LAW RESOURCE INDIA

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

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