“Man is unjust, but God is just, and finally justice triumphs.”- Longfellow
In today’s civilized world the most important function of the State is to provide protection of life, liberty and property to all its citizens by maintaining law and order in the country. Police is one of the vital organs of any State entrusted with this core function through administration of criminal justice by maintaining law and order, and by preventing and detecting crimes through prescribed legal provisions and without curtailing the dignity and human rights of citizens. However, practically the conduct of the Indian police even 70 years after the independence has remained colonial and dreadful towards common man. The phenomena of false arrest by police resulting in wrongful conviction, custodial violence, extortion, corruption and inflicting torture to extract confession have become the accepted, though nightmarish, realities. This undesirable situation not only draws our attention towards the detrimental effect on the life of an innocent individual but also exposes the failure of the criminal justice process.
Implicating innocent people and not detecting and arresting the real culprits is one of the major drawbacks of the Indian policing, where the real criminal goes scot free having the last laugh whereas the innocent as a result of the faulty investigation suffers for the sin he has not committed. There are a variety of factors behind this miscarriage of justice, viz. faulty recruitment; outdated training; lack of investigative skills; incompetence, sloth and procrastination of investigating officer; poor intelligence network; colonial mindset; absence of accountability for high-handedness; vindictive and revengeful attitude; erroneous eyewitness identification/testimony; unsound forensic facilities and corruption, etc., which leads to rounding up of innocent people.
Coping with the pains of imprisonment is the most stressful job for prisoners; the mental deterioration further exacerbated by the unjust nature of their arrest. They face relationship crisis, where on one side they lose their crucial relationships outside the prison and on the other side they have to establish new relationships in the hostile environment of a prison. Such a situation constitutes a massive assault on the victim of wrongful incarceration.
The suffering is not just limited to the wrongly implicated individual. His entire family is affected. They are deprived of the emotional support of their loved one and are forced to bear the disapproval of the society. The situation is worsened if the victim of false arrest is the sole breadwinner; in that case the entire family gets shattered, crippled and abandoned.
Even if exonerated, the ghost of wrongful imprisonment still hounds most of them. The former status as a prisoner instills in them a profound cynicism and mistrust about the fairness and legitimacy of the criminal justice system. Such behaviour prevents them from leading a normal life. Such victims experience loss of freedom, loss of self-esteem and loss of their former identity.
According to National Crime Records Bureau (NCRB), in 2014, 99,30,625 criminal cases were tried in Indian courts, of which trial of 13,41,386 was completed by the end of the year. In 55% of the cases tried, the accused were discharged or acquitted. Such figures prove either the incompetence of the police, or their tendency to file false and fabricated cases resulting in acquittal or exoneration.
Renowned advocate Mohan Shandilya, who is also the senior managing partner of the law firm Chatterjee & Company (Estd.1939), says, “The hopelessly poor rate of conviction in India has made every wrongdoer unfazed because of one sad certainty that nothing will happen to the wrongdoer. The collective arrogance and brazenness of policemen, bureaucrats, lawyers and criminals in this respect get further fortified when they know that they can get away with impunity no matter how grave and serious the crime committed or supported by them. Perjury is a rule rather than an exception.”
He further said, “The malady of false implication has become so deeply rampant and widely practiced that the members of society instead of mustering courage to complain and fight against it are helplessly accepting it as part of life. The common man finds no protection against the wrongful acts of public servants, especially the police.”
Shandilya further said, “There are two provisions – sections 218 and 219 in Indian Penal Code, which was enacted in 1860, almost 157 years ago. Section 218 says, “Public servant framing incorrect or writing with intent to save person from punishment or property from forfeiture”. Whereas, section 219 says, “Public servant in judicial proceedings corruptly making report, etc., contrary to law”.”
“Here point to be noticed is that the word ‘corruptly’ has been deliberately added in section 219, while that is missing in section 218. Why? The obvious reason is an attempt to save the public servants in judicial proceedings; they at that time (in 1860) were only the White Masters from England. The foreign rulers knew it would be almost impossible to prove an act or omission on the part of a public servant as ‘corrupt’. This pernicious provision of penal law continues to protect the present day ‘Brown Saheb /Babus’, who even after the transfer of power retained this wicked shield. As far as section 218 of IPC is concerned, there has been only one case registered under this section during the past 157 long years, and that too against a comparatively petty ‘Patwari’. No one will digest if you say public servants in India have done no wrong in the past 157 years.”
There are limited number of circumstances in which a police officer may effect an arrest, viz. the officer personally observed the cognizance of the crime; the officer has valid cause, information or report to believe that the suspect committed a crime; the officer has an arrest warrant issued by a judge. Whereas, there being no accountability, the policeman is free to implicate any person under any section of IPC at will.
Every year the National Human Rights Commission (NHRC) investigates plenty of cases of police high-handedness, atrocity and torture in police custody, illegal detention, unlawful arrest and false implications, etc. In 1994, the NHRC, on the basis of a press report that appeared in a newspaper dated 10th February, 1994, captioned as “Cops cut off man’s penis”, took cognizance of the incident suo motu and called for a report from the Government of Rajasthan. The State Government sent a preliminary report stating that one ASI and one Constable have been arrested in connection with the incident.
There are a large number of such cases. To mention a few, in May 2014, a 30-year old man was thrashed to death allegedly by six police personnel at Bindapur police station. In January 2015, a 30-year old man died allegedly in custody when he consumed poison while being taken to the Kirti Nagar police station. In April 2015, a 42-year old man allegedly hanged himself at Shakarpur police station after his wife complained against him for intimidation. In September 2016, a 65-year old jeweller had died under mysterious circumstances at his home in Seelampur, a day after he was allegedly tortured by the police at the police station for three days on alleged charges of purchasing stolen jewellery items. In December 2016, at the Adarsh Nagar police station one Sompal aged 24 years reportedly died in the police custody. the SHO with five policemen using official vehicle allegedly dumped a dead body near Majlis Park to pass it off as an unidentified body. The six policemen including the SHO were booked under IPC sections 304, 342, 201 and 34.
According to the recent Supreme Court ruling, the police and the government will now be liable to pay heavy damages if any innocent person is falsely implicated in any case including those of sexual harassment and terror cases.
Upholding a trial court verdict of Additional Sessions Judge Kamini Lau, the Hon’ble Supreme Court held that “the people who are framed up are also victims of crime and hence the authorities are obliged to pay compensation to them for agony and harassment”.
In March 2010, the Hon’ble High Court of Delhi awarded a compensation of `5.62 lakh to one Prempal who was falsely implicated in 18 criminal cases by the police between 1991 and 2007. The Court had also directed the then Delhi Police Commissioner to compensate the victim as well as tender a written apology to him and his family for their suffering.
The case exhibits the vindictiveness and the colonial highhandedness of the Sangam Vihar police, because the accused had dared to take on the local policemen who had allegedly refused to return his household goods which had been stolen from his house and were subsequently recovered by police from the robbers. Prempal then moved to the High Court against the Delhi Police for damages.
“I consider this an eye-opener case, which reveals the manner in which police lets off real culprit and falsely implicates innocent persons, who dare ask for justice or who want erring police officers to be brought to book”, the Court observed. The Hon’ble Court added, “The torture of Prempal has converted him into a living corpse. It is a case which shows that the police force has persons of criminal character in it, who are out to damage the whole institution and need to be weeded out.”
Now, the question arises: who should pay the damages? In Lucknow Development Authority v. M.K. Gupta, 1994 SCC (1) 243, the Hon’ble Supreme Court held the public servant responsible for the injury caused to a citizen due to malicious use of power. The judgment raised important issue of the liability of payment for damages. That is, should the society or the tax payer be burdened for oppressive and capricious act of the public servant or should it be paid by those responsible for it?
After referring to various decisions rendered from time to time quoted by Wade in his book on Administrative Law, Justice R.M. Sahai observed, “Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act or omission or commission, and the consequence of that is an injury to an individual, an action may be maintained against such public officer.”
Appreciating this prudent ruling, the learned Advocate Ananya Bhattacharya questioned, “I fully support this decision but unfortunately how many courts have followed this decision and awarded compensation from the personal assets of the wrongdoer? In fact, false implication of innocent people by police should be considered to be most contemptible, grave and serious crime and the punishment should be no less than 10 years of rigorous imprisonment.”
Ananya further said, “Section 114B (1) of the Indian Evidence Act should be amended and section 18 of MCOCA be repelled. The cardinal principle of law says, presumption of innocence is sacrosanct; “innocent until proven guilty” coined by the English lawyer Sir William Garrow (1760-1840) should be followed in letter and spirit.”
The Hon’ble Supreme Court of India in Perumal v. Janaki (Criminal Appeal No. 169 of 2014) ruled that a policeman would be liable for prosecution if he files a charge-sheet against a person despite knowing his innocence. The Bench of the then Chief Justice of India P Sathasivam and Justice J. Chelameswar was hearing a case related to an all-women police station in Pollachi, Tamil Nadu. On May 28, 2008, one woman Nagal lodged a complaint against a man Perumal that he had indulged in sexual intercourse several times in December 2007, promising her to marry, on account of which the complainant had become pregnant and when she asked the accused to marry he threatened to kill her.
The woman Sub-Inspector Janaki registered a case against the accused under sections 417 and 506(i) of IPC. Nagal was subjected to medical examination by the medical officer Dr. Geetha but she was not found to be pregnant. However, despite this medical evidence, the woman Sub-Inspector chargesheeted Perumal. The accused was tried for the offences mentioned above by the Judicial Magistrate, Pollachi who on March 15, 2010, acquitted the accused of both the charges. The State did not appeal against the verdict. The acquitted person moved the trial court for prosecution of the woman Sub-Inspector under section 190 Cr PC praying that the woman Sub-Inspector be tried for an offence under section 193 of IPC. However, the Court dismissed it on 31-8-2010 saying that the complaint was not maintainable in view of sections 195 and 340 Cr PC. The Madras High Court too refused the appeal. Perumal sought relief from the Supreme Court which entertained his petition and on January 20, 2014, held, “In the case on hand, when the appellant alleges that he had been prosecuted on the basis of a palpably false statement coupled with the further allegation in his complaint that the respondent (Sub-Inspector) did so for extraneous considerations, we are of the opinion that it is an appropriate case where the High Court ought to have exercised the jurisdiction under section 195 Cr PC. The allegation such as the one made by the complainant against the respondent is not uncommon….. The appeal is therefore allowed. The matter is remitted to the High Court for further appropriate course of action to initiate proceedings against the respondent on the basis of the complaint of the appellant in accordance with law.”
On October 2, 2016, a ‘People’s Tribunal’ headed by Justice A.P. Shah, former Chief Justice, High Court of Delhi was organised in New Delhi, on those accused who have been acquitted in terror cases. The Tribunal heard depositions from nine acquitted persons. In its report, Justice Shah observed that one of the biggest pitfalls of arresting a person on malicious and wrongful intent in terror cases is that innocents get behind the bars while the real culprits go scot-free, which can be very dangerous for the society. “We need to improve the efficiency of our investigating agencies to ensure that such pitfalls that have ruined and are still ruining hundreds of lives are removed. The trial in such cases takes seven to eight years or more to complete and by the time the accused is released his or her life is in shambles,” opined Justice Shah citing the case of one Nisar who was acquitted by the Supreme Court in 2016, after spending 23 years in prison.
In Sunil Batra v. Delhi Administration, the petitioner, a convict under death sentence, through a letter to one of the judges of the Supreme Court alleged that torture was practiced upon another prisoner by a jail warder to extract money from the victim through his visiting relatives. The letter was converted into a habeas corpus proceeding. The Court issued notice to the State and the officials concerned. It also appointed amicus curiae and authorized them to visit the prison, meet the prisoner, see relevant documents and interview necessary witnesses. The amicus curiae after visiting the jail and examining witnesses reported that Prem Chand, the prisoner sustained serious anal injury because a rod was driven into that aperture to inflict inhuman torture and as the bleeding had not stopped, he was removed to the jail hospital and later to Irwin hospital. Following this the Hon’ble Supreme Court Bench headed by Justice V.R.Krishna Iyer passed directions to the State for the protection of the prisoners and initiating action against the culprits invoking sections 27, 29 and 61 of the Prisoners Act, 1894, and Punjab Prison Manual, paras 41, 47, 49 and 53.
In Delhi producing undertrial prisoners in courts handcuffed and fettered may not be a common site but by going a few kilometres across the Delhi border in Uttar Pradesh one can see handcuffed prisoners being produced before courts, many of them even fettered. At times four prisoners are brought in one set of handcuffs carried by a single constable.
Whereas, on April 29, 1980, the Bench of the Hon’ble Supreme Court headed by Justice V.R. Krishna Iyer in Prem Shankar Shukla v. Delhi Administration ruled that the collection of handcuff law, namely Prisoners (Attendance in Courts) Act, 1955; Punjab Police Rules, 1934, (Vol.III) Rules 26: 22 (i) ( a) to (f); 26.21 A; 27.12; Standing Order 44, Instructions on Handcuffs of November 1977, and orders of April 1979, must meet the demands of Articles 14, 19, and 21. Iron forced on undertrial in transit must conform to humane imperatives of the triple Articles. Official cruelty, sans constitutionality, degenerates into criminality. Rules, Standing Orders, Instructions and Circulars must bow before Part III of the Constitution.
The Court further observed, “Handcuffing is prima facie inhuman and therefore unreasonable, is over-harsh and at the first blush, arbitrary …. But to bind a man hand and foot, fetter his limbs with hoops of steel, shuttle him along in the streets and stand him hours in court is to torture him, defile his dignity, vulgarize society and foul the soul of our constitutional culture.”
In para 12 of its judgment, the Court ruled, “ Even in cases where, in extreme circumstances handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reasons for doing so, as that can be a mechanical process mindlessly made. The escorting officer, whenever he handcuffs a prisoner produced in court, must show the reasons so recorded to the Presiding Judge and get his approval.”
