LAWET

Kaustav Ghosh

[This paper was presented at a One day National Seminar on Access to Criminal & Correctional Justice for Marginalized in Contemporary Indian Context organized by Tata institute of Social Sciences, Mumbai along with Maharashtra Human Rights Commission and International Justice Mission on 28th January, 2018]

IV)Role of Law enforcement authority in the light of this research–In Bathula Nagamalleswara Rao & Ors. V. State Rep. By Public Prosecutor 2008(2) CRIMES 188 (SC) at page 189 the Apex court held that Delay in lodging of FIR, if justifiably explained, will not fatal. An undue delay in lodging a First Information Report is always looked with a certain amount of suspicion and should as far as possible be avoided.

Delay in lodging FIR can be of three types:-

(1) Delay in lodging First Information Report by informant;

(2) Delay in recording First Information Report by the officer-in-charge of the police station;

(3) Delay in dispatching the First Information Report to the Magistrate.

Because this topic is limited to the discussion on role of law enforcement authority and its connection with sub topic so we will discuss only on it. Sometime now a day’s very often Law enforcement authority intentionally cause delay in either registration of complaint or lodging F.I.R or filling charge sheet. Delay in dispatching F.I.R to nearest Magistrate is a serious concern in a judicial proceeding which ensures increasing number of under trial prisoner and thus the dream of Constitution makers which are speedy judicial remedy and better access to justice to its public went into vein. That’s why Hon’ble Apex Court’s observation in this case is absolutely correct.

In State of Haryana v. Ram Kishan 2000(2) RCR (Criminal) 1 (P&H) (DB) case it was held that-“Reasonable delay is always to be excused as has been decided by the Apex Court in many cases, and in codified laws nowhere time have been mentioned, but it is to be written within reasonable time period, as have been explained under”.

Flimsy police report is the another form of hotchpotch investigation and High Court of every state and Supreme Court of India criticises the investigating authority in number of cases. Recently (January 2018) Calcutta High Court ask the investigating authority that how it is possible for human to travel atleast more than 2,000 km radius within 24 hours for completing investigation, collecting evidence from several witnesses and other material fact and record. The investigating officer after completing this within that stipulated time came back to his station house. Hon’ble Justice thats why ask-“Is he Police or Superman.”

V) Speedy trial@Access to Justice– In State Of U.P. V. Manoj Kumar Pandey  AIR 2009 SC 711 para 3 the Hon’ble Supreme Court decided that delay as regards timing of lodging of First Information Report is fatal to prosecution case specially in the offence rape. Hon’ble Apex Court’s observation is correct because within 48 hours if several biological samples(semen,blood)cannot be send for examination then Justice will be futile.  Access to Justice though only three words but those three was the dream sown by the constitution maker. They wanted to make our country great and all we know that a country is great and welfare state in the true sense of the term when public has more better access to justice by obtaining speedy judicial remedy. That’s why free legal aid and other method enshrined in the constitution to secure for its citizen “JUSTICE, social, economic and political”. If trial goes long then evidence got diluted or destroyed for reasons whatsoever and memory power of witnesses cannot be supermanic so that it will remain fresh in their mind. Previously I have already discussed framing of charges and its connection the role of law enforcement authority, speedy trial and access to Justice. In the landmark 1979 case of Hussainara Khatoon v. State of Bihar, a petition brought before the Supreme Court revealed that an alarmingly large number of people were in prison for years awaiting trial. The Court observed that several undertrials accused of minor offences were being detained for periods even longer than their formal convictions. It ruled that every undertrial had a right to a fair and speedy trial, and recommended that states build a comprehensive legal aid framework to tackle the issue of excessive undertrial detention.

In 2013, R.C. Lahoti, a former Chief Justice of India, wrote to the then Chief Justice Altamas Kabir, about what he described as the inhuman condition of prisoners in 1382 prisons across the country. The letter was taken up by the Supreme Court as a public interest writ petition. The social justice bench of the Supreme Court directed the relevant authorities to procure information pertaining to overcrowding of prisons and living conditions of prisoners. The Court reiterated the Home Ministry’s directives.

 In an interim order passed in 2016, the Court stated, “Unfortunately, even though Article 21 of the Constitution requires a life of dignity for all persons, little appears to have changed on the ground as far as prisoners are concerned and we are once again required to deal with issues relating to prisons in the country and their reform.”

                                                                 

In February 2017, the Union Minister for Law wrote to Chief Justices of all High Courts stating that all stakeholders “need to take collective responsibility for ensuring that institutional mechanisms work seamlessly to ensure access to justice for the undertrial population”.

 In April 2017, the Law Ministry launched three new programmes aimed at extending legal aid to marginalized people. In May 2017, the Law Commission of India recommended in a report that provisions on bail in the CrPC be amended to facilitate a reduction in the number of undertrials in prison.