Let us be clear. This is not about any factual situation. This is only about an Individual’s belief. Some 30 years ago, this belief entered in my mind. Today I have become much informed person. But still the belief has stayed.

Today, I have taken up courage to say what I believe. Many judges and many lawyers may not like the medium of expression which I have chosen. They may say that if there is something wrong in the system, I should have filed a Public Interest Petition and they would have passed necessary orders if need be.

But for some reason, I have chosen to express my belief before you and to tell you how this belief entered in my mind 30 years ago and why it is still there.

1

Restating the belief

When I say: 40% inmates in jail are Innocent and hundreds of Murderers are acquitted.The word Innocent and word Murderers are a little confusing.

It is much clearer if I say “40% people who are in jail should not be in Jail and hundreds of people who should be in Jail, are actually outside the jail.”  This is a better statement.

2

What is Criminal Law? What we lawyers and judges do in the Court-rooms? Why even a person who has committed crime in front of TV Cameras, can still be acquitted in a court of law?

Most of the people, journalists,TV anchors (Including Justice Arnab), Activist, Thinkers, probably, do not understand process of a court of law. I will try to demystify the whole process of law in just two lines.

These two lines are found in Shakespeare’s Hamlet,

                      Polonious:     ” What do you read, my Lord?”

                      Hamlet :         ” Words, Words, Words.”

This is what lawyers and judges do in court and at home. Whatever may have happened, first Police reduces it into pages full of words. Then witnesses come in court. Whatever they have to say, is reproduced in pages full of words. Then from this pool of words, prosecutor throws some words on a platter, by way of his arguments. Then, defense lawyer picks up some words from the pool and throws on a a platter, by way of defense argument. Then Judge picks up some words from the pool and also from the platter, and then he compares with words printed in law books. If the words are matching, the accused is sent to jail.If the words do not match, the accused is acquitted.

This is as simple as a crossword game. Judge or Lawyer do not go by what is shown on TV or Printed media. Media does sometime build pressure on judiciary. But there is nothing like Media Trial. Everything goes strictly by the words contained in compilation of any case.

3

Now let me tell you, why I believe that hundreds of people who should be in jail are actually moving freely around you and me.

30 Years ago, when I was a newcomer in a District Court, I saw that there were 3 to 4 very big criminal lawyers. They appeared to have good knowledge of criminal law. They used cross examine to witnesses intelligently. They were engaged in most sensational murder trials and their clients used to be mostly acquitted. Their success rate was about 90%.

One day I asked one such top lawyer about secrets of his success. He lifted one side of his coat. I saw that in inside of his coat pocket, there was a revolver. “This is a licensed one”, he said,”I always carry it with me.” This was his secret No.1

Then he said, “Some twenty kilometer away, on a national high way, I own a hotel-restaurant-cum-guesthouse. There are always three to four cars ready to serve my police friends and their family members. In evenings, I always have a party with my police friends. Sometimes some accused has to remain absconding for sometime. We put him there in guesthouse.” This was his secret No.2

Then he said about witnesses. “Most of the witnesses turn hostile the moment they hear that I am engaged in the case by accused. If they do not turn hostile, my police friend will frame up him in some case. Sometimes some witnesses are tight and they refused to bow down to threats of my police friends. But I have no problem. After their Chief Examinations is over, we ask for adjournment for a day. In the evening, the public prosecutor sends me a list of questions which I should next day ask witness in cross-examination. The witness breaks down and I get acquittal for my client.” This was his secret No.3

Then he invited me to come to his  hotel in evening to join party.

I kept shivering with fear for two days. To me, District Court looked like a horrible court to practice. Next day, I left place and moved to practice in High Court.

(This is an imaginary story)

4.

Guesswork.

In a recent judgement, Supreme Court examined role of guesswork and said, in some cases, where both sides have not led any evidence, the court can do some guesswork to some extent.

Now assume that there are 4 top criminal lawyers in each district of India with a 90% success rate.Then multiply it with total number of districts in India. You will soon form belief that it is possible that hundreds of people who should be in jail, are actually out of jail.

5.

40% inmates in Jails are actually innocent persons /or persons who should be outside jail.

This is not my guesswork. In High Court, I met an advocate who was doing exclusive work of Pending Trial Bail. He will touch no other case.

When a criminal incident happens, police records statements of complainant and witnesses suggested by complainant. On basis of these statement, a person is arrested and sent in jail.

Then his relatives reach to an advocate doing Pre-Trial bail matters. They tell advocate first hand true story of incident. They tell him how exactly the incident happened and how police has arrested four person instead of one and how police is twisting truth because family of deceased has paid bribe.

The advocate examines what these relatives of arrested persons tell him. He then compares it pages full of words prepared by police. And then he tries to convince Judge that certain words of police do not match to words required to be matched in law, and then asks that these falsely involved persons be released on bail.

This type of advocates have earliest version of how the incident have actually happened how the police has twisted statements.

As per this advocate, 40% inmates in jail are innocent. As per him, they are in jail because family of deceased paid bribe to police to rope in more persons related to accused.

6.

Thousands of Inmates of Jails who should be outside the jail

Former Supreme Court Judge Justice. V.R. Krishna Iyer is today of 92 year old and he lives somewhere in Kerala.

If we believe what he said, than thousands of persons who are in jail should be released from jail immediately.

Let me explain why thousands of inmates of jail should be freed immediately.

Sometimes, jail sentences contain provisions of fine upto Rs.2 Lakh in addition to main sentence. If the prisioner doesn’t pay fine of Rs. 2 Lakh, he has to further remain in jail for two more years.

The fine varies as per nature of case. But it is a fact that there are large number of prisoners in jail, who have undergone their main sentence but they are in jail because they are so poor and that they cannot pay fine.

As I understand what Justice Krishna Iyer said in a 1980 Case of Jolly George,(Judgement is on Google) the judgement can be interpreted in favour these poor inmates of jail in two ways:

(1) India has certain obligations, though not binding, to International Community, under Art. 11 of International Covenant on Civil and Political Rights.

(2) In view of above commitment, it is not right to put a person in jail for non payment of fine without first giving finding that “though he has money to pay fine, he is not paying fine or that he parted away with money in order to avoid payment fine”.

The fact that they are continuing in jail, even after main sentence is over, itself proves that they are too poor to pay fine.

7.

This is how I have formed an incorrect belief that 40% inmates in jails are innocent and hundreds of murderers are outside jail.

8.

In spite my above belief, I still do not blame anything on Judges for the system,  because of two incidents which came to my knowledge.

Incident One.

A retired district judge, used to come to practice in Supreme Court from Aligadh. Everyday morning he will board on train to Delhi. One day he boarded train but it was crowded. No place to sit. It is was difficult for him to keep standing because of old age. Just then a sitting passenger, made some space and said, “Judge Saab, you can sit here.” Gratefully, the judge sat beside that fellow and asked him, “Do you know me?”

“Yes.” replied the man,”You gave Death Sentence to my one and only son.”

The judge became frozen. After retirement, no security is provided to judges even if they have sentenced many criminals to death.

The man said then,”It is because of you that son is alive today. If you had acquitted him, the other side would have killed him. After some years, Supreme Court reduced his sentence to life imprisonment. He has almost completed sentence and he will come home soon.” The man was grateful to judge.

The Judge relaxed. Later he told me this story.

Two

A lawyer had committed a serious crime. The District Judge sentenced him to death. High Court also confirmed death sentence on the lawyer.

After many years, Supreme Court reduced his death sentence to life. After sentence was over, he resumed practicing as lawyer.

In the meantime,The particular District Judge was elevated to High Court. After his retirement, he started practice as Senior Advocate in Supreme Court.

One day this lawyer came to my chamber, he gave me case and said, he has heard that the retired judge is also practicing in Supreme Court as Senior Advocate. He wanted to engage him as counsel.

I was surprised. “Why do you want engage the man who had passed death sentence on you?” I asked.

He said, “It doesn’t matter. He was just doing his duty.”

I telephoned the Judge and asked, “Do you want to take case from lawyer whom you had sentenced to death?”  He said,”Why should I bother? If he has no problem, I have no problem”

Then we engaged him in the case.

This is how judges decide the cases before them. They command respect of even people whom they may have sentenced to death.

9.

I dedicate this article to those District Judges who work under tremendous pressure and who deliver death sentences fearlessly, knowing well that after retirement they on their own without any security.

Haresh Raichura
19/02/2012