Preservation of Evidence: Need of our Criminal Justice System

-By Mujeeb Ur Rehman

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“A person is innocent until proven guilty”

This is one of the most sacred principles of the criminal justice system, regardless of jurisdiction of which it belongs to; and in order to prove any person guilty, evidence against him/her is a mandatory requirement. Here the criminal justice system fails to believe in the words of the mouth, rather they prefer written, documented statements in order to consider any facts. Therefore, evidence has a very crucial role in establishing any fact in issue. The occurrence of any event primarily depends on the evidence. Without a proper piece of evidence, the determination of any case on merit will become an arduous task for the court. In such a situation, neither the parties could substantiate their allegation nor could the court reach any fair and sound decision. The whole criminal justice system would come to a halt. Therefore preservation and maintenance of such evidence become utmost necessary so that such evidence doesn’t lose its true nature, especially during the investigation and proceeding recently an official data revealed that CBI’s conviction has declined from 71% in 2010 to 68% in 2019. The investigative agency has failed to achieve convictions in many high profile cases such as the 2G scam, the illegal mining scam of Karnataka and the Aarushi Talwar murder mystery are few of them. CBI forms the correct theory as to how the crime would have been committed but fails to prove as all these theories were based on circumstantial evidence, which is one of the weakest forms of evidence. One of the main reasons behind this failure is that by the passage of time evidence gets damaged or destroyed due to no proper preservation and maintenance; making it difficult for the agency to prove successfully in the court of law. Here comes a pertinent question, do India need any special provision for proper maintenance and preservation of evidence collected during the investigation?

Malkhana – The most neglected and undefined place

The evidence collected forms a vital part of the criminal justice procedure and is stored in Police Malkhana. The Malkhana is a designated place where the property seized/evidence collected are stored by the police, found during the course of an investigation under Criminal Procedure Code, 1973 and various Special and Local Laws or collected during a preliminary inquiry, for safe custody and is produced before the concerned Magistrate/Court, as and when required. As Malkhana preserves the evidence, and evidence plays a very crucial part in the criminal justice system, priority should be given upon proper maintenance of malkhana by overcoming all the impediments. Despite such eminent role played by malkhana in criminal justice procedure, neither The Criminal Procedure Code nor The Indian Evidence Act provides the answer of how to maintain Malkhana or who is entrusted with the responsibility of Inspection/maintenance and upon whom liability can be fastened upon any loss of property/evidence kept in Malkhana. There’s a general rule of Crime Scene Investigation that crime scenes should be protected and the sole reason behind this is to avoid destruction of evidence. Indian evidence act explicitly recognises those evidences that are either not tampered with or is in its true nature. In such circumstances, preservation of evidence becomes utmost necessary, otherwise no matter how relevant the evidence is, it would become inadmissible in the court of law. There is much evidence, the especially biological one, which if not preserved properly gets perished with the passage of time.

Highlighting some case in point

Recently, Sadar Malkhana came to the limelight because thousands of evidence lost their true nature due to the non-maintenance of malkhana. All the mandates under the Indian Evidence Act, which were necessary to make any evidence admissible in the court of law, were lost. Highlighting another instance, a survey undertaken by the Delhi State Legal Service Authority (DLSA) to get acquainted with the ground reality pertaining to malkhanas, upon the direction of Delhi High Court, revealed some unacceptable situations. Shockingly, the survey revealed that police stations usually take more than 10 days to send biological and chemical evidence to forensic laboratories, something that needs to be done within 48-72 hours. Some Police Stations even took over 100 days to send the sample. Taking into the consideration of infrastructure of malkhanas such acts sheerly violates the fundamental laws of evidence! The court stated that Proper preservation of evidence is needed. In US jurisdiction, the state has been cast with a strong duty to preserve as much evidence as possible. Even media trials severely affect the evidentiary aspect of any case; some classic examples are the Bhima-Koregaon case, Jessica Lal’s case, etc. Recent hype of media trial of cases based on leaked WhatsApp chats can also severely affect the evidentiary aspect of those respective cases. Such instances can completely derail the whole administration of the criminal justice system. 

Recent Development

In line with this, for biological evidences, The DNA Technology (Use and Application) Regulation Bill, 2018 was introduced, but the piece of legislation is still in the queue; it was introduced with an aim to increase conviction rate and strengthen the criminal justice delivery system by laying down the procedure for preserving such evidence with the repercussion of penal provision. 


From the above disquisition, it is quite clear that we have laws on the collection of evidence or laws on the admissibility of evidence but we lack provision for their proper maintenance during the court proceeding. For proving a case beyond reasonable doubt, strong tamper proof or properly preserved evidence is a mandatory obligation. There are many instances in the history of the court where due to lack of substantial/proper evidence accused are set free. There are times where the court takes years to reach to a conclusion or sometimes the investigation are transferred from one agency to another; under such circumstances preservation of evidence is of utmost importance otherwise even after proper investigation, right theory, and hundreds of effort of numerous investigating officers the culprits would be acquitted on the lack of proper evidence. CBI’s recent decline in conviction rate is one of the latest examples of ramifications of this lacuna which exists in our criminal justice system. The whole criminal justice system is established on evidence, and this system has no provision for their proper maintenance. No proper maintenance of malkhanas worsens up the situation. Therefore, there’s a strict need for a statutory requirement of preservation and maintenance of evidence.

[The author is third year law student at National University of Study and Research in Law, Ranchi.]

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