Adversarial Criminal Investigation - Legal, Psychological and Sociological Aspects

Abstract

The adversarial system of criminal investigation and trial requires the prosecution to prove its case beyond reasonable doubt. Criminal investigation under the Code of Criminal Procedure, 1973 in India is premised on the adversarial system which provides for investigative fact-finding with complete Police discretion as to the facts found out. This deviates from the administrative requirement of fairness at all stages and phases of the process, which includes that of criminal investigation. The requirement of procedural fairness extends to all events of administrative action. Non-caprice in administrative procedure being the norm, this principle ought to extend to the administrative process of criminal investigation as well.  

The purpose of investigation is to find out the truth. Exculpatory facts are a part of that truth. Not only the accused or arrestee, but the process of investigation itself ought to be interested in such facts. There are constraints placed upon the freedom of the arrestee during investigative incarceration. Such investigative constraints curtail the liberties of the arrestee, and while such arrestee has an invariable interest in establishing and bringing to the fore exculpatory facts, fair investigative procedure ought to provide for statutory norms of achieving this processual objective. There is near-total secrecy of the Case Diary during, as also after the completion of investigation. There is no procedural rule that requires an investigating agency to find out and report exculpatory facts at par with inculpatory ones.

While the standard of proof at a criminal trial ensuing after such investigation is that of beyond reasonable doubt, certain special statutes are enacted which provide for evidentiary presumptions that reverse the burden of proof upon the establishment of certain foundational facts. Even in regular criminal liability statutes, which do not reverse the burden of proof, exculpatory evidence, especially one that is perishable in nature, needs to be established at the time of investigation. This makes the need to be able to establish exculpatory evidence a real necessity for ensuring complete processual justice.  

Incarceration and custodial questioning aid in the process of finding out the truth in its best possible unvarnished form. However, investigative incarceration has certain psychological effects which sometimes lead to wrong self-inculpation. Incarceration during trial also affect the cognitive ability of an accused person to contribute to his/her defence fully. This aspect of incarceration, while it does not fall afoul of the legal presumption of innocence, nevertheless ignores the psychological and sociological aspects of incarceration on the wholesome establishment of truth and consequently, justice.

While equal access to justice is a processual ideal, in reality legal advice and assistance are accessible only to those who are able to afford them. The Legal Services Act, 1987 does not specifically provide for legal aid to begin at the point of arrest and inside the Police Station where an arrestee is held during investigative arrest. This places persons who cannot afford the assistance of private legal advisors while in custody, in a disadvantaged position vis-à-vis those who can and are able to afford such assistance. The process is prima facie, not evenly balanced in its constitution so as to be able to ensure equal access to processual justice to everyone across the socio-economic spectrum. This is reflected from the fact that 65.69% of the total number of undertrials in India belong to the socially weaker classes (NCRB Crime India Statistics, 2019). 38.61% of the total pending criminal cases in India are pending for 3 years or above (NJDG, 2021).

This paper seeks to study the systemic interaction of the legal position of the adversarial criminal investigative system, the psychological realities of criminal investigative incarceration and its sociological implications, and to suggest a way to integrate processual justice with the laudable motives of presumption of innocence.