There was no criminal law in uncivilized society. Every man was liable to be attacked on his person or property at any time by any one. The person attacked either succumbed or over-powered his opponent. “A tooth for a tooth, an eye for an eye, a life for a life” was the forerunner of criminal justice. As time advanced, the injured person agreed to accept compensation, instead of killing his adversary. Subsequently, a sliding scale of satisfying ordinary offences came into existence. Such a system gave birth to the archaic criminal law.
India has adversarial criminal justice system. The well recognized fundamental principles of criminal jurisprudence are ‘presumption of innocence and right to silence of the accused’, ‘burden of proof on the Prosecution’ and the ‘right to fair trial’. The criminal jurisprudence has given a wider area to the accused. The burden of proving the guilt of the accused is always on the prosecution and in case of any doubt, the accused would get the benefit of acquittal. Any confession made by the accused before the Police officer is not admissible and cannot be made use of during the trial of the case. The statement of the accused recorded by the police can be used as provided under Section 27 of the Evidence Act to the limited extent that led to the discovery of any fact. So, it is advisable that ‘even if you commit any crime, it is suggested that you should confess everything to the police officer and then deny the same in front of magistrate’. Don’t you think that it is the best way to escape from the guilt?
Offences are classified as bailable and non-bailable & cognizable and non-cognizable as per Criminal Procedure Code. But in case where no category of offence is mentioned in the statute then it is assumed to be a ‘bailable and non-cognizable offence’. This means that an accused would easily get bail and a police officer won’t arrest the accused without a warrant issued by the magistrate.
Even under section 14 of the Indian Evidence Act, 1872, it has been held that statements made during narco analysis test are not relevant. D.N.A Test, brain mapping and narco analysis test everything is considered to be irrelevant. Then how will a police officer investigate a matter and how much time will an accused take to hide all the evidences going against him? Don’t you think that a heavy burden has been imposed on the police officer in order to investigate the criminal proceedings. sec. 132 of Indian Evidence Act says that ‘a witness shall not be excused from answering any question which is relevant to the matter’ which may be said as contradictory to sec. 161(2), but proviso of this sec clearly states the witness can’t be compelled to give answer.
Thus the above mentioned sections clearly lays down the saying that our statutory provisions have given wide scope to the defence counsel for protecting the accused and getting a lot of money out of it. Now, the question arises that is it justiciable to give such a wide scope to the criminals? All the above mentioned sections have a clear aim of protecting the rights of the accused, so that there can’t be any discrimination to their rights and they could get equal opportunity to be represented. However, lawyers shrewdly use all these sections in order to protect the accused, knowing fully well that the accused is actually guilty. It seems as, it is better to be a defence lawyer than a prosecution lawyer.
Thus, there is a need of restricting the use of all these sections, so that it would not be used as a safeguard for the real criminal.
Student, National University of Study and Research in Law, Ranchi