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Report No. 161

1.3. Present situation of the outcome of 'hawala' cases alarming.-

As per the statement of the Minister given in Parliament, reported in the Hindustan Times dated 25th July, 1998 that out of 34 hawala cases, 29 cases have been dropped by the courts. Observations of the Supreme Court in this context are appropriate:-

"53. There is another aspect of rule of law which is of equal significance. Unless a proper investigation is made and it is followed by an equally proper prosecution, the effort math would not bear fruition. The recent experience in the field of prosecution is a'so discouraging. To emphasise this point, some reference has to be made to z. large number of prosecutions launched as a result of monitoring by the c3urt in this matter which have resulted in discharge of the accused at the threshold. It took several years for the CBI to commence investigation and that too as a result of the monitoring by this Court. It is not as if the CBI, on conclusion of the investigation, formed the opinion that no case was made out for prosecution so that the earlier inaction may have been justified.

The CBI did file numerous charge-sheets which indicated that in its view a prima facie- case for prosecution had been made out. This alone is sufficient to indicate that the earlier inaction was unjustified. However, discharge of the accused on filing of the charge-sheet indicates, irrespective of the ultimate outcome of the matters pending in the higher courts, that the trial court at least was not satisfied that a prima facie- case was made out by the investigation. These facts are sufficient to indicate that either the investigation or the prosecution or both were lacking. A similar result of discharge of the accused in such a large number of cases where charge-sheets had been filed by the CBI is not consistent with any other inference.

The need for a strong and competent prosecution machinery and not merely a fair and competent investigation by the CBI can hardly be over emphasised. This is the occasion for us to take the view that a suitable machinery for prosecution of the cases filed in court by the CBI is also essential to ensure discharge of its full responsibility by the CBI. Unless a competent prosecution follows a fair and competent investigation, the exercise in the ultimate analysis would be futile. Investigation and prosecution are inter related and improvement of investigation without improving the prosecution machinery is of no practical significance. We would, therefore, consider the aspect of prosecution also in the formulation of the guidelines."

This is a serious matter since even if stringent measures are invoked to prosecute such sort of cases, and yet the outcome is dismissal of the cases, it brings the prosecution machinery to ridicule. It also provokes another line of thought that unless accountability for lapses appropriate to the wrong doing on the part of the prosecution is fixed and expeditiously carried out, no amount of measures can come to rescue.

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