Every time there is a rape incident widely covered by Media, there is public
outrage, especially women demand that the accused persons be immediately
hanged. Police somehow show that they succeeded in tracing the offenders and
present or parade some accused persons before court and public. Public goes
with the foregone conclusion that these accused persons are offenders and begin
demanding justice to the victim.
Those who demand immediate justice probably lack the knowledge that whosoever
arrested by police need not be real offenders and that there is a possibility
that they may be innocent persons too. And law presumes that till the guilt of
these accused persons is proved beyond reasonable doubt, they are innocent
Hence in the eyes of law, by the time, these accused persons tried to escape
from custody of police and eventually got killed in encounter, they were
innocent. In that sense it may be said that these are innocent persons, but
subject to possibility that these accused persons may be found to be guilty
following criminal proceedings. This can be said to be “presumptive innocence”
which is not in the sense that people in general understand in colloquial usage.
Law takes this presumption in favor of accused persons because, law goes by the
dictum, “let ten criminals go unpunished, but one innocent person must not
Therefore every reasonable opportunity is rendered to accused persons to either
prove their innocence and/or to prove the case of prosecution wrong or
baseless. These presumptions became tools or weapons in the hands of clever law
breakers and advocates to get acquittal from offences. Public knows this very
The arrested persons enjoy several rights under Indian (procedural) law. First
right is right to silence which has been derived from common law principles. If
any arrested person had not responded to questions asked by police and courts,
the courts and tribunals should not conclude that the person is guilty.
Similarly Article 20(3) of Constitution of India guarantees every person has
been given a right against self-incrimination. The second right is right to
know the grounds of arresting from the arresting police officer if he is
arresting without warrant (Section 50(1)) of Cr.PC). The third right is right
to consult and to be defended by a legal practitioner of his choice (Article
22(2) of Constitution). Fourth right is the right to be informed about the
right to be released on bail. Fifth right is the right to be taken before a
magistrate without delay. Seventh is the right to fair and speedy trial. Eighth
one, the right to free legal aid if accused person has no financial sources to
appoint advocates to defend his case.
Several other important guidelines were laid down by Hon’ble Supreme Court in
the case of D.K.Basu vs. State of West Bengal.
All these are meant to save innocent persons from getting relief at various
stages of arrest, trial and conviction and to prove their innocence or to prove
the prosecution’s case wrong. But these are all used more by offenders than by
innocent persons in practice. Because the court does not know who is innocent
or who is guilty till the trial proceedings conclude, it does not know who has
been using these provisions to their advantage. But public believes that these
are all misused for the advantage of criminals by various functionaries relating
to administration of justice including, advocates and judges.
The trust deficit begins from Police. Public believes that police know pretty
well who the offenders are and if they want they can bring them to justice or if
they want they can help them get acquittal. The game that begins with recording
of confessions and statement under Section 164 Criminal Procedure Code enters
Advocates office in due course of time. What is known to police by way of
confession will be known to Advocate by his efficient brief taking abilities.
But the obvious possibility in majority of the cases is that before the case
reaches the court, real story is well known to both police and Advocates. Later
what happens is construction of a legal story according to every officer’s
interests who is part and parcel of administration of justice. These officers
are - one, the Police officer, two the Officer of court (Advocate) and three the
Judicial officer. These are not to be construed as allegations by the author.
These are beliefs of public about the way the criminal justice system functions.
In fact, trial itself is an inquiry process which helps the judge or court to
arrive at conclusions and findings in a convincing manner. That is why it is
not necessary for any police officer to use force, coercion or third degree
methods to extract truth or confession from any accused person. But knowing the
true version of crime stories itself is a social pleasure it has news value
worthy of sharing for any human being and if anyone is in a position to know he
will put every effort to know the true version of crime stories. Police and
Advocates are human beings too. Later how they mould that real story into a
legal story is a different matter having and carrying different motives to
achieve different objects, but neither the police nor the advocate fails in
knowing the truth of matter, generally speaking. That is the reason why in
Disha’s rape and murder case, when the accused persons are encountered public is
confident that right persons were killed not innocent ones.
If police and advocates say, we don’t know what the truth is, it means they are
prosecuting and defending without any basis, reason or any justifiable cause.
The ordinary and legal course of logic would be to presume that police have
impartially taken statement in a lawful manner and gathered evidence and convey
to the court that for such and such reasons and evidences we believe this
accused person is guilty of offence. Which means they don’t know anything about
the offender for sure, unless there is any incontrovertible evidence.
unfortunately a human being can work out probabilities and though court relies
on logic and evidence beyond reasonable doubt, people closely connected with the
issue viz., the police and advocates can draw reasonable conclusions about
innocence or guilt based on probabilities. And so in all probability, the game
of trial begins with full awareness of the real story of the accused persons.
In Nirbhaya case, people had the news that the Bar Association of Delhi
made a resolution that no lawyer would defend the case of accused persons
because the crime is heinous. It is not understandable how crime being heinous
would render accused person devoid of assistance of advocates unless it is a
foregone conclusion that they are culprits. Secondly it is absurd to suggest
that if a crime is less heinous Advocate would help the accused person because
it is not heinous. It is very poor logic to suggest that Advocates take up
cases based on gravity of offence rather than on the basis of presumptive
innocence, which gives rise to a suspicion that they knowingly defend cases of
offenders/culprits because the gravity of crime is not considered to be heinous.
The above paragraph signifies and reveals why public believes, Advocates know
everything even before trial begins like police do. This knowledge may not mean
anything in view of the fact that the standard of proof in a criminal case is
rigorous and it is beyond reasonable doubt. But public mind does not work like
that nor the human mind. Proving case of prosecution beyond reasonable doubt is
for law sake and record sake. But people’s minds (whether police, public or
advocates) work to draw conclusions based on probabilities.
Hence it is very difficult to prevent public to know the real story or at least
to prevent the smell of strong probability of accused person being the offender
or innocent, which is one strong reason for trust deficit in criminal justice
system. As members of public are quick to form an opinion based on
probabilities, they view the entire legal process relating to proving case
against accused person beyond reasonable doubt with suspicion. Adding to that
suspicion is the acquittals made by courts for lack of evidence and reducing the
quantum of punishments by higher courts like High Court and Supreme Court.
What Advocate can do when accused person approaches him for legal assistance?
If the accused person claims he is innocent and requests help of Advocate there
is no professional ethic that prevents him to openly lend his support to the
accused person without any reservations. If the accused person admits guilt in
brief then the Advocate cannot be under impression that my duty is to defend any
accused person whatever way I can, though confession before advocate is
privileged communication. Retracting from confession made before police under
Section 164 is not a matter of right for every accused person even though he is
guilty of offence.
Hence tutoring the client to not plead guilty even though
client in brief to advocate had clearly narrated entire story relating to his
guilt amounts to abetment of offence against public justice under Section 200 of
Indian Penal Code.
Then the question arises what else can advocate do in case any person guilty of
offence approaches him and confesses before advocate. Then advocate feels the
only obvious ethical option is to ask the client to plead guilty before
magistrate. In such case what does the client get by unnecessarily paying for
legal assistance of the Advocate, he can at least avoid such expenses if he has
to get conviction by pleading guilty.
This is wrong conception of practice of advocacy. If accused person confesses
about his guilt before advocate, as a responsible legal practitioner he is duty
bound to encourage the accused person to admit guilt before magistrate instead
of making attempts to get his acquittal with unfair means. The society at large
suffers by mistakes knowingly and deliberately done rather than by mistakes
which are unknowingly done. If an advocate knowingly, voluntarily and
deliberate helps an accused person clearly known to him to be a guilty person,
he is likely to contribute to the list of habitual offenders. That would be a
menace to the society.
The fairness in practice of advocacy demands that the advocate having encouraged
a guilty accused person to fairly plead guilty before magistrate may explore
- try to help the culprit under Sections 3 or 4 of Probation of offenders
Act or under Section 360 of Criminal Procedure Code.
- try to show mitigating circumstances to the court so that the
court award minimum possible extent of punishment prescribed under Indian
Penal Code. Almost every punishment in the Penal Code prescribes
“imprisonment of either description for a term which may extend to………
years”, which means that it is left to the discretion of judge to award
punishment ranging from a single day to maximum number of years prescribed
for each offence, depending on aggravating and mitigating circumstances.
Hence it is open to the advocate to show mitigating circumstances to the
court to get minimum possible punishment for the accused person who admitted
guilt before magistrate.
But many practicing advocates are under a wrong impression that it is a matter
of professional right to defend the accused person in any manner possible and
illegal means adopted to help acquittal can be excused on the ground of
professional competence and eligibility to defend accused person and that there
is nothing illegal about it as long as it is consistent with the rules of
This is another fact responsible for trust deficit in public on Criminal Justice
Law and Ethics
Courts and Advocates try to give an impression about the legal process of
proving prosecution’s case beyond reasonable doubt as something that ordinary
people cannot understand owing to lack of technical knowledge. Legal fraternity
wants to impress upon people that this trial process is imperative and
indispensable and people view it with a sense of suspicion and amusement. What
causes hardship to trial process like “confession made before police officer is
not admissible in evidence”, and classifying the relationship between Advocate
and Client as coming under privileged communication and depriving court to
receive anything relating to it as evidence, would be viewed by public as
bottlenecks to justice that is fair and reasonable or in worst case, or in the
worst case scenario - drama enacted in the garb of rules to acquit criminals.
In Telugu Hero Pawan Kalyan’s bigamy case, the complaint of Nandini, first wife
of actor did not get her justice because he was cleared of charges of bigamy
declaring that there was no evidence to prove the second marriage. According to
Hindu Marriage Act, a marriage is considered only if five important customs –
wearing Mangal Sutram, Toe rings, Solemnization of the marriage before Agni (Saptapadi),
groom showing the bride Arundhati Star and Purohit (priest) chanting the
marriage mantra are followed. As the Hero’s marriage with second wife Renu
desai was not performed following these customs, court acquitted him of the
charge of bigamy.
Thus if one deliberately keeps a small lacuna e.g., instead of taking seven
steps (saptapadi), takes only six steps while celebrating the second marriage,
one can easily avoid the penalty prescribed by the Section 494 of Indian Penal
Code, even though one virtually ruins lives of two girls. It is true in
criminal cases, standard of proof is high and crime should be proved beyond
reasonable doubt. However, this standard should not be stretched to such
eccentric and bizarre extent that if Priest reciting Mantras during performance
of marriage, instead of reciting “Mangalyam Tantunaa Nenaa”, recites “Mangalyam
Mantunaa nenaa”, the marriage is declared void on the ground that customary
rites are not properly followed.
In the case of bigamy involving offence to sentiments of human beings, the main
element of offence is whether the actions of accused person caused hurt
(offence) or grievance to the victim. Whether the accused person’s marriage
(first or second) is validly conducted by priests or not shall not be focus of
inquiry by Court to call it an offence, because whether accused person involved
in valid marriage or not according to customary rites, he had shown mens rea
which is enough to offend the victim. One possibility is that instead of
acquitting the accused person completely, he can be punished at least under
Section 511 of the Indian Penal Code for an “attempt to commit an offence of
The other possibility is that if Examination of accused person under
Section 313 Criminal Procedure Code is properly held, if he denies that he was
involved in second marriage then court can always explore the possibility to
punish him under Section 496 of Indian Penal Code. Even the members attending
second marriage including the priest must be punished for abetting offence under
Section 496 of Indian Penal Code.
In simple words, if the accused person is intending to marry, he comes under
Section 494 and if he is not intending to marry then he comes under Section 496
of Indian Penal Code. Why acquit him when there is clear evidence of attempting
to marriage even though it is not valid marriage?
But if courts neither punish accused persons under Section 511 nor under Section
496 and simply clear charges under Section 494 and totally acquit despite having
provisions in Criminal Procedure Code to punish accused person for charge
different from the one for which the trial was conducted, then that is bound to
increase trust deficit in the Judiciary. When this is what Courts achieve
through Trial process people would always celebrate if justice is done without
following the procedures established by law by violating Article 21 of the
Now, at least when the legal fraternity and judiciary see these kinds of
celebrations as ominous of some impending anarchy, they should introspect – are
we in the business of acquitting criminals, instead of criticizing these
The author is Assistant Professor at Aurora legal sciences academy, Bandlaguda,