The Government of India has shown complete disdain for constitutional propriety or national interest.
There has been an increasing demand for court monitored investigations and Special Investigation Teams (SITs). There are many reasons for this. First, a breakdown of public confidence in the normal investigation agencies that come under the criminal justice systems of India. Second, demand before the courts through Public Interest Litigation that proper investigation cannot be expected from the investigation agencies, because of the politico-legal nature of some cases, particularly if they are against the Executive, who also happens to be the controlling authority of the investigation agencies. Of late, there has been vociferous demand for court monitored investigations even from the world of sports and finance, such as the IPL and the NSEL. But most prominent are those that directly or indirectly involve the highest or the most influential authorities of the land. The Supreme Court has clearly stated: "More and more demands are now coming before the Courts for its monitoring of investigation relating to crimes committed by influential persons and persons who have political influence, with the apprehension that they could derail the investigation. Courts in public interest sometimes have to take such a course in the larger public interest." (Writ Petition (C) NO.548 OF 2012).
The Code of Criminal Procedure defines the word "investigation" to include all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a magistrate) who is authorised by a magistrate in this behalf. Section 173(2) of Cr PC authorises the police officer to send a report to the magistrate after completing the investigation. Section 36 of the Code empowers police officers superior in rank to a Station House Officer to exercise the same powers. Thus in the process codified under the CrPC, which is the Bible of the investigating officer, it is only a police officer in charge of the police station or any officer superior in rank to that of the SHO, who can do an investigation and file a report to the jurisdictional court. In the normal course, a superior police officer can monitor the investigation done by a junior police officer.
A recent judgement of the Supreme Court is an eye opener. The CBI does not consist of angels. They can show a degree of criminality which has never been detected before in lesser agencies. The Bar, the Bench and other experts must meet and devise methods of making monitoring flawless and consistent with existing laws.
In the case of Union of India vs Sushil Kumar Modi 1998 (2) BOM C.R.C. 120 ATP 9122(S.C): 1998(4) S.L.T. 367: 1998(1) SCALE 251, it was held that "monitoring by the High Court of any case is for the purpose of ensuring that the CBI and other agencies properly investigate the alleged offences and file a charge sheet if a prima facie case is made out ... that there would be no interference in the investigative work being performed by the officers which might hinder the course of the investigations."
The monitoring of the investigation by the Supreme Court and the High Courts has raised certain fundamental questions in the minds of the public regarding what exactly this implies procedurally, especially in the absence of any clear-cut and unambiguous guidelines by the Apex Court regarding the exact procedure to be followed for this purpose. In fact in the judgement of the case referred to above, the Attorney General had expressed that certain observations in the impugned order of the High Court might be construed as enabling the High Court to monitor/control even disciplinary proceeding against an officer of the CBI if he happens to be in the team investigating any of the alleged offences.
For understanding the issue with greater clarity, it would be important to ask what exactly the responsibilities of the Supreme Court or High Court are when it is monitoring an investigation. From all accounts, after such an order is made, the investigation agency, be it the CBI or the Special Investigation Team constituted by the Court, conducts the investigation and periodically submits its status report regarding the progress of the case, as and when the matter stands posted, until the charge sheet is filed before the jurisdictional court.
Apart from receiving periodic status reports from the Special Investigating Team, it is understood that the Apex Court/High Courts would also scrutinise them to satisfy themselves that the investigation has been done as per prescribed procedure and without fear, favour, pressure or intimidation. For, only after scrutiny of the investigation reports, can they satisfy themselves that the investigation was free and fair.
In such a situation, where does this place the trial court judge in the jurisdictional court, who actually has to pass judgement in the case after the charge sheet is filed? Does he have any discretion, and what would be the judicial propriety, should he during the trial believe there is reason to be dissatisfied with the investigation or charge sheet?
Coming back to the point regarding the monitoring procedure applied to the periodic status reports on investigation, it has been reported recently that in the coal block allocation case, the bench has expressed to the CBI that it is facing great difficulty in "going through the voluminous reports submitted in the case", and have suggested the appointment of an amicus curiae. The CBI opposing this, claiming that it would interfere with its working, has questioned the proposed amicus curiae's impartiality, especially after the Apex Court has restrained everyone including the Attorney General from having a look at the status report.
There are some facets of monitoring that raise very serious questions and concerns. In the present state of public and even the court's lack of confidence in the integrity of the Indian investigating agencies, court monitoring has to continue. A recent judgement of the Supreme Court is an eye opener. The CBI does not consist of angels. They can show a degree of criminality which has never been detected before in lesser agencies. The Bar, the Bench and other experts must meet and devise methods of making monitoring flawless and consistent with existing laws.
The most important case in which the Hon'ble Supreme Court of India appointed a Special Investigation Team is the one decided on 4 July 2011 by Hon'ble Mr Justice Sudershan Reddy and Justice S.S. Nijjhar in the petition filed by me and other public spirited citizens. It is reported as Ram Jethmalani and Ors. versus Union of India and Ors.(2011) 8 SCC1. Being of the opinion that our country has been impoverished mainly by some indigenous dacoits who have stolen national wealth and concealed it in foreign banks which in the name of customer confidentiality protects the identity of the culprits from the owners of the wealth. It is estimated to be of the approximate range of US$1,500 billion, roughly equivalent of Rs 90 lakh crore. The governments of France and Germany were able to obtain the names and supplied them to all friendly nations without cost or condition. We too received some names, but obviously because they control our rulers or themselves rule us, they have not been disclosed to this unfortunate nation. After prolonged hearing of about two years, this is what the Supreme Court held:
"It is necessary to express the Supreme Court's serious reservations about the response of the Union of India. During the earlier phases of hearing, the attempts were clearly evasive, confused, or originating in the denial mode. It was only upon being repeatedly pressed by the Supreme Court, did the Union of India begin to admit that indeed the investigation was proceeding very slowly. In fact the investigation had completely stalled, in as much as custodial interrogation of H had not even been sought for, even though he was very much resident in India... The lack of seriousness in the efforts of the State authorities is contrary to the requirements of laws and constitutional obligations of the Union of India. It was only upon the insistence and intervention of the Supreme Court of India that the Enforcement Directorate initiated and secured custodial interrogation over Hasan Ali..."
The Supreme Court ordered the appointment of a Special Investigation Team to be monitored by the Supreme Court, casting responsibility on the Ministry of Finance, Union of India, for ensuring proper and effective functioning of the SIT at once.
The following observations of the Supreme Court must also be informed to the people of India: "It is indeed true that the information shared by Germany, with regard to certain bank accounts in Liechtenstein, also contains names of individuals who appear to be Indians. The Petitioners have also claimed that names of all the individuals have been made public by certain segments of the media. However, while some of the accounts, and the individuals holding those accounts, are claimed to have been investigated, others have not been. The balancing leads only to one conclusion: strengthening of the machinery of investigations, and vigil by broader citizenry in ensuring that the agents of State do not weaken such machinery."
This judgement should be read by every citizen, and should be translated into local languages for the non English speaking people. The stinking cesspool that Indian democracy has been turned into, must be cleansed.
But till date, the Government of India has shown complete disdain for constitutional propriety or national interest. It has neither appointed an investigating team, nor disclosed names to the petitioner, nor recovered a single farthing out of the enormous wealth stolen from India.
aRTICLE CREDITSArticle Credits,RAM JETHMALANI,The Sunday Gaurdian