By Inderjit Badhwar
Wrongful prosecution by the police, prison sentences by judges in a hurry or under duress from Executive bullying, incarceration without bail and pending trial are some of the horrors that continue to plague the overburdened and undernourished legal system in India. This phenomenon blights the rule of law and brings our juridical universe into unrelenting disrepute and disgrace, putting a large question mark on our status as a modern republic established through the mechanism of a democratically-elected Constituent Assembly.
The most hideous aspects of these shortcomings come regularly into public focus when barbaric examples of police atrocities such as the recent brutal torture-murder of the Tuticorin father-son duo Jayaraj and Benicks while in judicial custody, or the 1980 Bhagalpur blindings of 31 undertrial “criminal” suspects with acid and bicycle spokes by the Bihar police, or malicious cases against political dissenters under draconian detention laws make the headlines. Routine police brutality goes largely unnoticed because there are inadequate safeguards and the public has developed a police-will-be-police attitude to crimes committed and human rights violated under the shelter of the law.
This is not to say that Indian society, policymakers and thought leaders are completely inured to this systemic blight. There are reams of research findings, commentaries, judgments and commissioned reports on this subject. The problem lies in the lack of political will in implementation, punishment to the offenders and adequate compensation to the victims of wrongful confinement and abuse.
Consider, for example, these damning statistics: According to the National Crime Records Bureau’s (NCRB) annual statistical report “Prison Statistics India” (PSI), there were 4,19,623 prisoners across the country, out of which 67.2 percent i.e. 2,82,076 were undertrials (people who have been committed to judicial custody pending investigation or trial by a competent authority), substantially higher than the convict population of 1,34,168 (32.0 percent)!
The 277th report of the Law Commission (2018) on “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies” is a landmark document dealing with this subject. It was primarily based on the Delhi High Court’s decision in the case of Babloo Chauhan @ Dabloo vs State Government of NCT Delhi. The Court expressed grave concern about wrongful prosecution and incarceration of innocent persons, highlighting the need for a legislative framework for providing relief to such victims.
The Court noted that there “is at present in our country no statutory or legal scheme for compensating those who are wrongfully incarcerated. The instances of those being acquitted by the High Court or the Supreme Court after many years of imprisonment are not infrequent. They are left to their devices without any hope of reintegration into society or rehabilitation since the best years of their life have been spent behind bars, invisible behind the high prison walls. The possibility of invoking civil remedies can by no stretch of imagination be considered efficacious, affordable or timely…”
The 2018 report made pointed references to previous Commission reports whose reformist agendas had remained unimplemented. For example, the 113th Report on “Injuries in Police Custody‟ dealt with the issue of burden of proof in prosecution of a police officer for an alleged offence of bodily injury to a person in custody. It recommended insertion of a Section 114B in the Indian Evidence Act, 1872 to provide that in the “aforesaid cases of prosecution of a police officer, if there was evidence that the injury was caused during the period when the person was in the custody of the police, the Court may presume that the injury was caused by the police having custody of that person during that period”.
The Commission further recommended that the Court, while considering the question of presumption in the said cases, “should have regard to all relevant circumstances including the period of custody, statement made by the victim, medical evidence and the evidence which the Magistrate may have recorded. The report also recommended shifting of burden of proof in offences relating to custodial violence and tortures”.
The 152nd Report on “Custodial Crimes” (1994) dealt with the issue of arrest and abuse of authority by the police officials. Referring to the concerned constitutional and statutory provisions, the report recommended many amendments. One reiterated insertion of Section 114B (as was recommended in the 113th report).
Another recommendation was to amend the Criminal Procedure Code, 1973, adding of a Section 41(1A) for recording the reasons for arrest, and a Section 50A to inform the nominated person about the arrest, among others.
The 154th Report on “Code of Criminal Procedure, 1973” (1996) undertook a detailed examination of the Code 1973 “so as to remove the germane problems leading to consequential delay in disposal of criminal cases”. It made comprehensive recommendations, including amendments in the 1973 Code, the Police Acts, amongst others. One of these was to separate the investigating police force from the law and order enforcement police force: to increase the expertise of the investigating police; make investigations efficient “which will reduce the possibility of unjustified and unwarranted prosecutions. The investigating police was recommended to be placed under the supervision of higher authorities”.
Another tough, no-nonsense document is the 273d Report on “Implementation of United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment through Legislation” released in 2017. Its recommendations endorsed insertion of Section 114B in the Indian Evidence Act, 1872. The Report noted that this provision will ensure that “in a case where a person in police custody sustains injuries, it is presumed by the Court that those injuries have been inflicted by the police, and the burden of proof shall lie on the concerned police officer to explain such injuries”.
The 277th Commission’s conclusions and recommendations, excerpted and summarised below, are a must reading for every practitioner of juridical arts who swears by the Rule of Law:
A person wrongfully prosecuted though acquitted and released from jail is free to go back to his life but is it actually possible for him to go back to the same life—the life he had before he was subjected to the ordeal of wrongful prosecution?
India ratified the International Covenant on Civil and Political Rights (ICCPR) in 1968 (with certain reservations) but is yet to comply with its obligations and enact a legislation laying down the law for compensation.
In other words, despite decades of jurisprudence on compensation, the criminal justice system, as it stands, does not provide an effective response from the State to the victims of miscarriage of justice resulting in wrongful prosecutions.
There is no statutory or legislative mandate. There should be specific legal provision for redressal of cases of miscarriage of justice resulting in wrongful prosecution—covering both the substantive and procedural aspects; i.e. a statutory and legal framework establishing the mechanism for adjudicating upon the claims of wrongful prosecution, and inter alia award payment of compensation by the State, if so determined. Consequently, creating a statutory obligation on the State to compensate the victims of wrongful prosecution, and a corresponding statutory right of compensation for the said victims. And, in such case where the State pays compensation for the errant acts of its officials, it can seek indemnification from the concerned officials and also initiate appropriate proceedings against them.
One of the most important principles being that the injustice caused to the innocents needs to be redressed within the framework of rights and not ex gratia by the State. The other being that there needs to be an established legislative process according to a transparent, uniform, efficacious, affordable and timely remedy for the loss and harms inflicted on the victims on account of wrongful prosecution.
One of the most important considerations in creating this remedy framework is that the claims need to be decided as speedily and swiftly as possible. Accordingly, special courts are needed in each district for adjudicating upon the claims of compensation for wrongful prosecution. The choice of jurisdiction should be made by the applicant, as follows: (i) either the Special Court having jurisdiction over the area in which the wrongful prosecution occurred; or (ii) the Special Court within the local limits of whose jurisdiction the applicant resides.
Within this legal framework, the cause of action for filing a claim for compensation would be that of “wrongful prosecution”, which ended with an order or judgment in favour of the accused, inter alia acquitting him.
The ambit of “wrongful prosecution” herein would include (i) malicious prosecutions; and (ii) prosecutions instituted without good faith. The foundation of this cause of action lies in the abuse of legal process by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper cause. Prosecution instituted without “good faith‟ would also be included within the purview of wrongful prosecution.
A claim for compensation would be for the harm or damage caused to any accused person in body, mind, reputation or property as a result of the wrongful prosecution—i.e. for the “injury” resulting from wrongful prosecution. The claim for compensation can be brought by the accused person so injured; or by any agent duly authorised by the said accused person; or where the accused person died after the termination of the wrongful prosecution, by all or any of the heirs or legal representatives of the deceased.
The essence of a statutory response to the victims of wrongful prosecution lies in the relief provided to them, for that underlines the basic intent and objective of this (proposed) law, i.e. to assist the wrongfully accused/convicted in reintegrating into society.
A Naxal commander carrying a reward of Rs 8 lakh was arrested after an encounter with the Indo-Tibetan Border Police (ITBP) and state police in Rajnandgaon district of Chhattisgarh, officials said on Wednesday.
David alias Umesh Sakin is a platoon commander of People”s Liberation Guerilla Army (PLGA) of the Maoists that operates in the Maharashtra-Madhya Pradesh-Chhattisgarh region, they said.
He was nabbed after a gunbattle with the troops of ITBP”s 38th battalion and local police in the Katenga forest area of the district, about 72 kms from state capital Raipur, after an ambush was laid by the forces on Tuesday night, they said.
A group of about 9-10 Maoists fired upon the security forces when they were challenged and after retaliatory fire there was a lull during the night.
The forces put up a cordon and the injured Maoist David was apprehended from the nearby Khoba village when the forces launched a search on Wednesday morning, officials said.
The Naxal commander suffered bullet injury during the gunbattle and has been admitted to the district hospital by the security personnel. PTI NES TDS TDS
Six district Superintendents of Police (SPs) in Chhattisgarh were on Monday transferred in a minor reshuffle involving 13 Indian Police Service (IPS) and two State Police Officers (SPS).
According to an order issued by Manoj Kumar Shrivastava, Additional Secretary, Home Department, Ajay Kumar Yadav (IPS, 2004), the Senior Superintendent of Police (SSP) Durg, has been made the SP, Raipur.
Arif Sheikh Hussain (IPS, 2005), the SP District Raipur and additional charge of Deputy Inspector General of Police, Economic Offence Wing (EOW)/ (Anti-Corruption Bureau (ACB), Raipur, has been posted as DIG, EOW and ACB, Raipur.
B.S. Dhruv (IPS, 2006), Commandant, Counter Terrorism and Jungle Warfare (CTJW) College, Kanker, has been transferred as AIG, Naxal Operation, Police Headquarters, Raipur.
Indira Kalyan Elesela (IPS, 2011), SP, EOW, Raipur, has been made SP of Balodabazar-Bhatapara district. Prashant Kumar Thakur (IPS), SP of Balodabazar-Bhatapara district, has been shifted as SP, Durg district.
Ashutosh Singh (IPS, 2012), the SP of Surguja district, has been posted as Commandant, 4th Battalion, Chhattisgarh Armed Force, Mana, Raipur.
T.R. Koshima (IPS), the SP of Balrampur district, has been posted as SP of Surguja district,
Ramkrishna Sahu (IPS), Commandant, 4th Battalion, Chhattisgarh Armed Force, Mana, Raipur, has been posted as SP of Balrampur district. Balaji Rao Somawar (IPS, 2007), the SP of Kondagaon district, has been made SP of Jashpur district.
Shankar Lal Baghel (IPS, 2010), the SP of Jashpur district, has been posted as Commandant, C.T.J.W College, Kanker.
Siddharth Tewari (IPS, 2015), the ASP of Sukma district, has been made SP of Kondagaon district. Uddandi Udaya Kiran (IPS, 2015), the ASP Korba, was shifted as ASP Dantewada. Sunil Sharma (IPS, 2017), City SP Azad Chowk, Raipur, has been posted as ASP, Sukma. Pankaj Chandra (SPS), ASP Raipur, has been sent on state deputation as SP, EOW/ACB, Raipur.
Abhishek Maheshwari (SPS), the City Superintendent of Police, Urla, Raipur district, has been deputed as Assistant Inspector General of Police, Intelligence, with additional charge of Additional Superintendent of Police, Crime, Raipur.
डीजीपी ने किया 10वीं और 12वीं कक्षा के मेधावियों का सम्मान
रायपुर। डीजीपी डीएम अवस्थी ने मंगलवार को पुलिस मुख्यालय में 10वीं और 12वीं कक्षा की मेरिट लिस्ट में आये मेधावी छात्र-छात्राओं का सम्मान किया। सम्मान समारोह में मुंगेली जिले के 12वीं के स्टेट टाॅपर टिकेश वैष्णव ने कहा कि वो बिट्स पिलानी से कम्प्यूटर साइंस से इंजीनियरिंग करना चाहते हैं। लेकिन उनकी आर्थिक स्थिति बहुत ही कमजोर है। टिकेश ने बताया कि उनके पिता की छोटी सी दुकान है जिससे इंजीनियरिंग की फीस जमा कर पाना संभव नहीं है। मेरे पिता दिन-रात मेरी फीस के लिए ही चिंतित रहते हैं। इस पर अवस्थी ने कहा कि आपके पिताजी को फीस की चिंता करने की जरूरत नहीं है। हम आपको फीस के लिए आर्थिक सहयोग देंगे। आप अपने लक्ष्य की ओर कदम बढ़ाइये और बिट्स पिलानी जाने की तैयारी करिये।
छात्र-छात्राओं को संबोधित करते हुए उन्होंने कहा कि संघर्ष से ही सफलता मिलती है। सफलता ना मिलने पर निराश नहीं होना चाहिए। जीवन एक मैराथन दौड़ की तरह है जिसमें हार-जीत लगी रहती है, और ये जरूरी नहीं कि दौड़ की शुरूआत में जो आगे हो अंत में वही जीते। इसलिए माता-पिता को भी बच्चों के प्रतिशत पर ध्यान देने की बजाय उन्हें अच्छा और सफल इंसान बनाने पर जोर देना चाहिए। अवस्थी ने कहा कि आप लोग पढ़ाई के साथ-साथ खेल पर भी ध्यान दें। शारीरिक और मानसिक विकास के लिए खेल बहुत ही जरूरी है। उन्होंने छात्र-छात्राओं को कोर्स की किताबों के साथ ही अन्य अच्छी किताबें पढ़ने की सलाह दी।
अवस्थी ने 12वीं कक्षा में पहली रैंक पर आये मुंगेली के टिकेश वैष्णव, सातवीं रैंक पर आई रायपुर की आयशा अंजुम, 10वीं रैंक पर आये रायपुर के देवेन्द्र कुमार तारक, व्यवसायिक में पहली रैंक पर आयीं दुर्ग की मिनाल हिरवानी, 10वीं कक्षा में पहली रैंक पर आयीं मुंगेली की प्रज्ञा कश्यप, पांचवीं रैंक पर आये रायपुर के विरेन्द्र कुमार तारक और नवमीं रैंक पर आये दुर्ग के आदर्श गिरि को प्रमाण-पत्र देकर सम्मानित किया। इस अवसर पर एआईजी राजेश अग्रवाल, मुंगेली एएसपी कमलेश्वर चंदेल उपस्थित रहे।
रायपुर स्थित एसपी कार्यालय में दी गई सलामी
रायपुर. छत्तीसगढ़ की राजधानी रायपुर में पुलिस महकमे की कमान अब नए एसएसपी अजय कुमार यादव के जिम्मे होगी। अजय कुमार इससे पहले दुर्ग के एसएसपी थे। मंगलवार को उन्हें एसपी ऑफिस के बाहर सलामी दी गई। इसके बाद यहां बने दफ्तर में उन्होंने कार्यभार संभाला। आईपीएस अफसर आरिफ शेख को इस मौके पर विदा भी किया गया। आरिफ अब डीआईजी, एसीबी और ईओडब्ल्यू का प्रभार संभालेंगे।
पदभार ग्रहण करने के बाद एसएसपी ने मीडिया से बातचीत की। उन्होंने कहा कि बेसिक पुलिसिंग पर उनका फोकस होगा। पुलिस लोगों की सेवा करने के लिए बनाई गई है, कैसे लोगों को बेहतर सुविधा और सेवा दे पाएं, इस पर काम करेंगे। अपराध रोकने या उनकी जांच के कामों को बेहतर ढंग से करेंगे। सोशल मीडिया का इस्तेमाल पुलिसिंग को बेहतर करने के लिए किया जाएगा।
A police campaign to make the victims of domestic violence speak out and stand up against abuse has saved dozens of families.
CHHATTISGARH: Domestic violence may be a crime, but in India it is also a social scourge that the victims, mostly women, are expected to bear silently.
Quite often, chuppi or silence becomes the way of life for such victims, even if the abuse leaves them mentally or physically scarred for life and families shattered. That is what the Raipur police sought to change when it launched the Chuppi Tod (Break Your Silence) campaign in mid-March this year.
The campaign was the brainchild of Raipur senior superintendent of police Arif H Sheikh. With cases of domestic violence witnessing a surge during the coronavirus-mandated lockdown, the SSP felt it was time the victims spoke up about the ordeal they regularly face at the hands of their abusive spouses.
It was while investigating a murder that police got the idea of the campaign. Fed up of persistent nagging and abuse, a woman had killed her husband. The incident made Sheikh, a 2005-batch IPS officer, prepare an elaborate plan to make the victims break their silence.
It was easier said than done, though. It was a tough task for the police to convince the victims to pick up the courage to speak out. What made the campaign click was the approach the police have adopted. They do not take the investigation and punishment route.
There is no rush to register an FIR. Only 14 cases have been registered out of 2,075 instances of abuse and assault reported so far. “Our focus is to intervene and stop cruelty by the spouse, followed by reconciliation efforts,” said the SSP, who has won three global recognitions on community policing.
Initially 1,500 cases lodged since 2018 in Raipur city were taken up for random follow-up. Four teams under Investigation Unit for Crime Against Women were constituted and around 100 women were dailled daily. An 11-point questionnaire was prepared to record stories of harassment, abuse and sexual assault.
It helped to grasp the mental status of the victims before working out counselling sessions and initiating reconciliation process with the assistance of psychologists and activists. “A well-researched questionnaire worked for us as well as the victims. Our concern remains to resolve the cases amicably,” said Amrita Sori, chief of IUCAW, the nodal agency for the campaign.
While connecting with the victims over the phone, the police personnel hide their identities saying they are calling from the health department to assess the well-being of the family and the sufferer. “This was done to ensure the victim’s spouse doesn’t get suspicious or she is not hesitant of narrating her plight due to fear or threat,” added Sori.
The plan incorporates counselling of the victims, involving them with social welfare programmes or their vocational training. At the same time, the police promote the campaign on social media platforms.
Though the victims of the violence are overwhelmingly women, about 10 per cent sufferers happen to be men. “We have resolved over 80 per cent of the complaints received and generated awareness about the law,” said Sheikh.