Supreme Court diecrtives regarding arrest of accused by police for offences punishable with seven years imprisonment or less

Supreme Court Guidelines regarding arrests of the accused by the police in cases punishable with 7 years imprisonment or less issued Arnesh Kumar Vs. State of Bihar and Another (Criminal Appeal No. 1277 of 2014):

1.All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

2. All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

3. The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

6. Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

8. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

9. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

10. We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.

Statement of BHRPC on Police Harassment of Its Member

Statement of BHRPC on Police Harassment of Its Member

dated 07-12-2008
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Barak Human Rights Protection Committee (BHRPC), a reputed organisation monitoring and documenting human rights abuse in North East India, expresses its deep concern regarding the incident of police harassment of its member Waliullah Ahmed Laskar in Guwahati, Assam on 4 December 2008. Waliullah Ahmed Laskar is the Liaison Officer and a member of the legal team of the BHRPC.

On 4 December 2008, at approximately 8:00 pm, Waliullah Ahmed Laskar was in an internet cafe in Guwahati when a group of armed police officers from Dispur Police Station, led by the Deputy Superintendent of Police (DSP), entered the café and approached him. The DSP demanded that Waliullah Ahmed Laskar show him what he was downloading, which he did. Waliullah Ahmed Laskar was then held in a police Jeep for 30 minutes while the DSP examined the computer he was using. The DSP and police officers then searched Waliullah Ahmed Laskar´s room and confiscated all of his belongings pertaining to the BHRPC which included documents, his brief cases, laptop, USB flash drive and mobile phone without following legal procedure.

Waliullah Ahmed Laskar was subsequently taken to Dispur Police Station where he was questioned by an officer from Special Branch of Assam Police and a team from the Subsidiary Investigating Bureau and the Intelligence Bureau of the Central Government of India until approximately 2:00am on 5 December 2008. Waliullah Ahmed Laskar was subsequently kept in detention while the police informed him that “experts” from outside of Assam were checking the items which had been confiscated doing away with his presence or that of any independent witnesses. At 9:00pm of 5 December 2008 his items were returned to him and he was released without charge.

Prior to his detention and interrogation Waliullah Ahmed Laskar had been assigned by the BHRPC to prepare a draft Project Proposal on “The Right to Freedom from Torture and Violence: Compatibility of Indian Law and Practice with International Human Rights Standards (focusing on the North East Indian situation)”. As a member of BHRPC he also participates in the ongoing policy making deliberations of the organization. For these reasons Waliullah Ahmed Laskar had been using the internet as his primary source of information concerning violence, torture, terrorism, counter terrorism, policing, human rights etc. The Dispur police informed Waliullah Ahmed Laskar that the basis of his interrogation was his research of information on these topics by internet.

BHRPC believes that the harassment of Waliullah Ahmed Laskar is directly related to his legitimate and peaceful activities in defense of human rights, in particular his research concerning human rights abuses in North East India. We, at BHRPC, are deeply concerned for the physical and psychological integrity of Waliullah Ahmed Laskar and all members of BHRPC and their families. We feel insecure and scared.

We urge the authorities to:
1. Initiate an immediate, impartial and exhaustive investigation into the reports of police harassment against BHRPC member Waliullah Ahmed Laskar;
2. Take all necessary measures to guarantee the physical and psychological security and integrity of Waliullah Ahmed Laskar and all members of Barak Human Rights Protection Committee and their families;
3. Guarantee that human rights defenders in Assam are able to carry out their legitimate human rights activities without fear of reprisals, and free of all restrictions including police harassment.

Issued by
(Neharul Ahmed Mazumder)
Secretary General

LET’S MOURN THE DEATH OF MOYFAR RAJA

WALIULLAH AHMED LASKAR

A vegetable vendor named Moyfar Raja, aged about 45 years, son of late Tajamul Ali, of Village Baldabaldi Part-II, P.O. Jamira under the police outpost of Jamira within the jurisdiction of Katlichera Police Stattion in Hailakandi, Assam was arrested at about 11am on 10 June, 2008 by Pijush Kanti Roy, in-charge of Jamira outpost and allegedly was tortured to death at 5 pm the same day. This information was published in local newspapers on 11 June, 2008.

Having learnt from the newspapers about the incidence, Barak Human Rights Protection Committee formed a fact-finding team. The facts stated herein are based on the preliminary report of that team.

Moyfar Raja, the deceased belonged to the poorest stratum of the society. He worked as a daily wage labourer and sometimes as a vegetable vendor. He was supporting his wife, 3 sons and 3 daughters with livelihood. According to his relatives and neighbours, he was generally a peace loving and law abiding citizen, though there was a police case pending against him.

Family members of the deceased state that he, as usual, he went to Jamira Bazar in the morning on 10 June, 2008 to sell his vegetables. They were later informed that a police team comprising of constable Bashir Uddin and Home Guard Nijam Uddin Laskar led by Sub-Inspector Pijush Kanti Roy, in-charge of Jamira Outpost picked him up. According to them, the police team was going somewhere else but when they saw the deceased they nabbed him. Legal procedure of arrest was not observed properly. Requirements of arrest issued by the Supreme Court of India in D K Basu Vs. State of West Bengal (AIR 1997 SC 610) were not fulfilled. The guidelines regarding arrest issued by the National Human Rights Commission also were not complied with. Even no 'arrest memo' was prepared, it was revealed during the said fact-finding efforts of BHRPC.

Family members of the deceased and his other companion vegetable vendors alleged that the police team started to beat him with cane sticks in front of them. They continued to do so along the way to the police outpost and even in the lock-up. At about 2 pm when his condition became critical due to a serious head injury sustained during the beatings by police, he was taken to Jamira Primary Health Centre. Doctors at the health centre referred him to Hailakandi Sontosh Kumar Roy Civil Hospital due to the seriousness of his condition. Dr. Rehana Begum, a doctor at the H S K R Civil Hospital states that the deceased was received at the hospital at about 5 pm and he was found in coma and it was also observed that he had a serious injury in the head. He died on the stretcher while he was being taken to the ward.

On the other hand, the police alleged that the deceased was wanted in connection with Katlichera police station case No. 70/03 which was registered under sections 147, 148, 149, 323, 427 and 302 of the Indian Penal Code, 1860. There was also a non-bailable warrant against the deceased issued by the Additional Chief Judicial Magistrate of Hailakandi in connection with G R Case No. 545/03, which was registered as a result of the said FIR. Constable Bashir Uddin and home guard Niajm Uddin laskar alleged that soon after the arrest the deceased complained of his ill-health. But there is no answer to the question as to why the deceased was not sent for medical examination and treatment as law also mandates it.

It appears that there were serious charges against the deceased. But allegations of offences, howsoever serious they may be, do not render a person bereft of his basic human rights. Crimes on the person of an accused or suspect are equally prohibited as in the case of any other persons. Facts alleged before the BHRPC team prima facie establish a case of torture and murder attracting punishment under section 302 and 34 of the IPC. Such cases fall under sections 154 and 174 of the Code of Criminal Procedure, 1973. Section 154 mandates the officer-in-charge of a police station to register an FIR on receiving information about commission of a cognizable offence and section 174 enjoins upon such officer a duty to report the case to the nearest magistrate if he receives information that "a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some person has committed an offence" relating to the death. This procedure is prescribed by law to ensure impartial and prompt investigation into the incidence and thus to facilitate the prosecution and conviction of the offender.

This incidence of custodial death amounts to extra judicial killing, which flagrantly violates rule of law, basic features of the Indian Constitution and Articles 21 and 22 of the Constitution as interpreted by the Supreme Court of India.

This incidence is also a gross violation of the international obligation of the state of India, which has bound itself under various human rights treaties and other instruments, such as Articles 3 and 5 of the Universal Declaration of Human Rights. India is a party to the International Covenant on Civil and Political Rights, 1966 and it is the obligation of the state of India under Article 2 of the covenant "to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant". Article 6 of the Covenant recognizes right to life stating, "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." The present case clearly shows the failure of Indian state to respect its obligation under this Article. Moyfar Raja was deprived of his life arbitrarily by its agents. The case also attracts Article 7 of the covenant, which reads, "No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment". The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which India is a signatory, defines torture in its Article 1 as " any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". No further analysis is needed to show that this case falls under the definition. In spite of the fact that torture is universally prohibited, the Supreme Court of India held that the right to freedom from torture is also inherent in Article 21 of the Constitution.

The phenomenon of custodial death was brought before the Supreme Court in many cases. The Court issued 11 requirements to be fulfilled in cases of arrest in order to mitigate this evil in D K Basu Vs. State of West Bengal (AIR 1997 SC 610). While issuing he requirements the Supreme Court observed, "the custodial death is perhaps one of the worst crime in a civilized society governed by the rule of law. The rights inherent in Articles 21 and 22 (1) of the Constitution require to be zealously and scrupulously protected. Court cannot wish away the problem. Any form of torture or cruel inhuman degrading treatment would fall within the inhibition of Article 21 of the Constitution. Whether it occurs during the interrogation or otherwise. If the government becomes law-breakers it is bound to breed contempt for law and would encourage lawlessness to become law unto himself thereby leading to anarchism. No civilized nation can permit that to happen". As stated above the requirements pronounced in this landmark judgment was not observed in the present case. No arrest memo was prepared as it is prescribed in requirement No 2.

The National Human Rights Commission has also dealt with the cases of custodial death and issued guidelines regarding arrest and also prescribed procedure in cases of custodial deaths/rapes. It is obvious that NHRC guidelines regarding arrest were not followed in this case.

Justice M N Venkatachalia, Chairperson (as he was then), NHRC sent letters to all chief ministers vide letter No. No. NHRC/ID/PM/96/57 dated March 27, 1997 reminding them of a circular of the commission issued on the 14th December, 1993 requiring all the District Magistrates and the Superintendents of Police to report to the Commission, incidents relating to custodial deaths and rapes within 24 hours of their occurrence. He also stated that "if post-mortem examination is not thoroughly done or manipulated to suit vested interests, then the offender cannot be brought to book and this would result in travesty of justice and serious violation of human rights in custody would go on with impunity." He continued, "with a view to preventing such frauds, the Commission recommended to all the States to video-film the post-mortem examination and send the cassettes to the Commission." The Commission also prescribed a model autopsy form and additional procedure for inquest, which were annexed to the said letter.

Justice Ranganath Misra, Cairperson of NHRC (as he was then), also sent "letters to Chief Ministers of States on the video filming of post-mortem examinations in cases of custodial deaths" dated August 10,1995. These recommendations require (i) informing NHRC regarding custodial deaths or rape within 24 hours of occurrence, (ii) Vedio-filming of post mortem and (iii) prompt and impartial magisterial enquiry. Usually these requirements are not followed in Assam. If a magisterial enquiry was ordered, the report never sees daylight in most of the cases. Where the report is made public, it happens in rare cases, it is too late to have any effect. Such magisterial inquiry is no longer seen by the people as having trustworthiness. As the saying goes, 'justice should not only be done but it should also seemed to be done', this incidence requires a prompt judicial probe.

Assam minister Ripun Bora arrested

by CBI

Assam education minister Ripun Bora has been arrested by the Central Bureau of Investigation in New Delhi while he was there in the national capital. According to information, the education minister was arrested in connection with a Rs 10 lakh bribery case. Mr Bora was picked up at his residence from Mothura Road. Sources say he was arrested while he was trying to bribe the CBI officer which was probing a murder case of Danial Toppo. Interrogation is on.

Amar Asom journalist Mukul Pathak as also been arrested with Mr Bora. Mukul tried to bribe the CBI men on behalf of the minister.

Source: Assam Times

Police Atrocity and Impunity

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.

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.

ARREST: RIGHTS OF ARRETEE AND DUTIES OF POLICE

ARREST: RIGHTS OF ARRETEE AND DUTIES OF POLICE

By nature human beings are social animals. Without society and company of fellow beings they can not live. As for maintenance and survival of a healthy society discipline and order must be maintained some principles and rules have to be followed by all the members of the society. The rules which are thus recognised and have the sanction of the state can be called laws. The acts in violation of any of such rules of laws may be called crimes. The state mainly performs the task of implementing laws and preventing their violations through the agency of police. The institution of police is a machinery of state for implementing laws, maintaining peace and order in the society by ensuring justice for its each and every member by preventing crimes or acts or omission in violation of law. For this sometimes it has to nab and detain suspicious and anti-social elements. To bring an accused to book with enough evidence is a duty of police. Here comes the mast bitter and unwanted term ‘ARREST. There are many kinds of arrest in legal terminology. But in the popular sense, a detention or restriction of movements of a person by an authority acting with the authority given by law can be called a legal arrest. Here police is the authority to do so in certain circumstances. Those circumstances have been defined by law clearly. Actually a human being can not be arrested as he or she is born free and has his or her birth-right of freedom and more definitely the right to freedom of movement. This right is a natural right and a basic human right which can not be curtailed or infringed. As human rights inhere only in human beings so no animal has been given any of human rights including this right to freedom of movement. When a human being ceases to be a human and his being is possessed by animalist elements he loses his all such rights which are called human rights. Restriction of a person also becomes necessary when his freedom may cause infringement of others freedom. In this way sometimes arrest of a person becomes inevitable. However, arrest is a necessary evil. So when an arrest have to be made it should be made in strict accordance with the law, at least the Constitution of India says so. In the context of India it has to be said that the state of affairs is very sorrowful. The Indian police works still under the colonial Police Act of 1861. With this weapon of mass destruction in its hand the Police strides in a society which is in the extreme verge of explosion as it has been overflowing with corruption and erosion. The transparency International places Police in the first position in the list of bribe-takers in India.

The facts of crossing the Lakshman Rekha (delicate boundary line) and itself breaking laws when police goes to arrest or deal with an accused due to greed of money or being intoxicated by the beverage of power or merely as a habit are not new in India. Custodial deaths in this country can by no means be called rare incidents, they are very much regular. Whereas Article 21 of the Constitution guarantees right to life and personal liberty of every person: “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Article 22 lays down the broad principles of law, to be made and implemented by state, of procedure of arrest. Clause (1) of the Article thunders: “no person who is arrested shall be detained in custody by without being informed, as soon as may be of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice”. Then comes clause (2) with the stricture that “every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without any authority of a magistrate.” But these two clauses have been made inapplicable where the arrestee is an enemy alien or detained under the laws of preventive detention. Torture in police custody and in the time of interrogation including the so-called third degree method is made a crime punishable with imprisonment for seven yours or fine under section 330 of the Indian Penal Code, 1860.

STATEMENT OF BHRPC REGARDING CONTINUED ASSAULT ON HUMAN RIGHTS

STATEMENT OF BHRPC REGARDING CONTINUED ASSAULT ON HUMAN RIGHTS

Barak Human Rights Protection Committee(BHRPC), a human rights group working mainly in southern part of Assam known as Barak Valley, is deeply concerned at the arrest of Lachit Bordoloi, Advisor to the Manab Adhikar Sangram Samiti (MASS), Pradeep Gogoi, the Duliajan correspondent of NETV, Nekibur Zaman, Advocate, Gauhati High Court and Suman Dutta, an employee of Air Deccan. We fear for their safety. It is disturbing that Borodoloi, Dutta and Gogoi have been remanded to 5-6 day police custody by the Sub Divisional judicial magistrate, Kamrup. Nekibur Zaman is in hospital with a leg injury.

The police are accusing them of being involved in a plot of hijacking a flight. But long before Lachit's arrest it was known that the Assam government had decided to detain him. On the 9th of February the police had come to his house and without giving a seizure list confiscated some CDs andhis computer from his residence.

BHRPC wants to remind that this is not the first time that Lachit Bordoloi has been picked up, having been arrested under TADA while it was in operation and on other occasions. Manab Adhikar Sangram Samiti, of which he is the advisor, too has also been at the receiving end of a state onslaught, with its offices being routinely ransacked, and activists threatened.

It is to be noted that Lachit Bordoloi was part of the People's Consultative Group set up in 2005 to initiate discussion between the Government of India and United Liberation Front of Assam. His arrest is another indication of the hard line that the government is adopting towards those who seek to occupy the middle ground. It is also yet another instance, in now linking Lachit to ULFA, of how the pernicious Unlawful Activities Prevention Act, 2004 is being used to choke human rights activity. MASS has over the years been strongly opposing army atrocities, encounters, disappearances in Assam, and together with many other organizations demanding the repeal of the draconian Armed Forces Special Powers Act,1958 (AFSPA). Coming as it does within a few months of the arrest of Dr. Binayak Sen, Vice-President of PUCL, his arrest is clearly part of a concerted strategy, on the part of the state, to silence all democratic dissent and criticism of state policies, especially in conflict areas.



BHRPC Demands:
1. The immediate and unconditional release of Lachit Bordoloi, Pradeep Gogoi, Suman Dutta and Nekibur Zaman;
2. The total repeal of the Armed Forces Special Powers Act, 1958;
3. The repeal of the Unlawful Activities Prevention Act, 2004, and

4. The end to any attempts by the government to muzzle the human rights of the people including the right to freedom of the Press and dissent.

The statement is issued by Neharul Ahmed Mazumder,

Secretary General,

Barak Human Rights Protection Committee,

Sadarghat Road, Silchar-788001

Assam, India

And sent to you by

Waliullah Ahmed Laskar,

Special Representative to Guwahati,

Barak Human Rights Protection Committee,

15, Darandha, Panjabari Road, Six Mile, Guwahati-781037

Assam. Cell: +919854441275

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