Supreme of India after Ritu Chhabaria vs Union of India while considering application moved by Government of India for staying the implementation of recently decided case on default bail should ask the Government of India what steps government has taken in separating investigating police from the law and order police, than only we can expect complete justice with both sides involved in criminal cases.
Explained: Why India Urgently Needs Separate Investigating Police?
Chandigarh (ABC Live): The Supreme court of India on May 1, 2023 on request of Government of India stayed the operation on a judgment Ritu Chhabaria vs Union of India on default bail under section 167 of Code of Criminal Procedure till May 04, 2023 when the Apex Court will hear Government side.
It is on public records that the on April 26, 2023 the Two judges bench of Apex Court delivered a judgment in Ritu Chhabaria vs Union of India wherein Court Concluded that, “during the pendency of the investigation, supplementary chargesheets were filed by the Investigation Agency just before the expiry of 60 days, with the purpose of scuttling the right to default bail accrued in favour the accused. This factual position was missed by the trial court, and instead of offering default bail to the accused, the trial court mechanically accepted the incomplete chargesheets filed by the Investigating Agency, and further continued the remand of the accused beyond the maximum period specified. The Investigating Agency and the trial court, thus, failed to observe the mandate of law, and acted in a manner which was manifestly arbitrary and violative of the fundamental rights guaranteed to the accused.”
Further opined that, “the right of default bail under Section 167(2) of the CrPC is not merely a statutory right, but a fundamental right that flows from Article 21 of the Constitution of India. The reason for such importance being given to a seemingly insignificant procedural formality is to ensure that no accused person is subject to unfettered and arbitrary power of the state. The process of remand and custody, in their practical manifestations, create a huge disparity of power between the investigating authority and the accused. While there is no doubt in our minds that arrest and remand are extremely crucial for the smooth functioning of the investigation authority for the purpose of attaining justice, however, it is also extremely important to be cognizant of a power imbalance. Therefore, it becomes essential to place certain checks and balances upon the Investigation Agency in order to prevent the harassment of accused persons at their hands.”
After the above mentioned judgment, Indian Court is flooded with applications of default bail under Section 167(2) of the CrPC on behalf of accused imprisoned in various jails in India for wanting to file complete chargesheets in trial courts.
A judicial data collected by The Association of Judicial Reforms of India(AJRI) confirmed that the police files complete chargesheet in trial court within timelines provided in CrPC of 60 days or 90 days in only 3 out of 10 cases.
Singh Rawat, Trustee, AJRI told ABC Live that if judgments of Ritu
Chhabaria vs Union of India will be implemented in India, then 80 percent
of the accused waiting for start of trial in criminal cases will come out of jails as out of 10 only in 2 or 3 cases police files chargesheet
against accused in time, whereas in remaining cases seeks extension in filing the charge sheet
before stipulated timeline and Indian courts usually grant the extension in
most of cases, or police files incomplete challan in court to defeat the indefensible right of accused
to get default bail as in case police fails to file Chargesheet against accused in
court within 60 days or 90 days as case
may be accused is entitled for default bail.
Mr. Rawat further informed ABC Live that through Ritu Chhabaria vs Union of India the Supreme Court of India tried to balance the situation and ruled that filing incomplete challan in court would not be considered complying of statutory provisions of 167 of CrPC, as same is enacted to protect the fundamental right enshrine under article 21 of constitution of India but failed to address the real cause behind the issue in question, i.e. delay in police investigation and thereafter further delay in trial which is also contrary to fundamental right of both accused and victim/complainant of speedy and fair justice. The side benefited by delay in trial tries all legal and illegal ways to achieve same in names of statuary and constitutional rights including Fundamental rights and system become helpless once ball get into Courts.
Mr. Singh, Practising Lawyer in Indian Courts of Law further shared that both sides have their reasons to arguments for equity and Indian constitutional Courts since independence are deciding same in case to case basis but hesitant to address core aliment of delay in criminal cases except set categories of cases in accordance with the Special Courts Act, 1979.
The Police blames delay in filing challan against accused in courts to their law and order duties which police has to carry apart from investigation of crimes cases for intentional or unintentional delay, whereas accused when delay benefits him keeps mum and raises alarm when delay in investigation/trial harms and him, in majority of cases accused approaches constitutional courts not the state(prosecution), as role of a complainant/victim in trial of criminal case is mere of a witness therefore their side has been less evident in Indian case history except in few cases like Jagjeet Singh & Ors VERSUS Ashish Mishra @ Monu & Anr wherein the Supreme of Court of India on 18/04/2022 says, “Victim’s right to be heard - A‘victim’ within the meaning of Cr.P.C. cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He / She has a legally vested right to be heard at every step post the occurrence of an offence. Such a ‘victim’ has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision - Where the victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing.”
Dinesh Singh Rawat of AJRI said that the above mentioned factual situation of Criminal Justice in India warrants urgent actions from Indian Law makers to take real-time remedial stepx for eradicating the delay in criminal justice by enacting a law separating law enforcing agencies from the work of investigation of crime and create special wing in police for same fully dedicated for Investigation of crime in accordance with Supreme Court of India judgment in Prakash Singh & Ors vs Union Of India And Ors which says, “4) 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 which have a population of ten lakhs or more, and gradually extended to smaller towns/urban areas also. Police Establishment Board”
And the Supreme of India after Ritu Chhabaria vs Union of India while considering application moved by Government of India for staying the implementation of recently decided case on default bail should ask the Government of India what steps government has taken in separating investigating police from the law and order police than only we can expect complete justice for both sides involved in criminal cases.