Police and Prosecution

World over and across the legal systems, every act which the law makes an offence is so not against an individual who is affected by it but against the state. So, as a part of justice dispensation in such an eventuality, the Police act as a law enforcement agency of the State. They simply prosecute criminals; therefore, perform the role of investigation and collection of evidences in a particular case. They can register and investigate the complaints made by the victims or any other person on this behalf. Investigation includes the registration of FIR u/s 154 and the recording of statements of witness’s u/s 161 of Code of Criminal Procedure, 1973 (CrPC). On the basis of investigation, a charge sheet is filed in the Court. If the magistrate is satisfied that a prima facie case is made out, cognizance of the same u/s 192 is taken. However, if he is not satisfied, he may send it back to the Police for reinvestigation.

Put simply, given the role police have in the law enforcement, particularly in ensuring the criminal justice, the duty of an investigating officer is to reach to the depth of a particular case in order to excavate the reality of issue at hand. However, ironically, it has become the common knowledge now, that after a criminal case reaches in a court of law, the prosecuting agencies fail to prove their case and, resultantly, the accused is acquitted owing to the faulty investigation by the police (prosecution). This rings true of all the States in India with Jammu & Kashmir no different.

Recently, during a brief internship in a city criminal court, as a part of my undergraduate program in law, I came across one such glaring instance where the prosecution could not defend what they had stated in the charge sheet. That is why main accused in the case escaped the net of law. This leads to the conclusion that the investigation by police is deeply faulty.

The internship also afforded me an insight into-why investigations by the police are flawed and what needs to be done to get away with the malady. The bud of problem lies in the absence of special expertise of investigation in police. The Police Department all over India has become a mess without a proper division of domains. A Policeman on duty in a street is also a investigating officer. Interestingly, the Supreme Court of India has long dealt with the issue in 2006 in Prakash Singh and others vs Union of India and others. The court observed in this case that “the investigating police shall be separated from the law and order police to ensure speedier investigation, better expertise, and improved rapport with the people.  It must, however, be ensured that there is full coordination between the two wings”. “The separation, to start with, may be effected in towns/urban areas also”, the court said. However, so far, hardly has any state in India implemented the guidelines laid down in the case. Thus Jammu and Kashmir is not an exception. It is submitted that the state government may act upon the aforementioned judgment as soon as possible.

 Secondly, even as we live in an age of technology, rarely is the police establishment of our state (in fact, the whole of India) equipped with modern day information technology tools. Now, if the information tools are available with the police, they have little knowledge of how to better or mere operate it. Therefore, the police needs to be given the special training regarding the technological aspects.

Thirdly, there is lack of forensic and other technical facilities in the police establishment. Fourthly, an important factor that otherwise doesn’t seem grave but contributes to the overall collapse of the system is the financial constraint. Financial constraints restricts the police forces ability to acquire mobility resources like vehicles, motor-cycles, etc. that might be important as part of the larger pattern of investigation.

Having said all this, the government must note of the gaps in criminal investigation by the police and fill them at the earliest. The stronger the investigation, the more efficient is the criminal justice system.

(Mashooq Yousuf Malik is a Student of Legal Studies at Central University of Kashmir & Can Be Reached at mashooq.law@gmail.com)