Scope of Scientific Investigation in Administration of Criminal Justice System

Abstract

Crime has been a part of human society from the beginning. Call it misbehavior, misdemeanor, or social deviance, wrongs qualified to be crimes keep company with man as a born enemy or a born friend. The proclivities, propensities and the mental make-up make humans vulnerable to the commission of crimes. The physiology and psychology of man (woman also) make his personality inscrutable. As Shakespeare observed “What a piece of work is man, how noble in reason, how infinite in faculties, in form and moving how express and admirable, in action how like an angel, in apprehension how like a God! The beauty of the world, the paragon of animalsand yet, to me, what is this quintessence of dust? Man delights not me — nor woman neither”1. Human mind is an enigma and the mind masterminds one’s behaviour. Wrongs called crimes are born in the mind and action is a sequel to the intention crystallized. Only an analysis of the mind can unravel the mystery surrounding a crime and that takes one out of the realm of the mind to relate to the attending circumstances in the search for truth. Here science comes in and only science is capable of meeting the requirements of an investigation. Investigation is a comprehensive term accommodating in its fold a bundle of activities aimed at reaching the truth, collecting the best evidence to resolve the crime committed by the wrongdoer. There is a perspective traditionally attached to the investigation process within the four walls of the prescribed laws. But the system has outgrown the traditional perceptions. New ideas have evolved, new tools are devised, and new procedures have been adopted through inventions and innovations. This change of scenario in investigation is today dominated by science and technology. This has given rise to the need of a system that can prevent crimes from happening and can also punish those who commit crimes. In the earlier days, the modus operandi of a criminal was simple but crude and so was the criminal justice system. In the beginning of organized human society, a culprit was punished in public view, so as to make an example of him. This would send a message to other members of the community, to deter from crime. As society evolved into a much more complicated, multi layered phenomenon, the changes were reflected everywhere. Lifestyle, culture, social interaction, technology, and every other aspect of human society has witnessed and evolved due to technology. Criminals have also been quick in adapting to technology, using it for their own benefit, to commit crimes and to avoid detection. With evolved modus operandi and complicated motives, criminals are able to outrun the criminal justice system. The criminals and the criminal justice system have been interacting with each other for much longer than we can recall, one trying to outdo the other. An effective criminal justice system is a necessity in order to have a peaceful and safe society. Without a system that keeps the criminals in check, society could fall into chaos. The state is the chief obligant in the administration of criminal justice with necessary co-obligants like police, prosecution and courts which are engaged in the vital task of investigation, prosecution and punishing criminals in the society. Modern day criminals are relying on the latest technological and scientific advancements to commit crime and avoid being apprehended. For the criminal justice system to be effective in dealing with this situation, investigation and dealing with crime will have to keep up with the modus operandi of the criminals. It is common knowledge that even though law is essentially a structure of rules and regulations, it is often flexible enough to accommodate the needs and demands of a just society. In the past few years laws across the globe have evolved in order to recognize the new methods of commission of crime. However to truly combat modern crimes and criminals, the changes have to be reflected not only in laws, but in the complete criminal justice system starting form investigation of crime till the decision of the Court. In this context, the contribution of science in the procedure of investigation cannot be underestimated. The process of investigation is of utmost importance in this regard. No crime can be solved without a proper investigation. It has been seen in a plethora of cases that delayed or haphazard investigation leads to cases remaining unsolved and also results in acquittal. The only way to tackle this problem is to bring about major changes in the criminal investigation process, especially in India, where the conviction rate is lower as compared to many other developed nations. In countries with lower crime rate and higher conviction rate, it is seen that newer methods of investigation have been adapted, and the same have been given validity with changes in legislation and permission by courts. Countries like USA have always embraced new scientific developments and the same reflects in their adapting new, scientific methods to apprehend criminals and to bring them to justice. The adaption of DNA as a reliable evidence, even when it was a relatively new technique shows the lack of reluctance on the part of their criminal justice system to utilize the benefits of scientific progress. Even the term “serial killer” was coined following a study into the behaviour of violent criminals by the Behavioural Science Unit of FBI. This proved to be a deep dive into the psychology of criminals with violent tendencies and these insights helped them to solve many ongoing cases. Such adaption of new methods in the field has helped USA achieve high conviction rates. In India it is the outdated methods of investigation that hinder the establishment of an effective criminal justice system. Even today our criminal investigations rely on the traditional sources of proof like eyewitness account, approvers, and confession, the effectiveness of which has long become defunct. It is the obligation of the law enforcement officers to detect crime, track offenders and to collect information that leads to the conviction of those who are guilty. India has enough legislation on various crimes but they are not at par with today’s times. The laws that are prevalent are centuries old and to keep pace with the changing needs of the society, every other day a new law is passed by the Parliament. But these laws are passed often after the commission of new heinous crimes as India does not work in advance. The main allegation against the police officers is that they resort to the use of third degree interrogation in order to bring out truth by hook or by crook, and this is considered as inhuman, illegal and barbarous. With the emergence of internet, crime has also gone global, just like everything else in the world. Now, criminals are not limited to their immediate physical surroundings in committing crimes. Today, a person can be defrauded and blackmailed by another person sitting in a different corner of the world. This has led to the emergence of crimes that are carried out on a global level. Cybercrimes like scams, hacking and data theft have all become common in this internet age. Cyber-crime can be fought only with the help of computers, skilled engineers, data analysts etc. This access to technology has also helped international terrorists in various aspects, from recruitment to carrying out operations. As these operations are carried out remotely, it becomes difficult for the countries to track the crimes, due to the various international, legal, diplomatic and political reasons. The eye witness method of investigation has many issues as they may be inaccurate and can be easily manipulated. Some witnesses refuse to appear before the court in spite of knowing the truth or witnessing the event because of fear of becoming preys to the criminals or threats which many a time are fatal. In some cases, crimes are committed at such places that it is impossible to get any witness. This is the time when the application of science and technology becomes a necessity in the methods of investigation. Criminal investigation determines the quality of the criminal justice system. With the introduction of mobile phones, computers and internet services, crimes are increasing to a great extent but the complicated jurisdictional issues, climatic infrastructure and functional short comings create special difficulties in crime detection. Intelligent criminals have been quick to exploit scientific technologies for committing crimes but we are still relying on the age old ways of interrogation to detect crimes. Scientific investigation of crime with the aid of forensic science has been accepted all over the world. Successful criminal investigation can be done with the help of forensic science. In India the Code of Criminal Procedure, 1973 is the main legislation dealing with investigation. As per the code of Criminal procedure, investigation means all procedures for the collection of evidence done by the police officer or any person authorized by the magistrate. Hence no clear approach is practiced by the police officers in crime scene investigation. Many times investigation agencies collect evidence the scientific way but the same ends up as a futile exercise by them when the evidence is declared inadmissible. A crime scene is a treasure of information because many physical clues are available from the crime scene. But only a person with a scientific knowledge for the collection of evidences will be able to make use of the potential evidence that can be gathered from the crime scene. An investigating officer who is observant and vigilant can extract a lot of vital information from the crime scene that can help in building a strong case in the court room. The involvement of forensic science in that investigation will make the investigation stronger. In advanced countries investigation is done by crime scene investigators who are specialized in crime scene investigation. The principle of scientific investigation is that, a witness may lie, but the circumstances may not. The most critical phase in the investigation of the crime scene is the gathering of the proofs because even the tiniest trace will be of relevance. If evidences are not properly observed the valuable information will be lost, and if not properly collected the evidentiary clues will be contaminated. Each type of forensic evidence requires a particular method for the collection, handling, packing and forwarding of the physical evidence for forensic examination. The job of investigation is quite tough and challenging in the Indian conditions. India follows the adversarial justice system which is largely based on the philosophy that, ‘it is better 100 guilty Persons should escape than that one innocent person should suffer’ and hence the cases start with thepresumption of the innocence of the accused person. It is the duty of the investigating officer to place all relevant materials before the prosecution. The important problem faced by Criminal justice Administration in India is the low rate of conviction, especially in heinous cases. One of the reasons for the increasing rate of acquittal is that either the investigating agency fails to collect the requisite evidence or the prosecution fails to link the chain of evidence collected by the investigating agency. In an adversarial system the judge does not possess a positive duty to discover the truth as the investigation is the exclusive domain of the police. Around the world, new technological advances are adding greatly to the process of crime prevention and justice administration. The courts rely heavily on the facts gathered by scientific methods to discover the truth. This is because the conclusions of the scientific approaches used to collect specific evidence are reliable and can be depended on. Many new scientific tools such as DNA, Narco Analysis, Polygraph and Brain Mapping, etc. have evolved greatly and after continuous study. Not only in the criminal justice system, but in civil litigation also the implications of these scientific methods are commonly used. DNA profiling has emerged as a reliable source of scientific evidence because it has the possibility to determine whether the biological clues at the scene of the crime come from the person suspected of crime or not. Thus, it is very useful in the investigation of murder, sexual offences and in paternity disputes. DNA profiling has been widely used in countries like UK and USA, and even a DNA database has been built to increase the application and accuracy of the method over time.The necessity of introducing scientific methods in investigation can be deduced from the recommendations of the 14th Law Commission Report, 1958. Padmanabhaiah Committee on Police Reform, 2000 focuses on and recommends various changes in the police system in India. The report sheds light on the need for equipping the police with ‘investigation kits’ and requires that every sub-division should have a mobile forensic science laboratory. Malimath Committee on Reforms of Criminal Justice Administration 2003 also points out that one of the reasons for the low rate of conviction is lack of scientific technologies in investigation. Draft National Policy on criminal justice system prepared by Professor N.R. Madhava Menon, 2007 has recommended that evidence collected through scientific methods must be admissible in courts as substantive evidence and not just as opinion evidence. The 239th Report of Law Commission of India, 2012 on Expeditious Investigation and Trial of Criminal cases against Influential Public Personalities, observed that the police are quite often handicapped in undertaking effective investigation, for want of modern gadgets such as cameras, video equipments etc. Recommendations were made to review the entire classification and also the powers of the police and the CBI in investigation, and the powers of the Intelligence Bureau in cyber surveillance and the National Crime Records Bureau in cyber technology. It warranted the enhancement of the cyber surveillance capacity of these investigative agencies. Despite judicial guidelines and committee reports regarding the necessity of scientific investigations there is no law mandating that investigation shall beconducted by scientific experts. Thus, the DNA evidence has received great acceptance in the western countries due to its potential in criminal investigations. In India, we are still lagging behind, both in academic and practical fields, because our courts are not able to appreciate the scientific evidence in the absence of specific legislation. Code of Criminal Procedure, 1973 was amended in 2005 in which medical examination includes DNA also but in the absence of specific legislation, its conditionality challenges. With the advancement of civilization and science, several sophisticated methods of detection like polygraph, and brain mapping which are non- invasive techniques have been introduced. However, later on, another scientific technique ‘narco-analysis’ has been developed as a tool by the investigators. Though this technique has become popular in law enforcement and judicial circles it is one of the most controversial techniques for eliciting the truth from an accused in crime investigation. This technique has generated a lot of controversy worldwide because of its adverse effect on the health of the subject as well as it being another form of torture and infringement of the right to privacy, right against self-incrimination and right to the health of a person. The main controversy that governs the use of this test is its seeming violation of the fundamental rights of an individual guaranteed by the Constitution. Apart from the violation of the right against self-incrimination, this test also raises issues regarding the ‘right to human dignity’ and ‘inviolability’. On the other hand, the criminal justice system is criticized for the slow progress of investigation and trial. However, in India, the judiciary has considerably settled the scientific method of these interrogations in criminal investigation after the decision of the Hon’ble Supreme Court in Smt. Selvi and Others v State of Karnataka. Even though the Apex court vehemently criticised the application of these tests, it also provided some safeguards for conducting this test. Even after this decision in many cases like terrorism and financial fraud this test is permitted with the consent of the accused. This thesis analyses the changes needed in the criminal investigation process in India and the loopholes of conventional methods of investigation. The study also examines the need for science in the detection of crime. The important scientific tools of investigation like DNA, Polygraph, Brian Mapping and Narco Analysis, along with their constitutionality and evidentiary value are also discussed here. Criminal justice administration in India faces a high rate of crime and a very low rate of conviction. Even after a lapse of 73 years of Independence, due to the subsisting practice of the age old colonial system of criminal justice, there are some inherent defects in the contemporary Criminal Justice System in India. This study looks to provide solutions and various advantages that can be availed by adapting newer and modern techniques. Investigation should be carried out convincingly but the traditional methods lack acceptability and adaptability to the emerging situations. Justice should not only be done, but it should manifestly and undoubtedly be seen to be done. This oracular utterance of Lord Justice Hewart is equally relevant in the matter of investigation2. Investigation must be transparent; findings must be rationallyverified; it should add value to the criminal justice administration. This becomes possible only by changing with the times in the methods, modes, and applications. In this respect science is the best ‘friend, philosopher and guide’ to earn credibility and achieve positive results. Scientific thinking creates a predictable and objective ecosystem for justice administration. Tools and methods developed on scientific and technological principles have credited investigation with universal utility. With rapid strides in technology the investigation of offences has undergone tremendous transformation. This thesis examines as a research problem the questions emanating from the scenario. The hypothesis is that science and technology change the contours of investigation, and the research problem formulated answers this in the affirmative.