The recently introduced protocol to be followed while producing accused persons before magistrates, and doctors for medical examination, may lead to violation of Constitutional rights and the misuse of the law by the police, fear State prosecutors.
The protocol was introduced following the murder of Vandana Das, a house surgeon at the Kottarakara Taluk Hospital who was stabbed to death last year by an accused who was taken to the hospital for medical examination.
It states that the police may produce the accused before the magistrate between 10 a.m. and 5 p.m. If produced after 7 p.m., the prosecutor concerned shall personally appear before the magistrate and explain the reason for the delay. Apprehending that the specific provision may derail the spirit of the criminal justice system and destroy the concept of a prosecution, which shall be independent of the police and the investigation mechanism, M.S. Girish Panju, Director of Prosecution (Administration), has taken up the issue with the State government.
Hasty probe
The provisions equally affect the rights of the victims and the accused besides curtailing the right of the police to keep an accused in custody for 24 hours for investigating the case. The time-frame fixed by the protocol may force the police to hastily complete the investigation in a tardy manner, which could violate the rights of the victims in the case. There is also the probability of the police deliberately breaching the time limit so that they get the extended custody of the accused in the event of the magistrate refusing to entertain the production of the accused after the stipulated time, a letter by the Director of Prosecution pointed out.
The illegal custody of the accused may lead to custodial torture and deaths, pointed out a prosecutor.
The Kerala Assistant Prosecutors Association has also complained against the provisions of the protocol.
The constitutionally guaranteed rights of the accused cannot be overruled through an executive order. Such provisions in the protocol will fail to stand the test of law, the Director of Prosecution pointed out in the letter to the Home department.
Affects independence
The prosecutor appearing before the magistrate to explain the delay on the part of the police will blur the concept of an independent prosecution and investigation. The prosecution can never be part of the investigation team and shall work as an independent agency, as laid down by the apex court, the letter said.
Of the 190 prosecutors in the State, 82 are women and forcing them to accompany the police while producing the accused during the late hours of the day would expose them to risks, the letter cautioned.
