Mohinder Verma
JAMMU, July 21: “The alleged ISI agents are acquitted as prosecution has failed to prove case”, “prosecution fails to establish guilt against the accused beyond shadow of doubt”, “the prosecution has failed to connect the accused with the crime”… These observations of the Judicial Officers hog the limelight very often in Jammu and Kashmir but the State Government has not taken any step to implement the directions and recommendations of the Supreme Court and Law Commission of India vis-à-vis separating prosecution from the police for the effective trials.
Every now and then, there come judgments from Judicial Officers putting question mark on the effectiveness of the prosecution and the investigation carried out by the police, which becomes the ground for the acquittal of the accused.
Astonishingly, the recommendations of Apex Court of the country and Law Commission of India regarding constituting regular cadre of Prosecuting Officers by setting up of a wing independent of the executive and all external influences besides independent of the police and the investigation process have not received the required attention till date, official sources told EXCELSIOR.
“Though there is a cell in the Law Department, which monitors the performance of the Public Prosecutors and goes through the judgments of the courts particularly in the acquittal cases yet the same has not proved beneficial to the desired level”, sources said.
“Up to the courts of Chief Judicial Magistrates/Sub-Judges, the public prosecutors are the employees of the Police Department while as for the prosecution of criminal cases including trial in serious offences like murder and rape in the Sessions Courts, the Law Department is engaging Public Prosecutors and Additional Public Prosecutors on contractual basis”, sources said.
“It is a matter of serious concern that separating prosecution from police has not received the due attention of the State Government despite the fact that effective prosecution is the backbone of the criminal justice system”, they said, adding “it is again an issue to be deliberated upon with utmost attention especially in the light of the fact that contractually appointed Public Prosecutors and Additional Public Prosecutors deal with the cases of serious offences in the Sessions Courts”.
In response to a question, sources said, “in case of contractual engagements, the discretion of the Government over-rides the competence and experience as such there is a dire need to create regular cadre of Prosecuting Officers and keep it independent of all influences”.
Pointing towards Rs 7500 retainer-ship fee being provided to the Public Prosecutors, they said, “the extremely less fee structure doesn’t attract many lawyers with sound knowledge and experience in criminal law”, adding “in high profile cases very often the best of the lawyers with experience in criminal law are engaged for prosecution by the Law Department as Special Public Prosecutors and this itself indicates that Law Department is aware of the fact that Public Prosecutors engaged by it may not be able to handle the cases properly”.
Stating that conviction rate in J&K was extremely low and ineffective prosecution was one of the major factors behind the same, sources said, “even in the Parkash Singh Versus Union of India case, the Apex Court has stressed that there should not be prosecution and investigation by the same agency”.
It is pertinent to mention here that Police Reforms in various States of the country are being carried out on the basis of the judgement/directions passed by the Supreme Court in this case.
“The Law Commission of India, in its latest recommendation, has stressed that 20% of the cadre strength of the independent prosecution wing should be from the eminent Advocates having good experience in the criminal law that too on the recommendation of the Courts of Sessions Judges”, sources added.
“Since effective prosecution is vital for punishing the offenders, the Government should not waste more time and immediately initiate steps for separating prosecution from police and making it a separate and independent cadre”, the legal luminaries stressed.
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