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Beyond court monitored probes

Beyond court monitored probes
Readers would remember that in the nineties, the infamous Hawala Diaries were monitored by the Apex Court. Ultimately the Hawala diaries sank without a trace. Since I was, for some period of time, directly in charge of that investigation, I came to the conclusion that the material available was more than enough to book a number of people identified by their acronyms in the documents.

While the general refrain is that these documents were detailed diaries, they were actually a statement of accounts. They were in fact  regularly maintained. They had both credit and debit entries. The accounting for the day was explained at the end of each day. The amounts received in dollars were converted into rupees in accordance with the day’s prevailing dollar rates. This being the existing position all that was required was to get the writer of the “diaries” to identify each acronym. 

Incidentally, there were some other names too. Apart from LKA, RG, NKJ, AKS, VK, KNS, VCS, and many more abbreviations of well-known political leader, the list included Kalvi, <g data-gr-id="70">Dhankar</g>, Arjun Singh, Sindhu and a few more.  Once they were identified the conduit would have been exposed. This did not happen.

The police <g data-gr-id="92">investigates</g> a crime. The court judges the investigation and tries the criminal. Courts are not required to investigate and establish, prima facie, the criminal charges against the alleged criminal. Similarly, the police are not required to judge the evidence and try the alleged criminal. Monitoring will require the Supreme Court to ensure that investigation is on proper lines. This is a task for the police and not for the courts. Yet, because there is always a lurking suspicion that the police cannot be trusted to investigate honestly, therefore the idea of an Apex Cour-monitored CBI probe into Vyapam emerged. But monitoring by the Supreme Court or any other court is not the solution.

Many countries have faced this problem and have found incisive solutions. There is the District Attorney in the United  States of America (USA). The DA is a staple of most good criminal procedurals produced in Hollywood. It is the DA who monitors and directs the investigation in the USA.  Each state government maintains a department of justice responsible for the prosecution of crimes. Counties, cities and towns also employ attorneys to prosecute crimes against the state or local ordinances. 

These departments are staffed by attorneys who present the government’s evidence to a judge or jury for a final determination of guilt. Known as a county or city attorney, district attorney, commonwealth attorney, prosecutor, state’s attorney or deputy attorney general, these legal professionals are granted wide discretion with regard to deciding whether to prosecute, what charges to file and whether to permit a plea agreement.

In the United Kingdom, there is a similar institution. The Director of Prosecution (England) has to consent to all criminal prosecutions. Even in countries like Singapore and Malaysia, where the justice system is adopted from <g data-gr-id="85">post-colonial</g> law, such institutions exist. In Singapore, I witnessed how the system works like clockwork. In comparison, the Indian Criminal Justice <g data-gr-id="83">System,</g> introduced Section 25A of the Criminal Procedure Code to ensure an honest investigation, among other things.
 
The Crown Prosecution Service (CPS) is the principal public prosecuting agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions (DPP).Its main responsibilities are to provide legal advice to the police and other investigative agencies during the course of criminal investigations, to decide whether a suspect should face criminal charges following an investigation and to conduct prosecutions both in the magistrates’ courts and the Crown Court. 

In many countries, the prosecutor’s administration is directly subordinate to the executive branch (e.g. the US Attorney General is a member of the President’s cabinet). In some other countries - such as Italy or Brazil - the prosecutors are judicial civil servants and so their hierarchy is installed with the same liberties and independence warranties which the judges traditionally enjoy. In other countries, a form of private prosecution is available, meaning person(s) or a private entity can directly petition the courts to hold trial against someone they feel is guilty of a crime, should the prosecutor refuse to indict him/her.

There are provisions in Indian law which provide for a Directorate for Prosecution. Only advocates with ten years or more practice will be eligible. They can be appointed only with the concurrence of the Chief Justice of the State. Their duties will be notified by the State Government. These duties have to be in line with their counterparts in other countries. This will include determining the quality of evidence that the investigation has collected. They will thereby monitor investigations in the State conducted either by the State Police or the CBI in that State. This institution has not come up in any State in India so far. It should. It’s high time.

The author is a former Joint Director, CBI
Shantonu Sen

Shantonu Sen

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