Who Should Take Rap for Failed Court Cases?

January 30, 2014

Justice extorts no reward, no kind of price: she is sought, therefore, for her own sake.” – Cicero, Roman philosopher and statesman (BC106-43). Sixteen centuries later William Shakespeare, English dramatic poet (1564- 1616) said, in anguish, in Julius Caesar:

O Judgment! thou has fled to brutish beasts,

And men have lost their reason.

A century later, writing on the justice deliver status, Alexander Pope, English writer (1688-1744) observed:

The hungry judges soon the sentence sign,

And wretches hang (so) that jurymen may dine.

No wonder in mid-17th century the anarchists declared that the government was a conspiracy among politicians, cops, judges and clergy to keeps the goodies of State from the have-nots and corner them for the haves. They did not succeed in dismantling the constituted forms and institutions as indispensable condition for full social and political liberty. So, we continue with corrupt governments and justice delivery system. In the latter, the investigating machinery and the prosecutors often connive to help the accused and to deprive the victims, often the have-nots, of due justice. Nowhere is this more visible than in rape cases which, even as the populace protest on the streets, get thrown out in courts due to manipulative police and prosecutors.

At last the Supreme Court has opened up on this malaise and has given a path-breaking judgment on January 7, 2014 which, if acted upon, will have great potential to reform the justice delivery system. But, before we come to the judgment, delivered in a rape case, let us look at the status of rape cases handled by the courts, as reported by Thomson Reuters Foundation a couple of days before the SC judgment. Here are some excerpts:

The 24,206 rapes reported in 2011 by the National Crime Records Bureau (NCRB) is the equivalent of one rape every 20 minutes, but even that is thought to be a minority of the number of such attacks across the country. Indian police estimate only 4 out of 10 rapes are reported, largely because of the deep-rooted conservatism of Indian society, in which many victims are scared to come forward for fear of being "shamed" by their family and community. The number of courts, judges and prosecutors is grossly inadequate, leading to trials that last years, intimidation of victims and witnesses, and the dropping of many cases before judgment.

Around 26 percent of rape cases tried in court in 2011 resulted in convictions, according to the NCRB.

"Indian investigative mechanisms are really, really shoddy and very basic investigations are often botched up. A crime scene is very rarely protected, investigators don't know how to collect simple evidence like samples, photographs, fingerprints - and these are just the basics," says Rebecca Mammen John, a Supreme Court lawyer who has represented many rape victims. "And if you botch this up what is it you want to give to a court? You can't blame the courts for low convictions. After all, the court is not an eyewitness. The police have to offer them something to proceed on."

An August 2012 study of 40 rape cases tried by district courts in Delhi that resulted in acquittals, found that more than half the acquittals were due to police failure to perform adequate investigations.

Now we come to the latest Supreme Court judgment which, though has not received due coverage in the media, holds great promise if followed up as directed.

 In a first for the criminal justice administration, the Supreme Court has ordered fastening accountability on investigating officers and public prosecutors, saying they must face punishment if it was found that their deliberate lapses resulted in acquittal of the accused in cases involving serious offences.

"On the culmination of a criminal case in acquittal, the investigating or prosecuting officials responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy," said a bench of Justice CK Prasad and Justice JS Khehar. "Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the official concerned may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability," the bench said.

Writing the judgment for the bench, Justice Khehar said: "Accordingly we direct, the home department of every state government, to formulate a procedure for taking action against all erring investigating or prosecuting officials. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action...The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive". The bench asked the states to implement it in 6 months.

Justices Prasad and Khehar took this drastic step after being pained by lack of evidence leading to acquittal of a man from Ahmedabad who was accused of luring a six-year-old girl to the field, raping and then killing her, and severing her feet to steal hear anklets. The trial court had found him guilty and awarded death sentence, but both the high court and the Supreme Court found the evidence woefully inadequate to declare the man guilty.

After upholding the HC order, the SC bench poured out its anguish. "The perpetrators of a horrendous crime, involving extremely ruthless and savage treatment to the victim, have remained unpunished. A heartless and merciless criminal, who has committed an extremely heinous crime, has gone scot-free. He must be walking around in Ahmedabad, or some other city/town in India, with his head held high. A criminal on the move. Fearless and fearsome."

"Fearless now, because he could not be administered the punishment he ought to have suffered. And fearsome on account of his having remained unaffected by the brutal crime committed by him. His actions now know of no barriers. He could be expected to act in an unfathomable savage manner, incomprehensible to a sane mind," said Justice Khehar, who authored the judgment for the bench.

The bench said it was possible that this acquittal could mean an innocent person was saved from punishment but it could also be true that perpetrator of a heinous crime went scot free. Such situations must be remedied by fastening accountability on the investigating officer and the public prosecutor, it said. "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," it said.

One can only conclude on a hopeful note for the victims of crimes, specially of rape, with Hannah More, English religious writer (1745-1833):

Prompt sense of equity! to thee belongs

The swift redress of unexamined wrongs!

Eager to serve, the cause perhaps untried,

But always apt to choose the suffering side.


John B Monteiro, author and journalist, is editor of his website www.welcometoreason.com (Interactive CerebralChallenger). his latest book, Corruption - India's Painful Crawl to Lokpal, published in USA and priced at $21.5, is available online from amazon and locally at Biblios, Bunts Hostel road, Mangalore.



By John B Monteiro
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Comment on this article

  • mohammed salman, moodbidri

    Fri, Feb 07 2014

    In India, for rapist and robber they have 2 kill ..They dnt have to come out from jail ...the rule when it will come that god nos ....

  • c ferrer, mangalore

    Sat, Feb 01 2014

    I appreciate what you have written, but the simple fact is that in India it is money and delaying tactics of lawyers who rule the roost.
    Imagine a Probate application made three years after the death of a person (and after all the person's assets have been unilaterally divided by a few of the children) that on challenge became a suit in the lower court- lost by those who challenged the Will for very vague reasons 7 years later??
    Challenged in the High Court in Appeal and lower court verdict upturned by a Divisional Bench in a detailed judgement- not only upturned but done so "with costs" to the Applicants- another 8 years later.
    (The Applicants by which time had spent so much of money for lawyers over 15 years that they thought it was the end).
    Shockingly, because of money power the children who had usurped all the assets 18 years ago had they have filed a stay and SLP in the Supreme Court, which because it was not challenged in time has now become a Suit there in 2011- according to info this will come up for hearing sometime in 2019 or so ??
    In the meantime, those who have usurped the assets in the early 1990's illegally have gone and sold most of the assets or have divided it among their children.
    Does this make sense, allowing those in control to do all illegal things and get away with it for decades??

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