INDIA: A man remanded in custody without charge

Dear friends,

The Asian Human Rights Commission (AHRC) has received information from the Prahar, a human rights organisation based in Assam, India regarding the case of Mr. Elento Tripura. Elento was taken into custody from his home on 9 November 2007 for unknown reasons and is now being held in judicial custody.

CASE DETAILS:

Mr. Elento Tripura is a resident of Debendra Karbari Para village within the jurisdiction of Chawmanu Police Station in Dhalai district of Tripura state. Tripura is one of the northeastern states in India near Bangladesh. On 9 November 2007 at about 11am Elento was taken into custody from his house. Police officers stationed at Chawmanu Police Station came to Elento’s house as a part of their combing operation. The officers were led by the Officer in Charge Mr. Sidhartha Sankar Choudhary stationed at Chawmanu Police Station.

The officers started questioning Elento whether he was involved in helping the cardres of some extremist organisations operating in the area. Elento denied any of such involvement. He also informed the officers that he is an innocent person and as the officers could make out from the condition of his house, a very poor person living under the poverty line. Elento also explained to the officers that he is regularly employed by the local administration for development programmes through the National Rural Employment Programme.

The officers refused to accept the explanation given by Elento and took him into custody. The officers took Elento to Chawmanu Police Station for interrogation. Elento’s parents followed him to the police station. At the station, Elento’s father Mr. Lalit Mohan, met police officer Mr. Gamonjoy Reang. Lalit pleaded with the officer that his son is innocent and that the family is very poor and his son is the only source of income for the family and not to implicate him in any crimes without evidence. The officer refused to accept Lalit’s plea.

Elento was produced before the Chief Judicial Magistrate on 10 November 2007. It is reported that the police could only inform the court that the reason for Elento’s arrest is mere suspicion. The court however did not release Elento, but remanded him to judicial custody and send Elento to the Kailashahar District Jail. Since then Elento is in remand custody without being released on bail. Elento’s family being poor, Elento is denied any legal help. Elento has a brother and a sister. The family survives with the help of the government sponsored development schemes like subsidised ration and the occasional earnings from the employment provided through the government sponsored rural development programmes.

ADDITIONAL COMMENTS:

This case is a typical example of how investigation of a crime is carried out in India. Ideally, the investigating agency must take a person into custody only when the investigating agencies have reasonable suspicion regarding the person’s involvement in the crime or in cases where the investigating agencies can reasonably prove that the suspect in question is likely to interfere with the witness in the case or destroy the evidence in the case. In Elento’s case none of these circumstances arise.

It is common practice in India that a person under investigation is arrested the moment a crime is registered. Registering a crime is an act to be carried out by the law enforcement agencies with due caution and care. The existing law in India, the Criminal Procedure Code, 1973, does not require the law enforcement agencies to register a crime the moment a complaint is filed. The crime is to be registered only when a reasonable case is made out. The probability of the crime is a subjective quotient, which has to be determined after proper investigation of the case.

Such investigation before the registration of a crime does not often happen in India. Often the purpose of an investigation is to extract the confession of a detainee who has been arrested, which is frequently obtained through torture, for a crime that the person has probably not committed, even though confession statements, unless proved otherwise through a legal process, is not acceptable in criminal trials in India. However, most criminal cases filed in the court and the investigation of the case are based on confessions statements. In the process of extracting a confession, the law enforcement agencies resort to the use of violence. As of now, in India, torture is not defined as a crime. There are no investigation mechanisms in India that could independently investigate complaints of torture.

Registration of cases and crimes is a function widely misused by the law enforcement agencies in India. Often at this stage of a case the law enforcement agencies make use their discretion, not to discharge their duties, but to make use of it as an opportunity to demand bribes. There are repeated reports from India that the law enforcement agencies often refuse to register cases, unless they are bribed. There is also equal number of cases where the law enforcement agencies have been reported to be misusing their authority in registering cases without valid reasons. In short, at the very inception of a case the justifiability quotient is left at the mercy of a corrupt law enforcement officer who decides whether to register a crime or not. This neglect and willful misappropriation of official authority result in mistrials. However, in India, this abuse of the process of law is tried to be contained through a convoluted process of fastening non-retractability to statements made by the law enforcement officers at the time of investigation.

Such an amendment is sought to be brought in the Criminal Procedure Code in India. This is a shortsighted approach, particularly when the law enforcement agencies have a tendency to make up witness statements. It is a common practice in India for the law enforcement officers to get signatures from persons arraying them as witnesses and later writing down statements at the officers’ will to suit the alleged confession statement made by the accused who is already in their custody.

Most witnesses, who might not have witnessed the crime, are later summoned to the court, that too after years of delay, only to retract their statement in the court, resulting in an acquittal of the accused. In short, what happens in the court is often an exercise where the presiding officer refusing to convict an accused due to the non-sustainability of the prosecution case. Such lopsided investigation of cases has not only allowed the law enforcement agencies to accuse any one at their will as an accused in the case, but also has demoralised the prosecution as well as the society.

For an ordinary person, devoid of any financial capacity, to contest a case or to bribe the law enforcement officer, the days that he spends in custody remains an unanswered or non-compensated issue, even though he or she has been released after years of under trial detention. As of now in India, the number of under trial detainees is alarmingly high in comparison to the convicts. These misuses of process of law have not only resulted in clogging of the justice system in India, but also in diffusing the confidence of the ordinary person in their justice systems.

SUGGESTED ACTION:
Please send a letter to the relevant authorities mentioned below urging for an immediate and thorough investigation into this case. The AHRC is also writing to the UN Working Group on Arbitrary Detention calling for an immediate intervention in this case.

To support this case, please click here: SEND APPEAL LETTER