Saturday, 29 March 2008

Armed together Against Civil Liberties and Human Rights

Although there is no existence of a single worth-mention indigenous Armed Opposition Group operating in Barak Valley, the southern part of the North Eastern state of Assam in India comprising of Cachar, Karimganj and Hailakandi districts with a population of about four million, it has been notified as ‘disturbed area’ under the infamous Armed Forces (Special Power) Act, 1958. It May not be denied that some members of the AOGs based in neighbouring states of Manipur, Nagaland or other parts of Assam try to use the area as a rest house, however, in most cases in vain mainly due to the fact that people of the area are peace loving and unsympathetic towards violent way of life. 80% of the people depending basically on agriculture are just struggling to survive the odds of weather and fate. They do not nurture any great expectations or exacting demands against the State or God. Are these the reasons why Indira Gandhi dubbed the valley as ‘Island of Peace’?
This ‘island of peace’ has been disturbed now for quite some time as much by the ‘disturbed area’ of the AFSPA as by activities of members of groups believing in Freedom of Assuming Special Powers with Arms. Many a family gets sandwiched between AFSPA and FASPA. This double victimization happens when some members of an AOG in the dead of night come to a house and ask for food, bed and other luxuries at gun points. There is no way out to escape the bullets even in case of hesitance, leave alone the option of denial. In the morning well after they had gone away the state security forces arrive and in the name of search and interrogation they virtually wreak havoc on the lives of the people present in the house. Severe beatings with gun butts and bayonets, destruction of household goods, sexual assault on women and children, humiliation and every other type of torture and other cruel, inhuman or degrading treatment or punishment are meted out. State security forces wear shield of legal impunity by virtue of ASFPA and members of AOG are stripped off any legal garb under the FASPA and no law can touch them. How many of such cases constitute a fit case for application of international humanitarian law?
There is a more terrific development in the situation now. A rapport has been developed, of late, between the members of state security forces and members of certain AOGs. They hatched a conspiracy to cut all tongues and fingers which would move in protest or rise to point the fact respectively and started acting to translate it in reality.
Such a collective effort of Assam Police, Central Reserve Police Force and an AOG come into light with death of Jamir Uddin Laskar, 35 years, of village Boincherra (also known as as Bhaicherra) under the Katlicherra Police Station in the district of Hailakandi in Barak Valley of Assam on 22 October, 2007 at about 10am caused by bullet wound fired upon by five CRPF personnel belonging to E-147 company camping at Gharmura, Hailakandi. According to the eye witness account of the incident the deceased was collecting grass for his cattle from a nearby paddy field when the jawans came accompanied by a villager known as CRPF informer who identified the deceased by pointing his finger and the jawans shot several rounds of bullets at him. The report of Barak Human Rights Protection Committee fact-finding team cites two possible causes of this murder: (i) Jamir Uddin’s elder brother was earlier killed by some members of an AOG and since then he was working actively against the AOG and was vocal against the rapport between the CRPF and that AOG and (ii) there was a family feud between the supposed CRPF informer and the deceased.

This is a case of blatant violation of the inviolable right to life recognized in Article 6 of the International Covenant on Civil and Political Rights to which India is a party and has the obligation under Article 2 of that Covenant “to ensure that any person whose rights and freedoms as herein recognized are violated and shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity”. This right is also guaranteed under Article 21 of the Constitution of India and the right to remedies also flows from this Article. Moreover, in Indian ordinary criminal law this act of murder falls squarely under section 302 of the Indian Penal Code, 1860 and section 174 of the Code of Criminal Procedure, 1973 (CrPC). These sections of law impose a mandatory duty on the police and magistrate to register a First Information Report of the case and hold inquest and other preliminary inquiry. But the CRPF and Assam Police defying the authority of law and slapping on the face of logic registered an FIR against the deceased in Katlicherra police station.

It is a practice followed by the security forces in independent India established by the British police to suppress the freedom movement that if a person is in the hit-list simply go to his home, call him and shoot him to death. Thereafter file an FIR charging the deceased of attempt to murder under section 307 of the IPC and put on record that he was died in an encounter in your exercise of power either conferred by section 100 of the IPC which gives the right to self defence or 46(3) of the CrPC which empowers police to use force necessary to effect an arrest. The question whether the practice has any legality in it came for consideration before National Human Rights Commission in Case No. 234 (6)/93-94. The observation of the Commission deserves to be quoted in extenso: “Section 154 CrPC provides that if information is given orally relating to the commission of a cognizable offence, the officer-in-charge of the Police Station shall reduce it into writing. Section 156 speaks of power of Police officers to investigate cognizable cases. Section 157 provides that if a cognizable offence is suspected from the information received or from other sources, the officer-in-charge of the Police Station shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence and he shall proceed to take up investigation of the case. Section 173 requires the investigation to be completed with expedition and as soon as it is completed to forward the investigation report to the concerned Magistrate. The investigation must be directed to find out if and what offence is committed and as to who are the offenders. If, upon completion of the investigation, it appears to the officer-in-charge of the Police Station that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his executing a bond. If, however, it appears to him that there is sufficient evidence or reasonable ground to place the accused on trial, he has to take necessary steps as provided in Section 170 of the Code. In either case, on completion of the investigation, he has to submit a report to the Magistrate. The report of investigation in such cases should be examined thoroughly by the Magistrate so that complete application of the judicial mind is available to ensure just investigation and upright conclusion. The Magistrate, on consideration of the report, may either accept the same or disagree with the conclusions and call for further investigation as provided in Section 173 (8) of the Code. If the Magistrate accepts the report, he can take cognizance of the offence under Section 190 of the Code.

“Section 157 (1) requires the officer-in-charge of the police station to apply his mind to the information received and the surrounding circumstances to find out whether there is reason to suspect the commission of a cognizable offence which he is empowered under Section 156 to investigate. He cannot mechanically accept the information received. When the information received indicates that death was caused in the encounter as a result of the firing by the Police, prima facie the ingredients of Section 299 IPC which defines culpable homicide are satisfied. This is sufficient to suspect that an offence of culpable homicide has been committed. Thus, Section 157 of the Code is attracted calling for investigation. Any plea like causing of the death in the case does not constitute an offence either because it was done in exercise of the right of private defence or in exercise of the powers of arrest conferred by Section 46 of the Code, can be accepted only after investigating into the facts and circumstances. Section 100 of IPC provides that right of private defence of the body extends to the voluntary causing of death if occasion for exercise of the right falls in any one of the six categories enumerated in that Section. Whether the case falls under any one of the six categories, can only be ascertained by proper investigation. Similarly, when Section 46 (3) of the Code is invoked, it has to be ascertained as to whether the death of the deceased occurred when he forcibly resisted the endeavour of the Police to arrest him and whether the deceased was accused of an offence punishable with death or imprisonment for life. Without proper investigation, the Police officer cannot say that the causing of the death in the encounter was not an offence either because it was done in exercise of the right of private defence or was done in legitimate exercise of the power conferred by Sec. 46 of the Code.

“Section 174 of the Code says that when the Police officer in charge of the Police station receives information that a person has been killed by another, he shall make an investigation about the apparent cause of death and submit a report to the District or Sub-Divisional Magistrate and also to take steps to arrange for the autopsy of the body. These provisions indicate that unnatural death has to be taken note of seriously by the Police and required them to find out by investigation the real cause of death. The responsibility is greater when it is the Police that are the cause of unnatural death. There is also a general feeling that most of the encounters are fake. It is, therefore, in public interest that the conduct of the Police involved is subjected to proper scrutiny by investigation. To avoid the possibility of bias, the investigation in such cases should be entrusted to an independent agency like the State CID by a general order of the Government. We are, therefore, of the opinion that when information is received in the Police Station about the causing of the death by the Police officer in an encounter, the officer-in-charge of the Police Station must, after recording that information, draw the inference that there is reason to suspect the commission of an offence and proceed to investigate the same as required by Section 157 of the Code. If such a procedure is not required to be followed, it would give licence to the Police to kill with impunity any citizen in the name of an encounter by just stating that he acted in ‘the right of private defence’ or under Section 46 of the Code. A procedure which brings about such unjust, unfair and unreasonable consequences cannot be countenanced as being within Article 21 of the Constitution.”

There is another more recent case of blatant disregard of law and human rights which, on the other hand, concretely establishes the theory of rapport between security forces and AOGs. On 19 March, 2008 at about 10.30 pm one Gypsy and two 407 truck-ful of CRPF personnel belonging to 147 battalion camping at Kashipur, Cachar along with Mr. S C Nath, an Assistant Sub Inspector of Police posted at Borkhola police station in Cachar, came at Behara Bazar under the jurisdiction of Katigorah police station, Cachar and picked up Mr. Ranjit Roy, Mr. Birbikram Deb and Mr. Raju Kar at gun point.

These three youth are ordinary residents of Behara Bazar and by occupation businessmen with small shops at the bazaar. As usual they were shutting the shutters of their shops after the day's drudgery to go home when they were accosted by the said security forces. The CRPF personnel started to beat them with gun butt and bayonet inflicting intentionally severe pain causing sufferings and hurts on their persons apparently to intimidate them and rob them of their belongings. When at the scream of the victims people started to come out and gather around the scene the CRPF men took them aboard a vehicle and went away.

They went to an adjacent temple named Loknath Mandir at Nilcherra and woke up Mr. Sandipan Chakrabarti and Subir Guha, drivers of the temple, who were asleep there. Here also the CRPF jawans applied their gun butts and bayonets causing more serious injuries to both the said persons with intention to force them to board a vehicle at which Mr. Swapan Bhattacharya, the priest of the temple, protested. Abuses and intimidation were also hurled at him. But on the possibility of waking up nieghbourhood people by this hullabaloo the CRPF personnel left these two victims.

Now they went with the first mentioned three victims not to the Katigorah police station under which jurisdiction they were in action but to the Borkhola police station and tried to persuade Mr. Ajijur Rahman, the Officer in Charge of the police station, to register an FIR against the victims by producing six fresh bullets and claiming that these had been found with the victims. After interrogation Mr. Ajijur Rahman denied to admit the CRPF theory that the victims belonged to any non-state armed organizations as well as to frame them as such. But Mr. Ajijur Rahman himself detained the victims illegally for the whole night instead of making arrangement for their medical treatment. He acted in contravention of strictures of the law of the land and international human rights law, perhaps, as well-known practice of Assam Police suggests, for a few thousand rupees from the victims.

There was an eerie environment of fear and tension everywhere in Barak Valley when the news reached people the next morning. Despite this, some individuals and organizations including Barak Human Rights Protection Committee came into action and contacted senior police officers and the Deputy Commissioner of Cachar. The five victims were sent to the Silchar Medical College and Hospital, Silchar for treatment.

ASI S C Nath stated on 20 March, 2008 at the Office of the Superintendent of Police in the presence of media and social and human rights activists that CRPF personnel themselves had kept the bullets in the pockets of the victims forcibly. Senior CRPF officer S S Bohar made himself present at the SP office a little later and apologized to the people for the incident of the day before. He admitted that CRPF acted wrong information and also promised that there would be an inquiry into the matter. SP, Cachar also promised to take necessary actions in this regard.

On the other hand, Mr. Biswajit Sinha, the OC of Katigorah police station denied to register the complaints filed by the Mr. Ranjit Roy and his two companion victims and by the authority of Nilcherra Loknath Mandir as FIRs. Mr. Ranjit Roy and others alleged in their complaints that Mr Tapan Deb, Mr. Sujit Deb of village Dinanathpur and Mr. Sanjay Mahato of village Chayaranbasti were behind the whole incident. Local people alleged that these three persons are known as CRPF informer as well as members of an AOG having a camp in the area. Mr. Kanailal Bhattacharya, joint secretary of Desh Bondhu Club, was called on his cell number 94353 72029 from +9194356 66043 at 6. 57 pm on 21 March, 2008 and threatened with death apparently for his co-operation with BHRPC fact-finding team. The caller was Tapan Deb and the number from which the call was made is usually used by local chief of the AOG, Mr. Bhattacharya alleged. He also claimed that Mr. Tapan Deb, Mr. Sujit Deb and Mr. Sanjay Mahato have been using the AOG camp as their hideout. Local people also alleged that Mr. Haidar Hussain Laskar, an ASI at Behara Outpost works as an informer of the AOG more than as a police officer on the ground that if he was given any information regarding the trafficking of arms and ammunitions and other illegal activities of the AOG he cautions them instead of taking any actions against them.

In the complaint Mr. Ranjit Roy, Mr. Birbikram Deb and Mr. Raju Kar also alleged that the CRPF personnel took away rupees 2,275.00 (two thousand two hundred and seventy five) only, rupees 6,000.00 (six thousand) only and a wrist watch and rupees 2,320.00 (two thousand three hundred and twenty) only from them respectively at gun point.

The victims and local people alleged that this incident is only a spoke in the larger ring of the conspiracy between the men holding arms, legitimately or illegitimately, against the civilians to extort and exploit them and to ensure permanence of this terror regime by setting example of the persons who might dare to protest. Efforts of fabricating evidence by keeping bullets in the pockets of the victims and producing them at the police station and of efforts of framing them at least under section 122 of the Indian Penal Code, 1860 intending to procure their conviction under that section attract section 195 of the IPC which is a non-cognizable offence. The CRPF personnel attempted to institute a criminal proceeding on the false charge of collecting arms with intention of waging war against the government of India. This attempt also amounts to a non-cognizable offence as per law laid down in section 211 read with sections 511 and 195 of the IPC. The threatening phone call to Mr. Kanailal Bhattacharya reinforces the conspiracy theory of the local people and sections 120B and 34 of the IPC come into play.

Fist of the many offences committed by CRPF and AP personnel that day is the criminal trespass fitting squarely under section 447 of the IPC. If they were to arrest the victims on a reasonable suspicion they should have procured warrant and informed the concerned police station and made themselves accompanied by a responsible officer of that police station and a respectable local citizen. They did nothing of the sorts. So they entered the property of the victims with criminal intention.

Further, they picked up the victims at gun points committing contempt of law of the arrest as established by international human right treaties and customary laws, the Constitution of India, the CrPC, 1973 and the mandatory requirements issued by the Supreme Court of India and Guidelines regarding arrest issued by the National Human Rights Commission. Their beatings by bayonets and gun butts causing acute pain and serious injuries to the victims not only violate UN Code of Conduct for Law Enforcement Officials but also come under section 325 of IPC at the least. This act of violence by security forces also fits in the definition of torture given in Article 1 of the United Nations Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment to which India is a signatory. Such torture is also prohibited by Article 7 and 10 of the International Covenant on Civil and Political Rights to which India is a party. Torture also violates right to life under Article 21 of the Indian Constitution as held by the Supreme Court in numerous judgments.

The act of dacoity alleged in the complaints of the victims is a serious crime falling under section 395 which is cognizable, non-bailable and punishable with imprisonment for life or rigorous imprisonment for10 years or fine. Illegal detention of the victims at Borkhola police station by the OC also constitutes the offence of wrongful confinement under section 344 of the IPC.

So there appears a prima facie case against ASI S C Nath, CRPF personnel taking part in the 'operation' and supposed CRPF informers under sections 120B, 34, 447, 193, 325, 395, 506, 342 and 211 read with 511,155 of the IPC. Many of the offences are serious and cognizable.

Section 154 of the CrPC imposes a duty on an officer in charge of a police station to register the complaint in a proper form if he gets information regarding commission of a cognizable offence. The OC, Katigorah P.S. failed to perform intentionally this statutory mandate by denying to register the complaints of the victims. This, in turn, attracts section 166 of the IPC which lays down offence of disobeying law by public servant with intent to cause injury to any person.

This is a practice on the part of the security forces to maintain a de fecto regime of impunity for their delinquent colleagues. Impunity encourages repetition of the crimes and violations of human rights. So no violation is to be let to go unattended. Wherever there is a violation of a right there accrues a new right to remedies. Indeed the right to remedies is the most important human right. The International Covenant on Civil and Political Rights provides this right in Article 2. The UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment contains it in Article 14. The Constitution of India guaranteed the right to remedies in Articles 226 and 32 under which the Supreme Court and High Courts of India held that this right is also implicit in Article 21. Right to remedies include (a) access to justice consisting of impartial investigation of the complaint and prosecution and conviction of those found guilty in a fair trial, (b) reparation for harm suffered and (c) right to know the truth about the violations.

In which way the people should go for enforcement of their rights and exercise of liberties? The Gandhi way or the Mao way? 6 years of fast unto death of Irom Sharmila is not a very inspiring case in all respect. But it is always good to strive for apparent impossible and unattainable.

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