Judicial Inquiry vis a vis police investigation: Legal perspective
M. Moazzam Husain
The
term "judicial inquiry" seems to be tinged with a kind of
sacredness and trust. Popular confidence in judicial inquiry is created
understandably out of disappointing results in police investigations
in many sensational cases. 'Judicial inquiry' which is popularly known
as 'bichar bibhagio tadanto' sounds involvement of judges or
magistrates in the inquiry suggesting that there would be fair and more
credible investigation. Whenever we confront any sensational offence
threatening to the even tempo of the society or to the security or safety
of our lives we immediately and almost instinctively demand judicial
inquiry. Once declaration of judicial inquiry, i.e., 'bichar bibhagio
tadanto' is made, the movement gradually settles down as if everything
is solved and appropriate mechanism is set on motion to bring the criminals
to justice. It is just a matter of wait for some days or months only.
True
it is that police actions and investigations suffer from many a infirmity
more often yielding poor or no results. This aspect of things apart,
and supposing that judicial inquiry enjoys better position on credibility
count can we meaningfully demand judicial inquiry in every case regardless
of the nature of crime? After all 'inquiry' is not 'investigation'.
It has its statutory connotations, expressed in a different way, limitations.
So before demanding or making orders for judicial inquiry it remains
to be seen whether such inquiry is capable of serving the purpose it
is called for. Let us see what the two oft-quoted legal phraseologies
are all about and what legal connotations they carry with.
Statutory
position
The expressions 'judicial inquiry' finds frequent use in the orders
of the magistrates particularly when the court is not satisfied with
the police report or when the case is sent to another magistrate for
inquiry upon a naraji(dissent) petition filed by the informant. It is
also used in a different language, namely, 'bichar bibhagio tadanto'
by the Govt. either suo motu or when pressed for by any social or political
quarter. The terms 'judicial inquiry' and 'police investigation' as
such are not to be found anywhere in the Code of Criminal Procedure,
shortly, 'the Code', the parent law providing the concepts. The Code
uses the terms 'inquiry' and 'investigation' not 'judicial inquiry'
or 'police investigation'.
Relevant
provisions of the Code
Section 4 of the Code describes "inquiry" as including every
inquiry other than trial conducted by a court and "investigation"
as including all the proceedings under the Code for the collection of
evidence conducted by a police officer or by any person other than a
Magistrate. The two words occur in many different places in the Code.
A close reading of the provisions of the Code in which the words occur
clearly suggests that they are not used as synonyms or alternatives
open to be adopted in similar circumstances. They are like different
drugs preserved for fighting different diseases.
In
the present context the most relevant provisions in the Code of Criminal
Procedure are sections 192, 196B, 202, 203 and 205D.
Section
192 reads as follows.- (1) The Chief Metropolitan Magistrate, District
Magistrate, or the Sub-divisional Magistrate may transfer any case of
which he has taken cognizance, for inquiry or trial to any Magistrate
subordinate to him.
Section
196B says- In the case of any offence in respect of which the provisions
of section 196( prosecution for offence against state) or section 196A
(prosecution for certain classes of criminal conspiracy) apply the Chief
Metropolitan Magistrate, or a District Magistrate may, notwithstanding
anything contained in those sections or in any other part of this Code,
order a preliminary investigation by a police officer not being below
the rank of Inspector, in which case such police officer shall have
the power referred to in section155, sub-section(3).
Section
202(1) says inter alia- any Magistrate, on receipt of a complaint of
an offence or which has been transferred to him under section 192, may,
if he thinks fit, for reasons to be recorded in writing, postpone the
issue of process for compelling the attendance of the person complained
against and either inquire into the case himself or, direct an inquiry
or investigation to be made by any Magistrate or by any police officer
or by such other person as he thinks fit, for the purpose of ascertaining
the truth or falsehood of the complaint. The second proviso of the subsection
says in the similar way that-if the offence complained of is triable
exclusively by the court of sessions, the Magistrate may postpone the
issue of process for compelling attendance of the persons complained
against and may make or cause to be made an inquiry or investigation
for the purpose of ascertaining the truth or falsehood of the complaint.
Sub-section 2 of section 202 provides that - if any inquiry or investigation
under this section is made by a person not being a Magistrate or a police
officer, such person shall have all the powers conferred by this Code
on an officer in charge of a police station, except the power to arrest
without warrant. Sub section (2A) says - any Magistrate inquiring into
a case under this section, may, if he thinks fit, take evidence of witnesses
on oath. And if the case is triable exclusively by the court of sessions,
he shall call upon the complainant to produce all his witnesses and
examine them on oath.
Section
205D of the Code provides as follows.-(1) When a case is instituted
otherwise than on a police report it is made to appear to the Magistrate,
during the course of inquiry or trial held by him, that an investigation
by the police is in progress in relation to the offence which is the
subject matter of the inquiry or trial held by him, the Magistrate shall
stay the proceedings of such inquiry or trial and call for a report
on the matter from the police officer conducting the investigation.
(2)
If a report is made by the investigating police-officer under section
173 and on such report cognizance of any offence is taken by the Magistrate
against any person who is an accused in the complaint case, the Magistrate
shall inquire into or try together the complaint case and the case arising
out of the police report as if both the cases were instituted on a police
report.
(3)
If the police report does not relate to any accused in the complaint
case or if the Magistrate does not take cognizance of any offence on
the police report, he shall proceed with the inquiry or trial, which
was stayed by him, in accordance with the provisions of this Code.
Comments
A plain reading of the provisions of law referred to above clearly suggests
that the legal implications of words 'inquiry' and 'investigation' are
different and the court is given discretion to use them according as
they are applicable in view of the peculiarity of circumstances. Law
does not contemplate their interchangeable use. Inquiry in its technical
sense is circumscribed by formalities and not meant for circumstances
claiming all out and in-depth investigation for ascertaining the truth
or falsehood of an allegation. In the whole criminal justice system
the word, as I understand, is nowhere used in the sense that it carries
higher credibility over police investigation or for that matter it can
be resorted to upon failures in police investigation. It is to be noticed
that law has taken care in using the two terms side by side as and when
necessary so as to give the court a discretion as to which particular
mechanism will fit into a particular case. The machinery of investigation
is much heavier than the machinery of inquiry and in fact technically
the most effective mechanism for detection of crime and the criminals.
It provides a higher and more effective mechanism for discovering the
truth or falsehood shrouded with mystery which is clearly impossible
in an inquiry as contemplated in the Code. Investigation connotes all
out efforts by specially trained police personnel for the collection
of evidence and detection of criminals for the purpose of bringing them
to justice. Investigation is a legal machinery set on motion for achieving
a certain goal and goes on unabated unless and until it is achieved.
It is just a mission having hardly anything to do with formality, transparency,
time-frame or openness. It may be open, secret, painstaking, risky,
challenging and admitting of no time-limit. On the other hand inquiry
is more or less a formal search within a time limit, as I understand,
meant for incidents involving no mystery or claiming no in-depth prove
into things. The point may be illustrated by few examples.
Let
us take for example, the sensational cinema-hall-bomb-blast case of
Mymensingh. On the 7th day of December last year four bombs were let
off in four cinema halls at Mymensingh almost at the same time in the
evening killing 19 persons leaving many others injured. The tragic incident
shocked the conscience of the whole nation. There was an uproar amid
fear and confusion for proper detection of the root cause of the crime
and detection of the persons responsible for the shocking tragedy. Govt.
immediately responded by forming a "bichar bibhagio tadanto
Commission" comprising Mr. Justice Sultan Hossain Khan, a
retired judge of the Supreme Court. People seemingly felt relieved.
The Commission made inquiry over a couple of months and submitted a
report in March last showing reportedly no positive result. Quite natural,
precisely because the incident by its nature claims an all-out investigation
by a specialised investigating agency and the private detectives simultaneously
and not a judicial inquiry. On the other hand the Dhaka-University-Shamsunnahar-Hall-incident
of the last year yielded a positive result through a judicial inquiry.
A moments reflection will indicate the difference between the two incidents
calling for two kinds of moves directed to uncovering the inside stories.
Practice
in the Magistrates' court
The practice of the cognizing Magistrate to send any and every
case to another Magistrate subordinate to him for inquiry and report
specially when confronted with naraji petition filed by the informant
is so common and regular that it has become customary for the lawyers
also to pray for judicial inquiry in the circumstances. What is generally
done in a judicial inquiry is that a Magistrate examines usually in
camera some four or five witnesses brought by the informant who more
often than not are partisan and highly interested persons and heavily
tutored. The tutored and interested witnesses must say something implicating
the persons left out from charge-sheet. And there would naturally be
no serious contradictions in their statements. The inquiring Magistrate
upon perusal of the statements of the witnesses so examined finds it
difficult to go against the same as there is no scope for cross-examination
nor has he any right at the stage to sift and weigh the evidence. It
is only the face value of the evidence that matters in the inquiry stage.
The Magistrate, in the circumstances, has hardly any option but to submit
a report showing his satisfaction as to the existence of prima facie
case against the persons found innocent in police investigation. Judicial
inquiry, therefore, in view of its inherent limitations is not meant
for all cases. The practice of sending cases for judicial inquiry regardless
of the nature of offence involved, it is submitted, is legally and factually
wrong inasmuch as such indiscriminate reference more often defeats than
serves the cause of justice. If the result of an investigation is not
accepted it must be followed by another investigation by a different
and more credible investigating agency and in no circumstances by a
judicial inquiry. Let us take a murder case for example. Supposing that
a report is submitted by police sending up some persons for trial and
recommending release for some others. The informant goes dissatisfied
with the report and files naraji petition for taking cognizance against
the persons left out from charge-sheet. An order for judicial inquiry
is as usually made. Let us suppose that three innocent persons are targeted
by the informant out of enmity. What is the degree of probability for
those innocent persons to avert the malicious attempt of the informant
by inducing belief in the mind of the Magistrate that they are innocent.
I am afraid, none. Because, they have no role to play or any say whatsoever
in the process of judicial inquiry.
Concluding
remarks
Indiscriminate demand for 'bichar bibhagio tadanto', therefore,
cannot be the right step towards the remedy for all wrongs and the routine
orders made by the Magistrates directing judicial inquiry, it is submitted,
is not legally and factually sound as the device more often than not
turn counterproductive. It is the Legal awareness that can substantially
diminish the undue trust reposed in 'bichar bibhagio tatanto'
and for the judicial practices it is a wait for an appropriate case
to come up before the Supreme Court for interpretation and guidelines.
M.
Moazzam Husain is Advocate of Supreme Court of Bangladesh.
