization and

crime going international. International Crime is a peril which must be faced

cooperatively. Every nation demands an international agency to deal with the

problem and thus have a special investigating agency which is laced with all

channels leading to capturing such criminals. INTER POL is such, specialized

agency which is mainly concerned with the establishment of direct intercourse

between police forces, outside the ordinary channels of diplomacy. In recent years

the assistance of Interpol has been sought and made available in the arrest of

criminals. United Nations Organisation (U.N.O.), takes a great, interest in Interpol.

Without the intervention of INTERPOL, the spacious world would be a safer place

267

Sinha, 1977

203

for absconding criminals from any country. With almost, most of the countries as

member of INTERPOL, the problem of international crime is controlled up to a

large length. CBI (NCB) is the Indian agency for cooperation with Interpol.

Interpol‘s mission is to enhance international police cooperation, to help member

countries avoid legal obstacles to police cooperation across borders. It facilitate the

widest possible mutual assistance between all criminal law enforcement authorities

by providing member countries with the technical means whereby they can share or

exchange information. Interpol itself is not an investigating agency, it is a means

which enable global access to police data and information.

Interpol helps CBI (NCB) with operational support on specific priority crime

areas and helps the CBI (NCB) to prevent and fight crime. Interpol is not a police

agency itself with the legal power to detain or arrest anyone nor can they execute

search warrants but they provide assistance to the member countries such as India –

CBI NCB to detain or arrest or execute search warrants. Interpol is not a police

agency which can conduct criminal investigations in member countries but they do

help their members do that:

‗Neuliality‘ is the basic principle which the Interpol follows enshrined in

Article 3 of its Constitution. In February 2012, CBI organized the ‗First‘ Interpol

Global Program on Anti-corruption and Asset Recovery‘ in partnership with the

Interpol-Anti Corruption office. This programme was aimed at capacity building of

the agencies involved in fighting corruption and for tracking down the proceeds of

corruption.

In Vineet Narain V/s Union of India268

the Supreme Court was faced with

the matter of diffidence in prosecutional record of investigating agencies. Central

investigation agencies like the Central Bureau of Investigation reflected their refusal

to pursue investigations against high profile politicians and members of the

Executive, due to the extraneous influence from the ruling classes, thus leading the

Supreme Court ―to examine the structure of these agencies and to consider the

necessary steps which would provide permanent insulation to the agencies against

extraneous influences to enable them to discharge their duties in the manner required

for proper implementation of the rule of law.269

In order to have fair and impartial

268

Vineet Narain & Ors V/s. VOI & Another, (1998) ISCC 226 269

Ibid., p. 234.

204

agencies, the supreme court shouldered the responsibility and ―to provide a solution

till such time as the legislature acts to perform its role by enacting proper legislation

to cover the field‖. The Supreme Court deeply analysed the problem and found a

―serious human rights aspect involved in such a proceeding because the predating

corruption in public life, if permitted to continue unchecked, would ultimately defeat

the Indian Polity.‖270

The supreme court delineated the structure of the investigating

agencies like, CBI, Enforcement Directorate and the Central Vigilance Commission.

Pursuant to these directions, the Legislature enacted the Central Vigilance

Commission Act Codifying the directions.271

An authority was created by the

Supreme Court to continually monitor investigations against high-profile political

suspects though a ―continuing mandamus ―On the CBI‘s investigation. Recently the

right has been involved once again by the court in the ―2G Spectrum Case‖ by the

CBI and Enforcement Directorate.272

In a recommendation for establishing an

independent entity akin to the office of Independent entity akin to the office of

Independent Counsel in the United States273

to investigate cases where interference

by the Executive is natural. The Court said in the case (Vineet Narain‘s Case) that ―

[W]e are of the view that the time for these drastic steps has not come. It is our hope

that it never will, for we entertain the behalf that the investigative agencies shall

function for better now‖.274

It is now clearly evident that both the Legislature and the

Executive are now suffering from the deadly disease named ‗Corruption‘ and the

time has ripened in order to create an organization or structure which has all the

powers to investigate and prosecute those found to be guilty of abusing the law.

Such ‗a structure should have least resistance from the ruling class.

Special Investigating Agencies like the Central Bureau of Investigation and

the Enforcement Directorate do not conduct the entire investigation of charges and

potential violations of law against the members of the Executive. The prosecution of

270

Ibid, p. 268. 271

The Parliament of India enacted the Central Vigilance Commission Act, 2003 which amended the

Delhi Special Police Establishment Act, 1946. However, the independence of the CBI has been

diluted with this enactment, vide infra n.21. 272

Centre for Public Interest Litigation & Ors. Vs U.O.I. & Ors. MANU/SC/1074/2010- (Dec, 16,

2010). 273

At the time of the hearing and the judgement, the United States Witnessed the investigation by

Independent Counsel Kenneth Starr in his investigation in a Real estate investment by President

Clinton and Hillary Clinton which was followed by the widely read investigation into President

Clinton‘s misdemeanors in office. 274

Ibid, p. 272

205

such violators is handled by the CBI‘s Directorate of Prosecution. Even after the

guidelines issued by the Supreme Court in Vineet Narain‘s case, there needs a

significant structural reform of the Central Bureau of Investigation. Autonomy and

Independence are the two areas where the CBI lacks.

The Central Bureau of Investigation275

is a successor organization to the

Delhi Special Police Establishment (DSPE), with the DSPE being made one of its

divisions. While examining the validity of a directive issued by the Ministeries and

Departments in the Central Government (―Single Directive‖) that required the CBI

to seek approval of the Central Government before pursuing investigation against

the bureaucrats of the level of Joint Secretary and above, the court noted that ―the

general superintendence over the functioning of the Department and specification of

the offences which are to be investigated by the agency is not the same as and would

not include within it the control of the initiation and the actual process of

investigation, i.e., direction‖.276

Once the jurisdiction was conferred on the CBI to investigate an offence via

notification u/s 3 the powers of investigation could not be curtailed by any executive

instruction. Therefore in the absence of any statutory requirement for prior

permission or sanction of the Executive for investigation, the Central Government

could not impose it as ‗condition precedent for initiation of the investigation‖. Thus

the ―Single Directive‖ was held to be null and void.

The Parliament has codified and reintroduced one of the main provision of

the ―Single Directive‖. This provision prohibits the CBI from conducting any

inquiry or investigation into any offence alleged to have been committed under the

Prevention of Corruption Act, 1988 by

(a) the employees of the Central Government of level of joint secretary and

above; and

(b) such officers as are appointed by the Central Government in corporations

established by or under any Central Act, Government Companies, societies

and local authorities owned or controlled by that Government, without the

approval of the Central Government.

275

The DSPE is now called, ―Investigation and Anti Computer Division of the CBI 276

Vineet Narain, p. 262

206

Proviso to Section 8(1) of the CVC Act, 2003 expressly spells out that the

commission shall not exercise its power of superintendence in a manner so as to

require the Delhi Special Police Establishment to investigate or dispose of any case

in a particular manner (in view of the court‘s enunciation of the meaning of

‗superintendence in the DSPE Act),277

However, the Act, does not make this proviso

applicable to the superintendence of the Central Government.

To add to it, the superintendence of the CVC is for investigation of alleged

offences committed by ‗public servants‘ under the Prevention of Corruption act,

1998, also going through Section 2 of the Prevention of Corruption Act, we realize

that the definition of ‗Public Servants‘ do not include politicians and other public

servants. The CBI has to often wait for an order from the concerned High Court or

the Supreme Court. This obstacle owes its existence and persistent continuation due

to tense central-state relations. Both law and society are dynamic concepts. In order

to meet the needs and aspirations of the people, law should keep changing with the

change in society. Sometimes due to unforeseen circumstances, the law is not able to

come up to the expectations of the people or simply put up, it means the ‗law‘ falls

short of law. In such cases complete justice is not administered thus raising doubts

in the minds of general public. Here comes into the picture the Supreme Court, the

savior of the law and the people. The Supreme Court of India has an extraordinary

vision with innovative powers to give new interpretations of law in order to meet the

needs and views of today.

II- Supreme Court Guidelines for effective investigations

(A) Mandatory guidelines for effecting an arrest:

The principles of law enunciated by the Supreme Court in Course of delivery of

judgment becomes law of the land by Virtue of Art 141278

of the constitution of

India. Many of these judgments contain comprehensive guidelines given by the

Supreme Court to the Police, prosecution subordinate judiciary, prison authorities

and investigating agencies.

Detailed guidelines have been given by the Supreme Court in respect of

obligations of investigating officers to be followed by them after arrest of an accused

277

Vineet Narain, P. 262. 278

Art 141 of the Constitution of India says – The judgement of the Supreme Court will be binding

on all courts in India.

207

person. It was the noted in D.K. Basu Vs State of Westbengal Case279

in which the

supreme court delivered strict guidelines for the investigating authorities. Following

is the background of the case.

D.K. Basu, the Executive chairman of Legal Aid services, West Bengal,

addressed a letter to the Chief Justice of India saying that torture and deaths in police

custody are widespread. In order to support his contention, some newspapers reports

were also attached to his letter. The letter was treated as writ application under

Article 32 of the constitution and the case was treated as Public Interest Litigation

(PIL). Basu urged the supreme court to examine the issue in depth and develop

‗Custody jurisprudence and lay down principles for awarding compensation to the

victims of police atrocities. He also urged to formulate means to ensure

accountability of those responsible for such occurrences. The Supreme Court issued

notices to all State Governments and the Law Commission of India to submit

suggestions on how to combat this evil.

“Custodial torture is a naked violation of human dignity”, the Supreme Court said:

The Court accepted that though the investigating agencies have a difficult task in

light of the deteriorating law and order situation. They have the right to arrest a

criminal and interrogate her/him in the course of an investigation. But at the same

time the law does not permit the use of third degree methods or torture on an

accused person. The court even recognized that the worst violations of human rights

take place during the investigation .The court directed that the guidelines should be

circulated to the Director General of Police and the Home Secretary of every state

and union territory.

The directives / guidelines, given by the Apex Court in a nutshell put forward

that Article 21 of the Constitution Cannot be denied to convicts, under trials,

detenues and other prisoners in custody, except according to the procedure

established by law. Any form of torture or cruel, inhuman treatment would fall

within the inhibition of Article 21 of the Constitution. Whether it occurs during

investigation, interrogation on otherwise. Transparency of action and accountability

are two possible safeguards which the court insisted upon.

These guidelines are based on the ‗Code of Criminal Procedure, 1973 Criminal

Procedure Code (Cr.P.C.) provisions and are very much a part of regulations laid

279

AIR 1997 SC 610

208

down in police manuals and rule books. The Supreme Court also pointed out that

failure to comply with these guidelines not only renders an officer (investigating

officer) liable for punishment through departmental action but also amounts to

‗contempt of court‘.280

The State must ensure that ―various agencies deployed by it

for combating terrorism, acts within the bounds of law and not become law into

themselves‖.

In another very important case named Joginder Kumar Vs State of U.P., the

supreme court gave precious directions regarding arrest of the accused. In this case,

Joginder Kumar, a young lawyer aged 28 was taken to an undisclosed location by

the police on the pretext of having some inquiry from him. He was illegally detained

by the U.P. police for five days. A heabeas Corpus writ petition was filed with the

supreme court by his family in order to know about his where about. The Apex

Court issued notices to the State of U.P. and to the SSP to immediately produce

Joginder Kumar and answer why he was detained for five days without a valid

reason also why his detention was not recorded by the police in its diary. The

Supreme Court, rejected the police version that Joginder Kumar was cooperating

with them, out of his own free will and said that there must be reasonable

justification in the opinion of the officer effecting an arrest, that such an arrest is

necessary and justified. Illegal and unnecessary arrest and detention can cause

incalculable harm to the reputation and self esteem of a person. The Court said,

arrests should not be made, unless they are absolutely necessary and there is no other

way except arresting the accused to ensure his/her presence before the criminal

justice system. Unnecessary and unjustified arrests lead to harassment and loss of

faith in the system. According to the Third Report of the National Police

Commission, nearly 60% arrests made by the police were unnecessary and that such

unjustified police action accounted for 43.2% of the expenditure of the Jails. Section

220 of the Indian Penal Code, 1860 prescribes a maximum sentence of seven years

on making a corrupt, malicious arrest without recording an arrest.

(B) Mandatory guidelines against Handcuffing

Police officers are vested with the power to restrain a person by handcuffing

him but at the same time, the law restrains the police officers to exercise this power

280

Proceedings under the Contempt of Courts Act, 1971 can be started in Any High Court.

209

unnecessarily. Even an under trial prisoner is entitled to minimum freedom of

movement and it cannot be cut down cruelly by application of handcuffs.

The Supreme Court in Sunil Batra Vs Delhi Administration281

, held that

solitary confinement was violative of the right to personal liberty. There is no total

deprivation of a prisoner‘s right of life and liberty. The intent of the remarks in the

above case point out that even an under trial cannot be deprived of the right to free

movement. No unnecessary handcuffs or hoops could take away this right from him.

Going further in the case of Prem Shankar Shukla282

, the Apex Court

observed that using handcuffs and felters on prisoners violates the guarantie of basic

human dignity. In this case Prem Shankar Shukla – an undertrial prisoner at Tihar

Jain intimated the Supreme Court that despite the Apex Court‘s directives in Sunil

Batra‘s283

case, that falters/ handcuffs should only used if a person ―exhibits a

credible tendency for violence or escape‖ they were being forcibly handcuffed when

they were escorted from prison to the courts. The Supreme Court arrested that even

orders from superiors are not a valid justification for handcuffing a person.

Constitutional rights cannot be suspended under the garb of orders issued by a

superior officer. The said case made it crystal clear that the use of handcuffs, chains

or ropes to bind prisoners amounts to inhuman treatment. Handcuffs should not be

used as a matter of routine. It is only under exceptional cases that their use is

allowed and that too with judicial permission on the grounds that the person poses as

a ‗clear and present‘ danger and there are genuine reasons to believe that she/he will

attempt escape.

It was in the case Citizens for Democracy Vs State of Assam that the

Supreme Court observed and held that, as a rule, handcuffs or felters must not be

used on an under trial or on a convicted prisoner whether in jail or when being taken

to court, without authorization of a magistrate. Handcuffing without a magistrate‘s

approval is not permitted, except in rare instances. In such instances, the burden of

proving that the use of handcuffs was warranted lies on the police. If the detaining

authority or escort party fail to satisfy the court about the genuineness of the danger

or threat posed by the person who was handcuffed, they will be liable under law.284

―

281

AIR 1978 4SCCC 494 282

AIR 1980 SCC 526 283

AIR 1978 SC p 1675 284

Sunil Batra Vs Delhi Administration AIR 1978 SCC 494.

210

Escorting authority should record contemporaneously the reasons for handcuffing

under trial prisoners even in extreme cases and intimate the court so that the court

may consider the circumstances and issue necessary directions to the Escorting

party‖, the open court held in the Sunil Gupta‘s Case.285

(C) Guidelines to investigating agencies for speedy trial of Criminal Cases:

The right to speedy criminal trial is one of the most valuable fundamental

rights guaranteed to a citizen under the constitution, which is integral part of right to

life and liberty guaranteed under Article 21. In Kartar Singh Vs State of Punjab,286

it

was observed:-

―The concept of speedy trial is read into Article 21 as an essential part of the

fundamental right to life and liberty guaranteed and preserved under our

constitution. The right-to- speedy treat begins with the actual restraint imposed by

arrest and consequent incarceration and continues at all stages, namely the stage of

investigation, inquiry, trial, appeal and revision so that any possible prejudice that

may result from impermissible and avoidable delay from the time of the commission

of the offence till it consummates into a finality, can be averted. In this content, it

may be noted that the constitutional guarantee of speedy trial is properly reflected in

section 309 of the code of Criminal Procedure.287

In Abdul Rehman Anntulay and others288

, a five-judge constitution Bench of

the Supreme Court reiterated the position that a right to speedy trial is implicit in Art

21 of the constitution. Detailed propositions of law on speedy trial were also laid

down in this case. The court observed that the provisions of the Criminal Procedure

Code (Cr.P.C.) where consistent with the right to speedy trial and if followed in

letter and sprit, there would not be any grievance but, unfortunately, these provisions

are honoured more in breach than in compliance. The Supreme Court supplemented

the propositions laid down by the constitution Bench in Antulay‘s Case289

with the

following directions:

(1) In cases where the trial is for an offence punishable with imprisonment for a

period not exceeding seven years, whether the accused is in jail or not, the

court shall close the prosecution evidence on completion of a period of two

285

Sunil Gupta Vs State of M.P. (1990) S.C.C. (Crl) P. 440. 286

AIR 1994 3SCC 569. 287

Sec 309 – Power to postpone or adjourn proceedings. 288

Abdul Rehman Antuloy & ors Vs R.S. Nayak & another 1992 (1) SCC 225. 289

A.R. Antulay Vs. R.S. Nayak (1992) 1 SCC, P. 225.

211

years from the date of recording the plea of the accused on the charges

framed whether the prosecution has examined all the witnesses or not, within

the said period and the court can proceed to the next step provided by law for

the trial of the case.

(2) In such cases as mentioned above, if the accused has been in jail for a period

of not less than one half of the maximum period of punishment prescribed

for the offence, the trial court shall release the accused on bail forthwith on

such conditions as it deems fit:

(3) If the offence under trial is punishable with imprisonment for a period

exceeding 7 years, whether the accused is in jail or not, the court shall close

the prosecution evidence on completion of three years from the date of

recording the pleas of the accused on the charge framed, whether the

prosecution has examined all the witnesses or not within the said period and

the court can proceed to the next step provided by law for the trial of the

case, unless for very exceptional reasons to be recorded and in the interest of

justice, the court considers it necessary to grant further time to the

prosecution to adduce evidence beyond the aforesaid time limit;

(4) But if the inability for completing the prosecution within the aforesaid period

is attributable to the conduct of the accused in protracting the trial, no court

is obliged to close the prosecution evidence within the aforesaid period in

any of the cases covered by clauses (i) to (iii);

(5) Whether the trial has been stayed by orders of court or by operation of law

such time during which the stay was in force shall be excluded from the

aforesaid period for closing prosecution evidence.

The Supreme Court of India in its landmark judgments in Hussainara Khatoon

Vs State of Bihar explicitly held speedy trial as a part of Art 21 of the constitution

guarantying ‗Right of Life and Liberty‘. The matter was taken up by the Supreme

Court when the Indian Express News Paper carried a news story about the state of

under-trail prisoners in Bihar, some of them were in a jail for as many as five, seven

or nine years and few of them for even more than 10 years without their trials having

begun. Justice P.N .Bhagwati observed:-

―There is also one other infirmity of the legal and judicial system which is

responsible for this gross devils of justice to the under trial prisoners and that is the

212

notorious delay in disposal of cases. It is a bad reflection on the legal and judicial

system that the trial of an accused should not even commence for a long number of

years. Even a delay of one year in the commencement of the trial is bad enough;

how much worse it could be when the delay is as long as 3 or 5 or 7 or even 10

years. Speedy trial is the essence of Criminal Justice and there can be no doubt that

delay in trial by itself constituted denial of justice‖.

Although speedy trial is not enshrined as a fundamental right, but it is

implicit in the broad sweep and content of Article 21 of constitution. If a person is

deprived of his liberty under a procedure which is not ―reasonable, fair and just,

such deprivation would be violative of his fundamental right under Article 21. No

procedure which does not ensure a reasonable quick trial can be regarded as

―reasonable fair or just and thus tit would fall out of the ambit of Art 21.

It was held in the case that if the investigation is unduly delayed, trial would

automatically be delayed violating Article 21 and such delayed investigations are

liable to be quashed by the Courts and accused is entitled to be set free if the accused

(undertrial) has been in jail for a period longer than maximum term for which he

could have been sentenced, if convicted.

(D) Guidelines to investigating agencies for insulating them from extraneous

influences.

The most critical issue facing law enforcement today is the potential loss of

public trust in law enforcement organizations. High profile cases of corruption abuse

of power and the use of excessive force are some causes of the above said issue.

―Law enforcement officer‘s‖290

misconduct, particularly the abuse of power, has a

tendency to encode the trust people have in the enforcement organizations. The

question arises as to what are the reasons for such existing problems of corruption

misconduct and abuse of power? There is no single reason why officers are engaged

in this type of behavior?

The foremost reason for such misconduct, corruption and abuse of power is

political influence. History is the witness that the most controversial cases dealt in

the Indian Country are the possible outcomes of political influence. Somewhere or

the other, the hand of high profile people can be seen in tampering with the case

290

Here the term law enforcement officer refers to an investigating officer.

213

related matters. Whether they are involved in these cases themselves, or their

children, relatives or counterparts, ―influence‖ does not go missing. The

investigating officers are the most Vulnearble ‗entity‘ in the eyes of such political

leaders. When a high profile person influences an enforcement officer with this

power and position, it leads to corruption among the officers. Consequently the need

to please the high profile person makes the enforcement officer abuse his power and

position and follow the theme of misconduct. The extraneous influence of political

people demoralize the investigating agencies and caring police officials and the

honest efforts on the part of such investigating agencies / officers go in vain.

The Supreme Court in its move to refine the justice system has passed

various verdicts and has framed the scheme for insulting them (investigating

agencies) from extraneous influences. The Directions give by the Supreme Court in

Vineet Narain‘s Case291

are worth discussion in this connection. The directions

given by the Supreme Court in this case are mainly based on its observation in the

matter of prevailing corruption in public life upon which the Apex Court remarked

that if such corruption is permitted to continue unchecked it will have the deleterious

effect of eroding the Indian polity. The Supreme Court delivered a number of

guidelines, some of which concerning the C.B.I. are as following:

(i) The Central Vigilance Commission shall be given statutory status.

(ii) The CVC shall be entrusted with the responsibility of exercising

superintendence over CBI‘s functioning.

(iii) Selection for the post of Central Vigilance Commissioner shall be made by a

Committee consisting of the Prime Minister, Home Minister and Leader of

the Opposition from a panel of outstanding civil servants with impeccable

integrity, to be furnished by the Cabinet Secretariat. The appointment shall

be made by the President.

(iv) Appointment to the post of Director, CBI shall be made by the appointments

committee of the Cabinet on the basis of recommendations made by a

Committee headed by the Central Vigilance Commissioner with the Home

Secretary and Secretary (Personnel) as members.

(v) The Director, CBI shall have a minimum tenure of two years, regardless of

the date of his superannuation.

291

Vineet Narain Vs Union of India, 1998(1) Crimes, P. 12 (S.C.)

214

(vi) Selection / Extension / Premature Repatriation of officers up to the level of

Jt. Director shall be decided by a board consisting of the Central Vigilance

Commissioner, Home Secretary and Secretary (Personnel).

(vii) The Central Government shall take all measures necessary to ensure that the

CBI functions efficiently and is viewed as a non-partisan agency.

(viii) A document on CBI‘s functioning should be published within 3 months to

provide the general public with a feedback on investigations and information

for redress of genuine grievances.

The other important directions by the Supreme Court include the following:

(ix) The Director, Enforcement Directorate under Ministry of Finance shall a

minimum tenure of two years. He shall be appointed by the Appointments

Committee of the Cabinet on the basis of recommendations made by a

committee headed by the Central Vigilance Commissioner, with the Home

Secretary, Secretary (Personnel) and Revenue Secretary as members.

(x) A Nodal agency headed by the Home Secretary with member (investigation),

the Central Board of Direct Taxes, Director General, Revenue Intelligence,

Director Enforcement and Director, CBI as members shall be constituted for

coordinated action in cases having politico-bureaucratic – criminal news.

The agencies shall meet at least once every month and its functioning should

be watched for one year so as to improve it on the basis of experience gained

during the period.

(xi) Steps should be taken immediately for constitution of an able and impartial

agency to perform functions akin to those of the Directorate of Prosecutions

in United Kingdom. Once this is done, the task of supervising prosecutions

launched by CBI/Enforcement Directorate shall be entrusted to it.

(xii) A panel of competent lawyers of impeccable regulation shall be prepared and

utilized to prosecute important cases. The advice of a lawyer from this panel

should taken during investigations also.

(xiii) The Supreme Court has observed that there is urgent need for the State

Governments to setup credible mechanism for selection of the police chief in

the states. The Supreme Court has asked the Central Government to pursue

the matter with the State Governments and ensure that a similar mechanism

as suggested in the judgement, be set up in each State for selection /

215

appointment, tenure, transfer and positioning of all police officers of the rank

of Superintendent of Police and above. Continuing its move towards

insulating of Investigating agencies in proper discharging of their functions,

the Apex court laid down principles upon which police custody may be

justified during further investigation. In Dawood Ibrahim‘s Case292

which is

well known for a series of Bomb explosions on 12-03-1993 which took place

in and around the city of Bombay resulting in the death of 257 persons,

injuries to 713 persons and damage to property of worth Rs. 27 crores. In this

connection 27 separate criminal cases were registered and on completion of

investigation, the police submitted a composite charge sheet against 198

accused persons including 45 absconders under various sections of Indian

Reveal Code, TADA, Arms Act and Explosure Substances Act.

Subsequently on request of both Central and State Government of

Maharashtra, C.B.I. took up further investigation of the cases.

Resultantly C.B.I. prayed for issuance of non bailable warrant of

arrest against some of the accused persons, who were absconding and

evading arrest. The designated court rejected the application holding that

after taking cognizance on the police report, the court can issue process to

the accused person to compel them to face the trial, but no such process can

be issued by the court in aid of investigation under section 73293

of Cr.P.C.

The C.B.I. preferred appeal to the Supreme Court against the decision of the

designated court

The Supreme Court allowed the appeal and held that Sec. 309 of Criminal

Procedure Code (Cr.P.C.) does not stand in the way of the court, which has taken

cognizance of an offence, to authorize the detention of a person, who is subsequently

brought before it by the police under arrest during further investigation, in police

custody in exercise of its discretionary power under section 167 of the Criminal

Procedure Code (Cr.P.C.)

In another case State of M.P. Vs S.B. Johari and others294

, the apex court

provided more wings to the Investigating agencies in the matter of framing of

292

C.B.I. Vs Dawood Ibrahim Kaskar 1997, S.C.C. (Crl) P: 636 293

Sec 83- Warrant may be directed to any person Criminal Procedure Code (Cr.P.C.) 1973 294

2000, S.C.C. (Crl) P. 311

216

charges against the accused and defined the scope of evaluation of evidence by the

court at the stage of framing of charges against the accused persons.

It was held in the judgement that at the stage of framing the charge, the court

was illegal and erroneous and it appeared as if the court was deciding the case as to

whether the accused were guilty or not. In most of the cases it was only from the

available circumstantial evidence that an influence of conspiracy was to be drawn.

The Supreme Court observed that the High Court instead of considering the prima

facie case, appreciated and weighed the material on record for coming to the

conclusion that charge against the respondents could not have been framed. It is a

settled law that at the stage of framing charge, the court has to prima facie consider

whether there is sufficient ground for proceeding against the accused. The court was

not required to appreciate the evidence and arrive at the conclusion that the materials

produced were sufficient or not for convicting the accused. Therefore, the Supreme

Court held that there was no justifiable reason for the High Court to quash the

charge framed by the Trial Court. The Supreme Court, in an order dated 22.09.2006,

relying on past reports, said that ―many of the deficiencies in the functioning of the

police had arisen largely due to an overdose of unhealthy and petty political

interference‖295

and concluded that it was important ―to insulate the police

(investigating agencies) from political interference‖. Almost all state police

commissions and the National Police Commissions have found misuse by politicians

for partisan ends.296

Police officers (investigating agencies) feel compelled to

comply with illegitimate political directives because they know that disobedience

might lead to their transfer to a different post. Elimination of illegitimate political

control has been attempted, for example in the State of Kerela, Corruption did not

decrease. This point was made in the roundtable, Conference on police reform in

2003.

―In Kerela, where this simple theory has been enacted as informal policy, the

state‘s police has indeed secured some freedom from the blight of unlawful political

control. However, according to some, this has been, to some extent, a mined

blessing. ―Faceless middlemen‖ have replaced the corrupt politicians in debasing

295

The Supreme Court in its judgement of 31.12.2006 in Write Petition (Civil) No. 310 of 1996. 296

Report of the Roundtable Conference on Police Reforms (26-27 June, 2003 (HRI), P.5. available

at HTTP;/www.hummanrights initiative. Org/publications/police/rte-report-trinandrum.pdf. Last

visited on 20th

May, 2011.

217

policing. Insulation from illegitimate political control has not resulted in reducing

police corruption. In fact, corruption at the police station level is alleged to have

increased. At least when politicians misbehave as public figures, they can be forced

to answer to the media and eventually to the public. The faceless middle man, who is

often more dangerous than a politician, can obstruct democratic policing with no

thought to his accountability or a potential media backlash‖.297

It is apparent that a mere disassociation of investigating agencies from

political powers is insufficient to eliminate corruption. In fact, it will hold potential

to provide even less accountability than is found at present. Political interference can

not be eliminated by simply introducing an institutional separation. The

investigating agencies can be autonomous only after and not before, they have

proven themselves to be an organization subject to the ‗Rule of Law‘.

(E) Supreme Court on Custodial interrogation

The Supreme Court is heavily favoured towards custodial interrogation of

highly influential political people. A historic direction was given by it in the case of

Anil Sharma.298

Anil Sharma, a member of Legislative Assembly of Himachal

Pradesh, was a former Minister in Himachal Pradesh Government for about three

years. His father, Sukh Ram was Union Minister for Tele Communications. Anil

Sharma was charged under Section 13(2) of the Prevention of Corruption Act, 1988

with the allegation that he had acquired wealth to the tune of Rs. 16,5000-in excess

of his known sources of income. While the Central Bureau of Investigation was

investigating the case, Anil Sharma got anticipatory bail from High Court of

Himachal Pradesh, but the Supreme Court in a Special Leave Petition cancelled the

same. The Supreme Court held that the principal ―bail not jail‖ is applicable only for

considering the post-arrest bail of the accused involved in a crime. By cancelling the

order of anticipatory bail granted to Anil Sharma by Himachal Pradesh High Court,

the Supreme Court agreed with the submission of the Central Bureau of

Investigation that ―Custodial Interrogation is qualitatively more elicitation oriented

than questioning a suspect who is well ensconced with a favaourable order under

section 438 Criminal Procedure Code (Cr.P.C.)299

In this case the Apex Court held:-

297

See Police Peform, Roundtable 298

CBI Vs Anil Sharma J.T. 1997 (7) S.C. p. 651. 299

Sec. 438-Anticipatory Bail

218

―Effective interrogation of suspected persons is of tremendous advantage in

disinterring many useful information‘s and materials which would have been

concealed. Success in such interrogation would elude if the suspected person knows

that he is well protected and insulated by a pre-arrest bail order during the time of

interrogation‖.

Though the argument that the custodial interrogation is fraught with the

danger of the person being subjected to third degree methods need not be

countenanced, for such an argument can be advanced by all accused in all criminal

cases.

The court has to presume that responsible investigating officers would

conduct themselves in a responsible manner and would not subject the arrested

person to third degree methods.

In the case Bhagwan Singh Vs State of Punjab300

the accused police

officers detained the deceased person for interrogation on the charges of smuggled

narcotics. During the interrogation he was beaten and tortured to such an extent that

he died and was thrown into a river and the same could not be recovered during

investigation. The wife of the deceased gave a report to him, on the basis of which

the S.P. Amritsar City, took up the investigation and recorded the statement of the

witnesses. He visited the scene of occurrence and found the walls of interrogation

room stained with blood. After completion of the investigation a charge sheet was

filed. The trial; court convicted the accused person under section 365 Indian Penal

Code. The High Court, however took a different view and reached the conclusion

that when once it is proved that the injured witnesses along with the deceased were

kidnapped, confined and beaten up and later if dead body was not traced, the only

inference that can be drawn is that the accused has caused the death of the deceased.

The Criminals appealed against this judgment and the Supreme Court came to a

conclusion and held that although the police officer/ investigating officer has the

right to interrogate or arrest any suspect on credible information yet that does not

mean that they can inflict injuries during interrogation. Torturing and using third

degree methods are barbaric and contrary to law. The investigating officers must

adopt scientific methods than resorting to physical torture. The police officers who

300

(1992) 3 SCC 249

219

have to provide security and protection to the citizens indulge in such methods

which are creating a sense of insecurity in the minds of the citizens.

In another case named

“Ashok Hussain Allah Detha, alias Siddique and another Vs Assistant

Collection Customs (P) Bombay and another‖. The court said, the investigating

officers may lawfully detain a suspect for an offence but detention in custody for

interrogation is not authorized by law. The investigating officers may detain for an

offence only. There is no authority in the investigating officers to detain a person for

the purpose of interrogation or helping them in enquiry.

In cases under the N.D.P.S. Act and Customs Act, the prosecution is, no

doubt, entitled to rely upon the statements of the accused during investigation. But

what the investigating officers do, in such cases is to procure statements, by assault,

illegal detention and fear of continued detention. They, then present these documents

as ―statements‖. The law does not permit to do so. The manipulation and abuse of

the legislative sanction for the use of statements of the accused requires to be

censured in the strongest terms.

(F) Supreme Court, on Investigating officers fabricating records in Judicial

Proceedings.

The Criminals are roaming Scott-free in society due to mischief‘s played by

the executive, legislature or the judiciary. Each of them have played their part in

protecting such criminals. Many a times it is the law enforcement officers

themselves responsible for letting them go, by the judiciary, on producing and

fabricating false evidences in support of them. The Supreme Court has taken serious

note of the mal-practices adopted by the police officials by way of making false

statement in Judicial proceedings, misleading the court by false report, false affidavit

in court and for assault on Judicial officers etc. A writ petition under Article 32 was

filed in the Supreme Court in Afzal‘s Case for habeaus – corpus of two minor boys.

The brief facts of the case are that the S.H.O. Ambala cantonment registered a

criminal case with Government Railway Police, Faridabad against one Rahim Khan

on the allegation of forgery of Railway receipts, cheating and misappropriation. In

connection with this case a police-party headed by Ishaq Ahmed, Inspector, CIA,

G.R.P. Amabala had gone to Agra to apprehend Rahim Khan, who was not

available. It was alleged that the Investigating team abducted two minor boys Afzal,

220

son of Rahim Khan and Habib, son of Ahmad and kept them in wronglful

confinement at different places. The Supreme Court, on a writ petition filed before it

under Article 32 as aforesaid, directed the Director General of Police, Haryana to

enquire into the matter and to submit report before the court within 6 days. The

order of the Supreme Court was duly communicated to the D.G.P. Haryana on

02.11.1993. An affidavit was filed in this case by M.S. Ahlawat, Superintendent of

Police, who denied the involvement of police officers in wrongful and illegal

confinement of two minor boys. But the Surpeme Court was not satisfied with the

affidavit submitted by M.S. Ahlawat, rather the District & Sessions judge of

Faridabad was directed to make an enquiry and to submit a report within 6 weeks

from the date of receipt of the order. The District Judge examined the witnesses,

recorded their statements and submitted his report to the Apex Court, but the Apex

Court was not again satisfied with this enquiry.

Ultimately, the Director of Central Bureau of Investigation was entrusted

with the task of enquiry, who submitted the report to the Apex Court after enquiring

into the matter. On 30.10.1993, Mr. Ahlawat filed another affidavit denying

involvement of the police officials in taking two minor boys in wrongful

confinement.

This statement of M.S. Ahlawat was proved to be false from the enquiries

conducted by D.G.P, Haryana, District and Sessions Judge, Faridabad and also

Central Bureau of Investigation‘s enquiry.

The Supreme Court came to a conclusion that M.S. Ahlawat, S.P. of Police

made a false statement before the supreme court at different stages of the Judicial

proceedings and that Mr. Ahlawat had given instructions to his subordinate Ishwar

Singh to direct H.C. Krishan Kumar to forge his signature on the carbon copy of the

affidavit to be filed before the Supreme Court, presumably because he did not want

to commit himself to the false version regarding illegal custody and wrongful

confinement of two minor boys by signing on the affidavit filed before the supreme

court. Also, the court said that all the erring officers have interfered with the due

cause of administration of Justice. Accordingly the Ape Court invoked the power of

contempt under Article 129 of the Constitution and convicted all the erring police

officers sentencing them to undergo different imprisonments. For one month and to

pay a fine of Rs. 1000/- for actively abating the commission of assault on a Chief

221

Judicial Magistrate, Nadiad, in the State of Gujrat. The incident which prompted the

senior Police Officer to Commit such irresponsible behavior, that too against a

Judicial Officer; was that the CJM Nadiad passed structures and made complaint

against local police for not cooperating with the court in effecting source of

summons, execution of warrants and other processes of the court. On Sep 25th

, 1989

C.J.M was invited to visit the police station by the Police Inspector. The C.J.M.

visited the police station at 8.40 P.M. on the same day, where he was forced to

consume liquor and on refusal he was assaulted physically, one panchnama was

prepared showing the drunken state of Chief Judicial Magistrate. He was tied with a

rope and sent to Local Hospital for medical examination. He has not allowed to

contact the District Judge over telephone in the hospital. Two cases were registered

against him. First under the Bombay Prohibition Act and the other under section

S32/506 I.P.C., so that the CJM may not be released on bail. The District

Superintendent of Police who was aware of the incident did not take any action

against the police officials involved in the incident. The matter was bought to the

notice of the Apex Court, under the Article 32 of the constitution and upon this, one

sitting Judge of the Allahabad High Court was appointed as commissioner to make

enquiry and submit its report before the Supreme Court.

The Supreme Court held in this case as a matter of guidelines to the

investigating agencies that a police officer cannot arrest a Judicial officer in

connection with a criminal case without intimation to his higher authority.

Again on the same lines in the case of Dhananjay301

, an I.P.s. Officer of 1982

batch was sentenced to Jail by the Supreme Court on a writ application giving rise to

contempt proceedings. In this case the Supreme Court passed strict structures against

Home Secretary, Haryana and D.G.P. Haryana for not responding to the first notice

issued to them by the Supreme Court and for not fulfilling their constitutional

obligation to assist the Supreme Court under Article 144302

of the constitution. The

Apex Court condemned the police officers who acted in the most high handed

manner to favour one party in a criminal case and for subjecting two innocent people

to harassment and illegal detention in the Police station. The Apex held that the three

police officers, including S.S.P. Hissar committed grave contempt of court by not

301

Art 144- of Indian Constitution.

302

Dhanjay Vs State of Haryana AIR 1995, S.C. P. 1795.

222

only interfering with the course of justice, but also making calculated and deliberate

attempt to obstruct the administration of justice by filing false affidavit in the Apex

Court. Another case which shows the high handedness of police brutalities and

contempt of court proceedings in order to attain the illegal motives is the Haila

Kandi Bar Associations Case.303

A resolution was passed by the Bar Association

condemning the brutal assault on an under-trial prisoner, Nurul Haque by Police.

The Supreme Court treated the same as writ petition under Article 32 of the

constitution. A.K. Sinha Casshyap, the Superintendent of Police, Hailkandi,

submitted a report about death of Nurul Haque Supported by an affidavit. The report

indicated that Nurul Haque, a Veteran dacoit, was beaten up by police before he was

apprehended by the police. The report further revealed that he was neither tortured

in police custody, nor died in police lock up. The post mortem report of the death of

Nurul Haque indicated Myocardial infraction with heart failure. The Hon‘ble

Supreme Court was not satisfied by the above report of the Superintendent of Police

and asked the Central Bureau of Investigation was asked to make an enquiry into the

matter and submit a report to it. The Central Bureau of Investigation report indicated

Shri A.K. Sinha Casshyap, S.P. Hailakandi for his disdainful role in preparing false

and fabricated report in order to cover up the guilt of his subordinates. The report

also pointed out that Nurul Haque was 35 years aged, of sound health, when he was

overpowered by Sub-Indspector Abdul Hye Choudhary and party on 09.03.1993,

There was no record of giving medical treatment to Nurul Haque on 09.03.1993 and

the brother, mother and wife were not allowed to meet him in the lock up on

10.03.1993. He was even not produced before the Magistrate on 10.03.1993. He was

taken to Hailakandi Civil Hospital for treatment but was not X-rayed, even after the

advice of medical officer. He was produced before the Chief Judicial Magistrate,

Hailakandi without any medical treatment being given to him. Nurul Haque

Collapsed on 13-02-1993 at 5.2 A.M.

The Police authority registered a case under section 302 Indian Penal Code

in respect of death of Nurul Haque against unknown members of the public on the

basis of complaint filed by SI Abdul Hye Choudhary. The wife of the deceased

(Nurul Haque) refused to take the dead body and filed an application to Chief

Judicial Magistrate for further post mortem of the dead body at Silchar Medical

303

Secretary, Haila Kandi Bar Associations Vs State of Assam, AIR 1996, S.C. P. 1925.

223

College, which was allowed. The Superintendent of Police, Hailakandi could not

produce any evidence before the Central Bureau of Investigation to substantiate his

allegation that Nurul Haque was a dacoit. Neither he was charge sheeted nor any

FIR of the case of dacoity was mentioned. The S.P. could not give any evidence to

CBI to substantiate the fact of giving any medical treatment to Nurul Haque. No

explanation was given by SP as to why a criminal case against unknown miscreants

was not started on 09-03-1993, when alleged attack on Nurul took place. According

to C.B.I. Nurul took place. According to C.B.I Nurul Haque was illegally detained in

police custody till 11-03-1993 and the cause of his death was brutal physical torture

while he was in police custody. The Supreme Court considered the report of CBI

and heard Shri A.K. Sinha Casshyap and held that Shri A.K. Sinha Casshyap,

Hailakandi submitted a false and fabricated report supported by false affidavit in

order to mislead the court and also with an intention to cover up the misdeeds of his

subordinates. The C.B.I report revealed that the death of Nurul Haque was at the

hands of the police. Shri A.K. Sinha Casshyap, tendered an apology only when his

report was found to be false and misleading, thus he was held guilty of committing

contempt under article 129 of the Constitution read with section 12 of the contempt

of court Act 1971 and sentenced to undergo a simple imprisonment for a three

months.

(G) Supreme Court on High Handedness of Investigating Officers

High Handedness of investigating officers has been on the agenda of

legislative and judicial authorities since a long time. Many new laws have been

enacted in order to suppress this evil but all in vain. Even the apex court has kept a

niggle view on the corrupt practice of investigating agencies. Custodial torture,

deaths, fake encounters; etc. are included in the hit list of investigating agencies.

Here the term used investigating agencies is being used in a wider sense including

police officials. Not only this, limits of high handedness of investigating officials is

very lengthy. Officials are involved in serious crimes such as abductions rape,

molestation, to name a few. In the following case Inder Singh Vs State of

Punjab304

, a senior police officer and his police party was allegedly involved in

abduction of seven persons. On an enquiry conducted by the D.I.G. (Crime), the

allegations were found to be true. He even recommended for the registration of a

304

AIR, 1995, S.C. P. 312.

224

case against the police officials under section 364 of Indian Penal Code, but no case

was registered. Ultimately the Apex Court interfered in the allegations and directed

the Director of Central Bureau of Investigation to make an enquiry into the matter as

no disciplinary action was taken against the delinquent Police Officers.

In another case named Dhanajay Sharma Vs. State of Haryana,305

the

Supreme Court pulled up Senior Police offices for their high handedness and

favouritism coupled with swearing false affidavit. The Haryana Police illegally

detained one taxi driver alongwith one Mr. Dhananjay Sharma an employee with a

business firm which had a civil dispute with the company owned by Sh. Anoop

Bishnoi, son-in-law of Mr. Bhajan Lal, the then Chief Minister of the State of

Haryana. The Senior Police officers favoured the son-in-law of the Chief Minister

and swore false affidavit before the Supreme Court in connection with writ of

habeas-corpus. On this the Apex court by invoking its contempt jurisdiction

sentenced Sh. Anil Daura 1982 batch I.P.S., S.S.P. of Hissar with imprisonment for

two months and Sh. Shyam Lal Goyal, I.P.S., Additional S.P. of Hissar and

Rajender Singh Yadav, S.H.O., Sadar Police Station, Hissar to undergo

imprisonment for three months in the same contempt proceedings. The Supreme

Court observed and held that the prime duties and functions of the members of the

police force is to prevent and detect crime, take such measures to ensure the safety

of the life, property and liberty of the citizens and it was only for this object for

which the police force was conceived.

In its concern over increasing instances of custodial violence, torture, deaths,

fake encounters etc the Supreme Court has repeatedly been giving its directions to

the Investigating agencies. In one of such cases306

the Supreme Court has laid down

that the ―exaggerated adherence to an insistence upon the establishment of proof

beyond reasonable doubt, by the prosecution that too by ignoring the ground

realities, the fact situations and the peculiar circumstances of a particular case, often

results in miscarriage of Justice and makes the Justice delivery system suspect‖.

Such unrealistic approach of courts give encouragement to tortures in police

custody. It is because of the reason that it re-enforces the belief in the mind of police

that no harm would come to them if an odd prisoner dies in the lockup because there

305

AIR 1995, S.C. P. 1795 306

State of M.P. Vs. Shyam Sunder Trivedi and others, 1995, S.C.C. (Crl) P. 715.

225

would hardly be any evidence available to the prosecution to directly implicate them

with the torture. The Apex court also held that torture in police custody Flaunts the

basic rights of the citizens recognized by the Indian constitution and is posing as a

serious threat to an orderly civilized society. The Law Commission of India, in its

113th

report recommended an amendment to the Indian Evidence Act, 1872 so as to

provide that in the prosecution of a police officer for causing custodial violence to

any person, if there is evidence that the injury was caused to the person in Police

Custody, the Court may presume that ‗injury‘ was caused by the Police Officer

having the custody of that person, unless the Police Officer proves to the contrary.

Brijala Prasad Sinha Vs. State of Bihar was a case where the Supreme Court held

that the ―post-mortem report as well as oral evidence unequivocally indicates that

the police party resorted to firing at the three deceased persons on a very close

range‖.

When the police officers left the police station with arms in their hand and

returned to the police station with three dead bodies it was for them to explain, under

what circumstances, the three people were killed. The defence of firing in self

defence is nullified because the police party did not receive any injury and the police

vehicle was also not damaged at all. The amazing part of this incident was that the

entry was made in the Station House Diary as an encounter. Criminal Investigation

Department, Patna took up the case for investigation. Chargesheet was submitted

after the investigation against five police officers including S.H.O. for committing

offence under section 302/34 I.P.C. The police officers were convicted and

sentenced to hang till death by the Session Judge, Gaya. On appeal, the High Court

upheld the conviction but commuted the death sentence of the constables to the life

imprisonment on the ground that they had to open fire under instruction of the

S.H.O. On further appeal to the Supreme Court, the Conviction of all accused Police

Officers was still upheld but the death sentence was commuted to life imprisonment.

Whether, it is a police officer or an officer of the Central Bureau of

Investigation or any officer of special investigating agency, he should be not spared

at the cost of the justice. Upholding and maintaining the ‗Rule of Law‘ should be the

foremost priority of the Supreme Court un awarding sentences.

226

It was in Jaspal Singh‘s Case307

the Supreme Court directed the Central

Bureau of Investigation to produce detenu Satish before the court in connection with

a case filed by one Jaspal Singh against the U.P. State. The detenu Satish was beaten

up and kicked by the constables of Central Bureau of Investigation in the precincts

of the Supreme Court. The two Inspectors who were entrusted with the duty of

production of Satish, allowed this gruesome act to happen before them. Sh. Rajdip

S.P. Central Bureau of Investigation (C.B.I.) admitted the occurrence and the

omissions on his part to control the conduct of the constabulary. The detenu was

examined by the Doctor of Supreme Court Infirmary. The Supreme Court observed

that the incident is indeed symptomatic of the degeneration in the respect for law,

human dignity and human rights by the police. Accordingly, a strong reprimand was

administered to Sh. Rajdeep Singh S.P., Central Bureau of Investigation (C.B.I.)

and cautioned him to conduct properly in relation to courts in future. The Apex

Court very rightly punished the police officers by invoking contempt jurisdiction.

In a number of cases308

the Supreme Court of India has seriously taken the

growing incidents of custodial crimes and thus delivered a number of guidelines

supplementing the already existing plethora of laws. In its active movement against

inhuman practices of police, the Supreme Curt Strike heavily upon police and

remarked that

―Nothing is more cowardly and unconceivable than a person in police …‖. In

aid and support of its movement initiated by Hon‘ble Sureme Court, the National

Human Rights Commission has also been the protagonist of the protection of most

basic fundamental (human) rights of the persons resident in the country.

Several directions have been issued to all the States and District

administrations asking for reports on matters relating to custodial crimes within 24

hours of occurrence.

The Apex Court has actively interfered into every incident of malpractice

and atrocities committed by Special Investigating Agencies and Police in particular.

The Supreme Court has made its all out efforts to combat this menace, clouded upon

the face of the largest democracy. The Apex Court started its movement through

307

Jaspal Singh Vs State of U.P. A.I.R. 1995 S.C.C. (Crl) P. 832. 308

Khatru Vs. St of Bihar (1981), S.C.C. P. 623. Mrs. Cardino & Ohters V. V.O.I. 1990 ACJ P. 804

SAHELI v. Commissioner of Police , Delhi A.I.R. 1990 S.C., p. 415

227

Sunil Batra‘s Case309

Wherein it embarked upon ensuring ‗minimum freedom of

movement under Article 19 of the Constitution notwithstanding that a person may

happen to be an under trial prisoner, except the restrictions put under a valid law.

Again on the historic Pre Shankar Shukla‘s case310

it laid down detailed guidelines

in respect of ‗hand cuffing of prisoners. The Supreme Court in continuation of its

move towards efficient and effective enforcement of law and keeping in view one of

the highest notion‘s of law – ―Delay defeats the Justice‖ struck heavily upon the

criminal cases, the adjudication of which have been found delayed either for want of

completion of timely investigation or for want of trial. To overcome such unhealthy

situation, the Apex Court delivered detailed guidelines for ensuring speedy disposal

of Criminal Cases, firstly in A.R. Antulay‘s Case311

and finally elaborated in Rajdeo

Sharma State of Bihar312

case and left no scope for delay tactics.

Even the International Community has also been expressing its concern over

increasing phenomena of custodial crimes since long.

Article V of the Universal Declaration of Human Rights says that ―No one

shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment‖.

On the front of safeguarding the Valuable fundamental and legal rights of the

citizens against unjustified arrest and detention, the Apex Court has taken serious

note of the increasing instances of such grave violations of law. Firstly Joginder

Kumar‘s Case313

and then in D.K. Basu‘s Case, the Supreme Court has made

detailed guidelines to ensure protection against unfair, illegal and unjust practice of

assault, beating and cruel torture upon under trials by the investigating agencies. In

several cases314

, the supreme court has taken serious note of the increasing instances

of filing of false affidavit or making false statement in judicial proceedings etc. On

behalf of police officials or other officials of investigating agencies. In some cases

the Apex Court did not hesitate in invoking the power of contempt under Article 129

of the Constitution and Convicted the erring officials and passed the appropriate

sentences upon them. In its move towards ensuring the secure living for the people,

309

AIR 1978 S.C. P. 1675 310

AIR 1980, S.C. P. 1535 311

(1992), I.S.C.C., P. 225 312

1998(4), Crimes, p. 53(S.C.) 313

Joginder Kumar‘s Vs State of U.P. AIR 1994, S.C. p. 1349. 314

Afzal Vs State of Haryana (1996) SCC (Cr) p. 424, Secretary, Hailakandi Br Association Vs State

of Assam 1996 SCC (Cr) P. 921, Dhananjay Sharma Vs State of Haryana, AIR 1995 , S.C. 1795.

228

the Apex Court has issued a number of guidelines in cases involving false

encounters, illegal abduction and custodial violence by officials of Investigating

agencies.

The Supreme Court‘s move towards ensuring a secure living for the citizens

didn‘t stop merely by issuing guidelines and passing sentences in some cases, rather

it has evolved a new mechanism of victim compensation for the effective

implementation of the its directions issued from time to time. This new concept of

victim compensation has been developed by the Supreme Court through various

pronouncements.315

of awarding compensation to victims. Apart from condemning

the investigating agencies for their faulty mode of functioning in Clear-cut disregard

of established principles of law, the Apex Court has also taken into consideration

various problems faced by the dedicated personnel of investigating agencies in their

continuous efforts towards effective enforcement of law for an efficient and smooth

running of criminal justice administration.

In Vineet Narain‘s Case316

, the Apex court framed a detailed scheme for

insulating investigation agencies from extraneous influences. Again in the case State

of M.P. Vs. S.B. Johari and others317

evaluation of evidence by the court at the stage

of framing of charges against the accused persons.

A perusal of Apex Court‘s verdicts make it crystal clear that the Special

investigating agencies owe a debt to the higher judiciary and to the Supreme Court

of India in particular for their valuable contribution in bridging the gap between law

and justice.

315

Crudalure M.J. Chiran V.O.I. 1995 SSC (Cr.) P. 925.

Delhi Domestic Working Women ‗s Forum V. U.O.I. 1995 (1) SSC P. 14.

Bhim Singh Vs. State of J & K, AIR 1986 (S.C.) P. 494.

Smt. Nilabati Bahera Vs. St. of Orisa AIR 1993 SC P. 1960. 316

1998(1) Crimes, P. 12 (S.C.) 317

2000, S.C.C. (Crl). P. 311.

229

(H) Supreme Court Guidelines on Separation of Investigation from law and

order Police

The Supreme Court judgement seeks to enhance police performance by

directing separation of investigation from law and order functions of the police in

turns and urban areas to ―ensure speedier investigation, better expertise and

improved rapport with the people‖. The court has ordered a gradual implementation

of this separation, starting with towns and urban areas with a population of one

million or more.

The Supreme Court directive is as follows:

―The investigating police shall be separated from the law and order police to ensure

speedier with the people. It must, however, be ensured that there is full coordination

between the two wings. The separation, to start with, may be effected in towns/urban

areas which have a population of ten lakhs or more and gradually extended to

smaller towns/urban areas also‖.

Both investigation and law and order are vital and specific police functions,

which must be streamlined separately to run concurrently. At present, it often

happens that investigations are stalled if there is a pressing law and order situation,

or investigations divert officers attention from law and order concerns. The

judgement does not specify how the separation should take place in practice but only

specifies that there must be full coordination between the two wings of the police.

The Model Police Act provides a useful template in this regard. It provides a

workable model to separate the two wings without affective the chain of command.

It also seeks to enhance the efficiency of the investigation wing by providing for

adequate scientific support to investigations, forensic sciences and qualified and

properly trained manpower. The Model Police Act sets out the following system.318

At the police station level

Creation of a Special Crime Investigation Unit headed by an officer not

below the rank of Sub-Inspector of police and comprising an appropriate.

318

See Chapter X: Effective Crime Investigation, Including use of Science and Technology in

Investigation pages 67-70.

230

(III) Principals on the Effective Investigations

Recommended by General Assembly resolution 55/89 of 4 December

2000319

:

1- The purposes of effective investigation and documentation of torture and

other cruel, inhuman or degrading treatment of punishment (hereinafter

―torture or other ill-treatment‖) include the following:

(a) Clarification of the facts and establishment and acknowledgement of

individual and State responsibility for victims and their families;

(b) Identification of measures needed to prevent recurrence;

(c) Facilitation of prosecution and / or, as appropriate, disciplinary

sanctions for those indicated by the investigation as being responsible

and demonstration of the need for full reparation and redress from the

State, including fair and adequate financial compensation and

provision of the means for medical care and rehabilitation.

2- States shall ensure that complaints and reports of torture or ill-treatment

are promptly and effectively investigated. Even in the absence of an

express complaint, an investigation shall be undertaken if there are other

indications that torture or ill-treatment might have occurred. The

investigators, who shall be independent of the suspected perpetrators and

the agency they serve, shall be competent and impartial. They shall have

access to, or be empowered to commission investigations by, impartial

medical or other experts. The methods used to carry out such

investigations shall meet the highest professional standards and the

findings shall be made public.

3- (a) The investigative authority shall have the power and obligation to

obtain all the information necessary to the inquiry. The person

conducting the investigation shall have at their disposal all the necessary

budgetary and technical resources for effective investigation. They shall

also have the authority to oblige all those acting in an official capacity

allegedly involved in torture or ill-treatment to appear and testify. The

319

In resolution 55/89, paragraph 3, the General Assembly drew the attention of Governments to the

Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment annexed to the resolution and strongly encouraged them to

reflect upon the Principles as a useful tool in efforts to combat torture.

231

same shall apply to any witness. To this end, the investigative authority

shall be entitled to issue summonses to witnesses, including any officials

allegedly involved, and to demand the production of evidence.

(b) Alleged victims of torture or ill-treatment, witnesses, those

conducting the investigation and their families shall be protected from

violence, threats of violence or any other form of intimidation that may

arise pursuant to the investigation. Those potentially implicated in torture

or ill-treatment shall be removed from any position of control or power,

whether direct or indirect, over complainants, witnesses and their

families, a well as those conducting the investigation.

4 Alleged victims of torture or ill-treatment and their legal representatives shall

be informed of, and have access to, any hearing, as well as to all information

relevant to the investigation, and shall be entitled to present other evidence.

5 (a) In cases in which the established investigative procedures are inadequate

because of insufficient expertise or suspected bias, or because of the apparent

existence of a pattern of cause or for other substantial reasons, States shall

ensure that investigations are undertaken through an independent

commission of inquiry or similar procedure. Members of such a commission

shall be chosen for their recognized impartiality, competence and

independence as individuals. In particular, they shall be independent of any

suspected perpetrators and the institutions or agencies they may serve. The

commission shall have the authority to obtain all information necessary to

the inquiry and shall conduct the inquiry as provided for under these

Principles.

(b) A written report, made within a reasonable time, shall include the scope

of the inquiry, procedures and methods used to evaluate evidence as well as

conclusions and recommendations based on findings of fact and on

applicable law. Upon completion the report shall be made public. It shall also

describe in detail specific events that were found to have occurred and the

evidence upon which such findings were based and list the names of

witnesses who testified, with the exception of those whose identities have

been withheld for their own protection. The State shall, within a reasonable

232

period of time, reply to the report of the investigation and, as appropriate,

indicate steps to be taken in response.

6. (a) Medical experts involved in the investigation of torture or ill-treatment

shall behave at all times in conformity with the highest ethical standards and,

in particular, shall obtain informed consent before any examination is

undertaken. The examination must conform to established standards of

medical practice. In particular, examinations shall be conducted in private

under the control of the medical expert and outside the presence of security

agents and other government officials.

(b) The medical expert shall promptly prepare an accurate written report,

which shall include at least the following:

(i) Circumstances of the interview : name of the subject and name and

affiliation of those present at the examination; exact time and date; location,

nature and address of the institution (including, where appropriate, the room)

where the examination is being conducted (e.g., detention centre, clinic or

house); circumstances of the subject at the time of the examination (e.g.,

nature of any restraints on arrival or during the examination, presence of

security forces during the examination, demeanor of those accompanying the

prisoner or threatening statements to the examiner); and any other relevant

factors;

(ii) History: detailed record of the subject‘s story as given during the interview,

including alleged methods of torture or ill-treatment, times when torture or

ill-treatment is alleged to have occurred and all complaints of physical and

psychological symptoms;

(iii) Physical and psychological examination : record of all physical and

psychological findings on clinical examination including appropriate

diagnostic tests and, where possible, colour photographs of all injuries;

(iv) Opinion: interpretation as to the probable relationship of the physical and

psychological findings to possible torture or ill-treatment. A

recommendation for any necessary medical and psychological treatment

and/or further examination shall be given;

(v) Authorship: the report shall clearly identify those carrying out the

examination and shall be signed.

233

(d) The report shall be confidential and communicated to the subject or

his or her nominated representative. The views of the subject and his

or her representative about the examination process shall be solicited

and recorded in the report. It shall also be provided in writing, where

appropriate, to the authority responsible for investigating the

allegation of torture or ill-treatment. It is the responsibility of the

State to ensure that it is delivered securely to these persons. The

report shall not be made available to any other person, except with

the consent of the subject or on the authorization of a court

empowered to enforce such a transfer.