Judges rip apart hostile witnesses practice in Dinkaran case

The judgment in the VP Pandit case has come not a day too soon.

Doff your hat to the judges Prakash and B. Pugalendhi for their singular and stinging verdict of thunderous proportions meant to send a chill down the spine of those who take the criminal justice system for a ride. In the VP Pandit @ ‘Attack’ Pandi case in the Dinakaran newspaper attack, the phenomenon of hostile witnesses has been shown to be hostile to the very precept and practice of the rule of law.

The judgment in the VP Pandit case has come not a day too soon. This is a timely reminder to all that is wrong in this field and need for a thorough overhaul of the criminal justice system, from the moment a First Information Report is lodged or is required to be lodged, seamlessly riding into professional investigation, charge sheeting and expediting the conduct of trial and awarding deterrent sentences to the guilt and letting off the innocent in good time.

The judges had no easy task. It was a FIR lodged to satisfy public angst and the investigation was meant to be botched.

The Supreme Court talked of politicisation of the purity of police administration in the Prakash Singh case, and ever since the 1990s has been resurrecting it - hoping against hope for reformation of the system. But no administration worth its salt has cared. No manifesto of any of the leading political parties for the 2019 hustings, has a word, syllable or chapter on police reforms. So salvation lies with the resort, which is the judiciary, what with the executive and the legislature, having many in their ranks with criminal antecedents.

It all begins where it ought not to - at the FIR which is just the First Information Report, which sets the law in motion. It is not meant to be an encyclopaedia. It would suffice if the basic factual contours are captured to make out ‘cognisable offences’ adverted in Sec.154 of Criminal Procedure Code contemplates. But try getting a simple FIR registered and it can be a cruel process for the commoner with no clout and influence.

As for registration of FIR, if you succeed in accomplishing it on your own, after several forays and working the networks, the contents thereof are not left to the occurrence as it took place and as you experienced it. The policeman will insist and browbeat you into giving a complaint as he sees the offences. He advises that “unless the complaint is recorded as we insist, no offence could be made out and a court of law may throw it out. So follow what we say.” Do you have an option except to fall in line?

Coming to the investigation, the citizen is happy “who has Bobby neither as a friend or a foe” as Lord Denning beautifully put it in the famed Blackburn case. Investigation will take an eternity and lack of professionalism would be writ large or skewed as in the Dinakaran case. The policemen have their own straitjacket practices and are ready to depose ‘stock witnesses who come in handy. If you are lucky to get the chargesheet filed in time within 2 or 3 years, the travails of the complainant have just started.

Appearance before the criminal court is a nightmare. Ask those who have experienced it. The practitioners are specialists who monopolise the precincts of the court halls. Any and every professional you engage does not have sure access. Remember the stunning exposure by Justice K. Chandru Committee’s (appointed by the High Court) of the uniquely devised ‘ Double Bail’ novelty. A bail petition would be filed by an advocate - not engaged by the accused - in advance. And when the advocate you engage appears you would be told that unless you paid/compromised with the ‘first advocate’ your bail petition cannot be heard. If you want freedom you should follow the routine procedure of compromise. Nice cool way to practice without a sweat.

And come the trial, summons to witnesses can take an eternity to be served. In the meanwhile, the accused would be enlarged on bail and have free access to make friendly passes at you. Or their brethren would take over. That is where the hostility is infused in the witness. Read the Zaheed Shekih - Best Bakery case (2004) trial proceedings as recorded by the top court as one by one, they make a mockery of the solemnity of their oaths in the witness box. They are required “To say the truth and nothing but the truth.” But what they depose is anything but the truth. Welcome to the famous hostile witness dispensation, an Indian innovation without parallel. The judges in VP Pandit case said it had a “an eerie similarity with Best Bakery case.”

And mind you, the judges who hear the cases feel helpless. Criminal prosecution mandates proof “beyond reasonable doubt” premised on the aphorism that “a hundred guilty may escape but not one innocent be convicted”. The witnesses turn hostile with impunity and they face no retribution in law. If the investigation was decidedly not diligent, rest assured the prosecution would itself turn hostile to the complainant or victim as highlighted by the judges in this judgment. The result is they have summoned no less than the DSP who was found guilty, to showcause on a possible sentence. Do we need better proof than what ails the criminal justice system?

The judges have caught the menace of hostile witnesses by the scruff of its neck and turned it on its head with a brilliant exposition. That is where the path breaking nature of this verdict rings loud and true. One fervently hopes and prays it goes to the Supreme Court as it is destined to and the imprimatur of the apex court is affixed on it for All India application as law of the land for a transformative change in outlook and construction of the unseemly conduct of hostile witnesses to make mincemeat of it.

The judges have rescued the decaying criminal justice system, afflicted by this sickening and organised hostile witness regime with this iconic decision. They have sounded the bugle that it may no longer pay for the accused to place their reliance on the hostility of witnesses. The award of Rs 5 lakh compensation to each of the families of the 3 killed is no reparation.

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