Why, Tehelka, why?

April 7, 2012 § 9 Comments

Let’s be clear here. It’s no surprise to anyone that the people handling matters concerning law and justice are often victims of their own morals and prejudices. As a practitioner of Criminal Law, I have seen this at every stage – from Lawyers to Cops to Judges presiding over various levels of the Judiciary. My own experience (which includes a Cop telling me that my Client shouldn’t get upset over her husband hitting her every now and then since he himself hit his wife very often – these things keep happening in a marriage, after all) apart, I doubt the revelations of the Tehelka expose surprised anyone. Disgusted, yes.Repulsed, yes. Angered, yes.

The Article itself surprised me though, at its complete and utter callousness towards long term repercussions of deliberate and detailed “naming and shaming”. The Article nearly opens with an attack on the Superintendent of Police, Noida, for a violation of Section 228-A of the Indian Penal Code. Then, however, the Article goes on to discuss the opinions of Investigating Officers in cases which are sub judice. All in the name of Tehelka’s aim to change the system and root evil out of society and save the world, one sexist Police Officer at a time.

Which would be fine but for the fact that the Investigating Officer himself is a witness in every Criminal Prosecution. Every Officer who has investigated the case is under obligation to depose as to the manner in which the investigation was carried out, the recording of witness statements, the seizure of articles and forensic samples, pretty much everything until the filing of the chargesheet.And like every witness, the Accused has a right to cross examine him. And the right of cross examination extends beyond merely the investigation conducted.

Unlike the United States, there is no clear jurisprudence in India compelling an Investigating Officer to disclose material which is in the favour of the Accused. One of the possible reasons behind this is that there is clear legal provisions mandating the Investigating Officer and the Public Prosecutor to be neutral and so they are empowered with the ability to close cases in the event that adequate material does not exist against an Accused. In case a Defense Lawyer comes across material exonerating his Client, he waits until the Investigating Officer is examined and then produces the material before him for his reaction. Of course the I.O. will deny the authenticity of the material and claim that they did not find it relevant.

But what happens when the I.O. is confronted with his statement, nay, his opinion that the Accused is innocent? A clear statement by the Officer who oversaw the investigation and his finding that there was consensual sexual intercourse, the most common and crucial defense in a rape case? A statement made apparently voluntarily and on camera? The I.O. could very well deny it, but the production of these statements are extremely damaging to the Prosecution Case, as they discredit the entire investigation. I’m not even looking at the possibility of a Judge having read the news report and noting the observations of the concerned Investigating Officers. One may argue that the chances of this happening are too remote. A Defense Lawyer using these statements is a definite possibility, and unless all of the Accused in these cases appoint extremely incompetent Lawyers, I don’t see how this report could really work to anyone’s advantage.Except for Tehelka, I suppose.

It’s a sad day when you hope your rant catches the attention of the Chairman of the Press Council of India.

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§ 9 Responses to Why, Tehelka, why?

  • I did not understand how a defense lawyer confronting IO with his own statement compromises the case.

    Disclaimer: I’m not a lawyer.

  • Also, if an IO is so thoroughly exposed as non-professional, will he be continued on the case? Or if he is, surely his replacement will be demanded? I don’t know how these things work, but to me it seems the same guys would/should not be allowed to handle the case any further.

    • Amicus Curious says:

      ERven if the I.O. is to be replaced, he will need to be examined as a witness if he has been responsible for some part of the investigation that needs elaboration. For example – let’s say the same I.O. has recorded the statement of a witness who goes on to turn hostile. The I.O. needs to be examined to say that he had recorded the statement of that witness correctly.
      In the cases elaborated by Tehelka, the Defence Lawyer can easily ask the I.O. for the basis on which he made the statements on camera. Like I said, he might deny it or whatever, but these will form part of the permanent Court record. You must also understand that in a Criminal Case, the Prosecution is under obligation to prove their case beyond reasonable doubt. Any doubt cast on the truthfulness of the investigation goes in favour of the Accused. A defense lawyer in this case would probably stress the argument that the I.O. knew that the girl had consented etc. but was under political pressure to file a chargesheet against the Accused. I’m just saying that there was no need to identify the cops as being associated with any particular investigation.

      • hmm… ab samjhi. You’re saying that the cop saying that she was cheap, drunk, consented, etc can be taken as a fact of the case, instead of cop being asshole…. right? 😦

        • Amicus Curious says:

          Well, let’s take a more specific example. In one case, a cop says “The real issue here is that the girl is a habitual vodka drinker and had asked for a vodka party. She then demanded Rs 6,000 for sex. When the money wasn’t paid, she registered a rape complaint. I have her call records that establish she had a relationship with one of the accused” Now, besides the fact that these statements alone may adversely influence a Judge, the Defense Lawyer will call upon the I.O. to produce the call records, give the names of the persons who gave him this information so that they can be called as witnesses on behalf of the defense. The Cop is an asshole, no doubt.

          • Ray of sunshine, aren’t you? 😦 But still, good those cops got caught in the sting. If that meant they talked about whatever was current, so be it. Firing such cops after creating scandals will do a lot to change our situation on this subject. IF they fire them 😦

  • Pavithran says:

    The impact of the article is much greater through its telecast on national tv. That it may mess up the investigation is the expected and acceptable consequence considering that there is a systemic problem with these officers that needs greater attention. I hope there are many more such reports and that alone will bring the change to the system.

  • Cyrus says:

    good such reality known

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