Effective Trial against Organized Crime

Organised crime is, as its name implies, a highly cohesive, well integrated and structured form of criminal behaviour. It has characteristics of a modern business enterprise organisation (mob, gang or outfit), division of labour, specialisation of methods, careful planning and insurance against risks. The most common forms of organised crime are organised gang criminality, racketeering and syndicated crime. The first one is noticeable when highly violent crimes are committed, such as robbery, kidnapping, murder, hijacking and so forth. Racketeering is the extension from legitimate or illegitimate business through intimidation or force and terrorism by an organised criminal gang.  Syndicate crime is the most entrenched, best organised and most difficult form of organised crime to deal with. It is a highly cohesive national group of professional criminals who are organised in a business like manner for the purposes of making money through illegal activities, such as illegal gambling, narcotics, prostitution, pornography, illegal liquor and ‘usurious loans’ (forcing the recipient to pay a higher rate of interest than is permitted by law). Syndicate crime is often referred to as the ‘mafia’, ‘La Cosa Nostra’, ‘The Syndicate’ and ‘the mob’. Since organised crime is far more subtle than the usual, crime against persons or property, its trial requires the services of highly professionalised and honest judicial officers.  Lacklustre or ineffective trial is a big slap/slur on the face of judiciary. The feedback which we get from the public in terms of fair and effective trial and disposal of cases relating to organised crime is not heartening. The feeling is that the judiciary is not responding in expected terms.  The solution to this problem is not as simple as it may appear to be. Purists try to find solutions to such problems in legal treasures and mines. They dial wrong code. The fact of the matter is that it is primarily a ‘behavioural-problem’ because human factors are involved in a trial and is in fact, a legal problem secondarily. Judicial decision making is an exercise in mental warfare. Extraordinary problems sometimes ask for extraordinary solutions.  Behavioural & Management Skills The answer lies in the fact that the system is becoming more and more ‘personality oriented’. Personal management of the Presiding officer is important. He has to develop his personality to meet the challenges of the expectations of people. Personal management starts with punctuality. It goes a long way in one’s life. Complete, comprehensive and composite personality is required of a Trial Judge, Effective trial actually lies in how to maintain correctness of procedure and law and the ability to avoid the pressure which is very often tried to be built from some quarters.  If one is innovative and productive, not reluctant to changes and has an analytical legal bent of mind, this area of ‘effective trial’ belongs to him, otherwise it is yet another ‘run-of-the-mill’ story. A Judge must possess ideas, insights reasons and logic, of course within the proper framework of law, needed to enhance professional and organisational performance. Today, we are living in a world where being a perfectionist in our job is a necessity. It takes everything from planning and framing to executing a project i.e. deciding a criminal case as per law. The hardest wood is found on the mountain top and the trees there are subjected to storms. When the going gets tough, the tough gets going. A Judge has to be more of a risk manager, meeting deadlines, working under time constraints and deciding a case relating to organised crime are just the kind of ad ventures involved in it. As the core of an institution shrinks, then comes the area of expertise and specialisation. Effective trial of organised crime is an expert’s job, requiring tremendous professionalism to despatch it to its logical conclusions. The complex, legal and management problems that arise in the process are natural applications for judge’s skills. Up-to-date knowledge of law, broad vision and strategic understanding of resources and circumstances can be learnt but only by experience. Repetitive reading and constant review can minimise the mistakes.  Not everyone has got expertise in the trial of the cases of organised crime but application of certain skills and related attitudes enable us to do so. Effective trial is the result of careful and perfect application of skills. It consists of three parts. The first is to have a vision or an objective i.e. expeditious and effective trial. The second is to articulate that goal to the prosecutor and defence counsel to obtain their commitment to that objective. The third is to develop and implement apian within the four corners of law to attain that goal. A missing goal means a Judge is without proper direction. It is just possible that a Judge’s plan for effective trial of organised crime may derail midway. In that contingency a Judge has to recast and restructure his plans and has to believe in himself and his abilities.  Judges always improve while committed to their goals. (Effective trial in the present context). They never stop learning and have dedicated themselves to hard work. To be able to articulate their vision to others and to obtain their commitment, Judges need to be good communicators . He should be well informed about the task in hand, principles of law applicable to it and to make optimum use of the time and material available. For the old guards, communication was not the way to conduct an effective trial. For them, setting an example was probably the most important skill. It was the most effective way to show others the proper way to conduct a trial and was in a way, more effective than verbal communication. Now a days participative listening can land the Judges in trouble and therefore, inquisitive listening is recommended. Time and again, the Apex Court has emphasised that a Trial Judge should be in control of the proceedings before him. He has to be a pro-active agent and not a passive agent in the game of Judicial decision making. In good old days, some of the stalwarts were original white others copied them. But with the change of guard and with the march of time, the innovative Judges develop while others maintain. They focus on the work in hand. They inspire trust. They innovate and have a long range perspective. They have their eyes on the horizon. They originate ideas. They ask ‘six honest serving men’ of Rudyard Kipling. (What, where, when, who, why, whom, how) They challenge status quo. They do the right things, others do things right. They always maintain a positive attitude. They personally accept the blame for shortcomings and generously share the credit for successes. They do not ask others to sacrifice what they are not willing to do themselves. They create while others recreate, they produce while others reproduce. They conceptualise the things while others follow the dictum. In short, they try to master the skills so essential to their professionalism.  Legal Skills In the individual or unorganised crimes, it is usually victim who calls the Police and gives them information regarding the criminal act committed. This is not so in organised crime. Victims of organised crime are afraid to inform law enforcement officials and the people are generally willing participants in the violation of the law. The Police are able to develop informants to obtain information about organised crime but such informants do not testify publicly for fear of their lives. Collection and production of legally admissible evidence in prosecution of such criminals is far more difficult than perceived. Here are some of the skills to help the participants acquire improved professionalism in judicial decision making in organised crime cases (without being branded as ‘hand-in-glove’ either with prosecution or defence).  Criminal trial of the organised crime is the voyage to the discovery of truth. ‘Fair-trial’ is the trial which is fair to the prosecution as well as the defence. Effective trial is thwarted when proper correct procedure is not adopted. Proper procedure should be adopted but then, there is also the other side of the coin. In its anxiety to ensure that no party may be deprived of a right of being heard, a monstrous practice has come to prevail which has devoured its foundations. Nobody should have a right to hamper the smooth flow of the fountain of justice by creating hurdles of his choice ad nauseum.  Under the Ancient Indian Law, a Judge who passed unjust orders had to be banished. If the Judges discharge their duties efficiently and conduct the trial of organised crime effectively, there is no need for multiple appeals. Power under Article 226 can always be invoked by a party genuinely aggrieved.  Every procedure provides for adjournment to afford reasonable opportunity to prevent miscarriage of justice. A trial of organised crime should proceed de die in diem. They should proceed on day-to-day basis so that infructuous adjournments are eliminated as far as possible. It is absolutely necessary for such trial Judges to exercise effective control over the proceedings, sit tight over the case list and refuse to pass over a case unless some really genuine and sufficient cause is shown even at the risk of unpopularity.  Uncontrolled cross-examination and filibuster style arguments always lead to a failure of the notoriously unmanageable cause list, causing untold misery to the accused and the witnesses and causing delay in disposal of such criminal cases.  The presiding officer, if he does not know his job is often ignorant of the parameters of a proper cross-examination, or, if he is weak, he dare not interrupt for fear of being branded by the bar to be pro-prosecution. As recently emphasised by the Supreme Court in State of Rajasthan v. Ani AIR 1997 SC 1023 : 1997 Cri LJ 1529. a Judge remaining mute during trial is not an ideal situation. His role is not that of a mere spectator or even an umpire. He is expected to actively participate in the trial and to elicit necessary material from witnesses in the appropriate context. He may put questions to the witness at any stage to elicit truth. If the Judge feels that a witness has committed an error or a slip, it is his duty to ascertain whether it was so. for to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Due to failure of many Judges to keep this salutary advice in mind, all sorts of scandalising and even inadmissible questions often get asked.  Still further, the Courts should not be reluctant to punish perjury and allied offences against administration of justice to strengthen the scheme of the law that all proceedings before a Court (including those exercising jurisdiction over organised crime cases) have to be truthful.  The primary responsibility for supervising and controlling the judicial work in the district rests upon the alert and watchful District Judge. In spite of growing volume of work the strength of Higher Judiciary is not proportionately increased and that hampers the trial of organised crime. These colossal arrears did not show any sign of abatement during last years. There are millions of such cases clogging the bloodstream of justice. Slow wheels of justice are responsible for causing injustice to the victims of organised anti Sikh riots of 1984, A close co-operation between the Sessions Judge, District Magistrate and Superintendent of Police in the meetings of monitoring cell is essential, if the cases of organised crime are to be effectively tried by the Courts. Attendance of the witnesses including Investigating and other Police Officers and proper service of summons on them is necessary. Government officers specially Police Officers and the Doctors are transferred and sometimes it is very difficult to locate them. Sometimes they do not bring relevant records with them and Prosecution agency does not ensure that the evidence of the witnesses is promptly recorded. Avoidable waste of money and time can be stopped. The scale of TA and DA paid to the witnesses should be adequate. Penal action should be taken against the recalcitrant witnesses who are served with summons yet they do not turn up in the Courts. The malaise is the direct result of the complacent attitude of the agencies involved in the criminal Justice delivery System and their failure to appreciate the seriousness of the problem. This precipitates in lacklustre trial of organised crime which, in turn, adversely affects the society at large. Frequent transfers and change of Courts in the districts should be avoided and if the same is inevitable, the officers should take away part heard cases of organised crime with them. No Court should be left unmanned Condolence meetings may be held in the chamber of District Judge but the Court work should resume within half an hour after such meeting takes place. Cooperation between the Bar and the Bench is essential. Written arguments should be encouraged as it will save time of the Presiding Officers, Prosecutors as well as defence counsel dealing with cases of organised crime.  Copies of all the documents given to the accused should be supplied within a reasonable time. New system of formal committal of cases to the Court of Session has not, in any way improved matters, as it does not expedite trial of organised crime. Not that all the organised crime cases are tried by the Sessions Court but there is substantially large number of such cases in the districts.  The decision of an organised crime case depends more upon oral testimony of witnesses than upon documentary evidence. The chances of fading out of memory in such matters are considerable as a result of passage of time. Apart from that there are also possibilities of the material witnesses succumbing to undue pressure and being won over. Delay in the disposal of organised crime cases should, therefore be eliminated as far as possible.  If the Presiding Officer of the Sessions Court is transferred or otherwise ceases to preside over that court after recording part of the evidence, the successor has to record that evidence all over again. Witnesses go back on their earlier dispositions during the course of de novo trial as a result of undue pressure causing miscarriage of justice especially in such important cases of organised crime. Section 326, Cr.P.C. should also operate in the Court of Session as it prevails in the Court of Magistrates. For the purpose of the said provision, a special Judge deciding Prevention of Corruption Act cases is deemed to be a Magistrate and the same reasons should hold good even for other cases of organised crime tried by the Sessions Court. If it is not possible, then the piecemeal recording of evidence in the Court of Session should be stopped, and the entire prosecution evidence is recorded at a stretch. It seems to me desirable that at least two police officials at every police station should be set apart for getting service affected upon witnesses for cases relating, to organised crime under that policestation and for ensuring their presence on the date of hearing, in conformity with the provisions of Section 309, Cr.P.C.  Those officials of the police force who are concerned with the investigation of cases of organised crime should as far as possible, concentrate upon investigation and looking after the progress of the cases even after they are filed in the Court, and should not be deputed for other purposes.  It is also desirable to separate the investigating agency of the Police from that dealing with general problems relating to maintenance of law and order. The question as to whether the investigating agency should not be susceptible to executive interference and for that purpose, be independent of the executive control may also need consideration.  In organised crime trials the Presiding Officers should lake particular interest in the matter of opening statement of the prosecutor and framing of charge. The latter should not be left to the Prosecutor to give them a draft of the charge. Likewise, while recording statements under Sec. 313 of Cr. P. C. the trial court should take particular care to ensure that all incriminating pieces of evidence are put to the accused, the failure of which sometimes results in undeserved acquittal, which is equally unwarranted as an unnecessary conviction and has far reaching consequences on the social and moral fabric of the country.  There should also be as many efficient and diligent prosecutors as there are criminal courts seized with the matters of organised crime.  Organised crime cases in which there is possibility of death sentence should receive priority over other cases the agony of the accused in such cases is enhanced by the uncertainty of the fate which awaits them. It is all the more essential that the victim should also feel trial anonance of Justice which is an act of Divinity but admnistered on earth by mortals, for after all, a fair trial is the trial which is fair to the Prosecution as well as to the defence.

Author Name: Hon’ble Justice Umesh Chandra Dhyani