Public at large thinks criminal trials are ‘neither free nor fair’, laments Supreme Court

Tribune News Service

Satya Prakash

New Delhi, May 5

Lamenting that there is "practically no effective and meaningful cross-examination" by public prosecutors of hostile witnesses during criminal trials, the Supreme Court has said the public at large thinks criminal trials are “neither free nor fair”.

“Free and fair trial is the very foundation of criminal jurisprudence. There is a reasonable apprehension in the mind of the public at large that the criminal trial is neither free nor fair with the prosecutor appointed by the state government conducting the trial in a manner where frequently the prosecution witnesses turn hostile,” a Bench of CJI DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra said.

Describing public prosecutors as “one of judges’ natural counterparts in the trial proceedings”, Justice Pardiwala said, “Time and again, this court has, through its judgments, said that there should not be any element of political consideration in the matters like appointment to the post of public prosecutor, etc.”

Writing the judgment for the Bench, Justice Pardiwala said, “The only consideration for the government should be the merit of the person. The person should be not only competent, but he should also be a man of impeccable character and integrity. He should be a person who should be able to work independently without any reservations, dictates or other constraints. The relations between the Public Prosecution Service and the judiciary are the very cornerstone of the criminal justice system.”

The Bench said, “It is the duty of the court to arrive at the truth and sub-serve the ends of justice. The courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the witnesses.”

The Bench said, “The judge has to monitor the proceedings in aid of justice. Even if the prosecutor is remiss or lethargic in some ways, the court should control the proceedings effectively so that the ultimate objective that is the truth is arrived at. The court must be conscious of serious pitfalls and dereliction of duty on the part of the prosecuting agency,” Justice Pardiwala wrote.

At times, such procedural lapses may lead to a very serious crime going unpunished. Any crime committed against an individual is a crime against the entire society. In such circumstances, neither the public prosecutor nor the presiding officer of the trial court can afford to remain remiss or lackadaisical in any manner.

The top court upheld the May 2014 verdict of the Delhi High Court affirming the conviction and life sentence awarded to one Annes by a sessions court for the 1995 murder of his wife in Mustafabad area in Delhi. The couple’s five-year-old daughter -- the sole eyewitness -- was declared hostile. Noting that Annes has already spent almost 11 years in jail and was 65, the Bench granted him liberty to make a representation to the state government for remission of sentence. The state would take an appropriate decision in four weeks, it said.

“Over a period of time, we have noticed, while hearing criminal appeals, that there is practically no effective and meaningful cross-examination by the public prosecutor of a hostile witness. All that the public prosecutor would do is to confront the hostile witness with his/her police statement recorded under Section 161 of the CrPC (before police) and contradict him/her with the same,” it lamented.

“The only thing that the public prosecutor would do is to bring the contradictions on record and thereafter prove such contradictions through the evidence of the investigating officer. This is not sufficient. The object of the cross-examination is to impeach the accuracy, credibility and general value of the evidence given in-chief; to sift the facts already stated by the witness; to detect and expose the discrepancy or to elicit the suppressed facts which will support the case of the cross-examining party,” it said.

“What we are trying to convey is that it is the duty of the public prosecutor to cross-examine a hostile witness in detail and try to elucidate the truth and also establish that the witness is speaking a lie and has deliberately resiled from his police statement recorded under Section 161 of the CrPC. A good, seasoned and experienced public prosecutor will not only bring the contradictions on record, but will also cross-examine the hostile witness at length to establish that he or she had actually witnessed the incident as narrated in his/her police statement,” it added.

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