In this blog post, Tirumala Chakraborty, pursuing M.A. in business law from NUJS, Kolkata, talks about the remedies against illegal police action.
Police is a part and parcel of our society and plays a vital role in system of criminal administration of justice because police is primarily concerned with the maintenance of peace and enforcement of law and order and security of person and the property of individuals. The police also have to prevent juvenile delinquency and atrocities against women and children.
Though the goals and objectives of police are noble but they have been criticized and condemned for committing acts which are just contrary and this is because the powers given to them to fulfill their social responsibilities are capable of being abused by them to trample the constitutional rights of the community. It also lowers the dignity of the officials and shakes the foundation of trust and faith imposed on them by the society.
Legal Functions Of Police
The legal functions of the police are to deal with the detection and investigation of crime, arrest of offenders, collection of evidence etc. Their function involves patrolling by the police and preventive action against potential wrong doers. The foremost task assigned to the police, in order to prevent crime, is to make arrest of the lawbreakers and suspected criminals and take them into custody.
These powers of the police are laid down in the Chapter XI from Sec. 149 to 153 of Code of Criminal Procedure, 1973. Police officials are also given powers u/s 41, 42 and 151 of CrPC, 1973, to make arrest without a warrant taking into consideration the circumstances. Legal functions of the police include conditional release of accused on bond, etc. u/s 438 of CrPC, 1973, interrogation of offenders and suspects, search and seizure. The search and seizure may be conducted by the police with or without a warrant but it should not be unreasonable.
The police officials are bound to maintain inquest register and the law relating to inquest register u/s 174 of CrPc, 1973. In case a person dies under unnatural or suspicious circumstances, the police are to record information in the Inquest Register. Police also plays an important role in the prosecution by assisting the prosecutor. In fact, the success in prosecution largely depends on the promptness and ability with which the investigation is conducted by the police.
Misconduct Or Illegal Action By The Police
The primary duty of police officials is to serve mankind, to prevent crime, to uphold and protect human rights and to investigate and detect and activate the prosecution of offences, to curb public disorder, to deal with major and minor crisis and help those who are in distress. But it is often seen that while discharging official duties, police officials do not undertake their responsibilities in a proper way and abuse their power for personal or official gain.
They break their social contract and indulge in various unscrupulous activities. Such illegal action or inappropriate action can be defined as police misconduct. These improper actions by police officials or use of excessive power than that is reasonably necessary lead to miscarriage of justice, discrimination and involve obstruction of justice. Though the goals and objectives of police are noble but they have been criticized and condemned for committing acts which are just contrary and this is because the powers given to them to fulfill their social responsibilities are capable of being abused by them to trample the constitutional rights of the community.
Types Of Illegal Action
A society always demands from police the highest standards of conduct particularly those of honesty, impartiality and integrity because of their professional responsibility. But abuse of powers by the police officials has become an open scenario in Indian society. Police misconduct or illegal actions can be of various types, some of them are briefly discussed below. Police misconduct includes:
- Illegal or false arrest or false imprisonment
- Falsification of evidence, falsifying a police report
- Committing perjury on the witness stand or witness tampering
- Police brutality
- Bribing and lobbying
- Unwarranted surveillance, searches and seizure of property
Remedies Against Illegal Action By Police
Illegal Arrest /False Arrest
The word “arrest” is not defined in The Code of Criminal Procedure, 1973. Chapter V (Five) of The Code of Criminal Procedure, 1973 u/s 41 to 60 deals with the provisions relating to arrest of persons. Arrest means deprivation of a person of his liberty by legal authority. It is expected that every arrest must be in accordance with the procedure establish by law for example Article 21 and Article 22 of the Indian Constitution.
In D.K Basu v/s State of West Bengal, [(1997) 1 SCC 416; AIR 1997 SC 610] the Court has laid down detailed guidelines to be followed by the police at the time of arrest and detention.
“(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested an is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee fives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the, police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her bed, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, health Services of the concerned state or union territory. Director, Health Services should prepare such a penal for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on conspicuous notice board.
When arrest is made, without complying with the procedures or provisions as laid down in The Code of Criminal Procedure, 1973, it is an unlawful restraint of an individual’s personal liberty or freedom and can be called false or illegal arrest. Illegal arrests and wrongful imprisonment result in violation of fundamental rights guaranteed by the Constitution of India. Arrest has to be usually made, keeping in mind, that to secure the administration of law and to protect and uphold the human rights of the citizens is of utmost importance.
Remedies For False or Illegal Arrest
Constitutional Remedy: The right of personal liberty and freedom has been guaranteed in our Constitution under Article 19, 20 and 21. The writ of “Habeas Corpus” is one of the golden remedy for an illegal or false arrest or for prolonged detention by police officers. The Supreme Court of India and High Court of all states can issue this writ of “Habeas Corpus” under Article 32 and Article 226 respectively. Article 21 of the Constitution says that ”no person shall be deprived of his life or personal liberty except according to procedure established by law”.
If the police has arrested or detained any person without the authority of any law or in contravention of the procedure established by law which authorizes such arrest or detention, such arrest or detention is itself invalid and unconstitutional. The High Court or the Supreme Court may issue a writ of “Habeas Corpus” against the authority which has arrested the person and kept him in custody and order the release of the person under detention. In false imprisonment, the equal protection of law which is guaranteed under our Constitution, is usually not implicated to the person which somehow leads to violation of his fundamental rights. The case of Joginder Kumar v/s State of U.P [1994 AIR 1349, 1994 SCC (4) 260] is an example which highlights the wrongful use of arrest power by the police without a valid reason and the arrest was not recorded in the police diary.
”A tort (a civil wrong) that consists of an unlawful restraint of an individual’s personal liberty or freedom of movement by another purporting to act according to the law”.
Tort is a civil wrong which includes wrongful restraint of a person, by another who is not authorized under law, to do so, which leads to barring of freedom of movement of the person so restrained. Action can be instituted for damages resulting from illegal arrest such as injury to reputation which results in pecuniary loss to the victim. Though ill will and malice are not elements of tort but if proven, punitive damages can be awarded for the same in addition with nominal or compensatory damages.
In Boya Nallabothula Venkateswarlu and Ors Vs. The Circle Inspector of Police, Nandikotkur PS and Ors,[ 2010 (3) U.P.L.J 19 (HC)], the Hon’ble Division Bench of A.P. High Court directed the state as well as the police personnel responsible for illegal arrest and wrongful detention to pay compensation to the appellants who was purposely and deliberately implicated in a grave charge of murder.
Falsification Of Evidence, Falsifying a Police Report
The word “evidence” is explained u/s 3 of Indian Evidence Act but the definition of the word is not precise. It mainly consists of oral evidence and documentary evidence. Oral evidence is the verbal testimony of the witnesses and the documentary evidence is the written testimony of a witness. Documentary evidence is proved before it is admitted as evidence. Though, the police officials are bound to assist the court, in bringing the facts during the trial, these powers are often misused by them for their personal or departmental gains.
The authorities sometimes distort with the actual evidences thereby resulting in innocent people being wrongly convicted based on false evidence. The police officials are often caught with the corruption like falsifying reports. Officers dealing the case are often found tampering with confessions, witness statements, testimonies in order to develop a false report, not complying with the fact that police report is a document that is heavily relied upon by the court for giving an order or judgment.
A famous case highlighting the wrong of false evidence and falsely implication is the “Rampart scandal” in Los Angeles. The Rampart Crash Division, an anti-gang unit, was found planting drugs on prostitutes and then setting up a prostitution ring. Additionally, they were planting weapons on dead bodies to cover up their murders. Whether the individuals who ended up dead were innocent or guilty, we will never know. But one thing is certain that their lives were lost due to serious police corruption.
Remedies For Falsification of Evidence
Punishment for tampering of evidence: Section 193 of the Indian Penal Code emphasizes the punishment for tampering of evidence.
In case of judicial proceeding – whoever knowingly or intentionally gives false evidence or swear by it at any stage of judicial proceeding thereby letting the court to believe it to be true and consider it as evidence, shall be punished with imprisonment for maximum of seven years with fine. Intention is the main ingredient for this type of wrong.
In other case – whoever knowingly or intentionally gives false evidence or swear by it at any stage of judicial proceeding thereby letting the court to believe it to be true and consider it as evidence, shall be punished with imprisonment for maximum of three years with fine.
Tampering of evidence in matters relating to Habeas Corpus where it was seen on a petition where a father wanted to take the custody of his minor girl for the accused whereby the accused produced a wrong person misleading the court to believe the person to be the same for whom the petition was filed, the court directed inquiry under Section 193,196 and 199 to be lodged against the respondent. It emphasizes the offence of tampering with evidence. [ R. Rathinam v/s Kamla Vaiduriam.1993 CrLJ 2661(Mad)]
Sec 194 highlights the punishment for giving false evidence with the intention thereby to wrongly convict a person for an offence which is capital by law for the time being in force in India, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
And, if because of this false evidence, any innocent person is convicted, the person who gives such evidence shall be punished with either death or the punishment hereinbefore described.
Darshan Singh’s case [ 1985 Cr LJ NOC 71(P&H)] highlights the offence under Section 194, where an investigating officer concocted false evidence with the help of two sarpanchas and villagers to convict an innocent man in a false murder case which lead to his conviction by Session Court and during the course of hearing of the appeal in the High Court, the so called murder man appear in person, before the H.C, the inspector and the sarpanchas and other witnesses were liable to be prosecuted under Sec 194 of IPC read with Sec 340 of the CrPC.
Sec 195 emphasizes punishment where a person gives or fabricates false evidence intending thereby to cause or knowingly that he will cause any person to be convicted of an offence which by law for the time being in force in India is not capital but punishable with imprisonment for life or imprisonment for a term or seven years or more, shall be punished as a person convicted of that offence would be liable to be punished.
As per Sec 196 whoever attempts to use as true any evidence which he knows to be false or fabricated as genuine, shall be punished in the same manner as he has given or fabricated the false evidence.
Sec 197 deals with whoever issues or signs any certificate required by law to be signed or given or in any fact where the certificate is admissible in law as evidence knowing or believing such certificate is false in any material point, shall be punished in the same manner as he has given or fabricated the false evidence. For example, fabrication of birth certificate while Sec 198 stresses on Section 197 whereby such certificates as true certificates shall be punished in the same manner as he has given or fabricated the false evidence.
Sec 200 deals with whoever corruptly uses or attempts to use any declaration knowing the same to be false in any material point shall be punished in the same manner as if he has given any false evidence.
Committing Perjury On The Witness Stand Or Witness Tampering
False testimony or committing perjury on part of the witness is one of most heinous police corruption.
The Hon’ble Court is likely to believe the version of the police officials. Many cases are dependent on the police officer’s testimony therefore the issue of perjury is extremely important. Due to grave corruption on the part of police officers, thousands of innocent people are convicted by law. There is an entire mechanism which encourages this and it involves influential people including judges and attorneys. This is a disease which has infected the entire system which needs to be rooted out with the enactment of stricter laws.
Sec 191 of the Indian Penal Code, 1860 deals with any person who is legally bound by an oath or any express provision of law to state the truth or to make any statement or declaration, makes a false statement knowingly or believing it to be false. In Baban Singh And Anr vs Jagdish Singh & Ors [1967 AIR 68, 1966 SCR (3) 552], the Hon’ble Supreme Court held that by swearing a false affidavit, the accused makes himself prima facie liable under section 193 read with Sec 191 and 192 of the Indian Penal Code.
In India, the police system highly lacks dedicated officials for providing service to the citizens. Various commissions need to be constituted and need to include honest officials to make the system corruption free. Police officers need to be encouraged and inspired by making provisions of giving awards or incentives to the police officials for their honest conducts.
Police brutality is an example of violation of civil rights, where an officer misuses his power and tortures an individual with a force that is much higher than what is required. This has resulted in various custodial deaths, the record of which is still to be found and to be produced before law. The case of Nilabati Behra v/s State of Orissa & Ors. [(1993(2) SCC 746] is a glaring example of death caused by police brutality. In this particular case the state was held liable and was directed to pay compensation to the appellant. This brutal act of police was regarded as a gross violation of the rights enshrined in Article 21 of the Indian Constitution.
Police brutality also includes negligence on the part of police officers. It is the duty of police to provide proper and reasonable care to every person in his custody immaterial of the fact that he is guilty or innocent. Unnecessary harassment to the person in custody or to any person in general is not accepted and is highly disregarded. Even the person in lock up should be dealt by the police in accordance with the power confirmed on it but not in any way they want. Police officials should refrain from taking action which are prohibited by law and does not fall part of it. In Saheli v/s Union of India [AIR 1990 SC 513], the Supreme Court of India awarded Rs. 75,000 as damages to the mother of the child who died as a result of police beating.
The Supreme Court in series of judgments held the state responsible for police misconduct or abuse of power. It was also held that the doctrine of sovereign immunity cannot be used as a tool for defense in public law, making pecuniary compensation as the golden remedy for violation of fundamental rights. The Supreme Court in Bhim Singh Versus State of J & K. [(1985) 4 SCC 677; AIR 1986 SC 494], directed the State Government to pay a compensation of Rs 50,000 for illegal arrest and detention of Bhim Singh by the police in order to prevent him from attending the Assembly Session.
The brutality of police has to be investigated and reviewed properly. Sec 197 of CrPC which provides certain immunities to the public servants from prosecution, for any misappropriate act done during the discharge of duty, needs to be amended and few stringent laws need to be enacted to check this type of corruption in future. For a civilized society, the courts need to be vested with little more of judicial attention which give them the power to look into every complaint and bring the offenders of police brutality to justice. Strict instructions need to be given to police force that unnecessary use of power cannot save them from the eye of law.
Sec 197 of CrPC also gives power to the Government to interfere by way of giving approval or sanction in case a police official needs to be prosecuted for any criminal action. It is recommended to replace this section in order to reduce the endless abuse of the powers of the Government and to make it absolutely free from any influence.
Bribing And Lobbying
Bribing can be defined as giving or receiving or soliciting, any item of value to influence the action of any person in charge of a public or legal duty. Police officer are often seen compromising on the code of conduct or the security of public and accepts anything in value, or money other than legal remuneration or any remuneration permitted by the government or the organization, for their personal gains.
Getting things done by paying bribes to the police officials, government employees, and officials is the most common form of corruption talked about in our society. Sometimes the police officials are also seen involved in the act of lobbying. Lobbying is asking favor from someone who is influential enough by way of his position or power to introduce or amend any policies for his gain.
They have become like purchasable commodities due to this followed corrupt practice. It is disappointing to note that police officials make rather extort illegitimate money through misuse of their official positions, affecting a large number of citizens who rely on the power and position of the police over years. In India, for violation of petty traffic rules, traffic police demanding higher amount of fines by way of bribe where the legal fine is far too less is the most typical situation.
To avoid situations like this and to stop this form of routinely followed corruption like bribery, the first and the foremost step is for the citizen to get well versed with the motor vehicles act and the amount of fine to be paid for any violation. It is more or less constant all over the country but still it is better to make a note of the different state laws.
Any person in India, committing the offence of bribery, shall be penalized under Indian Penal Code, 1860 and Prevention of Corruption Act, 1988. As per Section 171E of Indian Penal Code, 1860, any person found guilty with the offence of bribery, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both. But if bribery is in the form of treating, for example in food, drink etc, he shall be punished with fine only.
Chapter III of the Prevention of Corruption Act, 1988 also deals with offences and penalties relating to the offence of bribery. Under Sec 7 of the Act, if a public servant is found guilty of taking gratification other than his legal remuneration for official act, that public servant shall be punishable with imprisonment which shall be not less than 6 months but which may extend to 5 years and shall also be liable to fine.
Various other provisions relating to the offence of bribery have been laid down under Sec 8 to Sec 15 of this Act. Under Section 8 of the Prevention of Corruption Act, any person who takes gratification, in order, by corrupt or illegal means, to influence public servant and under Sec 9 of this Act, whoever is caught with the offence of taking gratification, for exercise of personal influence with public servant, shall be punished with an imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Under Sec 10, if any public servant is found guilty for abetment of offences defined in Section 8 and Section 9 shall be punished with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine. Section 12 deals with a public servant who obtains valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant, he shall liable to be punished with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Later, in order to tackle corruption like bribery, a golden step was taken by the Government as more stringent measures The Prevention of Corruption (Amendment) Bill, 2013 was passed which enhances the punishment for bribery, both for the bribe giver and the bribe taker. This amendment enhanced the minimum punishment from six months to three years and the maximum punishment from five years to seven years and the enhancement of maximum punishment to seven years bring corruption of bribe to the heinous crime category.
Unwarranted Surveyillance, Searches And Seizure Of Property
If a police official is under the impression that an evidence of a crime can be found at a particular place, it is his duty to convince a Magistrate or court to issue a search warrant order. By issuing such order, the court authorizes the police officials to conduct a search of a person, property both movables and immovable and to confiscate items.
Section 93 of the Code of Criminal Procedure provides circumstances under which a search warrant can be issued. The place, date and time for conducting the search should be mentioned specifically and clearly in the warrant. It must be conducted in compliance with the provision to Section 100 of the Code of Criminal Procedure, 1973.
Though, police officials, under Sec 165 of CrPC, are empowered to conduct search or surveillance of property, person without a search warrant. It is an exception and is applicable only in case of certain limited emergencies. But in reality, it is sad, how the power given to the police officials under Sec 165 are misused and used as an arbitrary power. In, fact, police officials sometimes use it even as a tool for harassment.
Under no circumstances, the police officials are authorized to conduct unjustified or unreasonable searches. Certain rights are also given to the occupants such as the person can ask for identification, they can even ask for explanation as to why such search is conducted at his property. The police officials are supposed to restrict the surveillance or search to that particular area specified in the warrant and if they go beyond it and search areas that are not specified in the warrant, such search can be rightly challenged by the occupants.
While police is conducting a search or surveillance, the occupant needs to be much alert and at best can demand for the presence of a police officer or few respectable people in that area and his lawyer during the search. It is much needed to have a lawyer present during search or surveillance or seizure. The occupant should ask the police official present during the search to prepare a seizure list and get the same signed by him.
Even technology can be used as remedy as there is always a possibility of planting evidence against the person during the search that can be later used against him in the case. The best option is to video record or filming of the searches. With the advancement of technology, the usage of digital recording has increased and is playing an important role in raising public awareness against police misconduct
Other Illegal Action And Their Remedies
Other misconduct includes selective enforcement, sexual misconduct, off- duty misconduct, influence of illegal substances while on duty and violations of police procedural policies.
Person on custody of police are often seen ill treated and harassed unreasonably. Police officials are involved in various sex related crimes or sexual violence. These types of crimes remain hidden and go unreported. People who are poor, socially or politically marginalized are mainly the victims of police misconduct as they are unable to offer a lump sum as bribe to the police officials and are unlikely to have local politician’s influence who can intervene to secure their release.
Cases of physical harassment and abuse by police are increasing routinely. Guidelines must be established more clearly by the Government for police interference in sensitive cases such as sexual abuse or gender based violence, for protection of privacy of the person reporting such issue, for providing legal and medical services to the victims. The number of women police station needs to be increased to ensure that an appropriate official is available to escort the victim, to record and investigate their case. Government should also look after the promotion opportunities of the women police officials to encourage them.
Sex workers and the members of Hijra community getting harassed unnecessarily by the police officials has become a daily affair. They are often subjected to sexual harassment and beatings for no reason absolutely. The members of LGBT community often become victims of violence mostly extortion and sexual violence by police officials. The government should also make some special provisions to decriminalize consensual homosexual conduct by amending Sec 377 of IPC in order to reduce gender based violence against the members of LGBT community.
As per India’s Juvenile Justice Act, special protections and care should be given to the children. But in reality the children are not even spared from this unreasonable torture by the police officials. They are sometimes subjected to electric shocks and rigorous beatings in order to convince them to confess to the charges that the police officials have fabricated. A detained child must be produced before a special Juvenile Justice Board within 24 hours of such detention.
The Juvenile Justice Board must consists of a Magistrate and two social workers, at least one of whom must be woman. The members of such board must have special knowledge in child psychology or welfare of child. The child so detained must be sent to an observation home for examination and inquiry and be provided with any kind of aid, be it legal, medical or social, as required.
Proper Training, Technical Assistance and Better Standard of Living
There are various other reasons behind police corruption or misconduct. In India, the police officials are often overworked and are provided with minimum standards of livelihood. They are demoralized by limited promotional opportunities and the low ranking officers or junior officers are delegated with menial tasks by the seniors. The inadequacy of equipments and limited resources often become hindrance and prevent the police officials from working promptly.
The recruitment process itself is not flawless and direct recruitments based on recommendations is making the selection system biased. The scarcity of personnel leads to extreme work pressure, stress and exhaustion and this contribute to likelihood of abusive behavior. The government should make some provisions for the advancement and betterment of police system in India such as better standard of living, provision for incentives for good behavior, pay on working overtimes, different educational and recreational programmes.
Police Complaints Authority
In order to keep a check and to curtail the severe problem of police violence or abuse, the Supreme Court of India in Prakash Singh v/s Union of India, [2006 (8) SCC 1], inter alia, instructed the government at state and district level to set up Independent Police Complaints Authority. The main function of these Police Complaint Authorities is to look into the complaints against the police officers. But hardly any actions were taken on the part of State Governments till date due to disinterest on this particular issue. The State Governments must constitute a Police Complaint Authority which should be free from any influence and vested with such legal powers and fruitful resources as are necessary and serve as deterrent to the crooked police official’s misconduct.
Human Rights Commission
The National Human Rights Commission (NHRC) and State Commissions were established for prevention of violations of human rights. On violation of human rights an individual can approach or on its own initiative it can investigate and at any stage of the inquiry. It can recommend for monetary compensation to the victims as interim relief. It may also recommend measures to safeguard the rights confirmed by our Constitution or any law for the time being in force.
It is recommended that the National Commission be empowered to issue binding recommendations to the Governments of the state and the police officials as sometimes award of compensation is not adequate and this in a way prevent the officers who commit crime from being prosecuted in a proper way.
Registration of FIR Regardless of Jurisdiction
Sec 154 of the Code of Criminal Procedure deals with FIR i.e. First Information Report. In the year 2005, it was recommended by the Police Act Drafting Committee that the failure to register an FIR is a criminal offense. Our government should look into this and adopt the recommendation at the earliest in order to ensure the registration of FIR. It is also recommended that the police station must register an FIR regardless of jurisdiction to provide prompt service to the victims.
Involvement of NGOs and Media
In India, NGO’s need to get more involved for providing support and assistance to the victims. Though these days many NGO’s are working for the anti corruption drive and are dealing with sensitive issues such as crime against women, gender based issues etc. Independent media also plays an important role in exposing corruption and bringing awareness among the general public
Police corruption has become a significant widespread issue all over and will continue to affect us all. In fact, in many cases, a citizen who becomes victim of police misconduct or abuse do not even approach police because of their fear and distrust towards them and hence many crimes go unreported, particularly the less extreme ones and victims from marginalized section of our society.
It is saddening to bring to light that police corruption is increasing due to constant interference of the influential section such as the politicians in the working of police. The political pressure on the police officials make them corrupt, dishonest and inefficient.
The authorities who are mainly involved in inquiring, investigating and prosecuting corruption cases of public servant need to be free from all kind of influence and work promptly in order to drive corruption away.
For example the Central Vigilance Commission (CVC), the Central Bureau of Investigation (CBI) and the state Anti-Corruption Bureau.
At the same time to stop this routine corruption, the public need to be much aware of how this system is working and need to be educated on what is happening in the police system. They need to raise their voice against crime and speak out to protect their rights being violated by police officials.
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Bibliogrpahy & Reference
List Of Abbreviations
|SC||Supreme Court Of India|
|CrPC||Code of Criminal Procedure|
|IPC||Indian Penal Code|
|PCA||Prevention of Corruption Act|
Index Of Authorities
- Criminal Manual (Criminal Major Acts) by Justice M.R Mullick
- Professional’s The Constitution of India (Bare Act)
- Our Constitution: An Introduction to India’s Constitution and Constitutional Law by Subash C. Kashyap
- Professional’s Prevention of Corruption Act, 1988 (Bare Act)
- Oxford Dictionary
- Black’s law Dictionary
Table of case laws referred:
|Name of Case Law||Citation|
|D.K Basu v/s State of West Bengal||[(1997) 1 SCC 416; AIR 1997 SC 610]|
|Joginder Kumar v/s State of U.P||[1994 AIR 1349, 1994 SCC (4) 260]|
|Boya Nallabothula Venkateswarlu and Ors Vs. The Circle Inspector of Police, Nandikotkur PS and Ors||[ 2010 (3) U.P.L.J 19 (HC)]|
|R. Rathinam v/s Kamla Vaiduriam||
[1993 CrLJ 2661(Mad)]
|Darshan Singh’s case||[ 1985 Cr LJ NOC 71(P&H)]|
|Baban Singh And Anr vs Jagdish Singh & Ors||
[1967 AIR 68, 1966 SCR (3) 552]
|Nilabati Behera v/s State of Orissa & Ors.||[(1993(2) SCC 746]|
|Saheli v/s Union of India||[AIR 1990 SC 513]|
|Bhim Singh Versus State of J & K.||[(1985) 4 SCC 677; AIR 1986 SC 494]|
|Prakash Singh v/s Union of India||[2006 (8) SCC 1]|
कमेन्ट बाक्स में अपनी व्यथा लिखने वाले सिस्टम से जूझते श्री फिरदोस लालकाका को किन्हीं लाॅ एक्सपर्ट द्वारा अवश्य सहायता देना चाहिए।
There is no express law which allows an occupant to call for the assistance of a lawyer *during* a raid.
My mobile no. is 9824032580
(1) Brief Facts of the incident :
On 13th Nov 2013, my minor son aged 15 years, was mercilessly beaten by his school teacher in the presence of the school principal. The teacher also threatened to kill him. Despite my son’s repeated cries for help, the school principal stood like a mute spectator and enjoyed the show while the teacher continued to mercilessly beat my son.
(2) On 13/11/2013 itself, FIR was registered. Despite my relating the above facts, the police only mentioned one sentence in the FIR stating that “this incident took place in the presence of the school principal”. When I objected to this, another police officer pacified me saying, that this one sentence was enough to implicate the school principal and FIR doesn’t have to be a long and detailed explanation of the incident. Police statement of my victim son was not recorded. (Neither did police record any statement of my wife or elder son. If fact, I didn’t even know that police ought to have recorded their statements too.)
(3) Reaching home after filing FIR, I talked with eye witness students on phone to know what happened. Every student corroborated that despite incident having taken place in presence of school principal, the school principal kept standing like a mute spectator as a result of which the teacher continued to beat my son. These telephone calls were audio recorded by me.
(4) On the same day, in the evening, the Police recorded statements of 3 students under S.161 of CR.P.C. in which the neglectful attitude of the school principal was related in detail.
(5) Despite this, the Police only arrest the teacher u/s 323 and 506(1) of IPC and Sec 23 & 27 of J.J. Act and no charges are filed against the school principal although he is clearly liable u/s 23 of Juvenile Justice Act, 2000 for having neglected a child who was under his care and control while in school.
(6) While meeting the DCP to complain about non-recording of victim’s statement by the police as well as the non-arrest of the school principal, the DCP advised me to write a letter to the PI to send someone to record my son’s police statement. So, I write a letter addressed to Pi Dt 18/11/2013 to send a police officer to record my victim son’s police statement.
(7) Upon the failure of the police to come forward to record my victim son’s statement despite a written request, my son sent the police a type-written letter Dt.25/11/2013 by RPAD giving the detailed factual account of the incident along with a copy of the MLC Report of the hospital which disclosed injuries to my son’s head, abdomen and left knee.
(8)(a) Thereafter, in Dec 2013, police call me one day to see the police investigation papers before they file charge-sheet in Court stating that they were being shown to us before they file them along with chargesheet in court only because DCP (whom we had met earlier) had specifically instructed them to do so. The police papers (which were in Gujarati language) are read out aloud by the I/O and me for the benefit of my wife who could understand but not read Gujarati. This entire meeting too, is audio recorded by me.
(8)(b) Amongst the police papers, we notice police statements of my victim son, my wife and my elder son which had, in reality, never ever been recorded by the police. On confronting the police on these statements, police clarified that these were written out by them of their own accord as per the common police practice of drawing them out based on facts forthcoming in the FIR. Pertinent to note was, that in these police statements, the presence of the school principal was not shown.
(8)(c) The police statements of the 3 witness students are also read out aloud wherein, the detailed role of school principal was mentioned. Despite this, for some reason, police didn’t arrest the school principal. The police statement of the basket coach (which was recorded on 27/11/2013) was also read out aloud. Amongst the police papers, there was a police statement of the school principal as well, but that was not shown to us.
(9) On 3/1/2014, Police filed the charge sheet in court. The Chargesheet did not show the school principal in Col.2 nor was any report filed under S.169 of Cr.P.C.. Although the school principal’s statement formed part of the police investigation papers filed in Court, his name wasn’t even mentioned as a “witness” in Col.4 in the Chargesheet.
(10) I procure copies of these police papers and charge sheet from court on 6/2/2014 and on perusal and comparison with my Dec’13 audio recording (when all police papers had been read out aloud), I was SHOCKED to observe that the “original” witness statements recorded under Sec. 161 of Cr.P.C. by police that were read out aloud to us in Dec 2013 had been destroyed by the police and were replaced with falsified statements wherein the presence of school principal at the time of assault was removed ! It was now apparent that such police tampering was done only to save the powerful school principal of a highly reputed school from being arraigned as a co-accused.
(11) Hence, in conclusion, the entire Chargesheet was standing on falsified police statements under section 161 of Cr.P.C.
(12)(a) Immediately, I brought this police mischief to the notice of my advocate and he suggested that we file an application demanding Further Investigation. However, this advocate, kept me hanging for nearly a year and didn’t make an application demanding Further Investigation. So, I appointed another advocate and moved an application demanding a Further Investigation under Sec 173(8) of Cr.P.C. which was allowed by the Court. A Pen-Drive containing the electronic evidence exposing the police tampering was seized from me by the police while recording my statement under Further Investigation and sent to FSL with a superficial questionnaire.
(12)(b) Police then conduct a biased and shoddy Further Investigation and file their a report in Apr 2016 without confronting the I/O or the witnesses with the audio recordings to investigate into our primary allegation of police tampering as they obviously wanted to save their own officials of this serious offence. And unfortunately, the Court accepted such Police Report instead of rejecting it for having failed to investigate into the serious allegation of police tampering. Despite telling my lawyer to draw the attention of the Judge about failure of police to investigate into our allegation of police tampering despite the Court having specifically directed it to do so, he didn’t draw the Judge’s attention to this. Smelling something fishy, I fired him and hired a new lawyer (third one) and filed a Writ Petition in High Court voicing my grievance wherein, orders were passed giving me liberty to agitate collection of voice samples and tendering of 65-B certificate.
(13) I filed copy of High Court Order and made application for collection of voice samples in Trial Court. And, without passing any order on my application, the Ld. C.M.M. Court committed the case in Jan’17 to the City Civil & Sessions Court stating that as per some State Govt. notification, offence against children are to be dealt with by the specially designated Children’s Court.
(14) After committal of the case to Sessions Court, the Court was vacant for 18 months. Thereafter, when a judge was finally appointed, after adjournments for 6 months, the Sessions Judge advised us to file a fresh application on similar lines stating that he could not pass an order against an application that was not filed in his court. So, a fresh application on similar lines was filed in Dec 2018 demanding collection of voice samples as our entire case of exoneration of school principal was based on electronic evidence which evidenced police tampering. The Sessions Judge then passed orders in Jan 2019 expressing his inability to order collection of voice samples as it would amount to Further Investigation which happened to be beyond his jurisdictional powers in light of a 2017 SC judgement of Amratbhai Shambhubhai Patel and permitted us to approach High Court again. Judge however, directed me to file 65-B certificate.
(15) In compliance or the Order passed by Sessions Court, a Certificate under Sec 65-B of Indian Evidence Act was promptly filed by me in Jan 2019.
(16) Thereafter, filed second Writ in High Court, praying for collection of voice samples (which incidentally was permitted by High Court in our earlier Writ).
While the High Court has verbally agreed to allow collection of voice samples of all the private citizens, it asked me to provide justification for collection of voice samples of police officials. My advocate advised me not to press for collection of voice sample of police officials at this juncture as Courts were always observed to be reluctant to grant such permission without going into factual details which would result in unnecessarily delaying the passing of Order as well as delay the Trial as it would provide the police an opportunity to challenge it. In the opinion of my advocate, once voice samples of my wife, myself, the witnesses, etc. are collected pursuant to High Court Order and once the audio-recordings are authenticated by FSL, we can make Application under Sec. 319 for adding the names of the errant police officials as co-accused for tampering with police investigation papers to save the school principal. Feeling convinced of my Advocate’s opinion, I agreed and thereafter my advocate conveyed to the High Court that we were not pressing for collection of voice samples of the police officials at this juncture. The matter is now reserved for Orders which will be uploaded in few days.
(17) In the meantime, my advocate has also moved two separate applications in Sessions Court – one under section 91 for preservation of CDRs and second under section 193 (both are pending at present) to summon the school principal (placing reliance on Dharampal’s case) stating that this was the right stage to move such application (before Sessions Court commences the Trial de novo on committal and proceeds to take cognisance and frames charges) for issuance of summons in light of perusal of the investigation papers wherein the school principal has escaped being arraigned as a co-accused despite :
(a) one of the witness statement under sec. 161, clearly mentioned that the teacher continued to assault my son even after the school principal rushed to the basketball court (place of offence) on hearing some noises.
[Important Note : Although the Police placed falsified police statements of all witnesses, in one of such falsified witness statements, the above facts remained (probably due to police’s oversight)].
(b) the type-written statement Dt.25/11/2013 of my victim son also forming part of the police investigation papers filed in Court.
Now, Sessions Judge is sitting on both these applications waiting for the order of High Court.
Now, my queries are :
(1) Does police tampering give rise to a separate cause of action for filing another FIR against the police OR should this criminal act be brought to the notice of the Court in the present criminal trial ?
(2) Is my advocate’s opinion of adding the “errant police officials” under Sec.319 correct OR should an application be moved against the errant police officials for subverting the investigation at the present stage when Sessions Court is yet to frame charges ? If this application is to be moved at the present stage i.e. before framing of charge, then under what section of Cr.P.C. can it be moved to ensure that the corrupt police official is also added as an accused ?
(3) I’m aware the application under Sec.193 can be moved on committal of the case to Court of Sessions, and one can only move it based on “police investigation papers” filed in Court. But, in this matter, as the police has filed falsified investigation papers, the truth is lying only within my electronic evidence in the form of audio-recording. So, what is the right stage of agitating this issue of tampering to ensure the corrupt police is made an accused ? Is it Sec.319 or Sec.193 or some other section ?
Ultimately, the Court is responsible to uncover the real truth to ensure a just & fair trial not only to ensure that an innocent is not wrongly convicted but also to ensure that justice is done to the victim by ensuring that the real culprits face punishment.
(4) If involvement of a person as an accused is apparent from police investigation papers the Court has full powers to issue summons under Sec 193. And if summons are in fact issued by the Sessions Court upon the school principal, then the school principal is surely going to move the High Court to quash the summons. If school principal moves High Court to quash the summons, is it at this stage that we can give evidence of police tampering to High Court or will we have to wait till the stage of 319 Cr.P.C. is reached after commencement of trial ?
(5) Is providing a Mirror Image of original device (mobile phone used for audio recording) that is made by an accredited cyber institution acceptable to FSL in place of original device for sending to FSL? This question is being specifically asked as the school principal is highly influential and I apprehend that evidence on my original device (if tendered to FSL) might get tampered to render my evidence as not being admissible.
This article is really helpful.
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