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.