Public interest in prosecutorial decision making

Nilkamal Das

(The writer is the Chief Judicial Magistrate, Morigaon, Assam. He can be reached at idasnk@gmail.com)

The criminal justice system in Assam is bursting at the seam with unprecedented increase in crime reporting. Though the present emphasis appears to be on filing of police reports within 90 or 60 days on completion of investigation by our investigating agencies, little has been done so far to improve the crime investigation and evidence collection mechanism in this part of the country. Though the Criminal Procedure Code, 1973 empowers an investigating officer to decide whether any offence appears to have been committed and if so, by whom; however, experience has shown that this provision has proved to be a disaster for the justice system. By this provision, an investigating officer has been called upon to take a prosecutorial decision, purely legal in nature, though he is not trained in law. This decision can only be taken by a person adequately trained in law and with experience of criminal trial. An investigating officer is incapable of deciding whether an offence has been committed at all and if so whether there is sufficient evidence to prosecute the offender. Whether the act alleged can be termed as an offence in the first place needs the careful consideration of a legally trained mind which an investigating officer is not.

There is an ocean of difference between what is perceived as evidence by an investigating officer and what is accepted as evidence by trial courts. The effect of this has been pervasive and has rendered the investigation of crime and submission of police report farcical in most cases. All cases which result in acquittals in courts are, according to the assessment of our investigating officers, are ‘well established’ cases. We have perpetuated this by making a provision which, to say the least, was set up to fail. Perhaps only a country like ours would routinely allow crime investigators, never trained in law, to decide whether to prosecute someone or not based on evidence collected by the same investigator. When we decided that an investigator would first investigate a crime, collect evidence, himself would assess those evidence and he also decide whether to prosecute the accused or not, we were doomed to fail. This fundamental wrong has proved to be a disaster on the ground. Hordes of cases with zero evidence are sent daily to the courts directly from police stations with prayers by investigators to prosecute the accused persons without there being an independent assessment as to whether the so called ‘evidence’ collected by the investigator is evidence at all. In most of the cases the ‘evidences’ collected by the investigator are not legally acceptable evidence at all. No wonder that the acquittal rate in this part of the country is above 90 per cent. The prevalent practice has caused unspeakable injustice to weaker and poorer sections of the society. In a state like ours, where the investigating officers have next to nil training on crime investigation and collection of evidence by using scientific techniques, the need for a directorate of prosecution cannot be emphasised enough.

A criminal trial by its very nature is slow and tedious and involves considerable public time and tax payers’ money. As time passes it becomes increasingly difficult to finish a trial for a number of reasons. Hence, all-out efforts should be made to see that only those cases come to trial which cannot be resolved otherwise, after exhausting all other out of court options like plea bargaining, amicable settlement etc. At present these out-of-court options are woven into the court system in such a manner that these options become available only when the cases come to the court thereby frustrating the very purpose of providing such options. An assessment of judgments passed in a given month by a magistrate’s court of Assam would go to show that a large percentage of such cases are unfit for trial or do not require a trial at all. This is in spite of the initial assessment of our investigating officers that these cases were ‘well established’. Most investigators have never seen a trial from start to finish. One would expect that had a trial been followed, an investigator with some self-respect and dignity perhaps would have realised that most of the ‘evidence’ collected by him do not withstand judicial scrutiny.

The Crown Prosecution Service (CPS) of England is an independent entity separate from the crime investigation wing of police. CPS is manned by trained lawyers having extensive practice and only after passing through rigorous assessment of their ability in trial matters. They take the prosecutorial decision. The evidence collected by the crime investigator is assessed by a team of prosecutors at different levels to see whether there is a reasonable probability of conviction of the alleged offender on the basis of the collected evidence. If the evidence collected is insufficient to convict, the case would not go for trial no matter how important or sensitive the case is. They are guided by the Code for Crown Prosecutors. The Code for Crown Prosecutors (the Code) is issued by the Director of Public Prosecutions (DPP) under Section 10 of the Prosecution of Offences Act, 1985. The DPP is the head of the CPS, which is the principal public prosecution service for England and Wales. The DPP operates independently, under the superintendence of the Attorney General who is accountable to Parliament for the work of the CPS. The Code gives guidance to prosecutors on the general principles to be applied when making decisions about prosecutions. The following guideline, amongst others, is followed while taking a decision whether to prosecute someone or not. The decision making process is clearly outlined in what is called a ‘Full Code Test’:

4.1 The Full Code Test has two stages: (i) the evidential stage; followed by (ii) the public interest stage.

4.2 In most cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed. However, there will be cases where it is clear, prior to the collection and consideration of all the likely evidence, that the public interest does not require a prosecution. In these instances, prosecutors may decide that the case should not proceed further.

The evidential stage

4.4 Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.

4.6 When deciding whether there is sufficient evidence to prosecute, prosecutors should ask themselves the following:

Can the evidence be used in court? Prosecutors should consider whether there is any question over the admissibility of certain evidence. In doing so, prosecutors should assess: the likelihood of that evidence being held as inadmissible by the court; and the importance of that evidence in relation to the evidence as a whole. Is the evidence reliable? Prosecutors should consider whether there are any reasons to question the reliability of the evidence, including its accuracy or integrity. Is the evidence credible? Prosecutors should consider whether there are any reasons to doubt the credibility of the evidence.

The public interest stage:

4.7 In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.”

It has been more than thirteen years since the provisions of Section 25A of the Code of Criminal Procedure, 1973 empowering the State government to establish a directorate of prosecution was inserted in the said code. The directorate is yet to be established. The Hon’ble Gauhati High Court in the case of Pallavi Phukan versus State of Assam and others, (2017), directed the Government of Assam, on 14-3-2017, as follows:

“4. This being the situation of the case, we are left with no option but to direct the State Government particularly respondent Nos. 1 and 2 to establish a Directorate of Prosecution consisting of Director of Prosecution and as many as Deputy Directors of Prosecution as deemed proper without any further delay but not later than 3 months from today.”

The government should immediately give effect to the provisions of Section 25A of the code and appoint sufficient numbers of Deputy Directors of Prosecution in every district of Assam with all required men and machinery.

This would also necessitate a state amendment of Section 173 of the code to empower the prosecutors to take the prosecutorial decision after independently assessing the evidence collected by investigating officers and to discontinue the present practice of submission of police reports to courts directly. There appears to be a collective failure of our intelligence as we are so far clueless what to do with more than 2.27 lakh criminal cases most of which are pending in magistrates’ courts. After establishment of our Directorate of Prosecution, it can literally follow the ‘Full Code Test’ practice of the Crown Prosecution Service till the time we can figure out our own system. For almost fifteen years since the aforesaid provision came into effect nothing has been done.

Objection to the establishment of the Directorate would naturally come from those who have been benefitting greatly from the existing setup of crime investigation. But for the sake of our citizens and our constitutional ideals of equality and justice for all, such objections must be brushed aside. We, the people, deserve better.