KARNATAKA HIGH COURT
State Through Jagajevanramnagar Vs Firoz @ Jaggur
DATE: 4 July, 1998
Equivalent citations: 1999 (1) ALD Cri 144, 1997 (3) KarLJ 308
Bench: M Saldanha, M Vishwanath
ORDER
1- From time to time, the Courts are required to undertake a purificatory exercise and on this occasion, we do it with a deep degree of distress. In the course of the last one year it has repeatedly come to the notice of this Court that the working of the Criminal Courts is being systematically sabotaged resulting in the systematic failure of prosecutions. Whereas, the rate of convictions in criminal trials of all categories varies between 54% and 72%, if one were to take a cross-section of the State averages, it is found that the rate of acquittals in this State is around 86% with a conviction average of hardly 14%. The failure rate of prosecutions is abnormally high and this has built up a level of confidence in the criminally minded elements of society that they can infringe the law almost with impunity because even if they are apprehended, the chances of being acquitted are almost certain. This Court has several times issued directions to the Judicial Officers presiding over the subordinate Courts that there are two other contributory factors, the first being untimely, bail orders and indiscriminately releasing persons on bail on unusually lenient terms compounded by the wrong practice of awarding, as this Court has earlier defined as “fleabite sentences” which are so ridiculously lenient, that they have made a joke on the justice dispensation system. It is the combined defect of all these factors that is providing an incentive for crime and instead of punishing the wrong doer, strangely enough, the party not only gets away, but ironically, is rewarded in the process.
2. While analysing the more apparent causes for failure of prosecutions, this Court found the performance of the police to be deplorable. In a large number of instances, the investigation is either slack or tainted and is invariably a combination of both. This Court has issued a series of directions to the Director General of Police and has been assured in turn that the department has taken corrective action and will ensure that the efficiency levels and the honesty levels will be restored. The Vohra Committee Report submitted to the Government of India and subsequently accepted by Parliament has outlined the Criminal/Politician nexus and this is a factor that has been seriously undermining the functioning of the Police Department because political interference in criminal investigations is rampant and society will have to find a solution to this because it is an area where the cases are stifled at the investigation level, the accused are invariably not even arrested and even if they are, the investigations are closed under political pressure.
3. Apart from the action directed by this Court against the police, it was found that in a series of cases particularly serious offences such as murder, rape, wife burning and dowry deaths and the like, that the medical and forensic evidence is heavily tampered with. Whether it is a question of the injuries or the post-mortem or forensic analysis such as in rape cases, the medical profession has much to answer for because the entire prosecutions have failed only because of the fact that the doctors have tampered with the medical records or even been bold enough to come to Court and brazenly give evidence in favour of the accused. This Court has repeatedly come down heavily on such malpractices and has even had occasion to direct prosecutions against errant doctors. Again, the Government has given assurances to this Court that stringent remedial action has been undertaken. From time to time, this Court has not been at all satisfied with the performance of many of the Presiding Officers of the Criminal Courts because there have been many instances when the witnesses have not even been examined, when the evidence has not been properly recorded, a large number of instances where accused have been discharged or acquitted on the ground that the witnesses are not present or the evidence is lacking and we have pointed out on all these occasions that the duty of the Presiding Officer of a Criminal Court is to ensure that the trial proceeds fairly and correctly and not to be indifferent to what has happened in the Court room or to accept whatever the Prosecutor does or to wait for every opportunity to give the total benefit of the situation to the accused. The Law provides for adequate remedies in cases where the investigating authorities or the prosecution is lax or negligent and these correctives will have to be applied in the Court room if the public confidence in the justice dispensation machinery is to be restored.
4. As far as the role of the Prosecutor is concerned, this Court has laid down several guidelines with regard to what is expected from the Prosecutors and has had occasion to take action in a number of cases where it was apparent that the presentation of the case was not up to the mark or in those of the instances where it was found that due to collusion many things had happened in the Courtroom to favour the accused such as deliberately keeping back the evidence. This Court has had occasion to order action against some of the Prosecutors and we are happy that the Director of Public Prosecutions has instituted a number of measures to eliminate these corrupt practices and ensure that a new leaf is turned over. We would however like to monitor the situation and find out as to whether this is only a paper assurance or whether something has in fact been done. That brings us to the last category of persons responsible for what we have defined as, the “sabotage” of criminal prosecutions, and that is the role of the defence lawyer. We do appreciate, while having to comment on the performance of the members of the Bar, that this State has produced some really outstandingly good lawyers both on the prosecution and defence side and that even as of today, the competency, skills and integrity of many of them is not only good but is admirable. As inevitably happens however, there will always be an unfortunate category of professionals who desire to take shortcuts and who are responsible for shortcircuiting and disgracing the entire system. It is the misdemeanors of these persons that cast an ugly shadow over the entire picture and it is unfortunately this alone that stands out and is noticed. Also, where through such malpractices success is achieved, it undermines the performance of the better class of lawyers by demonstrating that it is easier and more lucrative to succeed through malpractices. While this Court has been dealing with other categories of persons responsible for the failure of the prosecutions, it was repeatedly brought to our notice particularly on behalf of the State of Karnataka that there is a small category of lawyers who specialise in tampering with the investigations, who approach the doctors and get them to manipulate the medical evidence, who even corrupt the Prosecutor and ensure collusion with the defence, also but more importantly, to ensure an acquittal be tampering with the witness evidence. The percentage of serious criminal cases in which witnesses are hostile is abnormally high, averaging 83% in the State and it is the single most important factor that contributes to the failure of prosecutions. The Law Commission has pointed out that detailed investigations done over the years into allegations of judicial corruption have on every occasion indicated that the causative factor is traceable to a corrupt lawyer. While dealing with the disturbing aspect of hostile witnesses, we have asked ourselves the age-old question in relation to serious crimes as to “who alone is the beneficiary of a witness turning hostile”. The allied questions that arise are, who is incharge of the proceeding, who is incharge of the conduct of the trial and is equally interested in its success and next, who is it that is most aware of what is the crucial evidence that could result in a conviction. Again, going back to the investigations done by the Law Commission, which fully tally with the complaint made before us on behalf of the State of Karnataka, it has been pointed out that there is a small sector or a small category of defence lawyers who admittedly specialise in tampering with the evidence and in particular, with witnesses and openly boast about it. These activities are a blemish to the legal profession but at the same time howsoever unpleasant it is, the time has come to put a stop to such abhorrent actions if the Criminal Courts are to function as the law enjoins them to. We express our deep distress and indignation at what has happened and we make it clear that our observations and directions are confined to this small category of errant professionals. We do not and will not generalise because it is manifestly unfair to do injustice to the lawyer body in general the lawyer body as a whole, or to tarnish the image and reputation of the legal fraternity. When a cancer is detected in a system, the only available corrective is to contain and eliminate the cancer before it destroys the best of the healthy system. We do not propose, under any circumstances to permit the malady to reach anywhere near malignant dimensions and propose to arrest it in time.
5. In the course of the hearing of this appeal, it becomes necessary for this Court to issue very stringent directions to the State of Karnataka with regard to one aspect of the matter that has been seriously undermining the maintenance of law and order in the State. This Court has been virtually horrified to find out that in case after case, the accused and that too in serious offences such as attacks on women, dowry deaths, kidnapping, rape, murder and the like, were being acquitted on the specious plea that the witnesses have turned hostile. This Court had occasion to come down heavily on such malpractices by pointing out that witnesses did not automatically turn hostile but that this malpractice is traceable to certain quarters if the question is asked as to who is the beneficiary when a witness turns hostile. The blame for the failure of prosecutions is sought to be passed from party to party and we had directed the State to take necessary corrective action. We were not satisfied with the general paper assurances that steps would be initiated to arrest this state of affairs, neither were we satisfied with the second report which mentions that the State is generally concerned and that necessary steps would be taken. We had asked for a specific report with regard to what steps were being taken, and the Director of Prosecutions has now filed a report in which he has outlined various corrective measures as also directions that have been issued. What we want to see is a change in the situation and an improvement and not assurances in reports and copies of circulars and directions, and to this end, it is specifically pointed out to the Law and Home Department of the State Government that they will have to take regular systematic follow-up action and see to it that these malpractices are totally stamped out.
6. There is one area that had not earlier been covered and that is with regard to the role of the Bar in these unfortunate instances. The Director of Prosecutions shall bring the matter to the notice of the Bar Council of Karnataka, which body in turn shall be requested to take up the matter with every Bar Association at all levels in the State and specifically bring it to the notice of the members of the Bar that the High Court has taken a serious view of what has happened and that irrespective of what was going on in the past, there shall be a full stop to these malpractices. While we accord highest respect to the members of the Bar, the Advocates being Officers of the Court, we also remind them that under no circumstances shall these unethical practices be tolerated. Inevitably if it continues, serious action will follow, and we need to warn those concerned that though the Courts will ensure that the dignity of the members of the Bar and their rights will always be upheld that there is no immunity to the lawyer who may be found indulging in such unethical and unprofessional practices.
7. It is necessary for this Court to take these steps because systematic acquittals in these cases has totally and completely undermined the law and order situation in the State and has resulted in the Courts getting a bad name in the process.
8. A copy of this order shall be forwarded by the Registrar General to the Chairman, Bar Council of Karnataka, with a request that the Bar Council of Karnataka should take expedient follow-up steps and report back to the High Court.
9. The Registrar General shall also ensure that a copy of this order is sent to all the Judicial Officers in the State who have occasion to handle criminal cases, pointing it out to them specifically that a clear and conscious effort has got to be made to put a complete stop to these malpractices and that rigorous action will have to be taken against any person who has contributed to it.
M Saldanha,
M Vishwanath