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A Novitiate Criminal Lawyer Reflects with Outrage and Despair on the Manner Her Chosen Vocation is Being Tarnished

The sensational case of a lady police officer tarring the entire judicial system of Manipur needs serious retrospection from everyone, especially those in the legal profession and students of law. Was the judicial system at fault as she alleged, and if not, should not her tantrum amount to a cognizable offence is a question any civilised society cannot shirk from. It may be recalled, the lady in question threatened and declared the entire judiciary as corrupt, incompetent, and unqualified and this too on the floor of the temple of justice.

This article will not go into the question of the scourge of drugs and its menace in our society, but only the legality of what transpired in court on May 21.

The Manipur High Court

Here is a background of the unseemly drama: On May 21, an urgent bail matter was heard before the Special Court (ND&PS), Manipur for granting bail to Lukhosei Zou. Please note, on a previous occasion, the court had granted interim bail to the same accused, but the latter absconded for a year and later surrendered.

The lady police officer (Additional SP-NAB) and the presiding Judicial Officer of the concerned court had a confrontation and thereafter, further dramas ensued with the police officer in question posting her opinion and personal comments on her social media platform. In response, the All Manipur Judicial Officer’s Association filed a written complaint against her to the SP, Cyber Crime, Manipur praying for action against her for what they termed are unethical comments against the Special Judge ND&PS.

This article will attempt to throw light on what the law says on such matters, in the hope it will generate a healthy legal discussion in the society and thereby develop a robust understanding and interpretation of criminal trial court procedures for the benefit of all. Here are the salient features of the sorry episode:

On the matter of the conduct of the police officer in the courtroom, the order copy of the court states that that “while examining the witness, the Additional S.P. Nab, Manipur Smt. Th. Brinda entered into the Courtroom without prior information of the Court and prayed the Court through Spl. Public Prosecutor for allowing her to put direct question to the witness. The prayer for direct question by Addl.S.P NAB Manipur to the witness is turn down and Spl.. PP is asked to put question to the witness”.

The first question which arises is, did the police officer in question comply with an earlier order of the High Court of Manipur dated May 19 vide Notification No. 62 which put strictures stating that even advocates who are required to be present in court cannot break COVID-19 protocol. For others, the order is specific that “No litigants and other officials will be permitted to enter court premises without prior permission of the Hon’ble Court”. Did the police officer seek prior permission of the Court (directly or through PP) to enter in the Court room and take part in the Court Proceeding for that particular trial?

If yes, then the question is, why was it not reflected by the concerned judge that the police officer was in the courtroom in compliance of the High Court Order. Instead, the order said the officer entered Courtroom without prior information of the court.

But let this extraordinary COVID formality and its noncompliance, if any be overlooked. There are other questions still left unanswered.

Can an I.O (Investigating Officer) directly cross-examine a witness at the time of court hearing the bail application in NDPS matters?

Factual Position: The police officer concerned is neither the I.O., Informant nor Complainant of the present case. The I.O is not the same person as the Informant or the Complainant under the ND & PS Act, 1985. However, leaving the technicalities of the Act, the crux is irrespective of the officer’s role in the instant case, the legal principles discussed hereunder will be in toto applicable in the present context as the fact that she is a part of the investigation team assisting the prosecution remains unchanged.

There is no provision in the entire Code of Criminal Procedure or any other legislation in India, in fact in the world which grants permission to the I.O. of a case to conduct or take part in the prosecution and put forth questions directly to the witness in the court.

To throw light on certain specific provisions of the CrPC, certain provisions like Section 24/25/301/302 these clearly points to the settled law that the prosecution is to be conducted by the Prosecutor and the Assistant Public Prosecutor assigned in respective courts according to the provisions of CrPC. Further, proviso to Section 302 CrPC clearly states that “no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted”.

The law is clear that the I.O. is an interested/prosecution witness, the I.O can be cross-examined by the Public Prosecutor or by Accused (Witness). But, the I.O cannot cross-examine any witness except under certain provisions like Section 145 and 154 of the Indian Evidence Act; and Section 162 of the CrPC that also only, when the prosecution is declared as the Hostile Witness. Under the circumstance, the legal way should have been to pass on suggested questions to the Public Prosecutor to be put to the witness. In a way, the Public Prosecutor has also failed to make sure the I.O. obliged with the decorum of the Court. The collective efforts of the PP and the I.O., and mutual respect for each other’s competence and cooperation is what is quintessential for making a successful prosecution case. Unfortunately, all these established norms were thrown to the wind and the officer insisted on examining in person the witness, a medical officer, who have allegedly turned hostile.

There’s a reason these provisions have been engraved in the Code of Criminal Procedure for police officers who have taken part in the investigation being strictly barred from taking any active part in the prosecution or putting questions to the witnesses during the trial. If this was not maintained, why would there be a need for the PP? The State Exchequer would be less burdened. In fact, why would we need the courts at all, if the police can take up all these roles? The notion of separation of powers does obviously have a reason pertaining to the idea of justice and democracy.

The next question is, what legal option could have been availed by the prosecution in case of suspicion that the statements made by the doctor witness is false?

The general practice adopted in the lower courts while granting bail is that in the event of non-satisfaction of the statement given by a doctor Witness with regard to the medical status for determining the grant of interim bail is that the medical reports or for that matter the concerned accused is referred to a Medical Board which is constituted by the Director, Health Services, Government of Manipur, by a standing order of the State Government. The Special PP could have prayed to the Court to refer the Accused for the re-examination of his medical status if he was not satisfied with the reports issued by the present doctor (witness) which could have expedited the entire process. In this case, did the PP make a prayer to the Court to refer the present Accused to the Medical Board for re-examination at all?

The next question is whether the applicability of the Principle of Reverse Burden of Proof is applicable in strict sense in considering bail application during the course of trial of the case under the ND & PS Act, 1985?

It is true that unlike the general principle of criminal law where an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Section 35 and Section 54 of ND & PS Act, 1985. Section 35 of the said “Act” which deals with “Presumption of culpable mental state” and Section 54 of the said “Act” which deals with “Presumption from possession of illicit articles”, no doubt raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused.

However, even a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. The law says that an initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas, the standard of proof required to prove the guilt of the accused on the prosecution is beyond all reasonable doubt but it is preponderance of probability on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the Actus Reus which is possession of contraband by the accused cannot be said to have been established. This is the well settled position of the law which has been affirmed in cantena of cases by the Hon’ble Apex Court.

The question also is “Whether this principle of reverse burden of proof will be applicable in strict sense while considering a bail application in ND&PS cases?” The answer is clear, consideration of bail application does not determine conclusively the guilt of the accused. Grant of bail depends upon the circumstances, facts and nature of the cases. Grant or denial of bail in respect of offences under the ND&PS Act must be in compliance of the provisions of Section 37 ND & PS Act, 1985 r/w Section 437/439 of the CrPC.

Hence, the primary consideration for grant of bail depends on the following considerations as to the nature and seriousness of the offence, character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of presence of the accused not being secured at the trial and the reasonable of the apprehension being tampered with, the larger interests of the public or such similar other considerations.

In the present case, the fact that the consideration of bail matter is on medical grounds and as such, the question of applicability of Section 35 r/w 54 of ND & PS Act, 1985 does not arise. That, these provisions will be attracted only in the trial for final disposal of the case wherein the guilt of the accused is determined taking into consideration all the material facts and evidences brought to the notice of the Court.

It must also be noted that consideration of bail is not trial in the strict sense. Therefore even if it were to be presumed, though not necessarily agree, with the allegation of the police officer on her social media post that a prima facie case against the accused has been made out, this will still not be the determining factor for consideration of bail in the present case, for here it is solely on medical ground and that it is also an interim bail.

The judiciary is caught in the middle of a highly politicised and emotional atmosphere caused in large part by the 24–hour news cycle, advanced by politicians who are either ignorant of or chose to ignore the proper role of the courts, and accepted by a citizenry often uninformed about the role of the judge as an impartial arbiter with the responsibility of enforcing laws. This phenomenon is not new and has happened before everywhere in the world. What is utterly disappointing is also the fact of the silence if not uninformed discussions on these matters by public commentators in the media, academicians and to the utter disgust and surprise, even a majority of the legal fraternity.

As a young lawyer in the making, having dedicated my entire college and university years in the study of law, nothing can be more disillusioning than the impunity with which the law and its practice is being allowed to be put to disrepute, more often than not very unfairly. I therefore leave the matter to legal scholars, members of the Bar as well as the Bench, Public Prosecutors and Police Personnel without whose selfless support the entire criminal justice administration would collapse, as well as the general public to see what is just and do the needful to restore respectability and public faith in the legal system.

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