“The prosecution has failed to prove the case” — a statement such as this does not surprise anyone now. It was heard very recently in the Special NIA Court’s verdict in the Samjhauta Express case. The court made its remark while acquitting the four accused of bombing a train years ago — an attack that killed 68 people.
The so-called “failure of prosecution” has been in the news of late in the context of other widely-publicised cases in which the accused were acquitted. These include the Aarushi murder case, the Suhaib Illyasi case and the Hashimpura case. The session’s court decision, in 2015, to acquit 16 policemen for killing 42 persons in Meerut’s Hashimpura area was overturned by the Delhi High Court last year. In the 2G spectrum case, high-profile politicians, including former Union minister A Raja, were acquitted because the prosecution could not produce credible evidence against them. Ankush Maruti Shinde vs. State of Maharashtra highlighted the flaws in investigation, which led to six members of a nomadic tribe receiving death sentences by a session’s court in Maharashtra — the SC upheld the sentences in 2009 but overturned them in March. These cases indicate that all is not well with the country’s prosecuting system.
The prosecuting agency is one of the most underrated institutions in the country, despite its crucial role. It is beset by a few fundamental problems. For instance, the agency has an inevitable role-confusion. Two theories are in vogue in this respect. Ideally, prosecution is directed towards seeking truth and justice, and not necessarily towards seeking conviction. This means that the prosecution will present a case, including evidence, in a manner that ensures that the cause of justice is upheld, irrespective who gains or loses. In contrast, the conviction-seeking theory of prosecution measures the success of the agency in terms of the convictions it is able to secure.
Such confusion persists even in the rulings of the apex court. For instance, in the Kishan Bhai case, the Court said that every acquittal should be understood as a failure of the justice delivery system. But the SC also held that every acquittal would mean an innocent person was wrongly prosecuted.
If the latter view is correct, then one should not worry about the acquittals in the Samjhauta Express or Hashimpura. The need, however, is to understand the nature of the acquittal or conviction. We are of the view that all acquittals should not be treated as a failure of the prosecution. The purpose of justice can be achieved, even when there is an acquittal. An undeserved conviction will not do the cause of justice any good. This issue came up recently at a national-level conference of prosecutors in Bhopal.
There is a structural disjunction in the functioning of the agency of prosecution. Before the introduction of the new Criminal Procedure Code in 1973, the prosecution department was a part of the police department. The prosecutor was a key consultant who advised the police during investigation and guided them in filing the final report. Subsequently, the prosecution department became independent and was placed under an authority called the Directorate of Prosecution, which in most states is often headed by a police officer. Research shows that the separation of the prosecuting agency from the police department has drastically impacted the quality of investigation. Botched-up and shoddy investigation by the police results in a weak case with the prosecution — and eventually before the court.
Several external constraints are also responsible for the failure of the prosecuting agency. The career of a prosecutor does not promise much vertical growth and the service conditions are not geared towards attracting the best legal talent to this department. Despite the country having 27 national law schools, young legal professionals do not find the department an attractive career option. The department remains a low priority area for state governments.
The functioning and success of the prosecuting agency also depends on coordination between different agencies. Apart from the police, a prosecutor also depends on forensic reports, which are, very often, hugely delayed — this works to the detriment of a rigorous investigation. Moreover, witnesses turn hostile regularly. A prosecutor does not have any authority to guarantee safety and security to witnesses or assure them financial assistance. Such matters are controlled by other agencies.
The prosecutor also suffers from a lack of autonomy. This is unlike several European countries, where the prosecuting agency has considerable powers, including more say in the framing of chargesheets. Under Section 321 of the CRPC, the prosecutor can withdraw from a case in certain situations — actually such withdrawal is often guided by political considerations.
All this calls for a professionally-managed system of prosecution by creating a regular cadre of prosecutors. CrPC’s Section 25A — it states that “state government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit” — should be implemented in its true spirit. The states should ensure that the agency is headed by prosecutors — not police officers. Contractual appointments to the post of prosecutors needs to be done away with. The role of prosecution needs to be widened and conceived as not only an agency, which represents the victim but also someone who would provide a host of services to the crime victims at the pre-trial stages. This transformation of prosecution will make it a victim-friendly institution, which the country urgently requires.
This article first appeared in the print edition on March 29, 2019 under the title ‘Why the prosecution fails’. G S Bajpai is chairperson, Centre for Criminology &Victimology, National Law University (NLU) Delhi. Mehak Bajpai is a research associate at NLU.