WHAT IS PRIVATE INVESTIGATION

The word “investigation” is derived from the Latin word “vestigare”. Simply speaking it means a tracing, a search, an assimilation or collection of information and facts. It is the process of observation, close inspection and analysis. It is also the continuous and regular search of facts for arriving at the truth of a matter, happening or event. As such it is the search and journey towards the reconstruction of events. And to do so it envisages collection of information to clear confusing, speculative and uncertain data. In fact it is the systematic collection of information, oral or documentary to support or refute a fact in issue. It is an exercise to “carry out a systematic inquiry so as to establish the truth of something” to “carry out research into a subject”.

PRIVATE

The dictionary meaning says it is “intended for or involving a particular person or group (of 

thought, feeling etc) that you do not tell other people about”. It also means “where you will not be 

disturbed; secluded.” As regards a service or industry, private means “provided by an individual or 

commercial company rather than the state”. “ Detective” means “a detective who is not a police officer and who carries out investigations for clients.”

SERVICE PROVIDERS

We, the Private Investigators are basically service providers. And when we talk about “service” it means “the action of helping or doing work for someone”. Thus we are basically service providers to the society. And we do have the moral responsibility to discharge our duties in legitimate manner. Presently we are a self-regulated industry with our own code of conduct to abide by. We are engaged for specific requirements. But we are yet to earn a favourable legislation to license our profession. In the absence of any prohibitory law not to practice this profession we are functional within permissible limits. There is a Bill pending in the Parliament to regulate our profession. The provisions of this Bill contain stipulations for adherence with basic checks and controls.

LEGISLATION AND PRIVATE INVESTIGATION

The Private Detective Agencies (Regulation) Bill, 2007 is being examined by the present Government with a view to pass it as legislation. It is, therefore, important for us to understand some salient features of the Bill.Clause 2(i) (g) of the Bill defines “private detective work” as “collection of information in a lawful manner for such an objective by a licensed private detective agency”. This is a permissive definition and is neither restrictive in nature nor prohibitory in intent and purposes. “Private Detective Agency” has been defined in clause 2(i) (h) as “a person or a body or a firm or a company holding a valid license to carry out the detective work for remuneration or reward (fees) on agency basis for other persons”. Clause 2(i) (i) defines “private detective agent” as “a person who carries out the private detective work for a private detective agency”. These two definitions are also permissive in nature and even an individual working for a detective firm, company or agency is recognized as bonafide entity in the proposed legislation. The Bill was referred by the Rajya Sabha Secretariat to the Department Related Parliamentary Committee (DRPSC). The report of this committee has now been examined by the Ministry of Home Affairs assisted by eight members. The Draft Report of Police Modernization and Reforms (PMR) Wing was submitted on 28th May, 2014 to the Government and it is under active consideration for being re-presented in the Parliament. This Draft Report also received the attention of Association of Private Detectives and a clause- by- clause analysis of the proposed changes was sent to Home Secretary. The views of the Industry have been incorporated in our submissions and the same are receiving attention of the Government.

UNDERSTANDING LEGAL PROVISIONS

Policing in Democratic societies is governed by the rule of law. Maintenance of public order is a key 

sovereign function of the Government. Invariably, POLICE is vital arm of the civil administration, which is responsible for law and order and protecting the law. Crime prevention and Investigation is the original jurisdiction of the Police.The word “Investigation” is generally construed as the vocabulary of law-enforcement agencies and judiciary. In India, The Code of Criminal Procedure, 1973 contains provisions for implementing Criminal Justice System through Law Enforcement Agencies and Courts. Section 2 (h) defines “investigation”. Investigation “includes all the proceedings under the Code for the collection by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf”. It is for this reason that the service providers in Private Investigation sector should avoid the use of the word “investigation” in referring to the subject. For us, it is the process of observation, close inspection and analysis of a subject which is private in nature. We are engaged by individuals and corporate entities to determine facts pertaining to “wrongs” committed or contemplated by others (known or unknown). Such like “wrongs” could also be criminal in intent and purpose. And therefore, the victims have every 

right to safeguard their interests by hiring experts who can cater to their requirements. Police can only undertake investigations if the “wrongs” become “crimes” and fall within their jurisdiction. For totally private investigations, the Police services cannot be requisitioned by an individual. Indian Penal Code was originally passed in British Parliament in 1860. After 15th August, 1947, the day of Independence of India, this Code and other enactments came into force in India by virtue of an order passed by the Governor- General in exercise of powers conferred by sections 9 and 18 of the Indian Independence Act, 1947 and later by Article 372 of the Constitution of India from 26th January, 1950. It provides for a general Penal Code for India. Section 40 of IPC says that the word “offences” denotes a thing made punishable by this Code or under any special or local law as hereinafter defined”. And further that the word “offence” has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.In the absence of any specific legislation to manage, regulate, govern or empower the profession of Private Investigation we must perform our duties as Service providers to the society. There is enough space for us to work within four corners of existing laws and discharge our obligations to the clients who requisition our services and depend on our expertise. “Law is indeed, an historical growth, for it is an expression of customary morality which develops from one age to another. Law is also conscious or purposed growth….”( Mr. Benjamin M Cardoso, Judge, USA). If members of a society inculcate, nurture and incorporate ethics the written laws also incorporate socially acceptable traditions, customs and moral code of conduct. Law is a mirror to the society. To combat deviation from the acceptable social norms, laws also take corrective, remedial and if necessary, punitive measures. But the fact remains that if written laws do not match with the realities of the society, successful implementation of such laws become an onerous task. Law, thus is only to help the society in chalking out its path of progress. Law in itself has no potentiality to change the society. Law can become fulcrum of change only when members of society, including its service providers, are willing to accept and obey the Law. We, the professionals must not try to find out ways and means to avoid the Law, circumvent regulations and break the provisions. Constitution and Laws, however perfect and ideal are not enough by themselves to protect and preserve human rights of the people. It is for this reason that Private Investigators, as legitimate service providers to the society, must come together and strive for a favourable legislation to recognize, regulate, manage and empower our profession.

CRIMINAL JUSTICE SYSTEM VIS-À-VIS VICTIM JUSTICE SYSTEM

The Criminal Justice System in India is primarily aimed at ensuring that the accused person gets justice and no innocent person gets punished. All possible safeguards are available to the offender for his defence and the onus of proving guilt beyond all reasonable doubts lies on the prosecuting agency. So much so that in the court proceedings a Defence Attorney is also provided if the accused desires to avail of the provisions. But what about the Victims of crime? Police investigates the crime, but the victim has no control over the evidence collected, ignored or distorted. The victim is not represented by any independent Private Investigator to ensure that all relevant and material evidence is collected, preserved and presented to establish the guilt of offender. There is no scope for collecting victim’s side of evidence by any independent investigator. The evidence presented by the Prosecutor in the court often suffers from deficiencies. The lost evidence cannot be recovered or restored at belated stage of court proceedings through mere counter- interpretations by experts to be hired by complainants or victims as the case may be. This being the scenario, the victim of a crime or a complainant is at a serious disadvantage vis-à-vis the criminal. Not only he suffers on account of the crime but he is deprived of establishing his allegations against the offender because no independent investigating agency is at his/ her disposal, when the Police starts and undertakes investigation.  Actually victim or complainant enjoys overriding right over criminal to secure justice but his right is undermined in the absence of specific provisions.The Code of Criminal Procedure, (Amendment) Act, 2008 came into being on 7th January, 2009 with Statement of objects and reasons to ensure fair and speedy justice and to tone up the Criminal Justice System. The Law Commission had undertaken a comprehensive review of Code of Criminal Procedure, 1973 in its 154th report. It also examined victimology and special protection in respect of women. It was conceded in its 177th Report by the Law Commission that the victims are the worst sufferers in a crime and they don’t have much role in the court proceedings. It was also felt that the victims need to be given certain rights so that there is no distortion of the criminal justice system. But the recommendations of the Law Commission did not get translated by way of amendment in Code of Criminal Procedure, 2008. 

Private Investigators have the moral responsibility to ensure that victims belonging to weaker sections of society, child victims of abuse, women subjected to sexual assaults, work place abuses and discrimination, domestic violence, elderly persons with offspring neglects and atrocities, faceless victims of society through spurious drugs and counterfeit products get their services to create a Victim Justice System.

METHODOLOGY TO CREATE A VICTIM JUSTICE SYSTEM

One window Victim Justice System can be created with following aspects of activities to be covered:

• Doctrine of Victim Justice System to be advocated for recommending changes in Laws, policies of the Government.
• Jurists, Reformers and Civil or Honorary Police Officers to be brought on panel for their expertise.
• Criminologists, Academicians, Professionals from allied fields of prisons, Professional Private
• Investigators, Advocates, Social workers and volunteers to be enrolled and cultivated.
• Advertisements to be made in print and electronic media about the cause of Victim Justice System.
• Help line and call- centers to be established.
• Corporate Social Responsibility to be invoked by approaching directly for funding and resources.
• NGO be floated with national and international affiliations.
• Academy to train Professional Private Investigators, volunteers, and criminologists be created with special emphasis on Victim Justice System.

PROFESSIONAL PRESPECTIVE

Private Investigators need to develop a perspective which is Professional in intent and purposes. The 

word profession differs from words like occupation, trade and business. Profession is “occupation” 

carried on by a person by virtue of his personal and specialized qualifications, training or skill while 

“trade” means bargain, sale-purchase involving profit etc. The word “Business” signifies profit as main objective. The Professional is a person who professes to have some special skills. 

A Professional impliedly assures the person dealing with him, (i) That he has the skill which he professes to possess, and (ii) That skill shall be exercised with reasonable care and caution (Supreme Court judgement in Martin F D’Souza vs. Mohd. Ishfaq, 2009). We the Private Investigators must then acquire Professional Perspective to discharge our duties and moral obligations to the clients in general and society in particular. We must also become accountable to the Law and not a Law unto ourselves, transparent in operations and protectors of fundamental and human rights.