Going from Zero FIRs to e-FIRs

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BY APARNA VISWANATHAN PUBLISHED IN THE HINDU

The government must allow the online filing of first information reports in rape cases as that alone will ensure mandatory and automatic registration of complaints

On January 18, 2013, Delhi police chief Neeraj Kumar announced that Zero First Information Reports (FIRs) may be registered on the basis of a woman’s statement at any police station irrespective of jurisdiction. This means women can file an FIR at any police station and the complaint is required to be registered on the basis of the woman’s complaint verbatim. Mr. Kumar stated: “The woman’s statement has to be taken as gospel truth and a probe needs to be initiated on its basis.”

Important step forward

At the same time, the Delhi police chief announced a series of other measures such as the recruitment of 418 women sub-inspectors and 2,088 women constables, deployment of PCR vans outside women’s colleges, the provision that women can call 100 to seek assistance to be dropped home at night by a PCR van, and 24-hour police cover for areas around entertainment hubs with heightened security between 8 pm and 1 am. While the foregoing measures must certainly be welcomed as an important step forward towards making the criminal justice system functional, it is surprising that e-governance has not been utilised by the Delhi police as an important solution in a country which is considered the world’s leading provider of IT enabled solutions.

E-governance is the application of information and communication technology to delivering government services, exchange of information and integration of various stand-alone systems and services between the government and citizens as well as back-office processes within the government. Through e-governance, government services can be provided to citizens in an efficient and transparent manner, which is of desperate need in India.

As shown by the introduction of the Zero FIR, the starting point towards improving criminal justice is the filing of the criminal complaint itself. It is well known that the filing of FIRs, particularly for cognisable offenses, is an extremely difficult exercise — more so for a rape victim who has to ceaselessly recount the horrific event. Police stations often refuse to register FIRs for cognisable complaints, and innumerable rapes around the country go unreported. The victims then are forced to file a private complaint in court under Section 156(3) of the Criminal Procedure Code (CrPC) seeking an order directing the police to register an FIR. The police chief’s announcement that the woman’s statement will be taken as the “gospel truth” is an important first step that will hopefully enable rape victims to register an FIR.

The police have often taken the view that, under Section 154 of the CrPC, complaints need to be investigated before the FIR is registered because the complaint could be a disguised civil or commercial dispute or a way of settling personal enmity. Complaints of criminal cheating and fraud are sometimes filed as a way of pressuring business associates to settle financial disputes or for personal grudges. However, this is highly unlikely to occur in the case of rape. In fact, there is no reason why all complaints for at least cognisable offences should not be registered as FIRs and then investigated.

While the Supreme Court has, in various judgments, taken contradictory views on the issue of whether the police are required to investigate a complaint before registering an FIR under Section 154 of the CrPC, it has repeatedly expressed its deep anguish over the failure of police to register FIRs, particularly in rape cases. Hopefully, the police will now register an FIR based on the woman’s statement as per the recently announced measures. However, the mandatory and automatic registration of FIRs can be ensured only through e-governance, that is, by providing for online registration of FIRs by citizens.

Tracking network

The online registration of FIRs was supposed to be implemented by 2013. On March 21, 2012, the then Union Home Minister, P. Chidambaram, stated in the Rajya Sabha that online registration of FIRs would be possible once the server and network connectivity was established by the end of 2012 or early 2013. However, the online filing of FIRs will be made possible only upon the implementation of the Crime and Criminal Tracking Network and Systems (CCTNS), an ambitious Rs. 2,000 crore project of the Home Ministry, aimed at increasing the efficiency and effectiveness of policing through e-governance by creating a state-of-the-art IT-enabled crime tracking system for investigation of crime and detection of criminals.

Under CCTNS, 14,000 police stations will be automated as well as 6,000 offices of higher police officials. The CCTNS is a platform for sharing real time information by law-enforcement agencies, which will improve identification of criminals and crime investigation. Funds in the amount of Rs. 418 crore have reportedly been released to the States/Union Territories and 4.54 lakh people have been trained. The CCTNS project was supposed to be completed in March 31, 2012. However, in June 2012, the Cabinet Committee on Economic Affairs (CCEA) extended the deadline to March 2015.

In November 2012, the Home Ministry began monitoring the status of the CCTNS project on a weekly basis and appointed 20 Joint Secretaries to monitor the progress of the project and ensure completion by March 2015. The delay in project implementation was reportedly due to the non-availability of common application software (CAS) and infrastructure problems. Since law and order is a State issue, issues of coordination between the States also contributed to the delay. However, it is unclear why the Indian government needs to implement a Rs.2,000 crore project before enabling online filing of FIRs. In view of the great national imperative in creating deterrence against rape, websites and e-filing mechanisms should be immediately created to permit e-filing of FIRs at least in rape cases.

The online filing of annual accounts and other documents was successfully implemented several years ago by the Ministry of Company Affairs. Various State governments have also provided for online filing of police complaints and online payment of traffic challans. The Himachal Pradesh Police have introduced an interactive portal called “Kanoon Vyavastha,” the first of its kind in the country, by which a police complaint can be filed online or by SMS. As per a report in the Financial Express, of 1,821 SMSs received, 22 FIRs were registered without the complainant having to visit the police station. Of these 22 FIRs, reportedly only one was related to a rape case. After the launch of SMS service in May 2010, 4,392 SMSs were received, of which 82 FIRs were registered. The complainant can check the status of the FIR online and post comments. The web portal is used for daily crime reporting, providing details of missing persons and vehicles and road accidents. Jalandhar reportedly has an online crime tip page where people can anonymously inform the police of a crime that has been committed. Similarly, Maharashtra has an e-complaint system for reporting minor crimes, that is, non-cognisable offences.

Simultaneously, with the introduction of Zero FIRs, online filing of FIRs at least in rape cases should immediately be implemented irrespective of the status of the CCTNS project. The introduction of e-FIRs will be an important signal to all criminals that rape will not go unpunished.

(Aparna Viswanathan is author of Cyber Law: Indian and International Perspectives (Lexis Nexis Butterworths Wadhwa 2012))

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Preliminary probe or FIR first?

THE HINDU

Issue in cognisable offence referred to Constitution Bench

The Supreme Court has referred to a five-judge Constitution Bench the question whether the police are duty-bound to register a First Information Report on receipt of a complaint or information of commission of a cognisable offence or there is discretion on their part to order a preliminary probe before that exercise.

A Bench of Justices Dalveeer Bhandari, T.S. Thakur and Dipak Misra referred to Chief Justice of India S.H. Kapadia a writ petition which raised the important issue: whether it is imperative on the part of the officer in-charge of a police station to register a case under Section 154 of the Code of Criminal Procedure 1973 or whether he or she has the option or latitude of conducting some sort of preliminary enquiry before registering it. Writing the order, Justice Bhandari said: “We have carefully analysed various judgments delivered by this court in the last several decades. We clearly discern divergent judicial opinions on the main issue.”

The Bench said: “This court also carved out a special category… in the cases of Santosh Kumar and Dr. Suresh Gupta where a preliminary enquiry had been postulated before registering an FIR.”

Counsel for some States also submitted that the CBI Manual “envisages some kind of preliminary enquiry before registering the FIR,” the Bench said. “In view of the divergent opinions in a large number of cases decided by this court, it has become extremely important to have a clear enunciation of law and adjudication by a larger Bench for the benefit of all concerned — the courts, the investigating agencies and the citizens.”

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