The word “Jural”
means “Legal” or pertaining to rights and obligations. “Jurisdiction” is a
derivative which primarily means the authority to embark upon an inquiry. It
also could denote compliance with the provisions of Law (Union of India Vs.
Tarachand Gupta and Brothers (1971), SCC, 486). As per Justice Venkatachalia,
the expression “jurisdiction” or the power to determine is a verbal coat of
many colours. It is also construed as a “legal shelter”- a power to blind
despite a possible error in the decision (A R Antulay Vs. R S Nayak, (1988)2,
SCC, 602). In the context of Police Investigation, the word signifies the
initial authority to take cognizance of a case. For all practical purposes,
“jurisdiction” is central to the science of law called the “legal jurisprudence”.
There could be issues like subject matter jurisdiction; territorial
jurisdiction; pecuniary jurisdiction; original jurisdiction, concurrent
jurisdiction and appellate jurisdiction.
The point of
“jurisdiction” arises in criminal investigations wherein law-enforcement
agencies have two types of jurisdictions. The first is “original jurisdiction”
which actually means the geographical limits notified for offences committed
within the area as also the specified offences. The second is “concurrent jurisdiction”
which means that certain types of offences, even if committed within original
jurisdiction of local police, can also be investigated by another law-
enforcement agency which would enjoy concurrent jurisdiction. The example is
Central Bureau of Investigation’s power to investigate even those cases which
primarily fall within the jurisdiction of local police. The CBI draws its power
under The Delhi Special Police Establishment Act, 1946, originally to
investigate anti-corruption (and certain other) cases committed in Delhi/ Union
Territories. The powers so vested in CBI were extendable to other States with
their consent and for other notified offences as well. It is because of this empowerment
that CBI can investigate even conventional offences like murder referred to it
either by the State Government or by Courts in India. Likewise Enforcement
Directorate also has concurrent jurisdiction. Professional Private Investigators
must know about these issues so as not to encroach upon jurisdiction of law-enforcement
agencies in the matter of right, power or authority of Police to originally inquire
into subjects wherein the Law of the Land prescribes, directs or authorizes
only the Police to take cognizance of the matter.
“Cognizable
Offence” is defined in the Code of Criminal Procedure, 1973 (section 2) as an
offence for which, and “cognizable case” means a case in which a police officer
may arrest without warrant. In the same context “non-cognizable offence” means
an offence for which, and “non-cognizable case” means a case in which, a Police
Officer has no authority to arrest without warrant. Thus the word “cognizable”
only qualifies the power to arrest or the absence thereof. For the
“Professional Investigator” the meaning of the word “cognizance” is “the
exercise of jurisdiction” or “power to try and determine causes” by Police or
judiciary. In common parlance it means “taking notice of” (State of Maharashtra
Vs. Dr. Budhikota Subbarao, (1993) 3, SCC 339). In other words “cognizable” for
Police should mean “non-cognizable” by Professional Private Investigators,
because it actually means perceptible, recognizable, clearly identifiable
offence as basically actionable by Police and Judiciary. Thus the Professional
Investigator should have knowledge and understanding that the Police (or any
other law enforcement agency) have the first right to take official note of,
look into, inquire or investigate the matter which is an offence under I. P.C.
or any other penal law in force.
STATUS,
RIGHT AND ROLE OF PROFESSIONAL INVESTIGATOR
The role of
Professional Investigator starts only when his services are “hired” by someone
(victim, suspect or their representative) to ascertain real facts of the
matter. The role would, therefore, be non-interfering with Police Investigation.
There is nothing like “suo-motto” (automatic) jurisdiction of Professional
Investigator. On his own, he cannot take cognizance of an offence. In real
sense he has no “locus standi” to investigate a criminal case.
But Professional
investigator, as an ordinary person also enjoys status, right and credibility
in the eyes of law. For earning that status, right or credibility he must
qualify the parameters prescribed in the Law. Lack of knowledge of these issues
is the main reason for most of us to fail in discharging our duties as service
provider to the society. Having understood the concepts of jurisdiction and
cognizance, we must concentrate on provisions of the Indian Evidence Act, 1872
which covers every aspect required for acceptance of evidence, rejection
thereof and reliance thereon to arrive at the judgement.
It is in view of
the provisions of this Act that a Professional Investigator can create a
status, earn a right and carve his role as service provider to the society.
Professional Investigator must understand that he is a potential witness and he
can give evidence of facts in issue and relevant facts. Under Section 3 of
Indian Evidence Act the definition of “fact” means and includes, anything,
state of things, or relation of things capable of being perceived by senses and
any medical condition of which any person is conscious. A witness can perceive
a fact by his senses i.e. if he has seen a thing from his own eyes, has heard a
thing and has otherwise perceived (through touch, skin or any organ) any fact.
But the fact has to be relevant to the issues in question as provided in
Section 5 of the Evidence Act. A fact is said to be relevant to another when it
is connected with another fact. And “facts in issue” mean and include any fact
from which, either by itself or in connection with other facts, the existence /non-existence/nature
or extent of any right, liability or disability, asserted or denied in any suit
or proceeding is established. A Professional Investigator can thus tender
evidence which means and includes, statement which the court permits or
requires to be made before it by witness, in relation to matters of fact under
inquiry. Such statements are called oral evidence. Likewise documentary
evidence can be tendered in support of oral evidence. Document means any matter
expressed or described upon any substance (paper, stone etc.) by means of
letters, figures or marks, intended to be used, or which may be used, for the
purpose of recording that matter. Writing is a document. Map, plan or
photograph is a document. An inscription
on a metal plate (name plate/ address) or on stone is a document. Evidence can
also be tendered by a witness (investigator) of facts which, though not in
issue, are so connected with a fact in issue as to form part of the same transaction
irrespective, whether they occurred at the same time and place or at different
times and places.
Professional
Investigator can be a “natural witness” if he happens to be present when any
event is taking place. Care has to be taken that he is not treated as
“interested witness” because his services were hired or paid for (to win him
over) and he became a witness to the happening on his own or on the say so of
his client. He must, therefore, assume the role of independent witness who
chanced upon to be present on the spot. Oral evidence must be direct (Section
60) meaning that the person who saw, heard or perceived is deposing himself and
it is not hearsay of others.
Only primary
evidence (section 62) is adducible in evidence. Secondary evidences (section
63) are certified copies, copies made from the original by mechanical
processes, copies made from and compared with the original etc. It can be made
admissible when primary evidence is not available. Primary evidence has more weightage
than secondary evidence for reliability. Yet another important provision of
Indian Evidence Act is contained in Section 45 which pertains to opinions of
third person, when it becomes relevant. This is about opinions of Experts. When
the court has to form an opinion upon a point of foreign law, or of science and
art, or as to identity of handwriting or finger impressions, the opinion upon
that point of persons “specially skilled” in such foreign law, science
or art, or on questions as to identity of handwriting or finger impression
become relevant fact. Such persons are called experts. Thus there are persons
who are especially skilled in forensic sciences and are therefore treated as
experts in their respective fields of handwriting, finger impressions, fire
arms, medicine and toxicology etc. Their evidence to corroborate oral evidence of
eye witness becomes relevant and is admissible. For that matter examinations by
Chartered Accountants, Bankers etc. and their certification becomes trust
worthy and relevant to prove facts in issue. Private Investigators are not
treated as experts in India. Reason is that they are neither empowered nor
regulated as professionals. They are also not “specially skilled”. They can
become Professional Investigators if Skill Development Council of Government of
India, and its affiliated legal entity SSSDC start imparting training to
Private Investigators and after due process of examination, declares them
Certified Professional Investigators. ACPI (Association of Certified
Professional Investigators) has been constituted with Assessment Boards and
Certification Boards to bestow the credential of CPI on “specially skilled”
investigators. CPI credential would be at par with CFE (Certified Fraud Examiner)
as and when the credibility of CPI gets established. There would be centres of
excellence in training Private Detectives in accordance with National
Occupation Standards, devised and already accepted by Skill Development
Council. Professional Investigators, thus certified would meet legal
requirements under the Indian Judicial System for being treated as professional.
As on today, Private Investigator definitely enjoys the status of a trustworthy
witness if he abides by all legalities in collecting evidence and presenting
them in correct perspective as eye witness. Eye witness’s testimony is given
more weightage vis-à-vis the opinion of an Expert.
PITCH FOR PROFESSIONAL INVESTIGATORS VS. LAW
ENFORCEMENT AGENCIES
Professional
Investigation is like the game of cricket.
Investigator is the batsman at the crease facing the onslaught. He should
consider the opposite team as represented by Police Officers and
law-enforcement agents of the Government. The Bowler could “bounce” a “fast”
one on you or “spin” a web of tricks. You have to play within the popping
crease and steal runs too. If you step out, you could be “stumped” or declared
“run out” (of clients). Stumps are your clients. If they are touched (by Law
enforcement agencies) you are out (of the profession). If you are caught, you
are out (of contention). The law enforcement agents have “long legs”, “short
legs” in addition to “long arms”. They are also “silly” in point of view. They
are there if you “slip” a catch to them. You may “cover” your “drive” but they
are there to stop you. If nothing definite happens all the eleven players (of
law enforcement agencies) would shout “how is that”- questioning every move of
yours. And you should know that the two Umpires are the Judges. They tend to
agree with the appealing Policemen. They would easily “oust” you from the field
(of investigation). You can appeal to the “third umpire” (High Court) but it
takes time to arrive at the decision. And most likely you would not be “called
back” to bat again (practice the profession). That does not mean that you
should be so “defensive” that you hit (your own) wicket and get out. Play
within the crease (four corners of law) and hit boundaries or sixes to score
over the heads of your opponents. Use straight bat, hit square and you can
“steal” runs if you run fast. You can always outscore (outwit) the opponents
and win. But do it as per rules of the game.
Best of luck!!
