The future direction of the criminal justice system hangs in the balance.

The right of fair trial is jeopardized. The recent notification has made everyone think whether the right of fair trial is being jeopardized or compromised. On one hand, the Government is of the view that change in the present procedure of trial is required by taking the help of the new amendment made in BNSS to save the time of police officials by getting their evidence recorded from their own Police Station, whose time is wasted in coming to Courts and waiting there for hours to record their evidence, which hampers their work and also causes delays in disposal of cases. On the other hand, the legal fraternity is rightly opposing the same on the ground that it will be detrimental to the fair trial of the accused, considering the background of the partisan and unfair investigation of police in several cases.

The police may have some reservations due to many reasons, one of which is waiting for hours before Court for recording of evidence, and also due to the indifferent attitude of some Judges for one reason or the other. While it is true that due to pendency of several cases the police officials have to wait for quite some time in the Courts before recording of evidence, this cannot be a ground for police officers to record their evidence in a parrot-like manner to support other officers involved in the investigation, whose evidence has already been recorded in their presence. This will be a sham exercise to prove a fact, considering the partisan role of police during several cases, where during cross-examination the unfair investigation of police is fully exposed.

Therefore, the recording of all material police witnesses must be made in the Court. In case the Government is really interested in saving their time, then their evidence can be recorded after 1:30 p.m., and the Bar is ready to help the Government by approaching the Hon’ble Chief Justice to direct Judges not to call IO or any other police officials at the time of framing of charge, calling of witnesses in Court for identification, hearing of regular bail applications after the charge sheet is filed, and also at the time of hearing anticipatory bail in High Court after dismissal from District Court when Status Report is already on record, and also in several miscellaneous matters which can be disposed of with the help of the APP who may take necessary inputs from IO or other police officers on the basis of queries put by the learned Judge. In fact, in these proceedings, much more time of police officers is wasted than in recording evidence in Court.

 

So the Bar leaders are completely justified in agitating against the notification. However, now the question comes—what next after an impasse has been created, where the Bar is demanding complete withdrawal of the notification while the Government is ready only for clarification? In fact, at this juncture, when the Bill has become an Act and none of the Bar representatives protested against it at an earlier stage despite my repeated messages on WhatsApp, and unfortunately our High Court Bar even welcomed it before it took the shape of an Act, then whether we will be able to prevail upon the Government to withdraw it completely—and if so, it will be only a temporary relief.

Therefore, a way must be found by suggesting to the Government to allow recording of only formal witnesses from Police Stations, while material witnesses should be compulsorily brought before the Court. While selecting who should be the formal witness amongst the police officers, the choice of defence Counsel should prevail, and in case in a particular case and peculiar facts the defence Lawyer wants even a formal witness to be examined, the Court should grant permission for the same.

So, I think that in such a situation, negotiation should not be stopped and the Government should be told in unequivocal words to hear the representatives of the Bar before allowing police to have its own way. It is shocking that some Police Stations are in a tearing hurry to implement the same. This will not be tolerated by the legal fraternity. The Government must know that the criminal trial is different from civil cases and the accused deserves a very fair opportunity to prove his innocence in view of Article 21 of the Constitution. Therefore, recording of evidence by IO or other material witnesses consisting of other police officers at their own Police Station will certainly go against the spirit of Fair Trial.

So the Coordination Committee may take steps which are necessary to discuss all pros and cons of the issues arising out of the present notification, which gives wide power to police to get the evidence of any of their own police officers recorded at their sweet will in their own Police Station.

These are my personal views. However, we shall all wait for the final call of the Coordination Committee.

Written By (Rajiv Khosla Adv )
Member, Bar Council of Delhi
Former President of DHCBA & DBA

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