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Loopholes in criminal investigations

Hussain M F Bari
A PART from maintaining law and order by engaging themselves in prevention of crime and enforcement of laws in some petty offences, detection and investigation of crime, arrest of accused and collection of evidence are one of the major duties of the police force. In absence of separate investigating agency, the police who are rather busy in a plethora of issues investigate the criminal offences in a lackadaisical manner. Though separate judicial magistracy started its journey about seven years ago, delayed, defective and biased investigation of crimes is one of the major stumbling blocks that haunt our crippling criminal justice system.
Investigation stage
A police case which is also popularly known as General Register (GR) case is set in motion by filing a First Information Report (FIR) concerning commission of cognisable offence to the officer-in-charge of a police station (section 154 of Code of Criminal Procedure, CrPC). A police officer may investigate any cognisable offence without the order of the Magistrate (section 156 CrPC).
After recording the police case, officer-in-charge may himself investigate the case or instructs a police officer and not the below rank of Sub Inspector to investigate the same. In practice, investigating officer inspects the place of occurrence, prepares the sketch map along with the index of the spot, records the statements of the witnesses who are supposed to be acquainted with the facts and circumstance of the occurrence (section 161Cr PC), seizes the seized articles (alamat) and thus prepares the seizure lists in presence of witnesses (Section 103). Then arrests or tries to apprehend the accused and suspects and forwards them to the nearest Magistrate within 24 (twenty four) hours of their arrest (article 33 of Constitution of Bangladesh), detains and interrogates them in his custody, prays for detention in his custody (remand) (section 167), produces the accused or victim before the Magistrate to have his confession/ statement recorded (section 164 of Code of Criminal Procedure 1898, section 22 of the Nari o Shishu Nirjaton Domon Ain 2000). Sometimes they conducts the inquest of the deceased victim (section 174), sends the deceased for autopsy, collects medical certificates & expert reports, maintains diary of proceedings of investigation (section 172), and submits the police report (section 173).
Police Regulations 1943, Code of Criminal Procedure 1989, or concerned special laws, Evidence Act 1872, Constitution and precedents are the authority and guidelines to which the investigating officers must adhere to.
Defects in investigation
The Code of Criminal Procedure does not provide for any specific time limit within which investigation is to be completed. However, there is a statutory indication in section 167(1) that investigation is to be completed within 24 (twenty four) hours. Further, section 167(5) empowers the cognisance taking Magistrate or Judge to grant bail to the accused if investigation is not completed within 120 (one hundred and twenty) days.
Police Regulations also state that even most difficult criminal investigation should not take more than 15 (fifteen) days if the investigation goes at stretch (Regulation 261). Quite strangely, criminal investigating department or detective branches, rapid action battalion take longer period in completing their investigation than the regular police force take.
In practice investigating officers do not record the statements while examining the witnesses, but subsequently make a summary of what the witnesses said at the time of examination. They prepare the record of those statements at their 'free time’. As a result, many vital points are found to be missing in their recorded statements. The statements of witnesses thus recorded cannot be used by the prosecution, but can be used by the defence under section 162 to contradict a prosecution witness in the manner provided by section 145 of the Evidence Act 1872. Investigating officers has very little idea about the importance of statements made under section 161.
Sometimes sketch map and index of the place of occurrence are prepared without
clear specification. Also alamat are seized in the police station long after the occurrence which is produced by the informant. It is the duty of the police officer to seize alamat at the place of occurrence or hospital immediately after the occurrence. Delayed seizure at some other places other than the relevant place of occurrence surely invites doubt.
There is no need of recording the statement of informant during investigation. However, in many cases, investigating officers record the statement of informant who himself is the victim. There is also delay in collecting medical certificates and other expert reports.
Moreover, investigating officers sometimes do not send a case diary along with remand prayer. As a result, accused is sent to the jail custody pending hearing of the remand prayer for some other date. In this way accused becomes acquainted with hardened criminals in jail custody and makes deliberate attempt to dodge the investigating officer even he is in remand in a subsequent date.
Keeping the accused for long in police custody before being forwarded to the Magistrate for recording his confession under section 164 obviously destroys the veracity of such confession. Sometimes investigating officer submits final report on the plea of allibi of the accused. Informant and investigating officer being the same officer is also fatal to the prosecution case.
There is no pre-trial conference of the investigating officer and the public prosecutor, and most the investigating officers have no knowledge on law of evidence. Investigating officers also feel reluctant to give testimony during trial though Court issues all possible processes. Sometimes, during trial there is no trace of investigation officer who has been transferred to some other places.
The prime object of investigation is to detect the accused persons who have committed the offence. In this way investigating officer is to collect evidence to be used during trial. Therefore, a faulty investigation leads to miscarriage of justice when there is faulty evidence. It is worth mentioning that investigation is the basic substratum upon which trial of criminal cases is founded. I am of firm view that reforms in the criminal justice system should be initiated first at the investigation stage. In fine, I would like to reproduce observations of Hon'ble High Court Division as reported in 4 MLR 87 thus:
“We have come across many cases in which due to faulty investigation accused get benefit of reasonable doubt in spite of consistent and uniform evidence of prosecution witnesses about the occurrence. As a result, people of our country have been losing faith in the present system of administration of justice mainly due to the failure of the police to properly investigate the case and collect the evidence. It is high time that the system of the investigation of the criminal cases by the police alone should either be abandoned or completely reformed."