Statute protections to the accused are often ignored

Personal liberty” is the most valuable and inalienable right of every human being and guaranteed under Article 21 of our Constitution. Only because of its importance for the development of any individual and also of the country, this right could not be suspended by the President of India even during the period of emergency. Though, this right was construed narrowly in the initial days after our Constitution was adopted, at a later point of time, more and more meanings were given to this right and now it includes a right such as the right to a clean environment, enjoying, entertainment etc. A threat to personal liberty arises from the act of foisting false cases by third parties, negligent or one-sided investigation, fabricating false evidences or filing false report knowing that the charge is a false one. It also arises from effecting unnecessary arrest of a person and passing the detention order mechanically. In order to prevent any abuse or misuse of the power of arrest and interrogation granted to the investigating agencies, a number of safeguards have been incorporated by Parliament in the Indian Penal Code, Code of Criminal Procedure, 1973 and also Indian Evidence Act, 1872.

Sections 211, 218, 219 of the IPC, Sections 57, 41, 167 and 436A of the CrPC give ample scope for protection of the individual from malicious prosecution. There are enough provisions available in various laws to safeguard the interest of the accused persons and the persons arrested and remanded in criminal cases. In spite of the availability of such safeguards, often hue and cry is raised that they were wrongly charged in criminal cases. It is vociferous in most of the sensitive cases. When an accused, after facing the criminal case and after undergoing pre-trial confinement is acquitted, it is claimed that that accused was falsely charged and his lost life in the prison could not be compensated. In my experience, on a mere acquittal of a person in criminal case, it cannot be said that he was innocent and the court acquitted him only because he was innocent. Courts decide as to the culpability of a person only based upon the evidences recorded by it. The witnesses come to the witness box after a number of years have gone by since the date of commission of the offence. From the time the statement of the witnesses are recorded by the police to the time they are finally examined in the courts, there are a number of factors like human element, police empathy, influence of the accused, power of memory retention by the witnesses, etc. which play their part.

The success of our whole criminal administration depends upon the cooperation of the witnesses. But, till date, there is no effective witness protection programme. Further, invariably there is laxity on the part of the police in investigating any crime. There is an incentive to report falsely that the crime in one’s jurisdiction had come down. All these factors effectively spoil a fruitful prosecution. So, from the acquittal verdict alone, a person cannot be taken as an innocent and he was falsely implicated in the crime. In most of the cases, acquittals are only based upon “benefit of doubt”. On the other hand, there are also the cases of foisting of false cases against weaker sections of the people. Dalits, minorities, tribals and poor people are the most affected ones by such false prosecution. This happens mostly when the media shows some interest in a particular crime. In such cases, the investigating officials are under pressure to show quick result and if they are unable to spot the real accused, just to save their skin, they resort to fixing the responsibility on some persons from this weaker class. Thus, there are number of factors which play a role either in fixing an innocent person as accused or enabling the real accused to escape.

The Indian courts are also lethargic in safeguarding the constitutional rights of the citizens. Persons charged of committing an offence are acquitted only because the witnesses do not stick to their statement to the police or the police had failed to record the real statement of the witnesses. In either case, there is perjury. In western countries, I cannot say that such perjury or failure is totally absent. But, it is thought to be minimum. To tell the truth under oath is considered the sacred duty of every citizen. The obstruction of justice is taken seriously by the police and the court and cases are reopened. The former US President, Bill Clinton, faced impeachment only because of the allegation of lying in judicial proceedings. In those countries, in case of false or malicious prosecution, the courts enthusiastically set the law in motion to safeguard the interest of the affected citizens. There, society is open and the citizens are knowledgeable about their legal rights and obligations. In India, the situation is different. We are forced to approach the courts, even for registration of FIR and to get the FIR registered in compliance with the order so passed. In my view, the whole problem of malicious prosecution lies not in the legal system of our country but in the persons who are enforcing the law and in the people who are part of this administration of criminal law. If their mindset changes towards the plight of the victims of crime and also people facing false cases, the whole situation would improve a lot.
 
(The writer is an advocate practising in the Madras High Court)