The latest scandal in the trial in what is known as the BMW hit-and-run case has once more brought to the forefront the issue of vitiated trials caused by prosecution-defence collusion provoking calls for reform of the criminal justice system. The issue however, is not one of lack of checks and balances within the system - but of diligent and deliberate application and enforcement of those checks and balances.

A spate of high profile cases have resulted in acquittals at the trial court level on account of witnesses turning hostile. Due to media attention and perceived public outrage this has resulted in appointment of high level probing committees which are largely band-aid exercises undertaken to restore public faith in the justice system.  

However, a probe at a stage many years after the occurrence of the incident and when there is faint chance of recovering fresh evidence may or may not be fruitful and therefore mechanisms to ensure that the truth will out have to be put into operation at a much earlier stage during the investigation process.

Witnesses turning hostile, especially in cases involving moneyed and influential accused, is neither a recent phenomena nor is it specific to the Indian criminal justice system. Witnesses will continue to be bought and they will continue to be threatened into changing their testimony in court. However, instead of cynically blaming "the system" for permitting defence-prosecution collusion or calling for amendments in the law which take away the rights and protection of the accused, we must examine what circumstances permit witnesses to turn hostile and what checks there already exist within the criminal justice system to prevent witnesses from turning hostile.

As stated, the investigation process is the first place where aberrations happen or are permitted to happen. Statements of witnesses are recorded carelessly, without adequate care given to the accuracy and the authenticity. Sometimes, police make up statements combining the accounts of different witnesses and circumstances and attribute almost identical statements to the eyewitnesses while reducing the statements into writing.

Naturally then a witness deposing in court will contradict his/ her statement. Secondly, it is necessary to always assume that a witness will turn hostile, especially in a high profile case, and to therefore collect enough corroborating evidence, both forensic and circumstantial to support the witness' statement, so that the prosecution's case does not depend solely on eye-witness testimony.

The investigating apparatus must be vigilant to the fact that the witness will in all likelihood be approached or threatened and must guard against the same by staying in touch with the witness, and by making him/ her understand that s/he will be confronted with his/ her statement in court if he/ she were to change his/ her stand. A witness whose statement is bolstered with enough supporting evidence is less likely to change his/ her testimony in court. Another, check could be to record the statement of the witness before a magistrate or on the spot before other independent witnesses.

Witnesses should be made to identify the accused by identification parade or by viewing photographs during investigation so that later they cannot lie or feign uncertainty when confronted with the accused in court. The application of all these checks and safeguards requires the active supervision and monitoring of the investigation by the superior police officers. Investigating officers, who fail to collect evidence in the right manner, whether in recording witness statements or collecting evidence on the spot or by neglecting to follow the strict procedures with regard to collection of samples and sending the same for forensic testing, should be brought to book by their superior officers.

A witness can always be called back for recording supplementary statements by the police. Despite there being adequate mechanisms for checks internally and administratively, no one questions the investigating authority. There are enough provisions even in the Indian Penal Code to deal with dishonesty and corruption at the investigation stage and criminal proceedings should be instituted against dishonest investigating officers. Better checklists should be devised for the investigation process so that loopholes are not found later.

Trials should proceed with as little delay as possible so that there is less chance of the witness being approached and of him/ her forgetting the facts. The public prosecutor must anticipate that the witness will turn hostile and have with him enough material and have prepared questions to effectively cross-examine such a witness.

Action for perjury must be initiated as a matter of course against witnesses who turn hostile even if such action were to fail against one or two witnesses, as it will deter others who may otherwise turn hostile. The investigation apparatus should itself take cognizance and probe into all instances of witnesses turning hostile. In requisite cases a white paper should be commissioned.

No doubt defence-prosecution collusion is often prevalent in cases where witnesses turn hostile. However, if the investigating apparatus were to collect adequate supporting and corroborating evidence and be being vigilant against the same, it would serve to mitigate chances of influencing a witness.

Further, while corruption within the judiciary is a matter of concern, an issue that does not receive enough attention is the lack of judicial will to get properly and diligently involved in the process of arriving at the truth. A judge always has the power to examine witnesses him/ herself and therefore should exercise this power and cross-examine witnesses who turn hostile and further summon and examine witnesses which are not produced by the prosecution but whose testimony might still be deemed relevant by the court.

The court has the power, and in the right cases, ought to exercise the power of ordering a reinvestigation. This is an important safeguard against defence-prosecution collusion. Criminal contempt powers should also be invoked against advocates and other persons found to have tried to influence witnesses.

Further, if the relevant Bar Council were to initiate disciplinary inquiry proceedings against each case where the integrity of an advocate is called into serious question, even if it were not to result in debarring the concerned advocate, it would go far to deter collusive behaviour between defence and prosecution.

In cases where there is sufficient material to prosecute the public prosecutor for complicity in dealings with witnesses, proceedings under the Prevention of Corruption Act should be launched.

(Radhika Kolluri is a Delhi advocate. She can be reached at radhika.kolluru@gmail.com)