SUPREME COURT MONITORING NOT THE ANSWER: SHANTONU SEN

The Supreme Court has given notice to the CBI and others before agreeing to monitor the CBI Vyapam investigations.

Earlier, in the nineties, the infamous Hawala Diaries investigations were monitored by the Apex Court. We know what happened. The Hawala diaries sank without a trace.  I can say with all responsibility the material available was enough to book a number of people identified by their acronyms in the documents. Am I saying Court monitoring was responsible for that state of affairs. Yes and no. YES, because the Supreme Court did not have a clue to detect the crime.NO, because CBI Director did not want his Prime Minister to be in deep shit by pinning a few Congress men as recipients of black money. He was a “loyalist”, convinced that it was his duty to ensure that his Prime Minister is never embarrassed.

While the general refrain is these documents were diaries , they were actually statement of accounts. They were regularly maintained. They had both credit and debit entries. The accounting was explained at the end of each day. The amounts received in dollars were converted into rupees each day  in accordance the day’s dollars rate. This being the position all that was required was to get the writer of the “ diaries” to identify each acronym. Incidentally, there were some names too. Apart from LKA, RG,NKJ, AKS, VK ,KNS,  VCS,  and many more  abbreviations of well known political leader, the names easily identified included  Kalvi, Dhankar, Arjun Singh Vidya Charan Shukla.  Sharad Yadav had admitted that his name is in these books of account/Jain Hawala Diaries.  If they were investigated the criminal links between  them and the Jains and the entire conduit would have  been exposed. This crime would have come to light. It did not happen , despite or perhaps because of Supreme Court monitored  investigation.

The Police investigate crime. Court judges the investigation and tries the criminal.  Courts do not investigate  and  the police do not judge the criminal. Monitoring will require the Supreme Court to ensure that investigation is on proper lines. This is the task of the police and not of courts. But there is a lurking suspicion that police/CBI cannot be trusted to investigate honestly . It is suspect both because it is’ loyal’ to its political masters and is also corrupt .

Many countries have faced this problem and have found solutions.  There is the District Attorney in the U S A. He is elected and independent. He monitors and directs the investigation in the USA.  In the United Kingdom there is a similar institution. He too is independent of the executive.  The Director of Prosecution ( Wales and England) has to consent to all criminal prosecutions Even in countries like Singapore and Malaysia where the justice system is adopted from India such  institutions exist. In Singapore I witnessed how the system works. The Director of Prosecution Singapore, literally, tests the investigation done by the Singapore Police. Witness by witness, exhibit by exhibit, all vital cogs in any successful  prosecution are examined for their veracity The warts in the investigation are detected before the trial begins .

In India the law makers introduced section 25A in the Criminal Procedure Code in 1973 to make this monitoring possible. This section provides for a Directorate for Prosecution comprising a Director /Deputy Directors in each State. Those eligible will be advocates with ten years or more practice. They will be appointed with the concurrence of the Chief Justice of the State.  These duties will be in line with their counterparts in other countries of the World. This will include determining the quality of evidence that investigation has collected. They will monitor investigations in the State conducted either by the  Police /CBI .This institution has not come up in any State in India .If it is set up criminal investigations will be monitored by this institution and foul play by police will be detected at the threshold.. There will be no need to seek any Court monitoring.

Shantonu Sen Jt director CBI (Retd)