LAW RESOURCE INDIA

JUSTICE G S SINGHVI JUDGEMENT IN THE VILAS RAO DESHMUKH ABUSE OF POWER CASE

The Indian Constitution preamble

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JUDGEMENT OF THE SUPREME COURT SHOWS HOW CHIEF MINISTERS SUBVERT THE SYSTEM AND INTERFERE IN THE FUNCTIONING OF THE POLICE .

MAHARASHTRA CHIEF MINISTER VILAS RAO DESHMUKH BRAZENLY PROTECTED MONEYLENDERS RESPONSIBLE FOR FARMERS SUICIDE.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEAL NO. OF 2010

(Arising out of SLP (Crl.) No. 2614 of 2009)

State of Maharashtra and others ……..Appellants Versus Sarabgdharsingh Shivdassing Chavan …….Respondents and another

J U D G M E N T

G.S. Singhvi, J.

1. I have gone through the judgment prepared by my esteemed brother Justice Asok Kumar Ganguly. I agree with him that the appeal deserves to be dismissed with costs but would like to separately record my views on the crucial issue of ministerial interference in the functioning of the authorities entrusted with the task of enforcing the laws enacted by the legislature.

2. The Constituent Assembly which comprised of eminent people drawn from different walks of life debated for more than two years, examined the constitutions of several countries and prepared the document, which was adopted as “the Constitution of India“. The Preamble to the Constitution, as it stands after the Constitution (Forty-second Amendment) Act, 1976, reads thus:

“We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression belief, faith and worship;

EQUALITY of status and of opportunity and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation.”

3. Though each of XXII Parts of the Constitution has its own significance, the common man is by and large concerned with Parts III, IV and IV-A, the last having been added by the Forty-second Amendment Act, 1976. Part-III of the Constitution enumerates various fundamental rights guaranteed to the citizens and even non-citizens. The provisions of Part-IV contain directive principles of State policy which are fundamental for the governance of the country. The State has been obligated to enact laws for improving the lot of the weaker sections of the society and the rural population so that the goals of social justice and equality can be achieved.

4. By incorporating Part IVA in the Constitution, the Parliament has emphasized what is obvious, that is, every citizen must do his duty towards the nation as well as the fellow citizens because unless every one does his duty, it is not possible to achieve the goals of equality and justice enshrined in the Preamble. Article 51A enjoins upon every citizen to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; to cherish and follow the noble ideals which inspired our national struggle for freedom; to uphold and protect the sovereignty, unity and integrity of India; to promote harmony and the spirit of common brotherhood amongst all the people irrespective of religion, language, region etc. and to renounce practices derogatory to the dignity of women; to value and preserve the rich heritage of our composite culture; to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; to develop the scientific temper, humanism and the spirit of inquiry and reform; to safeguard public property and to abjure violence; and to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. What has been incorporated in the form of Part IV-A was implicit in the Preamble, Part III and Part-IV of the Constitution because fundamental rights of the citizens can become meaningful only if the State and citizens do their duty to bring about real equality amongst the people belonging to different segments of the Society.

5. Part IV-A of the Constitution was enacted with a fond hope that every citizen will honestly play his role in building of a homogeneous society in which every Indian will be able to live with dignity without having to bother about the basics like food, clothing, shelter, education, medical aid and the nation will constantly march forward and will take its place of pride in the comity of nations. However, what has happened in last few decades has given rise to serious apprehensions whether we will be able to achieve the objectives which were in the mind of the makers of the Constitution. The gap between ‘haves’ and ‘haves not’ of the society which existed even in pre independent India has widened to such an extent that it may take many decades before even a token equality is restored. A small fraction of the population has evolved a new value system which is totally incompatible with the values and ideals cherished by the Indian society for centuries together. They believe in achieving their goals without regard to purity of the means.

6. Under the Constitution, the executive power of the State vests in the Governor and is required to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution [Article 154(1)]. Article 163 mandates that there shall be Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion. Article 164 lays down that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Minister shall hold office during the pleasure of the Governor. Article 164(3) lays down that the Governor shall before a Minister enters upon his office, administer to him the oath of office and secrecy according to the form set out in the Third Schedule, in terms of which, the Minister is required to take oath that he shall discharge his duties in accordance with the Constitution and the law without fear or favour, affection or ill will. However, the cases involving pervasive misuse of public office for private gains, which have come to light in last few decades tend to shake the peoples’ confidence and one is constrained to think that India has freed itself from British colonialism only to come in the grip of a new class, which tries to rule on the same colonial principles. Some members of the political class who are entrusted with greater  responsibilities and who take oath to do their duties in accordance with the Constitution and the law without fear or favour, affection or ill will, have by their acts and omissions demonstrated that they have no respect for system based on rule of law.

7. The judgment of the Constitution Bench in C.S. Rowjee v. State of Andhra Pradesh (1964) 6 SCR 330 is an illustration of the misuse of public office by the Chief Minister for political gain. The schemes framed by the Government of Andhra Pradesh under Chapter IVA of the Motor Vehicles Act, 1939 for nationalization of motor transport in certain areas of Kurnool District of Andhra Pradesh were challenged by filing writ petitions under Article 226 of the Constitution. The High Court repelled the challenge to the validity of the schemes and also negatived the argument that the same were vitiated due to mala fides of the then Chief Minister of the State. This Court allowed the appeals and quashed the scheme and declared that the schemes are invalid and cannot be enforced. While examining the issue of mala fide exercise of power, the Constitution Bench stuck a note of caution by observing that allegations of malafides and of improper motives on the part of those in power are frequently made and some times without any foundation and, therefore, it is the duty of the Court to scrutinize those allegations with care so as to avoid being in any manner influenced by them if they are not well founded. The Court then noted that the scheme was originally framed by the Corporation on the recommendations of Anantharamakrishnan Committee, but was modified at the asking of the Chief Minister so that his opponents may be prejudicially affected and proceeded to observe:

“The first matter which stands out prominently in this connection is the element of time and the sequence of dates. We have already pointed out that the Corporation had as late as March 1962 considered the entire subject and had accepted the recommendation of the Anantharamakrishnan Committee as to the order in which the transport in the several districts should be nationalised and had set these out in their Administration Report for the three year period 1958 to 1961. It must, therefore, be taken that every factor which the Anantharamakrishnan Committee had considered relevant and material for determining the order of the districts had been independently investigated, examined and concurred in, before those recommendations were approved. It means that up to March-April 1962 a consideration of all the relevant factors had led the Corporation to a conclusion identical with that of the Anantharamakrishnan Committee. The next thing that happened was a conference of the Corporation and its officials with the Chief Minister on April 19, 1962. The proceedings of the conference are not on the record nor is there any evidence as to whether any record was made of what happened at the conference. But we have the statement of the Chief Minister  made on the floor of the State Assembly in which he gave an account of what transpired between him and the Corporation and its officials. We have already extracted the relevant portions of that speech from which the following points emerge: (1) that the Chief Minister claimed a right to lay down rules of policy for the guidance of the Corporation and in fact, the learned Advocate-General submitted to us that under the Road Transport Corporation Act, 1950, the Government had a right to give directions as to policy to the Corporation; (2) that the policy direction that he gave related to and included the order in which the districts should be taken up for nationalisation; and (3) that applying the criteria that the districts to be nationalised should be contiguous to those in which nationalised services already existed, Kurnool answered this test better than Chittoor and he applying the tests he laid down therefore suggested that instead of Chittoor, Kurnool should be taken up next. One matter that emerges from this is that it was as a result of policy decision taken by the Chief  Minister and the direction given to the Corporation that Kurnool was taken up for nationalisation next after Guntur. It is also to be noticed that if the direction by the Chief Minister, was a policy decision, the Corporation was under the law bound to give effect to (vide Section 34 of the Road Transport Corporation Act, 1950). We are not here concerned with the question whether a policy decision contemplated by Section 34of the Road Transport Act could relate to a matter which under Section 68-C of the Act is left to the unfettered discretion and judgment of the Corporation, where that is the State undertaking, or again whether or not the policy decision has to be by a formal Government Order in writing for what is relevant is whether the materials placed before the Court establish that the Corporation gave effect to it as a direction which they were expected to and did obey. If the Chief Minister was impelled by motives of personal ill-will against the Road Transport Operators in the western part of Kurnool and he gave the direction to the Corporation to change the order of the districts as originally planned by them and instead take up Kurnool first in order to prejudicially affect his political opponents, and the Corporation carried out his directions it does not need much argument to show that the resultant scheme framed by the Corporation would also be vitiated by mala fides notwithstanding the interposition of the semi-autonomous Corporation. …… If in these circumstances the appellants allege that whatever views the Corporation entertained they were compelled to or gave effect to the wishes of the Chief Minister, it could not be said that the same is an unreasonable inference from facts. It is also somewhat remarkable that within a little over two weeks from this conference by its resolution of May 4, 1962, the Corporation dropped Nellore altogether, a district which was contiguous to Guntur and proceeded to take up the nationalisation of the routes of the western part of the Kurnool district and were able to find reasons for taking the step. It is also worthy of note that in the resolution of 4th May, 1962, of the Corporation only one reason was given for preferring Kurnool to Nellore, namely, the existence of a depot at Kurnool because the other reason given, namely, that Kurnool was contiguous to an area of nationalised transport equally applied to Nellore and, in fact, this was one of the criteria on the basis of which the Anantharamakrishnan Committee itself decided the order of priority among the districts. …… …… What the Court is concerned with and what is relevant to the enquiry in the appeals is not whether theoretically or on a consideration of the arguments for and against, now advanced the choice of Kurnool as the next district selected for nationalisation of transport was wise or improper, but a totally different question whether this choice of Kurnool was made by the Corporation as required by Section 68-C or, whether this choice vas in fact and in substance, made by the Chief Minister, and implemented by him by utilising the machinery of the Corporation as alleged by the appellants. On the evidence placed in the case we are satisfied that it was as a result of the conference of April 19, 1962, and in order to give effect to the wishes of the Chief Minister expressed there, that the schemes now impugned were formulated by the Corporation.” (emphasis supplied)

 

In Chandrika Jha v. State of Bihar (1984) 2 SCC 41, this Court examined the question whether the Chief Minister of the State could direct extension of the term of the committee of management of Vaishali District Central Cooperative Bank, Hazipur (for short, `the Bank’). The Bank w as created for the new district, which came into existence with the bifurcation of the existing district. In exercise of the power conferred upon him by Bye-law 29, the Registrar, Cooperative Societies, Bihar nominated a committee of management of 17 members including the appellant to be the first Board of Directors for a period of six months i.e., up to December 31, 1981 or till further orders, whichever was earlier. The committee of management was specifically directed to get the elections of the Board of Directors held in accordance with the law within six months. The appellant, who was a political person directly approached the then Chief Minister of the State and got the term of the first Board of Directors extended from time to time resulting in postponement of the election of the new board. On 29.10.1981, the then Chief Minister made an endorsement to the Minister (Cooperation) with a direction that the Registrar should extend the period of the committee of management for the time being. The Registrar complied with the directive of the Chief Minister, but ordained the committee of management to call the general meeting and get the Board of Directors elected within the extended term. In April 1982, the appellant again got the term extended through the intervention of the Chief Minister. On 13.4.1983, the appellant addressed another communication to the Chief Minister for extension of the term of the nominated Board of Directors for one year. The Chief Minister obliged him by extending the term for six months and endorsed the same to the Minister (Cooperation). The then Chief Minister resigned on 13.8.1983. Thereafter, the Registrar reconstituted the first Board of Directors in terms of the direction given by the Minister for Industries. This Court prefaced consideration of the question of interference by  the Chief Minister with the statutory functions of the Registrar under Bye-law 29 by making the following observations:

“The case illustrates an unfortunate trend which has become too common these days in the governance of the country.”

The Court then referred to the relevant statutory provisions and observed:

“We fail to appreciate the propriety of the Chief Minister passing orders for extending the term of the first board of directors. Under the Cabinet system of Government the Chief Minister occupies a position of pre-eminence and he virtually carries on the governance of the State. The Chief Minister may call for any information which is available to the Minister-incharge of any department and may issue necessary directions for carrying on the general administration of the State Government. Presumably, the Chief Minister dealt with the question as if it were an executive function of the State Government and thereby clearly exceeded his powers in usurping the statutory functions of the Registrar under Bye-Law 29 in extending the term of the first board of directors from time to time. The executive power of the State vested in the Governor under Article 154(1) connotes the residual or governmental functions that remain after the legislative and  judicial functions are taken away. The executive power includes acts necessary for the carrying on or supervision of the general administration of the State including both a decision as to action and the carrying out of the decision. Some of the functions exercised under “executive powers” may include powers such as the supervisory jurisdiction of the State Government under Section 65-A of the Act. The Executive cannot, however, go against the provisions of the Constitution or of any law. Neither the Chief Minister nor the Minister for Co-operation or  Industries had the power to arrogate to himself the statutory functions of the Registrar under Bye-Law 29. The act of the then Chief Minister in extending the term of the committee of management from time to time was not within his power. Such action was violative of the provisions of the Rules and the byelaws framed thereunder. The Act as amended from time to time was enacted for the purpose of making the co-operative societies broad-based and democratizing the institution rather than to allow them to be monopolized by a few persons. The action of the Chief Minister meant the very negation of the beneficial measures contemplated by the Act.

In Surendra Kumar v. State of Bihar (1984) 4 SCC 609, this Court referred to an earlier decision in Suman Gupta v. State of J. & K. AIR 1983 SC 1235, wherein the Court had observed that there is nothing like unfettered discretion of the executive authority to nominate the candidate for admission to medical course under the reciprocal arrangement and observed that recommendations made at the instance of the Chief Minister de hors the merit of the candidates who had applied for admission was blatant abuse of power by the Chief Minister.

In Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi (1987) 1 SCC 227, the question considered by this Court was whether the marks awarded to the daughter of the appellant, who was at the relevant time the Chief Minister of the State of Maharashtra had been changed at his instance or to please him. The respondent had challenged the result of the appellant’s daughter of MD examination by alleging that his daughter was shown favour by increasing her marks. The learned Single Judge, after examining the record produced before him, came to the conclusion that tampering of the grade-sheets was done by Dr. Rawal at the behest of respondent Nos.3 and 4. The Division Bench of the High Court rejected the prayer for permission to adduce additional evidence and dismissed the appeal with an observation that the conclusion arrived at against the appellant should be treated as merely in the nature of an adverse comment and not a finding of fact. This Court extensively considered the matter, referred to some of the precedents and observed:

“There is no question in this case of giving any clean chit to the appellant in the first appeal before us. It leaves a great deal of suspicion that tampering was done to please Shri Patil or at his behest. It is true that there is no direct evidence. It is also true that there is no evidence to link him up with tampering. Tampering is established. The relationship is established. The reluctance to face a public enquiry is also apparent. Apparently Shri Patil, though holding a public office does not believe that “Caesar’s wife must be above suspicion”. The erstwhile Chief Minister in respect of his conduct did not wish or invite an enquiry to be conducted by a body nominated by the Chief Justice of the High Court. The facts disclose a sorry state of affairs. Attempt was made to pass the daughter of the erstwhile Chief Minister, who had failed thrice before, by tampering the record. The person who did it was an employee of the Corporation. It speaks of a sorry state of affairs and though there is no distinction between comment and a finding and there is no legal basis for such a comment, we substitute the observations made by the aforesaid observations as herein. This Court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale. It is necessary to cleanse public life in this country along with or even before cleaning the physical atmosphere. The pollution in our values and standards in (sic is) an equally grave menace as the pollution of the environment. Where such situations cry out the courts should not and cannot remain mute and dumb.” (emphasis supplied)

In Secretary, J.D.A. v. Daulat Mal Jain (1997) 1 SCC 35, this Court had the occasion to examine allotment of lands to the respondents by the Minister and the committee headed by the Minister. Some of the observations made in that decision are quite relevant in the context of the present case. Therefore, they are quoted below:

“… The Minister holds public office though he gets constitutional status and performs functions under constitution, law executive policy. The acts done and duties performed are public acts or duties as holding of the public office. Therefore, he owes certain accountability for the acts done or duties performed. In a democratic society governed by rule of law, power is conferred on the holder of the public office or the concerned authority by the Constitution by virtue of appointment. The holder of the office, therefore, gets opportunity to abuse or misuse of the office. The politician who holds public office must perform public duties with the sense of purpose, and a sense of direction, under rules or sense of priorities. The purpose must be genuine in a free democratic society governed by the rule of law to further socio-economic democracy. …………… If the Minister, in fact, is responsible for all the detailed working of his Department, then clearly ministerial responsibility must cover a wider spectrum than mere moral responsibility; for no minister can possibly get acquainted with; all the detailed decisions involved in the working of his Department…. The so-called public policy cannot be a camouflage for abuse of the power and trust entrusted with a public authority or public servant for the performance of public duties. Misuse implies doing of something improper. The essence of impropriety is replacement of a public motive for a private one. When satisfaction sought in the performance of duties is for mutual personal gain, the misuse is usually termed as corruption. The holder of a public office is said to have misused his position when in pursuit of a private satisfaction, as distinguished from public interest, he has done something which he ought not to have done. The most elementary qualification demanded of a Minister is honesty and incorruptibility. He should not only possess these qualifications but should also appear to possess the same.” (emphasis supplied)

In R v. Metropolitan Police Commissioner (1968) 1 All. E.R. 763, the Court of Appeal considered the question whether the Commissioner of Police could give instruction to the cadre not to take action against clubs for violating gaming laws and held that he was not entitled to do so. The facts of the case show that Albert Raymond Blackburn applied for a mandamus to the Commissioner of Police of Metropolis requiring him to assist him in the prosecution of gaming clubs, which contravened the provisions of Betting, Gaming and Lotteries Act, 1963 and in particular to assist him in respect of the complaint lodged on March 21, 1967 in relation to Golden Nugget Club,Piccadilly and to reverse or procure the reversal of a policy decision taken by him or his superiors that the time of the police officers would not be spent on enforcingg the provisions of the Betting, Gaming and Lotteries Act, 1963. The Divisional Court of Queen’s Bench dismissed the application. The Court of Appeal noted that the policy decision contained in communication dated April 22, 1966 was a confidential instruction issued to the senior officers of the metropolitan police whereby they were directed not to proceed against the clubs for breach of gaming laws unless there was complaint of cheating or they become haunts of criminals. As a result of the said instruction, the big gaming clubs in the metropolis were allowed to carry on their activities without any police interference. In his opinion, Lord Denning M.R. made the following observations:

“I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or no suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.” (emphasis supplied)

In Magill v. Porter (2002) 2 AC 357, the House of Lords upheld the decision of the District Auditor who had opined that certain Ministers of Westministers City Council had used their powers to increase the number of owners/occupiers in marginal wards for the purpose of encouraging them to vote for the Conservative Party in future elections. The House of Lords held that although the powers under which the Council could dispose of the land was very broad, and although, elected politicians were entitled to act in a manner which would earn the gratitude and support of their electorate, they could act only to pursue a “public purpose for which the power was conferred”, but the purpose of securing electoral advantage for the Conservative Party was no such “public purpose”.

8. At this stage, I may also refer to the following portion of the preface to 1964 paper back edition of the book titled “The Modern State” by Maciver:

“The state has no finality, but human nature is as stable as human needs, and what human beings need from government – if we think not of the few, but of men generally, men as social beings – is the same under all conditions. These are liberties  secured by restraints, justice under law, order that provides opportunity, the economy of the good life. The modes of satisfying these needs change with the changing conditions. To satisfy any need whatever, even the most spiritual, a modicum of power is necessary, for power is simply the effective control of means. From the beginning of human history government has been recognized as the overall holder and regulator of power, maintaining order by limiting all other expressions of power and thereby turning permitted powers into rights. In that concept lay the rudiments of the principles of government. In every age men have sought to clarify the application of these principles to the changing times. In every age the abuse of power by governments has led to disasters and uprisings, oppressions and vainglorious wars, and sometimes to experiments in the control of power, seeking to make it responsible, or more responsible, subject in some manner to the will of the people, of the majority or those who represented them.”

9. The facts of this case, as noticed in the judgment prepared by brother Justice Ganguly, show that with a view to frustrate the complaint made by respondent No.1 who alleged that respondent No.2 – Gokulchand Sananda, his family members and some other money lenders were harassing him and other farmers and also to stall the action likely to be initiated by the concerned police authorities under the Bombay Money Lenders Act, 1946. Shri Dilip Kumar Sananda, a member of the Legislative Assembly approached the Chief Minister for a special treatment. In the first place, the Principal Secretary of the Chief Minister made enquiries from the police station about the cases registered against Sananda. Thereafter, the Chief Minister, without verifying the truthfulness or otherwise of the assertion of Shri Dilip Kumar Sananda that false complaints were being lodged against his family members, issued instructions that complaint against the concerned M.L.A. and his family members should be first placed before the District Anti-Money Lending Committee, which should obtain legal opinion of the District Government Pleader and then only take decision on the same and take appropriate legal action. The camouflage of sophistry used by Shri Vilas Rao Deshmukh in the instructions given by him and the affidavit filed before this Court is clearly misleading. The message to the authorities was loud and clear i.e. they were not to take the complaints against Sananda family seriously and not to proceed against them. The District Magistrate, the District Superintendent of Police and officers subordinate to them were bound to comply with the same in their letter and spirit. They could disregard those instructions at their own peril and none of them was expected to do so. The District Anti-Money Lending Committee was constituted by the Government of Maharashtra vide resolution No. MLA.1204/CR/280/C/7/S dated 19th October, 2009 for protecting the farmers against unscrupulous money lenders and not for protecting the wrong doers, but in total disregard of the scheme of the Act, the Chief Minister gave instructions which had the effect of frustrating the object of the legislation enacted for protection of the farmers. The instructions given by the Chief Minister to District Collector, Buldhana were ex facie ultra vires the provisions of the Act which do not envisage any role of the Chief Minister in cases involving violation of the provisions of the Act and amounted to an unwanted interference with the functioning of the authorities entrusted with the task of enforcing the Act enacted for regulating, controlling transactions of money lending and protecting unsuspecting orrowers against oppression and harassment at the hands of unscrupulous money lenders.

……………………….J.

(G.S. Singhvi)

New Delhi,

December 14, 2010

“Anticipatory bail can’t be restricted to small duration”

The supreme court of india. Taken about 170 m ...

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J. Venkatesan in THE HINDU


Nearly 60% of arrests either unnecessary or unjustified

Strike a balance while considering anticipatory bail prayers


New Delhi: Observing that great ignominy attaches to the arrest of a person, the Supreme Court has held that it will not be proper for the trial court or the High Court to grant anticipatory bail for a limited duration and thereafter ask the accused to surrender and seek regular bail.

“Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage and the post-conviction stage. Life bereft of liberty would be without honour and dignity, and it would lose all significance and meaning, and life itself would not be worth living,” said a Bench of Justices Dalveer Bhandari and K.S. Radhakrishnan, allowing an appeal against an order declining anticipatory bail to a man.

Writing the judgment, Justice Bhandari said: “Right to life is the most fundamental of all human rights and any decision affecting human right or which may put an individual’s life at risk must call for the most anxious scrutiny.” He quoted a Constitution Bench judgment in Sibbia’s case, according to which there should not be any limitation on grant of anticipatory bail.

“However [subsequently], some Benches of smaller strength have erroneously observed that Section 438 Cr.PC should be invoked only in exceptional or rare cases, that means the life of Section 438 Cr.PC would come to an end after that limited duration. This is not the correct view as no such limitation has been envisaged by the legislature,” Justice Bhandari said.

Arbitrary use of power

The Bench pointed out that the Law Commission, in its report, had severely criticised the police for arbitrary use of the power of arrest which, the Commission said, “is the result of the vast discretionary powers conferred upon them. The Commission expressed concern that there is no internal mechanism within the Police department to prevent misuse of law in this manner.”

The Bench said that by and large, nearly 60 per cent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 per cent of the jail expenditure. Arrest should be the last option and restricted to exceptional cases where it was imperative in the facts and circumstances of a case.

“While considering the prayer for anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to a free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; the court has to consider reasonable apprehension and must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.”

The Bench said: “Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the cases. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental to their proper existence and no other right can be enjoyed without the presence of the right to life and liberty.”

In the instant case, Siddharam Satlingappa Mhetre was denied anticipatory bail by the Bombay High Court. The Supreme Court allowed his appeal and directed that he be granted anticipatory bail on certain conditions.

http://www.hindu.com/2010/12/06/stories/2010120666421600.htm

‘No corroboration needed in rape cases if victims are illiterate’

J. Venkatesan IN THE HINDU

Their statements have to be accepted in toto: Supreme Court

‘Why should the evidence of a woman complaining of rape be viewed with doubt or disbelief?’

‘Improper and undesirable to test her evidence with suspicion, treating her like an accomplice’


NEW DELHI: The Supreme Court has held that in cases of rape, particularly, if the victims are illiterate, their statements have to be accepted in toto without further corroboration for convicting the accused. A Bench of Justice comprising Justice P. Sathasivam and Justice R.M. Lodha said: “Any statement of rape is an extremely humiliating experience for a woman, and until she is a victim of sex crime, she would not blame anyone but the real culprit. “While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her, and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for.” Writing the judgment, Justice Sathasivam, quoting earlier judgments, said: “When a First Information Report is lodged by a lady with regard to the commission of offence like rape, many questions would obviously crop up for consideration before she finally decides to lodge the FIR. “It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only giving it a serious thought, must have decided to lodge the FIR.” Quoting another judgment, the Bench said seeking corroboration of the rape victim’s statement before relying upon the same would amount to adding insult to injury. “Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? Corroborative evidence is not an imperative component of judicial credence in every case of rape.

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

“It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust, and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice,” the Bench said. In the instant case, two illiterate sisters, working in a quarry, were raped by appellants Santhosh Moolya and Surendra Gowda in Ashwathapura village in Dakshina Kannada, Karnataka. The trial court found the accused guilty and convicted them to undergo seven years rigorous imprisonment, and this was confirmed by the Karnataka High Court. The present appeals are directed against this judgment on grounds that the FIR was registered 42 days after the incident and that it was not safe to rely on the testimony of the victims alone in the absence of further corroboration. Rejecting the contention and dismissing the appeals, the Bench said: “We are satisfied that though there was a delay of 42 days in lodging the complaint, the same was properly explained by the victims and other witnesses. We have noticed that except the victims, no male member is available in their family to help them. “Further, the prosecution witnesses asserted that after committing the rape, the appellants had threatened that they would kill the victims if they informed anyone. There is no reason to disbelieve the statement of the victims and the courts below have rightly accepted their statements.”

http://www.hindu.com/2010/04/28/stories/2010042861390800.htm

Minor offence?

KIRTI SINGH IN FRONTLINE ,  JANUARY  , 16-29 2010

THE molestation case of a minor girl by the former Director General of Police of Haryana, S.P.S. Rathore, reflects in a microcosm many of the ills that plague the criminal justice system in our country. The case highlights the lacunae in both the procedural laws and the substantive laws relating to sexual assault, particularly of minors. It shows how an influential accused can manipulate the legal system. Rathore used his position as a police officer to subvert the law and file false cases against the girl’s brother and reportedly managed to delay the case for several years. Finally, even though he was convicted, Rathore managed to get away with a light sentence, not only because of a judicial mindset but also because the offence of molestation is punishable with only up to two years’ imprisonment.

In fact, amendments to laws relating to sexual offences have not been a priority for successive governments. In spite of repeated suggestions and demands by the All India Democratic Women’s Association (AIDWA) and other women’s groups, governments, including the previous United Progressive Alliance (UPA) government, have refused to amend the century-and-a-half old laws relating to sexual assaults in the Indian Penal Code (IPC).

Women’s organisations and groups have pointed out how the definitions relating to rape, molestation and ‘eve-teasing’ are flawed and not reflective of women’s experience of these crimes. They have also emphasised the urgent need to differentiate between sexual crimes committed against adult women and those committed against minors. The National Women’s Commission has reiterated these demands. The Law Commission has also, in its 172nd report, suggested an overhaul of the substantive and procedural laws dealing with rape, molestation and sexual harassment (popularly known as eve-teasing) against women and children.

The Rathore case highlights how sexual assault is viewed as a trivial crime not only by the law but by many others, including those in positions of authority. Rathore was given two promotions and made Inspector General of Police in 1990 and DGP of Haryana in 1999. The minor girl was molested about 19 years ago, on August 12, 1990, by Rathore, the then Deputy Inspector General (DIG) of Police, in the office of the Haryana Lawn Tennis Association, of which he was the president.

It has been reported that the initial trauma, accompanied by the persistent harassment, led to the girl’s suicide three years after the crime. It is an acknowledged fact that normally the trauma suffered by a minor victim of sexual assault is greater than that suffered by a major. Suggestions have been made in the past that police stations must be associated with doctors and psychologists, who should counsel these victims as soon as possible.

The case involving Rathore was registered 10 years after the incident, after a writ petition was filed in the High Court on the victim’s behalf by her friend’s mother and after an appeal in the Supreme Court. The AIDWA and other women’s organisations and groups have, time and again, complained about the difficulty in registering a first information report (FIR) owing to gender bias and corruption among large sections of the police force. They have demanded that non-registration of an FIR be made an offence.

The Law Commission, in its 83rd report on “Rape and Allied Offences”, suggested that a new section, 166 A, should be added to the IPC to make the police accountable for deliberate inaction and disobedience of law. Therefore, while the Union Home Minister’s reported suggestion to the police to register FIRs immediately is a welcome first step, the criminal law will also have to be amended to make the police culpable.

The case against Rathore was filed under Sections 354 (molestation) and 509 (harassment) of the IPC. No case was filed against him and the other police personnel and others for threatening the victim and her friend and their families. No action was taken against those who filed false cases against the victim’s brother at Rathore’s instance. These illegal acts were completely disregarded by the police machinery and the Haryana government, and no cases were filed against Rathore and those who acted on his behalf for criminal intimidation, conspiracy and filing of false charges under Section 211.

While some FIRs have now been filed against Rathore, and the Central government has made known its intention to fast-track these and other cases of molestation/sexual assault and amend certain other procedural sections, these measures by themselves are not enough to ensure justice to victims of sexual crimes.

It has been argued that for a case of abetment to suicide an intention to abet the suicide is necessary. The abetment should also be proximate in time to the suicide. In Gurbachan Singh vs Satpal Singh, in 1990, the Supreme Court held that persistent ill-treatment of a woman for dowry amounted to abetment to suicide.

In a case in 1989, the Andhra Pradesh High Court held that “the cumulative effect of the incidents of harassment spread over the period after the marriage had to be considered”. Section 107 of the IPC, Explanation 2, states: “[W]hoever… does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”

Under Section 354 of the IPC, molestation is defined as “assault or criminal force” by a man with an intention to “outrage the modesty of a woman” or “knowing it to be likely that he will thereby outrage her modesty”. The crime is cognisable and bailable. The section is problematic not only because it is couched in archaic and meaningless language, but also because all forms of sexual assault other than rape have been included in it.

To ensure that the law relating to child sexual abuse is reflective of the exact nature and seriousness of the abuse, AIDWA and others have suggested a number of changes to it. They have suggested that the provision relating to molestation in Section 354 should be amended to redefine molestation as unlawful sexual contact and any man who touches/assaults a woman with a sexual purpose should be liable for imprisonment up to three years and with fine.

They have also suggested that if a child is molested or forced or incited to touch the body of any other person, the imprisonment should extend up to five years along with fine. If the molester is a person who is in a position of trust or authority towards the minor or is a person on whom the minor is dependent, the imprisonment should extend up to seven years. This suggestion should also apply to custodial molestation.

Definition of rape

It has further been recommended that the definition of rape should be enlarged to ensure that some of the forms of child sexual abuse are also considered rape. Such a definition would be in accordance with international legal standards, including the definition of rape by the International Criminal Tribunal for the former Yugoslavia (ICTY). The International Criminal Tribunal for Rwanda (ICTR) has defined rape in even broader terms, as being “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.

Apart from these changes, certain procedural amendments are necessary to ensure justice in cases of child abuse. In Sakshi vs Union of India, the Supreme Court held that a child’s statement should be recorded in court without the child having to face the abuser.

Thus, the court held that a videotaped interview of the child’s statement or the child’s testification behind a screen or via closed-circuit television should be permitted. It further held that the cross examination of a minor should only be carried out by a judge based on written questions from the defence, and that the minor should be given sufficient breaks as and when required.

The Code of Criminal Procedure (Amendment) Act, 2008, which has still not been notified, stipulates that a rape victim’s statement to the police should be recorded by a woman police officer at the victim’s residence or at a place chosen by her, in the presence of her parents or guardians or near-relatives or a social worker of the locality. It further states that the investigation of a child-rape shall be completed within three months and that the trial and inquiry should be completed within a period of two months from the date of commencement of the examination of witnesses. These provisions should extend to all cases of child sexual abuse. In most cases of child abuse, the child is not able to express the exact nature of abuse. It is, therefore, necessary to allow experts such as child psychologists and paediatricians to depose on behalf of the child.

It has been said that the seriousness with which a judge views a crime is reflected in the sentence he awards. Rathore was awarded only a six-month imprisonment, ostensibly because he was old and had been subjected to a prolonged trial. It is ironic that though the accused was reported to be mainly responsible for the delay, the court overlooked this and also the fact that he was not so old that sending him to prison would serve no purpose. In fact, several previous judgments show that rapists and those who have sexually abused children have often got away with fairly light sentences. Apart from a higher maximum, minimum sentences must be prescribed for these offences.

Finally, even though several laws now stipulate time limits within which a case should be tried and the judgment given, these laws are not followed by large sections of the judiciary. The High Courts and the Supreme Court will have to ensure that the time limits are adhered to by censuring errant judges.

Kirti Singh is Legal Convener, All India Democratic Women’s Association.

Source:  http://www.frontlineonnet.com/stories/20100129270201600.htm

The rot within

V. VENKATESAN IN THE FRONTLINE,  JANUARY 16-29 2010

The inordinate delay in the conviction and sentencing of S.P.S. Rathore raises uncomfortable questions about India’s criminal justice system.

THE belated conviction and sentencing of S.P.S. Rathore, former Director General of Police, Haryana, for molesting a minor girl two decades ago has certain lessons for India’s criminal jurisprudence. There was outrage after the trial court’s ruling on December 21 for more than one reason, which included the inordinate delay in the filing of the first information report (FIR) after the incident and the sentence – six months’ imprisonment and a fine of Rs.1,000 – that is lighter than what is warranted under the Indian Penal Code (IPC). Above all was the shocking discovery by civil society that Rathore had evaded all these years charges of harassment of the victim and abetment to her suicide, destruction of evidence and tampering with her post-mortem reports, illegal confinement of her brother and attempt to murder him, criminal conspiracy and misuse of power.

Although the victim made the complaint regarding the offence on August 16, 1990, the FIR was registered only on December 29, 1999. That too only after the intervention of the Punjab and Haryana High Court. This was upheld by the Supreme Court.

An FIR refers to information given by anyone to the officer-in-charge of a police station in relation to the commission of a cognisable offence, and which is first in point of time, and on the strength of which the police begin investigation into that offence. Section 354 (assault or use of criminal force on a woman with intent to outrage her modesty) of the IPC, under which Rathore has been convicted, deals with a cognisable offence. The non-registration of an FIR for nearly a decade after the commission of the crime meant that Rathore could evade arrest and interrogation during that period. Had the FIR been promptly registered before the girl committed suicide in 1993, it is believed, the evidence against Rathore could have been stronger than what the court could rely on after her suicide. Rathore even challenged the authenticity of the victim’s signature on the original complaint submitted to the authorities in 1990. The trial court, however, relied on the evidentiary value of signatures of others on the complaint for basing its conviction.

In order to minimise the chances of the police not filing an FIR against a police officer, Union Home Minister P. Chidambaram, on December 28, urged them to register all complaints as FIRs. The heads of police stations, he pointed out, could be asked to give specific reasons for registration or non-registration of a case after receiving a complaint. Even if a complaint is false, the police have to register an FIR and investigate it before closing it, he advised the States, which have the exclusive responsibility for the police. Chidambaram, however, ruled out any formal advisory to the States on the issue.

Observers suggest that an amendment of the Code of Criminal Procedure (Cr.P.C) to make FIRs mandatory on receipt of a complaint might help. But that would require a huge increase in the number of police personnel, for which the States and the Centre are not ready financially.

It appears, therefore, that the Home Ministry is proposing superficial reforms, which are neither practical nor relevant to address the root cause of cases like that of Rathore who allegedly manipulated the system in his favour. Unfortunately, much of the anger against Rathore has not manifested in terms of a campaign for reforms in the police force.

Most State governments are reluctant to comply with the Supreme Court directives issued in September 2006 in the Prakash Singh case. These directives aim to insulate the police force in the States from political pressure and make it truly professional, besides making legislative changes. Even the Centre has not shown any enthusiasm to carry out police reforms. The court has now set up a monitoring committee with a two-year mandate to report on compliance with its directives.

The six months’ imprisonment and the Rs.1,000 fine for Rathore comes when the maximum punishment under Section 354 of the IPC is two years. The trial court’s justification of the lesser sentence citing the prolonged trial and Rathore’s age (68 years) was least convincing to any observer.

Following the trial court’s judgment, and the uproar in the media and civil society, the Haryana government set up a special investigation team (SIT) to investigate the three fresh FIRs registered on the basis of complaints filed by the victim’s brother and father, and after obtaining legal advice. These FIRs pertain to the non-bailable charge, under Section 306 of the IPC (abetment to suicide), of attempt to murder and harassment of the victim’s brother, doctoring of the post-mortem report of the victim after her suicide.

Rathore has questioned the legality of these FIRs, while seeking anticipatory bail. The Punjab and Haryana High Court and the Supreme Court have reviewed two of these charges and have given relief to Rathore. In the first case, Justice R.C. Kathuria of the Punjab and Haryana High Court quashed an order of the Special Judicial Magistrate, CBI, Ambala, dated October 23, 2001, concluding that a prima facie case for the addition of offence under Section 306 of the IPC was made out against Rathore and, accordingly, directing the committal of the case to the Court of Sessions. Justice Kathuria, while giving relief to Rathore, relied on the fact that at no stage had the victim made any statement to the police during the investigation of the case and that until her death in 1993 she had never come in contact with Rathore directly.

The Judge seems to have overlooked the fact that the police did not investigate the molestation case until 1999 when the FIR was filed and that there was no occasion for the victim to make a statement to the police.

The Special Judicial Magistrate, Central Bureau of Investigation (CBI), Ambala, added the offence under Section 306 IPC in the CBI’s charge sheet on the basis of an application made by Madhu Prakash, the mother of Aradhana, the victim’s friend and an eyewitness to the molestation. In her application, Madhu Prakash stated that the CBI, during the investigation, had recorded the statement of key witnesses, including herself, that Rathore had made life hell for the victim, which led her to commit suicide in 1993. Additionally, it was also submitted that the victim’s brother was falsely implicated in six criminal cases at the behest of Rathore. Of these, the court discharged him in four cases. In the remaining two, the police found that the allegations were not substantiated and dropped the proceedings against him.

More important, it was also brought to the notice of the SJM that the CBI had not examined the victim’s brother and had not taken into account the post-mortem report and the inquest report of the victim. Before the SJM, the CBI contested Madhu Prakash’s application for inclusion of Section 306 of the IPC in its charge sheet because it did not find the applicability of Sections 306 and 509 (word, gesture or act intended to insult the modesty of a woman) against Rathore.

However, the CBI took a different stand before Justice Kathuria. It said the witnesses had said during the investigation that Rathore had indeed harassed the victim, her friend Aradhana and their family members after the molestation incident. The witnesses had also apparently said that the victim could not even visit the nearby market and that it was Aradhana who used to make minor purchases for her. The CBI also said that the fact of the false implication of the victim’s brother in criminal cases and his being beaten up by personnel of the Haryana Police at the behest of Rathore were reported to it.

The Investigating Officer of the CBI verified these statements of witnesses and summed up his findings. First, he said, the victim’s name was struck off from the Sacred Heart School, Chandigarh, in September 1990 because of non-payment of fees from April 1990 onwards. Second, he cited the statements of the victim’s grandfather and two maternal uncles that the victim’s death was from taking weight-reduction medicines, and that they did not suspect the involvement of anyone in her death.

Third, he said that the victim’s brother did not make himself available and hence could not be examined. Fourth, contradicting the statements of the victim’s grandfather and the uncles, he suggested that the cause of the victim’s death, as per chemical examination, was poisoning. Based on the I.O.’s findings, Justice Kathuria concluded that Section 306 did not apply to Rathore.

Did the CBI refuse to include Section 306 in its charge sheet against Rathore under pressure? Former CBI joint director R.M. Singh said his attempts to charge Rathore with abetment to suicide were thwarted. When asked why the CBI, during his term, did not charge Rathore with abetment to suicide of the victim, the CBI’s then Director, R.K. Raghavan, said: “The insinuation that the CBI acted under pressure from the accused is without basis. Whatever decisions were taken were on the basis of facts collected by the Investigating Officer and later subjected to strict legal scrutiny. These decisions have since been upheld by the court.”

On April 12, 2002, the Supreme Court rejected Madhu Prakash’s appeal against Justice Kathuria’s judgment without stating any reasons. Observers point out that both the High Court and the Supreme Court only discharged (and not acquitted after a proper trial) Rathore from Section 306. Therefore, a fresh FIR making the charge of abetment to suicide is valid, they say.

Rathore got relief again from the Supreme Court in 2005, when it set aside the order of the Punjab and Haryana High Court directing the District Judge to conduct an inquiry to ascertain the truth of the averments made by the victim’s brother in his affidavit on December 3, 2001, that he was implicated in false criminal cases and harassed by the police at the instance of Rathore. The High Court had sought to know from Rathore and the Haryana government why they should not be burdened with the compensation awarded to the victim’s brother for the harassment caused to him by falsely implicating him in car theft cases. The Supreme Court gave relief to Rathore on technical grounds by holding that neither the news report (on the basis of which the High Court took suo motu action) nor the judgment discharging the victim’s brother in the car theft cases mentioned Rathore’s involvement. The High Court had deemed it proper to direct an inquiry since the matter was of serious nature involving the violation of the fundamental rights of the victim’s brother.

On January 3, the Central Police Awards Committee of the Ministry of Home Affairs decided to strip Rathore of his Police Medal, awarded in 1985 for meritorious service.

It also took a generic decision to authorise the Ministry to recommend the withdrawal of police medals from all persons who are convicted for moral turpitude and for an act that brings disrespect to the police forces. Union Law Minister M. Veerappa Moily has proposed a new law, Sexual Offences (Special Courts) Bill, 2010, to make character evidence illegal and sexual offences cognisable.

These steps, though important, are inadequate to address the concerns in the aftermath of the Rathore case. In an open letter to Moily on January 5, the representatives of 14 women’s groups and 44 leading women’s activists pointed out that Section 354 of the IPC did not redress sexual harassment of women in public or private spaces. It assumes that only some women and children have modesty and are seen as deserving the protection of law, they said.

They have suggested a gradation of sexual assault which squarely name sexual harassment, molestation, stalking, parading and stripping as sexual violence (not amounting to rape). Hopefully, various civil society groups will seek to influence the government and Parliament to reform suitably the current laws concerning violence against women.

Read the Article at: http://www.frontlineonnet.com/stories/20100129270200900.htm

‘Common people are afraid to approach us’

TOI Crest, 16 January 2010, 11:33am IST

Those who claim to see ghosts will always fear the dark. Babloo – not his real name – has seen the devil and will remain terrorised of it till his last day. A resident of Indira Nagar in Lucknow, the very sight of the colour khaki sends chills down his battered body. He has been seeing psychiatrists and undergoing therapy ever since he spent a harrowing seven days with the police some years ago. But things like a car battery, electricity cables, a cooking heater and pliers still scare the life out of him. When the police let him off – they wanted Babloo to confess to a murder he never committed – his ear lobes were charred, his palms were so swollen that they looked like pillows, and two of his toes had been sliced open after nails were hammered into them. But there are countless others who don’t have to be tortured to fear the police in India. It’s common for Indians to make way for cops when they are behind you, and walk at a safe distance when they are in front of you. Truant children are often threatened with a call to the policeman, as if they were some evil spirit. There is a dread, and it is all pervasive, all encompassing.

“This is because the police have no fear of punishment and there is total lack of accountability ,” says former IPS officer-turned lawyer Y P Singh. “And they are sure that the senior officers will always bail them out.”

Giving a more nuanced view, political scientist Imtiaz Ahmed says, “The explanation for the kind of police we have lies in the fact that we have a colonial police. Neither the structure nor the orientation of the police has changed. The colonial attitude – in which the only interest was to establish their rule at any cost – still persists. The police responds to the government, not to the people.”

He adds, “The police behaves the way it does partly because the recruitment of personnel comes mostly from the dominant castes in each area. For example, the Jats predominate in the Delhi and Haryana units, especially in the constabulary and above. The feudal attitude is there for all to see. They continue to be oppressive, carrying forward the characteristic in their interaction with the public. And the Indian state has become more khaki… The attitudes of dominance and coercion are reflected in various aspects of the state.”

Vikas Narayan Rai, DGP, Haryana Police Academy, feels the police can improve only if society is empowered. “By ‘empowered’ I mean they should have the means to assert their legal right. In our country a person feels totally helpless whether he goes to a police station, a court, or a hospital. They should have rights that can be enforced. We have inherited our police from our colonial masters. The same system persists and now that I am associated with police training I realize what kind of training we are giving. They are being trained to deal with criminals and not with common people though 90 per cent of the time they are dealing with citizens . The mindset has to change and the police has to be sensitized, they have to be conditioned to the values of democracy, to the rights of the common citizen. That change of mindset is difficult to achieve after 200 years of colonial rule. But it is possible and it is being done.”

Former police and security supremo Julio Rebeiro has a solution. “It is very simple ,” he said. “The police force should be free from all political interference. Until this is done the force cannot be improved. The crux of the problem is the interference of the politician in the police department. Leave it to the commissioner of police to take all decisions , including transfers and postings from inspectors to deputy commissioners and above. The political godfathers decide the postings for better known reasons and the officers are not interested in serving society . It is time the government wakes up before the situation becomes worse.”

WITH INPUTS FROM REMA NAGARAJAN, S AHMED ALI, RAHUL TRIPATHI, PEVEZ IQBAL SIDDIQUI

http://timesofindia.indiatimes.com/india/Common-people-are-afraid-to-approach-us-/articleshow/5451859.cms

THE 2005 JUDGEMENT OF SUPREME COURT WHICH QUASHED THE ORDERS OF THE HIGH COURT FOR AN ENQUIRY INTO HARASSMENT OF RUCHIKA BROTHER

Posted in COMPENSATION, COURTS, CRIMINAL JUSTICE SYSTEM, FIR, HUMAN RIGHTS, JUSTICE, LIBERTY AND JUSTICE, RIGHTS by NNLRJ INDIA on January 1, 2010

WE PROVIDE THE JUDGMENT OF THE SUPREME COURT OF INDIA WHICH ALLOWED AN APPEAL OF SPS RATHORE TO QUASH THE ORDER OF HIGH COURT FOR A DISTRICT JUDGE TO INQUIRE INTO THE HARRASSMENT OF RUCHIKA BROTHER.

ONE IMPORTANT FACT COMES OUT OF THE SUPREME COURT JUDGMENT IS THAT THE STATE OF HARYANA DID NOT PURSUE THE CASE PROACTIVELY AND HAS WITHELD SEVERAL INFORMATIONS FROM THE HONORABLE SUPREME COURT.

SINCE THE MATTER WAS TAKEN UP DURING OM PRAKASH CHAUTALA TENURE IT IS AMPLY CLEAR THE HARYANA GOVT HAD ORDERS FOR ITS LAW OFFICERS NOT TO PROACTIVELY PURSUE THE CASE .

THIS LED TO THE FAILURE OF THE CASE IN SUPREME COURT.

A INVESTIGATION NEEDS TO BE CONDUCTED INTO THE VARIOUS AFFIDAVITS FILED BY HARYANA POLICE IN SUPREME COURT.

CASE NO.:

Appeal (civil)  1276 of 2003

PETITIONER:

S.P.S. Rathore

RESPONDENT:

State of Haryana & Ors.

DATE OF JUDGMENT:

06/05/2005

BENCH:

Y.K.Sabharwal & Tarun Chatterjee

J U D G M E N T

Y.K. Sabharwal, J.

The challenge in this appeal is to the impugned judgment and order of the High Court directing the District Judge to conduct an enquiry to ascertain the truth of the averments made by Ashu Girhotra, respondent No.5 in his affidavit dated 3rd December, 2001 to the effect that he was implicated in false criminal cases and harassed by the police at the instance of the appellant, a police officer.

The brief facts are as follows:

A news report published in Chandigarh News Line dated 5th December, 2000 stated that between 6th September,1992 and 30th August, 1993 six first information reports were registered in police station, Panchkula in State of Haryana against Ashu Girothra, respondent No.5, his friend Sandeep Verma, respondent No.6 and Gajinder Singh in car theft cases. The police after investigation dropped the proceedings against respondent Nos.5 and 6 in two cases. The Chief Judicial Magistrate, Panchkula by order dated 30th April, 1997 discharged respondent Nos.5 and 6 in the aforementioned cases on the ground that there was no prima-facie material for framing charges against them. The news report also stated that the cases beared an uncanny coincidence that seemed to suggest that respondent No.5 was systematically framed in the car theft cases by making him sign confessional statements.

The High Court on 8th December, 2000 took suo motu cognizance of the aforesaid news report and the judgment dated 30th April, 1997 delivered by the Chief Judicial Magistrate, Panchkula discharging respondent Nos.5 and 6 in the aforementioned cases of car thefts. In its order dated 8th December, 2000, the High Court has observed that it seems the police officials posted at police station, Panchkula were let loose on respondent Nos.5 and 6 by the appellant, a senior police officer belonging to Indian Police Service, Haryana cadre in order to pressurize the sister of respondent No.5 to withdraw the complaint lodged by her against him for the offences under Section 354 of Indian Penal Code. The Court issued notices to the appellant, State of Haryana and others calling upon them to show cause as to why they should not be burdened with compensation to be paid to respondent No.5 for the harassment caused to him by falsely implicating him in car theft cases.

Neither the news report nor judgment dated 30th April, 1997 nor any other material was on record either making any insinuation against the appellant or even naming him when suo motu cognizance was taken.  On what basis notice was directed to be issued by the High Court to the appellant has not been explained by learned counsel for the respondents despite our repeated queries.

After about one year of publication of news report and taking of cognizance, an affidavit dated 3rd December, 2001, was filed by respondent No.5 in the High Court narrating the incidents that led to the filing of complaint by his sister against the appellant for offences under Section 354 of Indian Penal Code. He stated that his sister was a member of the Haryana Lawn Tennis Association, of which the appellant was the President.  He stated that his sister was molested by the appellant on 12th August, 1990. Their parents took up the matter with the higher authorities and an inquiry was marked to the then Director General of Police, Haryana, who in his inquiry found that there was prima facie material to proceed against the appellant.  In spite of this, no case was registered against him for several years.  Then a writ petition was filed by Mrs. Madhu Prakash, their mother who is said to have been present with her daughter when the alleged incident of molestation took place. The writ petition was allowed by an order dated 21st August, 1998 directing registration of case against the appellant and handing over of the investigation to Central Bureau of Investigation.  Pursuant to order of the Court, first information report was registered under Sections 354 and 509 Indian Penal Code on 29th December, 1999.  It was stated that, since the alleged incident of molestation took place and till the registration of the case against the appellant, the family of respondent No.5 was harassed and pressurized by the police at the instance of the appellant to withdraw the complaint lodged against him. It was during this time the six FIRs were registered against respondent No.5.  He was arrested on 25th October, 1993 and was tortured by the police and was forced to sign the confessional statements. He was so much terrorized that he could not even speak about the harassment by the police, when he was produced before the Magistrate. He was released on 29th December, 1993 the day on which his sister committed suicide.

The appellant in his affidavit before the High Court refuted the allegations made against him. He described the alleged incident of molestation as false and fabricated. He further stated that he was not involved in the registration of FIRs against respondent No.5 and that he has not used his position to pressurize the family of respondent No.5 to persuade respondent No.5’s sister to withdraw the FIR lodged against him. He stated that during the time the cases were registered and investigated upon, the concerned police officials were not working under his administrative control and that there is no material to show that he has used his position to implicate respondent No.5 in the cases.

In the impugned judgment and order, the High Court recorded a finding that mere fact that six FIRs were lodged against respondent No.5, two of which were dropped by the Police after investigation and he was discharged in the other four cases by the Chief Judicial Magistrate, Panchkula, by itself is not enough to hold that he had been falsely implicated in criminal cases in order to put pressure on him to persuade his sister to withdraw the complaint lodged against the appellant. The Court further came to the conclusion that the allegations were indeed serious and if they are true, there may be a case for awarding compensation to respondent No.5 against the State and against the police officers as well.The Court held that since the averments in the affidavit of respondent No.5 have been emphatically denied by the appellant, in order to ascertain the true facts, it would be necessary to allow the parties to lead their evidence.Accordingly the matter was remitted to the District Judge, Patiala with a direction that he should himself record the evidence of the parties and submit a report to the High Court as to,

(1)     Whether the averments made by respondent No.5 in his affidavit  are true or not;

(2)     Whether respondent No.5 was harassed by the police at the instance of petitioner;

(3)     Whether FIRs lodged against respondent no.5 were false and

(4)     Whether those FIRs were lodged at the instance of petitioner, as alleged.

The learned counsel appearing for the appellant submits that there was nothing on record to show the involvement of the appellant in the matter at the time of taking suo motu cognizance. Neither the news report nor the judgment discharging respondent No.5 in the car theft cases made any mention about the involvement of the appellant.  Further, the appellant had no control over the police officials who registered the FIRs against respondent No.5 and subsequently investigated the case, as he was posted on deputation and was not part of the regular police machinery at that relevant point of time. It was submitted that after recording a finding that there was no material to come to the conclusion that respondent No.5 was harassed by the police at his instance, it was not correct to order an enquiry so as to direct payment of compensation to respondent No.5. It was submitted that Court can order payment of compensation only when there is a prima facie or established violation of fundamental right guaranteed by the Constitution of India. When the foundational fact itself is in dispute the Court cannot order payment of compensation. The scope of the enquiry ordered by the High Court is not to find out whether there was any harassment or not, but to find out whether the appellant is responsible for the harassment of respondent No.5 It was submitted that respondent No.5 kept quiet for all years upto 2001 and for the first time in his affidavit filed on 3rd December, 2001 made false allegations about torture and harassment by the police at the instance of the appellant. The learned counsel appearing for respondent No.5 in support of the impugned judgment submits that there is no infirmity in the order of the High Court. Since the matter was of serious nature involving violation of fundamental rights of respondent No.5, the Court has deemed it proper to direct an enquiry to find out the truth of the matter. No doubt, the Courts while exercising jurisdiction under Articles 32 and 226 can award compensation for the violation of fundamental rights guaranteed by the Constitution but such a power should not be lightly exercised.  In Rudul Sah v. State of Bihar & Anr. [(1983) 4 SCC 141], where compensation was awarded, this Court was faced with a situation where the petitioner who was acquitted by the Court of Session was released from jail more than 14 years after he was acquitted. The petitioner approached the Court asking for his release on the ground that his detention in the jail was unlawful and claimed compensation for the illegal incarceration. The petitioner was released from jail and as regards the compensation for illegal detention the Court held that though Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of Courts, however, in order to rectify the grave injustice perpetrated upon the petitioner by illegally detaining him in jail for 14 years after his acquittal, which violated his fundamental right to life and liberty guaranteed under Article 21 of the Constitution of India, the Court in the exercise of its jurisdiction under Article 32, can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right.

This principle has been consistently followed in the subsequent line of cases. Sebastian M. Hongray v. Union of India (1984) 3 SCC 82; Bhim Singh, MLA v. State of J&K & Ors. (1985) 4 SCC 677; Peoples’ Union For Democratic Rights & Anr. v. Police Commissioner, Delhi Police Headquarters & Anr. (1989) 4 SCC 730; State of Maharashtra & Ors. v. Ravikant S.Patil (1991) 2 SCC 373; Peoples’ Union For Democratic Rights v. State  of Bihar& Ors. (1987) 1 SCC 265; Saheli, A Women’s Resources Centre & Ors. v. Commissioner of Police, Delhi Police Headquarters & Ors. (1990) 1 SCC 422; Arvinder Singh Bagga v. State of U. P. & Ors. (1994) 6 SCC 565; P.Rathinam v. Union of India & Ors. 1989 Supp (2) SCC 716; In re Death of Sawinder Singh Grover 1995 Supp (4) SCC 450; Inder Singh v. State of Punjab & Ors. (1995) 3 SCC 702; D. K. Basu v. State of W. B. (1997) 1 SCC 416; Chairman, Railway Board & Ors. v. Chandrima Das (Mrs.) & Ors. (2000) 2 SCC 465).In Nilabati Behera v. State of Orissa & Ors.(1993) 2 SCC 746] a writ petition was filed under Article 32 of the Constitution for determining the claim of compensation consequent upon the death of petitioner’s son in police custody. In view of the denial by the State that death was due to police harassment when the deceased was in police custody, this Court gave a direction to the District Judge, Sundergarh in Orissa, to hold an inquiry into the matter and submit a report. The District Judge reached the conclusion that it was a case of custodial death. In view of the dispute as to the correctness of the findings in the report of the District Judge, the matter was examined afresh by this Court in the light of the objections raised. This Court also reached the same conclusion on a reappraisal of the evidence adduced at the enquiry. On this conclusion, the question arose as to the liability of the State for payment of compensation for custodial death. The Court held that:

“A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a Constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right.”

The Court further observed that:

“The defence of sovereign immunity being inapplicable and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the Constitutional remedy. It is this principle which justified award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental rights is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.”

Justice A.S. Anand (as His Lordship then was) in concurring opinion observed that:

“The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by or under Article 226, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interest as and preserve their rights. Therefore, when the Court moulds the relief by granting compensation in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. the payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary amends under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. the compensation is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”

It was further observed that:

“This Court and the High Courts, being the protectors on the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law – through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other from of appropriate redressal by the court in the facts and circumstances of the case, is possible. It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interest of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned.”

This legal position has been reiterated in D. K. Basu v. State Of W.B. [(1997) 1 SCC 416].

Compensation can be awarded for violation of fundamental rights in public law domain, but the facts of the case in hand do not justify the directions given in the impugned judgment for conducting of an enquiry by the District Judge so as to determine the compensation to be awarded to respondent No.5.As already noticed, the news report as well as the judgment of discharge neither mentioned anything about the appellant’s involvement in the registration of FIRs against respondent No.5 and harassment by the police at his instance nor refers to the complaint by respondent No.5’s sister alleging molestation by the appellant. The High Court went beyond the material on record while taking suo motu cognizance of the matter.What made the High Court to issue notice to the appellant while taking suo motu cognizance has not been explained to us despite repeated queries to learned counsel for the respondents.

Further, the validity of the directions of the High Court has to be seen in the light of the silence of respondent No.5 for more than seven years after release from jail.  The allegations of harassment by the police at the instance of the appellant were made for the first time by filing of the affidavit before the High Court on 3rd December, 2001.  Respondent No.5 is neither illiterate nor any other factor has been brought to our notice which compelled him to remain silent for number of years. The alleged incident of molestation of respondent 5’s sister took place on 12th August, 1990. The FIRs implicating respondent No.5 in the car theft cases were registered during the period between 6th September, 1992 and 30th August, 1993. Respondent No.5 was discharged in the car theft cases by the Chief Judicial Magistrate, Panchkula on 30th April, 1997.  How the news report suddenly came to be published after so many years is again a mystery. From the date of the registration of FIRs till the date of the filing of the affidavit before the High Court, respondent No.5 made no complaint that he was harassed by the police at the instance of the appellant.

There is a serious dispute as to factum of harassment by police at the instance of the appellant. Not only the fundamental fact itself but also the very basis of issue of notice to the appellant is in serious dispute.

In Chairman, Grid Corporation of Orissa Ltd. (Gridco) & Ors. v. Sukamani Das (Smt.) & Anr. [(1999) 7 SCC 298] the question which arose for consideration was, can the High Court under Article 226 of the Constitution award compensation for death caused due to electrocution on account of negligence, when the liability was emphatically denied on the ground that the death had not occurred as a result of negligence, but because of an act of God or of acts of some other persons. The Court held that it is the settled legal position that where disputed questions of facts are involved, a petition under Article 226 of the Constitution is not a proper remedy. Therefore, questions as to whether death occurred due to negligence or due to act of god or of some third person could not be decided properly on the basis of affidavits only, but should be decided by the civil court after appreciating the evidence adduced by the parties. In Tamil Nadu Electricity Board v. Sumathi & Ors. [(2000) 4 SCC 543], it was held that when a disputed question of fact arises and there is clear denial of any tortuous liability, remedy under Article 226 of the Constitution may not be proper. The Court carved out exception to this general rule by observing that, it should not be understood that in every case of tortuous liability, recourse must be had to a suit. When there is negligence on the face of it and infringement of Article 21 is there, it cannot be said that there will be any bar to proceed under Article 226 of the Constitution.

In Khatri & Ors. (IV) v. State Of Bihar & Ors. [(1981) 2 SCC 493], it was held that in order to succeed in claiming relief under Article 32,violation of fundamental right has to be established and that is the foundational fact which must be established before the petitioners can claim relief under Article 32.  The Court observed that:

“The court is not helpless to grant relief in a case of violation of the right to life and personal liberty, and it should be prepared ‘to forge new tools and devise new remedies’ for the purpose of vindicating these precious fundamental rights.It was also indicated that the procedure suitable in the facts of the case must be adopted for conducting the inquiry, needed to ascertain the necessary facts, for granting the relief, as the available mode of redress, for enforcement of the guaranteed fundamental rights.”

In Nilabati Behera v. State of Orissa & Ors. [(1993) 2 SCC 746],the Court has also broadly specified the situations in which the remedy of providing compensation for violation of fundamental rights available under the domain of public law has to be invoked. The Court held that:

“If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have-nots,who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate.”

It was further held that:

“Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain mount of circumspection and self- restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute, for civil action in private law.”

The sparing exercise of power under Article 32 or Article 226 of Constitution of India for issue of directions to conduct enquiry to determine compensation in glaring and clear cases of rape by police officials, custody death, illegal detention of poor and helpless cannot be resorted to in the case of present nature.

There were no such circumstances which necessitated the exercise of such a power.

Having regard to the facts of the case and the legal principles noted above, the impugned judgment directing the District Judge to conduct enquiry cannot be sustained. Therefore, the impugned judgment is set aside and the appeal allowed.

MALIMATH COMMITTEE REPORT ON THE CRIMINAL JUSTICE SYSTEM

Please click the link to read the Report on the Criminal Justice System as suggested by Justice Malimath Committee in 2003. This report highlights the lacunae in the criminal Justice system in India and has suggestted important recommendations. These recommendations assume significance when the discussion on the Ruchika case is being discussed across the country.

MALIMATH COMMITTEE REPORT ON CRIMINAL JUSTICE SYSTEM (2003)

VICTIMS UNDER THE EXISTING CRIMINAL JUSTICE SYSTEM – FROM THE MALIMATH COMMITTEE REPORT

Posted in ACCESS TO JUSTICE, CRIMINAL JUSTICE SYSTEM, FIR, HUMAN RIGHTS, JUDICIARY, JUSTICE, RIGHTS by NNLRJ INDIA on December 29, 2009

When the Ruchika Case has come as a shocker and highlighted the failure of the law for the welfare and protection of Victims it is time to visit the Report of Malimath committee on Criminal Justice System. There are some good suggestions which need to be implemented for the welfare of Victims.

FROM THE MALIMATH COMMITTEE REPORT ON CRIMINAL JUSTICE SYSTEM IN INDIA (March 2003)

6.1 Referring to the state of criminal justice in India today, the Government Notification constituting the Criminal Justice Reforms committee observed :

… … ..People by and large have lost confidence in the Criminal Justice System … .. Victims feel ignored and are crying for attention and justice … .. there is need for developing a cohesive system, in which, all parts work in co-ordination to achieve the common goal.

6.2 Very early in the deliberations of the Committee, it was recognized that victims do not get at present the legal rights and protection they deserve to play their just role in criminal proceedings which tend to result in disinterestedness in the proceedings and consequent distortions in criminal justice administration. In every interaction the Committee had with the police, the Judges, the prosecution and defense lawyers, jail officials and the general public, this concern for victims was quite pronounced and a view was canvassed that unless justice to the victim is put as one of the focal points of criminal proceedings, the system is unlikely to restore the balance as a fair procedure in the pursuit of truth. Furthermore, it was pointed out that support and co-operation of witnesses will not be forthcoming unless their status is considerably improved along with justice to victims. This perception was strengthened while the Committee examined the systems prevalent in other jurisdictions. The U. N. system also wanted member countries to guarantee rights of victims of crime through their respective legal systems. In the circumstances, the Committee resolved to give adequate importance to the idea of justice to victims of crime in the scheme of reform to be recommended. This chapter of the report is specifically addressed to rights of victims with a view to solicit their maximum support to criminal proceedings and to restore the confidence of people in Criminal Justice System.

Basically two types of rights are recognized in many jurisdictions particularly in continental countries in respect of victims of crime. They are, firstly, the victim’s right to participate in criminal proceedings (right to be impleaded, right to know, right to be heard and right to assist the court in the pursuit of truth) and secondly, the right to seek and receive compensation from the criminal court itself for injuries suffered as well as appropriate interim reliefs in the course of proceedings.

6.4 It is interesting to find that the European system assigned a very active role assigned to the victim or his representative in criminal proceedings. For example, in France, all those who suffer damage on account of the commission of an offence are entitled to become parties to the proceedings from the investigation stage itself. He can assist investigation on proper lines and move the court for appropriate directions when the investigation gets delayed or distorted for whatever reasons. His active participation during trial will be of great help in the search for truth without inconveniencing the prosecution. He may suggest questions to the court to be put to witnesses produced in court. He may conduct the proceedings if the public prosecutor does not show due diligence. He can supplement the evidence adduced by the prosecution and put forth his own arguments. He would be of help to the court in the matter of deciding the grant or cancellation of trial. He will adduce evidence in the matter of loss, pain and suffering to decide on his entitlement of interim reliefs and compensation by way of restitution. Wrongful attempts to withdraw or close the prosecution due to extraneous factors can be resisted if the court were to have the continued assistance of the victim. For all these reasons and more, it is clear that if the criminal proceedings have to be fair to both the parties and if the court were to be properly assisted in its search for truth, the law has to recognize the right of victim’s participation in investigation, prosecution and trial. If the victim is dead, or otherwise not available this right should vest in the next of kin. It should be possible even for Government Welfare bodies and voluntary organizations registered for welfare of victims of sexual offences, child victims, those in charge of the care of aged and handicapped persons to implead themselves as parties whenever the court finds it appropriate for a just disposal of the case.

6.5 The right of the victim should extend to prefer an appeal against any adverse order passed by the trial court. The appellate court should have the same powers to hear appeals against acquittal as it now has to entertain appeal against conviction. There is no credible and fair reason why appeals against acquittals should lie only to the High Court.

6.6 The right of representation by lawyer is a constitutional right of every accused and there is no reason why it should not be available to the victim as well. If the victim is an indigent person, the Legal Services Authority should be directed by the Court to provide a lawyer at State expense.

VICTIMS UNDER THE EXISTING CRIMINAL JUSTICE SYSTEM

6.7.1 Historically speaking, Criminal Justice System seems to exist to protect the power, the privilege and the values of the elite sections in society. The way crimes are defined and the system is administered demonstrate that there is an element of truth in the above perception even in modern times. However, over the years the dominant function of criminal justice is projected to be protecting all citizens from harm to either their person or property, the assumption being that it is the primary duty of a State under rule of law. The State does this by depriving individuals of the power to take law into their own hands and using its power to satisfy the sense of revenge through appropriate sanctions. The State (and society), it was argued, is itself the victim when a citizen commits a crime and thereby questions its norms and authority. In the process of this transformation of torts to crimes, the focus of attention of the system shifted from the real victim who suffered the injury (as a result of the failure of the State) to the offender and how he is dealt with by the State.

Criminal justice came to comprehend all about crime, the criminal, the way he is dealt with, the process of proving his guilt and the ultimate punishment given to him. The civil law was supposed to take care of the monetary and other losses suffered by the victim. Victims were marginalized and the State stood forth as the victim to prosecute and punish the accused.

6.7.2 What happens to the right of the victim to get justice to the harm suffered? Well, he can be satisfied if the State successfully gets the criminal punished to death, a prison sentence or fine. How does he get justice if the State does not succeed in so doing? Can he ask the State to compensate him for the injury? In principle, that should be the logical consequence in such a situation; but the State which makes the law absolves itself of such liability. Not only the victim’s right to compensation was ignored except a token provision under the Criminal Procedure Code but also the right to participate as the dominant stakeholder in criminal proceedings was taken away from him. He has no right to lead evidence, he cannot challenge the evidence through cross-examination of witnesses nor can he advance arguments to influence decision-making.

6.7.3 What is the present role that victim is assigned under the existing criminal law? When a person who has been the victim of a cognizable offence gives information to the police regarding the same, the police is required to reduce the information into writing and read it over to the informant. The informant is required to sign it and get a copy of the FIR [section 154 (1) & (2) of Cr.P.C.]. If the police refuses to record the information, the victim – informant is allowed to send it in writing and by post to the S. P. concerned [Section 154 (3)]. If the police refuses to investigate the case for whatever reason, the police officer is required to notify the informant of that fact [Section 157 (2)].

6.7.4 Alternatively, victims are enabled by Section 190 of the Cr. P. C. to avoid going to the Police Station for redress and directly approach the Magistrate with his complaint.

6.7.5 Complainants say that they are treated indifferently by police and sometimes harassed when they go to them with their grievances. There are complaints that the police do not truthfully record the information but distort facts as found convenient to them. Cognizable cases are made non-cognizable and viceversa. Complainants are sometimes made the accused and investigations initiated accordingly. Though these are unauthorized by the law and are rare, yet whenever it happens the victim gets disillusioned and alienated from the system itself.

6.7.6 The investigation process is exclusively a police function and the victim has a role only if the police consider it necessary. There are administrative instructions given by police departments of certain States to give information on progress of investigation to the victim when asked for. Otherwise till police report (charge sheet) is filed under Section 173 Cr. P. C., the victim’s plight is pitiable. This is the time victims need assistance the most and the law is silent on it. After the police report is taken cognizance of by the Magistrate, if he decides to drop the proceedings, it is required of him to hear the victim-informant by issuing notice to him [1997 Cr. L. J. 4636 (S.C.)] The Court seems to have recognized a gap in the statutory provision and enjoined the court not to drop proceedings without giving an opportunity to the victim to ventilate his grievance.

6.7.7 Pending investigation and prosecution, there are several things that a victim-friendly Criminal Justice System needs to address on an urgent basis. For example, victims of rape and domestic violence etc. require trauma counseling, psychiatric and rehabilitative services apart from legal aid. The object is to avoid secondary victimization and provide hope in the justice system. At the police station level, with or without the assistance of voluntary organizations, victim support services need to be organised systematically if the system were to redeem its credibility in society.

6.7.8 The existing law only envisages the prosecutor appointed by the State to be the proper authority to plead on behalf of the victim. However, the Code does not completely prohibit a victim from participating in the prosecution. A counsel engaged by the victim may be given a limited role in the conduct of prosecution, that too only with the permission of the court. The counsel so engaged is to act under the directions of the public prosecutor. The only other privilege a victim might exercise is to submit again with the permission of the court, written arguments after the closure of evidence in the trial. This requires change on the lines proposed above.

6.7.9 In the granting and cancellation of bail, victims have substantial interests though not fully recognized by law. Section 439 (2) may allow a victim to move the Court for cancellation of bail; but the action thereon depends very much on the stand taken by the prosecution. Similarly prosecution can seek withdrawal at any time during trial without consulting the victim (Section 321 Cr. P. C.). Of course, the victim may proceed to prosecute the case as a private complainant; but he seems to have no right to challenge the prosecution decision at the trial stage itself. This is another change the Committee would recommend for justice to victims.

6.7.10 Victims have a right to testify as prosecution witness. However, victims often fall prey to intimidation and harassment by offenders which tend to dissuade them from testifying freely and truthfully. Though it is the duty of the State to prevent such things, the situation according to available evidence is disturbing. There is no victim protection law as such and police is not in a position to protect every victim. Such conduct, of course, is prohibited under the IPC (Section 504 IPC).

6.7.11 The situation is alarming in respect of victim witnesses who belong to vulnerable sections of society. The adversarial trial built around cross- examination of witnesses often result in adding insult to injury against which even the Court may not be of much help. In several offences the experience may be a nightmare to victims acknowledging this predicament, Government has adopted recently an amendment preventing character assassination during trial of sexual offences.

6.7.12 There is need for an officer equivalent to Probation Officer to take care of victim interests in investigation and trial. He may be called Victim Support Service Co-ordinator who may work closely with the police and Courts to monitor, co-ordinate and ensure delivery of justice during the pendency of the case.

6.7.13 Compounding is a process through which the offender and the victim come to an agreement to put an end to the tension arising out of the criminal action. Offences which are compoundable and the persons by whom they could be compounded are indicated in Section 320 of the Cr. P. C. The Section specifies two lists of offences : one, compoundable without the permission of the Court, and the other, relatively more grave offences, which are compoundable with the permission of the Court. Sometimes the requirement of permission of the Court before compounding is got over by making the complainant and other prosecution witnesses retract their statements given to police and to depose favourably to the accused. The Committee is in favour of giving a role to the victim in the negotiation leading to settlement of criminal cases either through courts, Lok Adalats or Plea-bargaining

Rathore isn’t the only guilty man around

BY VIR SANGHVI IN HINDUSTAN TIMES

Such is the reality of today’s India that there is never a shortage of cases that leave us moved and indignant. But every now and then, there is a case that also makes us thoughtful. The Ruchika case is one such instance. In case you haven’t been following the details of the case, here’s what happened.

Ruchika was a happy, school-going 14-year-old with a passion for tennis. As often as she could, she would practise at the state tennis association’s courts. At that time, a police officer called S.P.S. Rathore was president of the Haryana Lawn Tennis Association. In August, 1990, Rathore called Ruchika to his office and molested her. Ruchika was traumatised, told family friends and eventually her father found out. Nine days later, on August 21, 1990, she recorded a statement before the then DG of Haryana, R.R. Singh. That should have been enough to finish off Rathore’s career.  Instead, it finished off Ruchika — and eventually, nearly finished off her family.

Rathore contacted Ruchika’s father and said that if she did not withdraw the complaint, he would destroy the family. He proved as good as his word. When the complaint was not withdrawn, he sent policemen to Ruchika’s house to threaten the family. They would be thrown out of the house and arrested, they were told. Then, goondas began turning up at night and throwing stones at the house. During the day, they would scream filthy abuse at Ruchika. The family could not complain because the goondas appeared to have police protection. Next, false cases of auto-theft were registered against Ashu, Ruchika’s brother. When the family still did not buckle under, Ruchika was thrown out of one of Chandigarh’s top schools where she had studied since she was a child — and where Rathore’s daughter was also a student. She had to give up tennis, her great passion. She began to live like a prisoner in her house.

Then, the police arrested Ashu and began torturing him. He was beaten up again and again, often in the presence of Rathore who threatened him even as his policemen tortured the boy. In October, 1993, Ashu was picked up by the police and according to his own statement, was handcuffed and paraded around the neighbourhood. “The police officers were abusing my sister and father. I was like an animal in a cage…my father begged the police to be afraid of God and not to inflict this torture on me.” Ashu was beaten up again in jail. He was denied food and water. When eventually, he was released on December 23, 1993, he had another shock waiting for him. Unable to live this way, Ruchika had committed suicide.

The false cases against Ashu were thrown out by the courts. But the family’s torture did not end there. When Ruchika’s father tried to get justice for his dead daughter, he was threatened again and driven out of his home. He went underground to avoid a vengeful Rathore and spent several years in Himachal. But thanks to his courage and the bravery of his friend Anand Prakash, and his daughter Aradhana, the case of molestation against Rathore remained alive.

A few days ago, nearly two decades after the incident had occurred, a court finally held Rathore guilty. He was sentenced to a mere six months in jail and walked out of the courtroom smirking. Anybody who saw Ruchika’s father on TV will sympathise with the grief and helplessness of a good man who has lost nearly everything. And I can entirely understand why so many people feel the urge to pick up a gun and see that vigilante justice is done at once, given that the system has failed. (Though, of course, this would be wrong, etc. etc.) But it’s not enough to be angry. We need to focus on the lessons of this sad and tragic tale.

First of all, why did Rathore get away with the molestation in 1990 when Ruchika filed a complaint before the then DGP, R.R. Singh? It was because he was close to Haryana politicians. R.R. Singh now says that political pressure ensured that no action was taken. The then Home Secretary also says that he was unable to move against Rathore because of political pressure.

Ruchika’s father says that the politician in question was O.P. Chautala. Of course Chautala denies this and his supporters blame other politicians. But nobody denies that Ruchika died because politicians protected Rathore. What does this say about our system? It has become a knee-jerk reaction for the middle class to blame politicians for everything. But the truth is that politicians can only function if officials help them. The real problem is not that politicians are venal but that members of the educated middle class — IAS and IPS officers — either help them in return for protection and advancement (as Rathore clearly did) or refuse to speak out when injustice is committed. It is all very well for various Haryana officials to now blame politicians. But where were they when Ashu was being tortured? Where were they when Ruchika was driven to suicide?

Secondly, why is the judicial system so slow and infirm? Even if we accept that the police were unwilling to file charges or take action, the case did eventually go to court. Even then, it took till 2009 for Ruchika’s father to achieve any kind of justice — however inadequate — for his daughter. If the legal system had moved faster, Ruchika’s father would not have been forced to go underground and his family would not have been destroyed.

Lawyers will tell you that everybody knows what needs to be done to fix the judicial system: more courts, more judges etc. But no government does it. No electorate demands it. It never becomes an issue. And millions are denied justice in India every day. Thirdly, the reason we are so angry about the Ruchika case is because we can see her father on TV and hear his story. But let’s not forget that each year there are thousands of Ruchikas. India’s policemen, officials and politicians mistreat, torture, molest, rob and rape poor people all the time. Because the victims are not middle-class, we never get to hear of these cases. Look at it logically. If Rathore could destroy a respectable, middle-class family, how do you suppose he would treat a poor, helpless family? And do you really believe that Ruchika was the first girl he molested? How many other cases have gone unreported because the parents did not have the guts or the resources to fight for justice?

So, let’s punish Rathore.

But let’s not stop there. Let’s find the cops who tortured Ashu. They knew what they were doing. They should be, first, thrown out of service and then should face legal proceedings. If cops feel that there is no accountability — which, frankly, there isn’t — they will continue to harass and torture citizens. It is time the present Chief Minister of Haryana took a stand to make up for the sins of his fellow politicians. And as for us, in the middle class and media, I am sure our pressure will yield results. But we need to go beyond our class and our interests.

Millions of Indians face injustice that is even worse.  It is our duty to fight for them, as well.

http://www.hindustantimes.com/Rathore-isn-t-the-only-guilty-man-around/H1-Article1-491010.aspx

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