Legal experts say evidence in all cases probed by suspended API in the last few months may get challenged following recent developments
Rohini Salian, celebrated lawyer
Can evidence collected by an officer himself accused of a crime be trusted? The arrest of Assistant Police Inspector (API) Sachin Waze by the NIA in the alleged case of the explosives-laden Scorpio and the observation of the additional sessions judge while rejecting his anticipatory bail may have an impact on cases he has probed. Legal experts said that evidence collected by him may get challenged during the trial of cases.
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Suspended Mumbai police officer Sachin Waze (centre). File pic
Shailendra Tambe, additional sessions judge, Thane, who had heard Waze’s anticipatory bail application, observed in his order, “The informant [Vimla Hiran] directly made allegations against the applicant [Waze] in her FIR with name. Hence, this court came to the conclusion that the investigation is at initial stage by the ATS. The offence is under section 201 of IPC causing disappearance of evidence i.e dead body of Mansukh Hiran and section 120 B Criminal Conspiracy. The offence under section 302 [murder] is a serious offence. The accused is unknown hence, there is criminal conspiracy and thorough investigation is necessary by ATS.” The court had also said that there is prima facie evidence and material against Waze.
Senior criminal lawyer Dinesh Tiwari, said, “While there are no legal provisions, there are judgemental laws that say if an Investigating Officer (IO) is not trustworthy in cases where evidence is laid, then the fact of his untrustworthiness can be kept in mind while deciding the case. Waze’s background is likely to have a negative impact on the evidence.”
“Section 53 of the Indian Evidence Act deals with the evidence of the accused and not that of the IO. In all cases probed by the IO, the accused will get benefited to a certain extent. The court would keep in mind that the tainted IO is quite capable of planting evidence. And evidence may be examined keeping such a possibility in mind,” advocate Tiwari added.
‘IO must be fair’
Criminal lawyer Swapnil Ambure, said, “The apex court has often held that fair investigation is a part of constitutional rights. The IO must be fair to rule out the possibility of fabrication of evidence. Since there is no provision in the Criminal Procedure Code dealing with irregularities committed by IOs, the court’s say comes into play. As a general principle, error, illegality or defect in probes can’t have an impact unless miscarriage of justice is brought about or serious prejudice is caused to the accused.”
“The integrity and character of the witness do play a role and the IO deposes in court as a witness. With the IO having a history of notoriety or allegations of fabricating evidence, the benefit can be given to the accused. Claims of false implication would have to be proven by the accused,” said Ambure.
Advocate Rajeshwar Panchal, who practises criminal law, said, “The apex court has held that fair trial and probe are a part of constitutional rights. While there would be reason for the accused to raise a
grievance against the evidence submitted by a tainted IO, one cannot jump to conclusions right away because the allegations against Waze need to be proved first.”
Criminal lawyer Junaid S. Shabwany said, “An IO is duty-bound to conduct an impartial probe. There is a possibility of the court discrediting his probes if his own reputation is tarnished. Where witnesses have been examined and cross-examined, the court would not ordinarily recall them because of a case against the IO.”
‘Court decides on evidence’
Advocate Rohini Salian, former chief public prosecutor said, “An IO is bound to be cross-examined by defence lawyers during the trial. In my four decades of practice, never was a police officer with a tainted past, who resigned from the department, reinstated for reasons unknown.”
“It would be unfair to remark on the IO’s cases until they come up for hearing. Also, the defence may attempt to derail the prosecution’s case probed by the said IO based on the allegations and the arrest. However, only the trial court can decide on the quality of the evidence and the depositions of the witnesses after listening to both sides,” added Salian.
Solicitor speak
Solicitor Stuti Galiya said, “There may not be any actual bias, but reasonable suspicion or only the likelihood of bias can provide an advantage to the defence to question the probe. Acceptance of such claims would depend on the facts and circumstances of each case.”
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