Present case is a glaring example of inaction on the part of all three instruments in justice delivery system i.e. the Presiding Officer/trial Court, the Public Prosecutor and the Investigating Agency in finding out the real truth which resulted into the acquittal of the respondent accused who was tried for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (hereinafter referred to as IPC). Present case demonstrates how the Presiding Officer who has conducted the trial; the Public Prosecutor and the Investigating Agency failed in performing their respective duties while conducting the trial, resulting into failure of justice delivery system. http://indiankanoon.org/doc/50861451/?type=print
35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice – often referred to as the duty to vindicate and uphold the ‘majesty of the law’. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson’s eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny.
39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial.
40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.
43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
Thus, as observed by the Honble Supreme Court in the aforesaid decision, the Courts have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the majesty of law and to find out the truth and to see that the guilty does not escape and innocent is not punished.
Role of the Judge
[7.0] It is observed by the Honble Supreme Court in the catena of decisions and more particularly the case of Zahira Habibulla H. Sheikh (Supra) and in the case of National Human Rights Commission vs. State of Gujarat and Ors. reported in AIR 2009 SC (Suppl.) 318 that right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. It is further observed that a criminal trial is a judicial examination of issues in the case and its purpose is to arrive at a judgment on the issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. The object is to mete out justice and to convict the guilty and protect the innocent. It is observed that since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. It is further observed that if a criminal court is to act in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine.
Considering the aforesaid important role to be performed by the Presiding Officer in administration of justice and to find out the truth and to mete out the justice and to convict the guilty and protect the innocent, it appears to us that in the present case learned Judge has failed to perform its duty and play his role which is very important in the justice delivery system more particularly dealing with the case against the accused for the offences punishable under Sections 363, 366 and 376 of the IPC. It is also required to be noted that that as observed herein above, while conducting the trial, the only object is to mete out the justice and to convict the guilty and protect the innocent by finding out the truth, the Presiding Officer should not be in haste in concluding the trial which results into failure in criminal justice delivery system by acquitting the accused in haste. Every Presiding Officer shall be sensitive and shall play an active role in the criminal justice delivery system and to arrive at truth.
The prompt disposal of the criminal cases is to be commanded and encouraged but in reaching that result there shall not be any miscarriage of justice and/or failure in justice delivery system and the accused charged with a serious offence shall not be permitted to get the benefit and in reaching that result the valuable right of fair and impartial trial to the victim as well as the society at large must not be stripped off. To do that, establish negotiation of concept of due process of law.
The Judge of seisin of the trial shall not forget that he has an overriding duty to maintain public confidence in the administration of justice and often referred to as the duty to vindicate and uphold the ‘majesty of the law’.
Role of the Public Prosecutor
[7.1] In the present case similarly even the concerned Public Prosecutor has also failed to perform his duty. It cannot be disputed that in a criminal trial and in criminal justice delivery system the Public Prosecutor plays an important role. The duty of the Public Prosecutor is to find out the truth and to see that innocent person is not convicted but at the same time the real culprit is also punished and they do not escape conviction. In a police case the complainant is the State and not the private individual at whose instance the case has been taken up and in such cases the Public Prosecutor alone is entitled to conduct the prosecution, though it is open to him to take instructions from the complainant or his counsel whenever needed. The Public Prosecutors are really Ministers of Justice whose job is none other than assisting the State in administration of justice. In Indian Criminal Justice System, the role of the Public Prosecutor has always been shrouded in a controversy. One of the main reasons for such controversial image of the Public Prosecutor is the fact that there is much confusion about their duties and responsibilities. Police, accused and victim all have conflicting beliefs about what role the Public Prosecutor is supposed to play. For example, according to the police, the main duty of Public Prosecutor is to get accused convicted. According to the accused, main role of the Public Prosecutor is to make available to the accused any legitimate benefit that he is entitled to during the trial even if the defence counsel has overlooked it. According to the victim, the Public Prosecutor is his/her Avenging Angel and still get him justice at any cost. The Public Prosecutor should discharge its duties fairly and fearlessly and with full sense of responsibility that attaches to his position. He should place before the Court whatever the evidence is in his possession. It is also his duty to ensure that full and material facts are brought on record so that there might not be any miscarriage of justice.
Considering the aforesaid important role of the Public Prosecutor in administration of criminal justice delivery system, in the present case first of all the learned Public Prosecutor ought not to have submitted the dropping/closing pursis by submitting the application for dropping the PW-14 prosecutrix/victim and other witnesses when some of the witnesses turned hostile. It was his duty to see that the prosecutrix/victim is produced before the Court for giving the deposition and all efforts ought to have been made by him to secure the presence of the prosecutrix/victim. It appears that in the present case without properly appreciating and/or considering the consequences of non-examination of prosecutrix/victim, who in the present case for the offences under Sections 363, 366 and 376 of the IPC, was the best witness to prove the case against the accused and without even appreciating the fact that by dropping the said witness prosecutrix/victim and non-examining her, it will be fatal to the case of the prosecution and the benefit of which would be in favour of the accused and he will be acquitted, he submitted the dropping pursis requesting to drop the material witness prosecutrix/victim and submitted the closing pursis resulting into acquittal by the learned Judge by observing that as the prosecution has not examined the prosecutrix/victim who is the best witness, has failed to prove the case against the accused for the aforesaid offences. In the present case it appears that the learned Public Prosecutor has forgotten the fact that he is also part of the criminal justice delivery system and he also plays an important role in administration of justice.
Role of the Investigating Agency/Police Officer
[7.2] Similarly, even the prosecution/investigating agency/the concerned police officer of the Kalavad Police Station has also failed in performing his duty by not serving the witness summons upon the prosecutrix/victim. When the witness summons was issued upon the prosecutrix/victim by the Court and when the concerned police officer tried to serve the witness summons upon the prosecutrix/victim at the residence of her parents and when the father of the prosecutrix original complainant gave the statement that she is not residing there and her whereabouts are not known, still time and again the concerned police officer tried to serve the witness summons upon the prosecutrix/victim at the residence of her parents and every time the same statement was given by the original complainant that she is not staying there and her whereabouts are not known. It appears that no efforts were made by the concerned investigating agency to find out the whereabouts of the prosecutrix/victim more particularly when she was reported to be missing since last one year and even father of the prosecutrix/victim complainant and/or her family members did not even inform the police about the missing of the prosecutrix and even janva jog entry also was not made by them. The concerned police officer / investigating agency ought to have appreciated that to prove the case against the accused for the offences punishable under Sections 363, 366 and 376 of the IPC, the prosecutrix/victim is a material and star witness and to prove the case against the accused, her deposition was required and by non-examining the prosecutrix/victim straightway the benefit would go to the accused which would result into failure in administration of justice.