A novitiating criminal lawyer's reflections
on the recent conduct of a police officer attacking the entire judicial system of Manipur

Mangaleibi Sarungbam Chanu *

My thoughts and reflection or you can call it my legal intellectual exercise on the sensational news headlines of Lady Police Officer where she has held the entire District Judiciary, in fact the entire judicial system of Manipur at ransom. She has threatened and declared that the entire judiciary is corrupt, incompetent, unqualified and there is (not stooping down the standards of language to the officer's level) on the temple of justice here and so, no one can force her to honour such place.

Background of the drama: On 21/05/2020, an urgent bail matter was heard before the Special Court (ND & PS), Manipur for granting bail to Lukhosei Zou (note: previously Court after enlarging the Accused on interim bail, he absconded for a year and later surrendered).

The Lady Police Officer (Additional SP-NAB) and the presiding Judicial Officer of the concerned court had a confrontation and thereafter, further dramas ensued with the Lady Police Officer posting her opinion and personal comments on her social media platform and in reaction, the All Manipur Judicial Officer's Association filing a written complaint against her to the SP, Cyber Crime, Manipur for taking action against her unethical comments against the Special Judge ND & PS.

The point for writing this post is to throw open a healthy legal discussion amongst my peers especially those from legal fraternity and those who are not, are also very much welcomed to share, comment, teach, enlighten in developing a robust knowledge of the criminal trial court procedures. On the background of the drama that has unfolded, following legal issues caught my attention barring personal comments and I would appreciate to all the readers to add/correct/subtract from my humble understanding of law:

1. The Conduct of the Addl. SP (NAB) in the Court room (discussion limited to this particular incident of that particular day). It is reflected in the Order Copy of the Court that "while examining the witness, the Additional S.P. Nab, Manipur Smt. Th. Brinda entered into the Courtroom without prior information of the Court and prayed the Court through Spl. PP for allowing her to put direct question to the witness. The prayer for direct question by Addl.S.P NAB Manipur to the witness is turn down and Spl.. PP is asked to put question to the witness".

Now, my first question is, did the Lady Police Officer Madam comply with the Order of the High Court of Manipur passing strictures in the form of directions dated 19th May 2020 vide Notification No. 62 and to be precisely point No.4 which clearly states that in case of the Advocates are required to enter court complexes for any purpose, they should maintain strict social distancing and other covid-19 protocol.

No litigants and other officials will be permitted to enter court premises without prior permission of the Hon'ble Court.Other officials includes the Lady Police Officer in the present case. Did she take prior permission of the Court (directly or through PP) to enter in the Court room and take part in the Court Proceeding for that particular trial?

If yes, where is the permission and why was it not reflected by the Judge concerned that the Lady Police Officer had prior to the Court proceeding sought for her permission in compliance of the High Court Order Stated above. The fact that the Judge concerned reflected in the Order sheet that while examining the witness the Lady Police Officer entered the Courtroom without prior information of the court clearly shows the sheer ignorance on her part.

Did she take for granted the High Court Orders which are issued in pursuance of the directions of the Supreme Court of India in the wake of the COVID-19 Pandemic?

That, such orders and protocols are for lesser mortals, which heroes of police department can flout openly? Irrespective of her emotionally charged up status at that particular moment, considering the gravity of the situation the world is confronted with the virus, the rising cases of the infected patients and given her nature of job profile, what would have been the case if she was an asymptomatic infected person of the virus and in that case she would have possibly infected the other senior officials present at that particular bail hearing. Farey, aduna adu leirey!

2. My second legal query is "Can an I.O (Investigating Officer) herself directly cross-examine the witness at the time of hearing the bail application in NDPS Matters?"

Factual Position: The Lady Police Officer concerned is neither the Investigating Officer, Informant nor the Complainant of the present case. The I.O is not the same person as the Informant or the Complainant under the ND & PS Act, 1985. However, leaving the technicalities of the Act, the crux is irrespective of her (Lady Police Officer) role in the instant case, the legal principles discussed hereunder will be in toto applicable in the present context as the fact that she is a part of the Investigation team assisting the Prosecution remains unchanged.

So far according to my humble knowledge, there is no provision in the entire Code of Criminal Procedure or any other Legislation in India, infact in the world which grants permission to the I.O of the case to conduct or take part in the prosecution and put forth questions directly to the Witness.

To throw light on certain specific provisions of the CrPC, certain provisions like Section 24/25/301/302 these clearly points to the settled law that the prosecution is to be conducted by the Prosecutor and the Assistant Public Prosecutor assigned in respective courts according to the provisions of CrPC. Further, proviso to Section 302 CrPC clearly states that "no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the Accused is being prosecuted".

The legislature has purposely used the word "Police Officer" instead of the "Investigating Officer" and therefore this answers the question here. It is a common knowledge that I.O is an interested/prosecution witness, the I.O can be cross-examined by the Public Prosecutor or by Accused (Witness). But, the I.O cannot cross-examine any witness except under certain provisions like Section 145 and 154 of the Indian Evidence Act; and Section 162 of the CrPC that also only, when the prosecution is declared as the Hostile Witness.

Instead of letting emotions take charge of the situation, the I.O could have calmly worked out a more tactful strategy to ensure the arguments to not grant bail to the Accused by way of noting down the possible points in the sheet and making her question the witness through the Public Prosecutor. In a way, the Public Prosecutor has also failed to make sure the I.O obliged with the decorum of the Court. The collective efforts of the PP and the I.O, mutual respect for each other's competence and cooperation is what is quintessential for making a successful prosecution case.

But, unfortunately, here either the Lady Police Officer was way too smart and her legal intellect was crispy clear that she did not trust the PP to take the opportunity to examine the witness, if at all according to the version of the I.O, the witness was becoming hostile. This is where the Lady Police Officer has failed to take note of her behavioural issues highlighting her lack of professionalism and due respect for the Judicial Institution or for that matter any Institution.

The fact that she was the reason for disturbing the decorum of the Court leaves a negative signal as she, being a Police Officer is expected to observe the highest level of dignity and integrity belonging to one of the most disciplined forces of our country.

There's a reason why several provisions have been engraved in the Code of Criminal Procedure for the Police Officer who have taken part in the investigation being strictly barred from taking any active part in the prosecution or putting questions to the witnesses during the trial. If this was not maintained, why would there be a need for the PP's then? The State Exchequeer would be less burdened.

Infact, why would we need the Courts at all, the Police Officer could take up all the roles, be the Judge, be the PP, be the Defence, be the witnesses, be everything. This leads me to think that the Lady Police Officer being a law graduate has failed to understand the concept of separation of powers.

During the inquiry before the witness is declared hostile, can the I.O, for that matter, the police officer cross-examine the witness? If I am wrong please teach me under what provisions and particularly under which Act?

Further, it is a very sorry state of affair that personal opinions are paraded as facts, objective reporting is lost in the melee. For instance, following the emotional outburst and opinion by Lady Police Officer concerned in her social media post, a reputed News Paper Outlet had published stating " ............the order for her transfer came after she had objected the cross-examination of a JNIMS doctor.......".

The interesting question here is how was it presumed that the transfer order came after the Lady Police Officer's prayer for cross-examination was rejected? Truth to be told, this appears more like a gross misrepresentation of facts. Or rather, the case of personal opinions being presented as facts.

In this connection, the philosophy and theories on "Post Truth" can be brought into focus in present context, as we are being fast forwarded into such a world where objective facts and objectivity are getting less influential in shaping our world views and we are being carried and swayed by emotions irrespective of its correctness.

3. What possible and mature legal option could have been availed by the Prosecution in case of the grievance and non-satisfaction by the Lady Police Officer as to the truth and veracity of the statements made by the Doctor Witness in the instant case?

If the Lady Police Officer was at all aggrieved by the changing stand of the Doctor (Witness) becoming a hostile witness during the time of the hearing, the prosecution team could have possibly worked out for more suitable strategy if their real intention at all was to prosecute the Accused at any cost.

For instance, the general practice adopted in the lower courts while granting bail is that in the event of non-satisfaction of the statement given by the Doctor Witness with regard to the medical status for determining the grant of Interim Bail is that the medical reports or for that matter the concerned Accused is referred to the Medical Board which is constituted by the Director, Health Services, Government of Manipur by a standing order of the State Government.

The Special Public Prosecutor in the instant case could have prayed to the Court to refer the Accused for the re-examination of his medical status if he was not satisfied with the reports issued by the present doctor (witness) which could have expedited the entire process. In this case, did the PP make a prayer to the Court to refer the present Accused to the Medical Board for re-examination at all? If not then, this clearly reveals the weakness on the part of the prosecution for not being competent enough to argue and strongly object to the bail application of the Accused.

4. Applicability of the Principle of Reverse Burden of Proof-
Whether applicable in strict sense in considering bail application during the course of trial of the case under the ND & PS Act, 1985?

Unlike the general principle of criminal law, that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Section 35 and Section 54 of ND & PS Act, 1985.

Section 35 of the said "Act" which deals with "Presumption of culpable mental state" and Section 54 of the said "Act" which deals with "Presumption from possession of illicit articles", no doubt raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied.

An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas, the standard of proof required to prove the guilt of the accused on the prosecution is beyond all reasonable doubt but it is preponderance of probability on the accused.

If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the Actus Reus which is possession of contraband by the accused cannot be said to have been established. This is the well settled position of the law which has been affirmed in cantena of cases by the Hon'ble Apex Court.

Now, the interesting question for deliberation and to my intellectual curiosity is that "Whether this principle of reverse burden of proof will be applicable in strict sense while considering a bail application in ND & PS cases?" The consideration of bail application does not determine conclusively the guilt of the accused. Grant of bail depends upon the circumstances, facts and nature of the cases. Grant or denial of bail in respect of offences under the ND & PS Act must be in compliance of the provisions of Section 37 ND & PS Act, 1985 r/w Section 437/439 of the CrPC.

The primary consideration for grant of bail depends on the following considerations as to the nature and seriousness of the offence, character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of presence of the accused not being secured at the trial and the reasonable of the apprehension being tampered with, the larger interests of the public or such similar other considerations.

In the instant case, the fact that the consideration of bail matter is on medical grounds and as such, the question of applicability of Section 35 r/w 54 of ND & PS Act, 1985 does not arise. That, these provisions will be attracted only in the trial for final disposal of the case wherein the guilt of the accused is determined taking into consideration all the material facts and evidences brought to the notice of the Court.

Consideration of bail is not trial is strict sense. Assuming but admitting to the allegation of the Lady Police Officer on her social media post that a prima facie case against the accused has been made out, this will not be the determining factor as the grounds for consideration of the bail in the instant case is solely on medical ground where and that also for the interim bail.

5. Response of the Judiciary when attacked by the Public/Public Officials in due course of time.

The judiciary is caught in the middle of a highly politicised and emotional atmosphere caused in large part by the 24 –hour news cycle, advanced by politicians who are either ignorant of or chose to ignore the proper role of the courts, and accepted by a citizenry often uninformed about the role of the judge as an impartial arbiter with the responsibility of enforcing laws. The present attack is not a new case.

Pernicious institutional attacks on Judiciary as an organ by other organs or private entities/individuals are not an old drama witnessed by almost all the developed legal systems of the world. This has always been there and there will always be. These attacks have become common place.

The disappointing crux is that the attacks have been made and charged up to a greater degree with impunity by the media, public commentators (more than half of whom are uniformed and uneducated in law), academicians and to utter disgust and surprise even by the our own breed of the legal fraternity, the very members of the legal profession.

So, in these circumstances, do the Judiciary respond and stoop as low as the Ignorant Accuser? Does it have to justify itself to the opinion of the public masses? It is not proper for judiciary to engage in public debate, since it is an easy target every time. It is an expectation that people will learn without punishing them for their ignorance, albeit without much positive results.

However, in certain cases, where the Judicial Officers of the Subordinate Courts who do not tolerant such unprofessional and unethical attitudes towards the contemnor, they do not hesitate to invoke the provisions of the Contempt of Courts Act, 1971. But, then in the present context the Subordinate Judge could have not possibly slapped the Lady Police Officer with the criminal contempt instantly at that particular hearing.

For the simple reason that, according to Section 15 (2) of the Contempt of Courts Act, 1971 "In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf".

Lastly, having studied law with much dedication and having taken a vow to myself to do justice to the aggrieved; to protect and honour the law of the land with all my life no matter what, in harshest of the harshest circumstances, I felt I would do utter injustice to myself and my lifetime's endeavour of reading law if I continued to be a mute spectator.

Rest I leave it to the legal scholars, members of the Bar as well as the Bench, Public Prosecutors and Police Personnels without whose selfless support the entire criminal justice administration would collapse and the general public to decide.