An Assam Police personnel posted at Tarapur Police Outpost under Silchar Sadar Police Station in Cachar, Assam on 2 March, 2008 rode a motor bike into the house of Mr. Manik Paul of Rabindra Sarani, Shivbari Road, Tarapur Part-VI, Silchar and grabbed Miss Mamon Paul, a 13 years old girl, by her hand and took her forcibly with him.
The said police personnel was Assistant Sub Inspector Mr. Kshitish Chandra Das who started his mission soon after Mr. Manik Paul, Mr. Pradip Paul and Mr. Sukumar Das of the same address had been sent to the Silchar Medical College and Hospital, Silcharby by the In-Charge of Tarapur Outpost for treatment. They sustained serious head injuries caused by iron rods with which they were severely beaten by Mr. Bhajan Mazumder, Mr.Bokul Mazumder and Mr. Nitu Mazumder, residents of the same locality. It is alleged by Mrs. Shilpi Paul, wife of Mr. Manik Paul, that Mr Bhajan Mazumder and other are rich and powerful persons of the locality due to their affiliation with ruling party of the sate. They had been trying to exclude some people of the area who are supposedly supporters of other political parties from the use of water from a public tape installed and maintained by the Public Health and Engineering Department of the state government. Mr. Bhajan Mazumder and others were threatening women of the families of Mr. Manik Paul and others with dire consequences including grievous hurt and prosecution in case that they would not abstain themselves from fetching water from the tape. The persons threatened complained of the same to the Legal Aid Cell, a local legal aid organization. Rina Paul, a woman from a Paul family, stated that at about 8am on 2 March, 2008 when she and other women were filling their jars with water from the said tape Mr. Bhajan Mazumder and Mr. Bokul Mazumder, both are sons of Mr. Sudhir Mazumder and some other people started to assault the women. At that time some people came to rescue the women who were too beaten by iron rods by the said persons. Mr. Pradip Paul, son of late Pranesh Paul and Mr. Sukumar Das, son of late Naresh Chnadra Das sustained severe head injuries due to the beatings. Ms Rina Paul and others brought the injured to the Tarapur Outpost. Ms Paul further stated that the accused persons were also present there and a police man had conversation with them following which that police man filed a conspiratorial complaint against the injured persons and others who accompanied them.
Mrs. Shilpi Paul, the mother of Mamon Paul, stated that after her husband and other injured persons had been sent to Tarapur Outpost a police man in uniform but without wearing his name plate and cap came to their house with motor bike and forcibly entered in. He asked her daughter Mamon Paul to accompany him and upon her denial he grabbed her by the hands and forcibly making her to sit on the back seat of his bike started away not giving a little heed to her crying. Mrs. Shilpi Paul ran after them crying and screaming. She contacted Mr. Ranjit Bhattacharya and Mrs. Shobha Bhattacharya, President of Cachar Din Mazdur Union and President of All India Democratic Women Association (Tarapur Brach) respectively and informed them of the incident. Then all of them and other persons who came to know about it started to scream and cry. In the hue and cry people of the locality came out and were able to stop the fleeing police man at Sukanta Road, about one kilometer away from the house of Miss Mamon Paul. At the demand of people to disclose his identity the police personnel showed his name plate and told that he was an Assistant Sub Inspector of Police. Nonetheless, the ASI of police tried to go away with the girl. He hurled abuses at the protesting people, bullied them and threatened them that he would arrest all of them if they tried to prevent him. At that time another police constable in civil dress named Mr. Himangsu Das arrived in a motor car and joined the ASI at his attempt to take away the girl. But they failed in the face of resistance put forth by the people.
Mrs. Shilpi Paul filed a complaint regarding the matter with the Superintendent of Police, Cachar and at the advice of N S Gogoi, Deputy Superintendent of Police (Headquarter), Cachar submitted a formal complaint with Mr. Ashok Shaha, officer in charge of Silchar Sadar police station on 3 March 2008. A delegate of the people of Tarapur area led by Ranjit Bhtacharya, President, Cachar Din Mazdur Union and Sumita Bhattacharya, Secretary, AIDWA (Tarapur Branch) met the DSP who assured them of appropriate actions regarding their complaints. But till date no First Information Report was registered against either Mr. Bhajan Mazumder and other accused persons or the two delinquent police personnel.
On the other hand, the same DSP did not admit any delinquency on the part of the two accused police personnel. "When asked about the incident the DSP (Headquarter) laughed it away saying that the two police personnel had just asked eye-witness Mamon to come to the Outpost to interrogate her about the case, nothing more happened", reported Samayik Prasanga, a local daily news paper, on 4 March, 2008. In fact, it is nothing but an effort at covering up the alleged offences of his colleagues. It is a practice of the higher officials of Assam Police to save those who work at the behest of leaders and cadres of the political party in power in contravention of law and in breach of mandatory legal duties violating human rights of the citizens.
Even if the assertion of the DSP that the two accused police personnel just asked Mamon to come to the Outpost is to be supposed to be true for a moment for the sake of argument then this itself violates the Guidelines regarding Arrest. The Guidelines tells that if a woman or a child does not want to go to the police station his or her statement must be recorded at any place other than the police station.
Moreover, there is no purpose to ask her to come to the Outpost without registering an FIR and designating anybody as Investigation Officer. If necessary they could record her statement at her residence. A police officer must wear his name plate clearly showing his name and designation when he is conducting an arrest, investigation or other such procedure as per requirement issued by the Supreme court of India in DK Basu Vr. The sate of West Bengal and Guidelines regarding Arrest issued by National Human Rights Commission. Dispensing with this requirement and the requirement to be accompanied by a respectable local person which are mandatory in law, timing of the visit and other circumstantial evidences clearly establish his criminal intention.
In the course of its fact finding effort Barak Human Rights Protection Committee came across 43 persons all of whom witnessed the desperate efforts made by the said two police personnel to take away the victim girl with them. Their statements in a single voice accuse the police personnel of offences falling under section 34, 448 and 365 read with 511 of the Indian Panel Code, 1860. Both the police personnel made the attempt to kidnap the victim girl in furtherance of their common intention. So, as per section 34 of the IPC each of them is liable for the act in the same manner as if it were done by him alone. There does not arise any question on the entrance of the ASI into the house of Mamon that it was made with criminal intention because the eye witness accounts corroborated by the circumstantial evidences as stated above prove it beyond any reasonable doubt. Entering a house with criminal intention is an offence of house trespass as defined in section 442 calling for punishment under section 448 of the IPC. This is a cognizable offence. The offence of attempt (511) to kidnap (365) is also cognizable.
The complaint about head injuries caused to Mr. Pradip Paul, Mr. Sukumar Das and Mr Manik Paul by Mr. Bhajan Mazumder, Mr. Bokul Mazumder and Mr. Nitu Mazumder with dangerous weapons like iron rods which, if used to its full potential, is likely to cause death and hence comes under section 34, 324 of the IPC. This offence is also cognizable according to the First Schedule to the Code of Criminal Procedure (CrPC), 1973.
There is, therefore, a prima facie case of cognizable offences to be registered by an officer in charge of a police station under section 154(1) of the CrPC which says "Information in cognizable cases. (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf." After the investigation is complete the police have to file charge sheet in the court of the chief judicial magistrate. Then it is up to the judicial authority whether to frame charges against the accused or not. It is not the business of a DSP to pass judgments acquitting the accused without an investigation and hearing the parties. The DSP transgressed his limits of business.
Non-performance of a statutory duty intentionally in disobedience of law by a public servant knowingly to the detriment of any person constitutes an offence under section 166 of the IPC. The complaints suggest that Mr. Satyen Gogoi, the Superintendent of Police, Cachar, Mr. N S Gogoi, the said DSP, and Mr. Ashok Shaha, the officer in charge of Silchar Sadar police station are guilty of this offence.
This offence also constitutes violation of legal rights as well as universally recognized human rights. Where there is a duty there is a correlative right. Duty of the public servants correlates itself with the rights of the public. So breach of duty under section 154 of CrPC amounts to violation of legal rights of the people. It is also evident from the circumstances of the case that some persons, both men and women, who are relatives to the victim girl, were assaulted and subjected to severe injuries with intention to deprive them of the right to use water from a tape installed and maintained for the public at public expenses in collusion with and with abetment o the police. This also amounts to violation of legal rights.
The right to personal liberty guaranteed in Article 21 of the Constitution of India of which no person can be deprived without the procedure established by law was also jeopardized by the said two police personnel by their attempt to kidnap the victim girl which subjected her to physical and mental trauma. This attempt to kidnap was also made in violation of 'the right to liberty and security of person' enshrined in Article 9(1) of the International Covenant on Civil and Political Rights, 1966. India has bound itself legally by the provisions of this treaty and has the legal obligation to enforce the rights as incorporated therein.
The discriminatory treatment of victim parties by the police apparently on the basis of political opinion also violates Article 14 of the Constitution of India which guarantees equality before law and equal protection of law to all persons. This right to equality before law is also provided in Article 14 of the ICCPR, which was violated in this case.
Every right violated gives birth to a new right to remedies. Where there is a right there is a remedy is a basic principle of law. This right is also provided in the Constitution of India in Articles 32 and 226. The Supreme Court and High Courts in India held in many cases that right to remedies is also implied in Article 21 of the Constitution. Article 2(1) of the ICCPR also provides for this right to remedies and prohibits discrimination on the ground of, inter alia, political opinion explicitly. The right to remedies consists of (i) Access to justice by way of an impartial investigation and prosecution and conviction of the violators in a fair trial, (ii) Reparation of the harms done to the victims, and (iii) right to know the truth behind the al relevant matter relating to the violations. Non-registration of the complaints against the accused kills all these rights in the buds and ensures their impunity against the law of the land as well as international human rights law.
Impunity is the failure of the sate to provide to fully investigate the violations, to bring to justice and punish perpetrators, to provide victims with effective remedies and to take all necessary steps to prevent recurrence of the violations. Impunity multiplies violations and it deserves to be dealt with by the iron hands.
Barak Human Rights Protection Committee wrote a complaint o the Deputy Commissioner, Cachar on 11 March, 2008 demanding him i) to register the complaint of the victims as an FIR, ii) to arrest the accused and entrust the investigation of the case to a high level officer and iii) to pay adequate compensation to the victim girl. But no action has still been taken.