By Sushil Kumar Jain

Life and liberty  are cherished freedoms which have been guaranteed under Article 21 of the Constitution of India and. The role of police officers during investigation has always been a matter of concern  for all. Under the Code of Criminal Procedure, 1973 and others Acts, the police officers have been given vast, unbridled and discretionary powers to police officers to search, seize, arrest and investigate all criminal matters particularly cognizable offences. Such discretionary powers conferred on the police officers are almost absolute powers and are very often misused by the police for extraneous considerations like extortion, to get gallantry awards, out of term promotions etc. or with malafide intention of increasing the rate of conviction in their service record. The hon’ble Supreme Court of India in the case of R.P. Kapur vs. State of Punjab held that “The duty of investigating officer is to bring out the real unvarnished truth and not to bolster up a prosecution case with such false evidences as may enable the court to record conviction.” The absolute discretion so conferred on police officials and like officials is a double-edged sword in as much as  while it is necessary for the purpose full and proper investigation, at the same time it is being absolutely misused by the police officials. As the popular adage goes, “Power corrupts and absolute power corrupts absolutely” and the absolute discretion police officers enjoy give them an ample scope to indulge in corruption.

In this regards the law commission of India in its ‘177th Law Commission of India’ report has observed that “The scope for corruption and connected malpractices arises at several stages in the day-to-day workings of the Police, starting from the registering of a case, for arresting or not arresting, for extortion, for interfering in civil disputes, for fabricating false evidence, for collecting ‘hafta’ from businessmen and so on. The power of arrest is the most important source of corruption and extortion by the police officers.” The police officers and such other officers who are entrusted with the task of law enforcement, however, take recourse of third degree methods i.e. torture and excessive use of force, etc. and also involves themselves in the gross violation of fundamental and human rights of the citizens during the course of custodial interrogation. Even  the National Police Commission (1978-81) while examining the issues pertaining to police functioning In its first report, observed :

 “Police are frequently criticized for their use of third degree methods during investigation while examining suspected or accused persons. Police brutality in their handling suspect is referred to in some context or the other in the literature on police forces in several countries of the world, and the Indian Police is no exception. Interrogation of a person, whether he be a witness or suspect or accused, is a difficult and delicate exercise for any police officer and calls for enormous patience and considerable understanding of human psychology. Unfortunately several police officers under pressure of work and driven by a desire to achieve quick results, leave the path of patient and scientific interrogation and escort to the use of force in different forms to pressure the witness/suspect/accused to disclose all the facts known to him. While law recognizes the need for use of force by the police in the discharge of their duties on some specified occasions like the dispersal of a violent mob or the arrest of a violent bad character who resists the arrest, etc., the use of force against an individual in their custody in his loneliness and helplessness is a grossly unlawful and most degrading and despicable practice that requires to be condemned in the strongest of terms and we do so. Noting is so documenting as the conduct of police in practicing torture of any kind on a person in their custody.”

The Hon’ble Supreme Court in the case of Joginder Kumar v. State of U.P. placed reliance on the aforesaid national police commission report and observed: “The National Police Commission in its Third Report referring to the quality of arrests by the police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails.

Therefore, it is clear that third degree torture is usually assumed to be a short-cut method of investigation by the police. Further majority of arrest are not necessary, and are motivated for illegal motives like extortion.

HISTORICAL LAW BACKGROUND AND STATUARY ENACTMENTS PROHIBITING MAKING STATEMENTS RECORDED BY POLICE OFFICERS INADMISSIBLE

Pre-Independence Era

1. The Majesty’s Commissioners Appointed To Consider The Reform Of The Judicial Establishments, Judicial Procedure And Laws Of India. The said commission submitted its report and on page 110 of the said report under chapter “examination of parties and evidence” as part of the “Proposed Code of Procedure for the Courts of Criminal Judicature in Bengal” and observed:

“Then follow other provisions for preventing any species of compulsion or maltreatment, with a view to extort a confession or procure information. But we are informed, and this information is corroborated by the evidence we have examined, that, in spite of this qualification as to the character of the confession, confessions are frequently extorted or fabricated. A police officer, on receiving intimation of the occurrence of it dacoity or other offence of a serious character, failing to discover the perpetrators of the offence, often endeavors to secure himself against any charge of supineness or neglect, by getting up a case against parties whose circumstances or characters are such as are likely to obtain credit for an accusation of the kind against them. This is not unfrequently done, by extorting or fabricating false confessions; and when this step is once taken there is of course impunity for the real offenders, and a great; encouragement to crime. The darogha is henceforth committed to the direction he has given to the case; and it is his object to prevent a discovery of the truth, and the apprehension of the guilty parties, who, as far as the police are concerned, are now perfectly safe. We are persuaded that any provisions to correct the exercise of this power by the police will be futile ;and we accordingly propose to remedy the evil, as far as possible, by the adoption of a rule prohibiting any examination whatever of an accused party by the police, the result of which is to constitute a written document.”

2.  On the aforesaid recommendation by her Majesty’s Commissioners Appointed To Consider The Reform Of The Judicial Establishments, Judicial Procedure And Laws of India, section 145 making statement made before police officers as inadmissible, section 147 prohibits police to record any admission or confession, section 148 which made confessions or admissions of guilt to police officers inadmissible, Section 149 which states that confessions or admissions of guilt whilst a person is in custody of a police officer is inadmissible unless made in the immediate presence of a Magistrate and  Section 150 which related to discoveries were incorporated and enacted in first Criminal Procedure Code,1861.
3. Subsequently, the verbatim of above stated provisions of Criminal Procedure Code, 1861 were transferred to the Indian Evidence Act, 1872 after its enactment as Section 25, 26 and 27 respectively. This incorporation of the aforesaid provisions in the Evidence Act, 1872 has the impact of applicability in all matters not restricted to Criminal Procedure Code. Stephen in his “Introduction to the Evidence Act” states at p. 171 thus :

 “I may observe, upon the provisions relating to them, that sections 25, 26 and 27 were transferred to the Evidence Act verbatim from the Code of Criminal Procedure, Act XXV of 1861. They differ widely from the law of England, and were inserted in the Act of 1861 in order to prevent the practice of torture by the police for the purpose of extracting confessions from persons in their custody.”

 The reason for enactment of Section 25 in the Evidence Act has been observed in the case of Queen Empress vs. Babulal, as under:

“……the legislature had in view the malpractices of police officers in extorting confessions from accused persons in order to gain credit by securing convictions, and tha those malpractices went to the length of positive torture; nor do I doubt that the Legislature, in laying down such stringent rules, regarded the evidence of police officers as untrusthworthy, and the object of the rules was to put a stop to the extortion of confession, by taking away from the police officers as the advantage of proving such exported confessions during the trial of accused persons.”

4. In addition to above Criminal Procedure Cocde,1861. The legislature also enacted section 145 equivalent to the section 161 and section 162 of current criminal procedure code,1973 making any statement before an police officer inadmissible. The said provision continued in Criminal Procedure Code, 1872 as section 119 and section 121. This was follows in Criminal Procedure Code, as section 161 and section 162 and finally in Criminal Procedure Code, 1898 as section 161 and section 162. Criminal Procedure Code, 1898 was in force at the time of independence. Section 145 of Indian Evidence Act only permits part of such statement to be used only the purpose of showing contradictory statement of witnesses in the court.

Post-Independence Era

Even after independence Section 25,26 and 27 and 145 in the Indian Evidence Act,1972 and section 161 & 162 Criminal Procedure Code,1892 and thereafter section 161 and section 162 of Criminal Procedure Code,1972 continued to aforesaid prohibition. It can be comprehended from the above that the misuse of the law by the police is a well-known phenomenon and it is an open secret that the police is found to continue to misuse its absolute power resulting in illegal detention and often registration of false cases resulting in harassment and humiliation of innocent person in false cases. Such type of misuse of power by police is noticed by the hon’ble Supreme Court as well as by Law Commission of India.

SUPREME COURT OBSERVATION WITH REGARD TO MISUSE OF  POWER BYPOLICE OFFICER

1. During investigation in the police is found to have creating false evidence so much so. That they collect false evidence by even putting stock witnesses during trials. In 1985, the Hon’ble Supreme Court in the case Prem Chand v. Union of India made observations on such methods used by police to prove their case. The court was hearing a plea of Shri Prem Chand, a small-time soft drinks vendor, who was a professional perjurer for mutual benefits. In the said matter Shri Prem Chand was found to have given false evidence on stock witness in more than 3000 cases. The police even after structures or serious observation by Ho’ble courts did not given up that witness. In the said matter Hon’ble Supreme Court emphasised on the need for the State to issue clear orders to the police department to “free the processes of investigation and prosecution from the contamination of concoction through the expediency of stockpiling of stock witnesses”. Similarly in Darshan Singh’s case, highlights the offence under Section 194, where an investigating officer concocted false evidence with the help of two sarpanchas and villagers to convict an innocent man in a false murder case which lead to his conviction by Session Court and during the course of hearing of the appeal in the High Court, the so called murdered man appeared in person, before the Hon’ble High Court, the inspector and the sarpanchas and other witnesses were made liable to be prosecuted under Section 194 of IPC read with Sec 340 of the Code of Criminal Procedure. Such type of examples are not rare and are happening in some form or the other. This is a disease which has infected the entire system which needs to be rooted out with the enactment of stricter laws. Accordingly, the police officer is held to be interested witness inasmuch as he is always interested in the outcome of raid as observed in State of Bihar v. Basawan Singh. The evidence of police officers must be treated as any other interested witness as he is also concerned in the success of the trap and is vitally interested in getting conviction of even innocent accused. As opined by the Hon’ble Court in M.O. Shamsudhin v. State of Kerela[7] that such evidences have to be scrutinized carefully and require corroboration. Hence, no conviction can be solely based on interested witness. Neither the public nor the legislature put their confidence in police officers. This is the reason why the evidence of the investigating officer has been treated as doubtful and interested under the Scheme of the Code of Criminal Procedure, 1861, 1871, 1882, 1898, 1973 and the Indian Evidence Act, 1872.
2. The law commission of India in its 185th report while reviewing the provisions of the evidence act and particularly 25,26 and 27 has observed “ In the last three decades-as revealed from the media and innumerable law reports of the Supreme Court and High Courts-police conduct appears to have deteriorated rather than improving from what it was years ago. The Law Commission in its 113^th Report has in fact suggested incorporation of section 114B in the Evidence Act raising a presumption against police officers in case of custodial deaths of prisoners. The judgements of the Supreme Court on police violence are in good number, at least forty to fifty in the last three decades.”

On account of aforesaid proposed 114 B which raises presumption against the police officials in case of custodial death of prisoner. The said propel was made by the law commission on account of the observation made by the hon’ble Supreme Court in the case of State of UP vs. Ram Sagar Yadav in the end i.e. para 20.

3. Since misuse of power and corruption in the police system in one form or other has always existed, and the government in spite of directions by the Hon’ble Supreme Court did not take any efforts, therefore in Kishore Singh v. State of Rajasthan,  the Supreme Court showed its deep concern regarding the police atrocities as following:

“No police life style which relies more of fists than wits and on torture more than on culture can control crime because it means boomerang on ends and re-fuel the vice which it seeks to extinguish. Secondly the State must re-educate the constabulary out of their sadistic arts and inculcate a respect for human person – a process which must begin more by example than by precept of the lower rungs are really to emulate….Nothing is more cowardly than a person in police custody being beaten up and nothing inflicts a greater wound on our Constitutional culture than a State official running berserk regardless of human rights”

The Hon’ble Supreme Court in Munshi Singh Gautam and others vs the State of Madhya Pradesh, perhaps summarises the best how Courts have expressed concern about violence in custody over the years:

“The dehumanising torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system… the concern which was shown in Raghbir Singh case more than two decades back seems to have fallen on deaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in Gauri Shanker Sharma vs State of UP, Bhagwan Singh vs State of Punjab, Nilabati Behera vs State of Orissa, Pratul Kumar Sinha vs State of Bihar, Kewal Pati vs State of UP, Inder Singh vs State of Punjab, State of MP vs Shyamsunder Trivedi and the by now celebrated decision in D K Basu vs State of West Bengal seems not even to have caused any softening of attitude in the inhuman approach in dealing with persons in custody.”

In Gauri Shanker Sharma vs State of UP the court observed following:

“The High Court should have realised that cases are not unknown where police officer have given inaccurate accounts to secure a conviction or to help out a colleague from a tight situation of his creation.”

In Bhagwan Singh vs State of Punjab the court observed the following:

“It is a pity that some of the police officers, as it has happened in this case, have not shed such methods even in the modern age. They must adopt some scientific methods than resorting to physical torture. If the custodians of law themselves indulge in committing crimes then no member of the society is safe and secure. If police officers who have to provide security and protection to the citizens indulge in such methods they are creating           a sense of insecurity in the minds of the citizens. It is more henious than a game-keeper becoming a poacher.”

4. The aforementioned by Law Commission and the Hon’ble Supreme Court in number of cases such as Nilabati Behera vs State of Orissa,  State of MP vs Shyamsunder Trivedi and etc etc are enough to believe the existence of torture by police and its indulgence in fabrication and creation of false evidence. Hence, in 2006 the Hon’ble Supreme Court in Prakash Singh v. Union of India observed that “further wait for governments to take suitable steps for police reforms” and would issue “appropriate directions for immediate compliance”, binding the government to these directions until they framed appropriate legislation for the same. The Court, thus, delivered a notable judgment in Prakash Singh whereby it instructed the central and state governments to act in accordance with a set of seven directives which lay down practical mechanisms to initiate police reform.

The criminal justice system and in particular, the police have remained unchanged for the last 140 years. There has been no difference in the behavioural aspect of police personnel either. Police personnel still indulges in corrupt practices and notorious dealings and in present times, they have attained the art of bribery and influence. They have instead of combating crime and its perpetrators, decided to join them which is more profitable and less risky. While there are numerous provisions in the Constitution of India along with other laws, most of these provisions are not implemented. In a democracy governed by the rule of law, such invincibility can have serious repercussions on the liberties of the civil society which can further lead to a huge trust deficit in the justice system. Therefore, the judgments of the Hon’ble Supreme Court have been rendered without such aspect as discussed aforementioned and requires reconsideration.

HON’BLE SUPREME COURT INLCUDES POLICE AS A WITNESS

The judgement of Tahir Ali v. State (Delhi) propounds that evidence of the police officials, after careful scrutiny inspires confidence and is found to be trustworthy and reliable and it can form the basis of conviction in the absence of some independent witness of the locality to lend corroboration of their evidence.

However, this judgment clearly did not consider the aspect of the scheme of Code of Criminal Procedure & Indian Evidence Act, recommendation of various committee reports and observation made by previous judgements of this Hon’ble Supreme Court which clearly shows the sheer distrust and unreliability towards police conduct. Sections such as 161 and 162 of the Code of Criminal Procedure read with sections 24, 25 and 26 of the Indian Evidence Act and Section 330 of Indian Penal Code which prohibited any form of torture of a person under interrogation and making any such confessions inadmissible in court of law as legislature have always been cautious about police approach towards accused. The judgment clearly suffers from doctrine of sub-silentio as it failed to understand the intent of legislature in enacting the above provisions. The scheme of police investigation chapter under Criminal Procedure Code is constructed such that unfettered power is not given to the police and judiciary is always kept in loop and is informed. By allowing the above in Tahir Ali, the court has done implied overruling of previous judgments which didn’t not allow police witness without corroboration.

Even in the case of Kripal Singh Vs. State of Rajasthan the Hon’ble Supreme Court relied on one sole prosecution witness statement to convict Shri. Kripal Singh which was substantially contradicted by the defence. In the aforesaid statement the witness also accused others but they were acquitted. This judgement also suffers from sub-silentio as the scheme of Evidence Act has not been applied correctly.

It is a well settled principle that the law should be interpreted to give it a legislative intent. The Hon’ble Supreme Court in a 5 judge bench decision in Nathi Devi vs Radha Devi Gupta observed that, “It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the Legislature. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect.”

Tahir Ali judgement directly contrary to the scheme of Criminal Procedure Code and will lead to increase in cases of police torture as indicated in judgements of Hon’ble Supreme Court and Law Commission Reports. If the above is not corrected by the judiciary, then the parliament should bring in suitable amendment to rectify the flaw, otherwise it will lead to police raj which is not fit for a democracy like India.

-The writer is a Senior Advocate