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| Separation of prosecution wing will demean police efficiency | | | Mahadeep Singh Jamwal | 11/2/2019 10:27:19 PM |
| The root of Prosecutors posts embedded in India only upon establishment of the courts by the British Government to rule India. It was the East India Company in order to rule Indian States, brought their own machinery of administration of justice in India. Basically they made certain reforms in the court system, legal representatives, Prosecutors, and basic apparatus of the administration of justice. Initially all these officers were British whose main focus was concentrated on the three Presidency Towns namely Bombay, Madras and Calcutta. Therefore, the roots of Prosecutors in India are embedded in those towers. Initially, the Indians were not allowed to be Prosecutors. Before enactment of the Constitution of India on 26th January 1950, there were no uniform rules for governing prosecution in all the States in India. The Prosecutors were under supervision and control of the police wing of the respective States and they were known as Police Prosecutors. In year 1958 and 1969, The Law Commission of India has recommended to set up independent prosecution machinery. Now the Indian Prosecutors are regulated and governed under the Code of Criminal Procedure, 1973. The Prosecutors follow the rules of evidence under the Indian Evidence Act, 1872 throughout the criminal proceedings.
In Jammu and Kashmir, till now, we have been administering criminal justice system governed by the "Code of Criminal Procedure Svt., 1989 (1983 A. D.). Section 495 (4) speaks that an officer of the police shall not be permitted to conduct the prosecution if he has taken any part into the investigation with respect to which the accused is being prosecuted. As such the police department was having a separate wing of prosecution, separate cadre of officers their condition of service and matters connected thereto being governed by the 'The Jammu and Kashmir (Gazetted) service recruitment rules 2002' in respect of Gazetted officers and Police Rule 1960 in respect of Non-Gazetted officers and they have been appearing in the Courts for conducting criminal cases. Now with the enforcement of the Jammu and Kashmir reorganization Act, 2019, the Code of Criminal Procedure 1973 has come into force and as emphasized by the Supreme Court in case titled S.B Shahane and others Vs State of Maharashtra, a separate Directorate of Prosecution has been established and the officers/officials of Police wing of prosecution are no more police officers but the employees of new Prosecution Directorate. In S. B. Shahane V State of Maharashtra, it was held that the objective of keeping Prosecutors outside the police control is to ensure independence. If the Prosecutors are under police control, it will affect Prosecutorial independence. But it attracted lot of criticism.
The write up is exclusively based on my sole opinion mandated on the practical experience I have encountered in my police career as an Investigating officer. I won't shy away to reflect that my police career as Investigating Officer have brought maximum number of convictions and I dare to credit it to the Prosecution wing. I used to associate the concerned prosecutor with my investigation not as formality but as mentor to conclude my investigation logically enabling to bring conviction so that offenders could not walk free from judicial determination. We used to take the Joint ownership of the case for conclusion within legal framework. Before filling charge sheet in the court, the ball is in the court of police as soon as documents are prepared; it is the prosecution who leads the case. However, the role of police and Prosecutor is complementary to each other. Closest working relationship between Investigator and Prosecutor exhibited high conviction rates. Both investigators and prosecutors had used their expertise to build a case presentable in the Court. Their mutual cooperation and harmony was there in order to conduct effective prosecution. Police used to take needful advice of the Prosecutors in closing the case as charge sheet.
The Prosecutors were part of the Police establishment answerable to District SPs for their conduct and performance. The prosecutor used to play a role at the investigative stage in two important ways. He had been providing advisory assistance to the police in an investigation to make sure that the evidence required for conviction is present and that investigators have access to certain tools that the prosecutor controls, such as requests to the court for warrants for searches etc. The prosecutor as part of the police team was answerable for the lawfulness of investigative activities. The prosecutor used to be the principal representative of the police in Judiciary in all matters related to the adjudication of criminal offenses. The system has shown remarkable frequent and characteristic cooperation between the investigating and prosecuting agencies. The investigators and prosecutors were working closely together at every step of the Investigation way, focusing on the same goal and that was, conviction. The creation of separate Prosecution wing and delinking from Police will definitely contribute to the cooperation gap between police investigators and prosecutors. Differences between police and prosecution policies and priorities can make coordination difficult. If the police and the prosecutor do not discuss potential weaknesses in the cases, the defense may be able to outmaneuver them at trial. We have noticed and was in practice that the relations between prosecutors, police or other investigation and inquiry bodies were directed in the field of joint fight against crime, protection of human rights and freedoms of citizens and were carried out by interrelated activities, under the supervision of the District Police authorities on the enforcement and application of laws by the police or other investigation and inquiry bodies. Relations between prosecutors, police or other investigation-inquiry bodies were governed by the orders and instructions of jurisdictional police authority. This vital co-ordination is going to be delinked between these agencies as both Investigator as well as Prosecutor will have different controlling officers not answerable to each other. Prosecutors need a great deal of information to build a case but in the new set up they will lack person-to-person contact with the Investigating officer, who is most knowledgeable about the case. The problems that can be created by the cooperation gap may surface in many ways. In an extreme example, to circumvent a negative police-prosecutor relationship, police officers may engineer a case to look for a conviction but they will be lacking in degree and evidence about the quality of certain types of evidence or investigations, the amount of evidence needed to file charges or go to trial, as the prosecutors advice will be unavailable during investigation on this important aspect of the case. No communication between the police officer and the prosecutor will make the defense lawyer's job easier and the prosecutor's job harder. |
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