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Why people are celebrating encounter of rapists?

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 persons.

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 get punished”.

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 well.

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.

But 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 following options:

  1. try to help the culprit under Sections 3 or 4 of Probation of offenders Act or under Section 360 of Criminal Procedure Code.
  2. 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 practicing advocacy.
This is another fact responsible for trust deficit in public on Criminal Justice System.

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 bigamy”.

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 Constitution.

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 celebrations.

The author is Assistant Professor at Aurora legal sciences academy, Bandlaguda, Hyderabad.

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