Dear friends,
The Asian Human Rights Commission (AHRC) has received information from Banglar Manabadhikar Suraksha Mancha (MASUM) concerning the abduction by the West Bengal state police of three persons from west Midnapore district. It is reported that the police abducted Mr Kishor Krishna Mahato, Mr Dulal Mahato and Mr Abani Mahato on 6 and 7 September respectively and since then, their whereabouts not known. The families fear that the three may be subjected to torture at the hands of the police and may even be murdered extra-judicially. It is often the practice in similar cases in India, which is commonly known in India as encounter killings. If one need to assume that the police have in fact arrested the three persons, at the very least, such arbitrary arrest and detention violates the law. Of the three persons, Dulal and Abani are just 19 and 16 years old.
CASE NARRATIVE:
Case 1. Mr Kishor Krishna Mahato, alias Kajal, is about 45 years old and is the son of Mr Prafulla Mahato. Kishor is from the backward caste (known as OBC in India) and resides at Pata Shimul village within the jurisdiction of Jhargram Police Station in West Midnapur district.
It is reported that on 7 September 2011, at about 5 pm, the state police and a team of state security service officers named “Joint Forces” brutally assaulted Kishor in full public view at Khanarbandi market. Kishor was in the market to buy groceries and vegetables. It is reported that after the assault, the police took Kishor away. He has been missing ever since. The officers, reportedly 12-14 in number and armed, were in their uniform. They took Kishor away in a prison van. The event happened in full public view in front of all the persons who were present at the market at the time.
Coming to know about the incident Kishor’s wife Sabitri, along with some people from her locality, rushed to Belabera Police Station to enquire what had happened to her husband. However, the sentry and other police officers did not let them inside the police station. The officers also refused to provide any information as to what had happened to Kishor, why he was tortured and where he is detained and for what reason.
It is reported that, at least until MASUM prepared this case report, that is till 9 September 2011, after about 48 hours since the arrest, the police have not produced Kishor before the local magistrate. It is reported that Kishor was involved in activities and was campaigning against the corruption that the former political party in power in the state, the Communist Party of India – Marxist (CPI-M). Kishor is close to the Trinamool Congress, the political party in power in the state. It is also reported that the Maosits operating in the state had assaulted him in the past. Kishor is an active campaigner of the Jharkhand culture and language movement.
Case 2. Mr Dulal Mahato is 19 years old and the only son of Mr Bhabesh Mahato. Dulal is also from the backward community. Dulal is a resident of Ghritokham village, under the jurisdiction of the Jhargram Police Station of West Midnapur district.
It is reported that a day before Kishor was assaulted and abducted by the police, on 6 September 2011 at about 7 pm the police and the members of the ‘joint forces’ from his house. The incident happened when Dulal was at his home along with his parents. It is reported that the police and the members of the ‘Joint Forces’ surrounded Dulal’s house, marched into the house and then indiscriminately assaulted Dulal. Dulal’s parents witnessing the incident tried to intervene and save their child from the police. The police however did not stop and went away with Dulal.
Dulal’s parents enquired about their son at the Jhargram Police Station and at the Manikpara Beat House. However they could not find Dulal in any of these establishments. Finally Dulal’s parents went to the Jhargram Sub-divisional Court on 8 September 2011 thinking that he would be produced in court. But the authorities did not produce Dulal in court. The parents do not know where their son is, why he was assaulted and for what reason the police took him away. As it is in the case of Kishor, Dulal’s parents also fear for their son’s life and believe that he is in danger.
Case 3. Mr Abani Mahato is 16 years old and hence a minor. He is the son of Mr Anghad Mahato. Abani is also from the backward community. He is a resident of Baddhanath Dighi village within the jurisdiction of Jhargram Police Station in West Midnapur district. Abani is a student of class X.
It is reported that the police and the ‘joint force’ abducted Abani from his house on 6 September 2011 from his house. The incident happened at about 10 pm. Abani was home along with his parents when the incident happened. As it was in the case of Dulal, the officers assaulted Abani before taking him away. Neither Abani, nor his parents were informed why he is taken away, assaulted and to where. As it is the case of Dulal, Abani also was not detained at the police station or produced at the court. Abani also is not detained at a juvenile home, which should have been the place for the police to detain him since he is a minor.
It is suspected that the police officers and other state security agencies behind the arrest of all the three persons are one and the same.
ADDITIONAL INFORMATION:
Chapter V of the Criminal Procedure Code, 1973, Act number 2 of 1974, governs the arrest of a person in India. The interpretation of Section 41 of this Act by the Supreme Court of India in Joginder Kumar vs. State of UP, 1994 Cr. L.J 1981 at pp. 1986 is that a person is not liable to be arrested merely on the suspicion of complicity in an offense. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in cases of heinous, an arrest must be avoided.
Section 41-B prescribes the procedure of arrest and the duties of the officer making arrest. The Section mandates every police officer who makes the arrest to: (a) bear an accurate, visible and clear identification of his name which will facilitate easy identification; (b) prepare a memorandum of arrest which shall be — (i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made; (ii) countersigned by the person arrested; and (c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.
Section 49 prohibits the use of unnecessary restrain at the time of making arrest. The law only allows for the use of such restraint that is required to prevent the escape of the person. In the three instances relating to this appeal, it is reported that all three victims were brutally assaulted by the police at the time of arrest. It must be noted however that since the police did not inform anyone, including the three victims, whether they are arresting the three persons, and since there are no records about their detention at the police stations, the case is no more of illegal detention, but that of abduction as defined in Section 362 of the Indian Penal Code 1860. Should such abduction be for the purpose of questioning or for obtaining leads to the investigation of any crime, it is also prohibited by the Penal Code under Section 348, an offense punishable with three years’ of imprisonment. Section 339 of the Penal Code deals with wrongful restraint, which is also an offence punishable with imprisonment.
Section 50 of the Criminal Procedure Code deals with the rights of an arrested person. The officer making the arrest without an arrest warrant, has to inform the detainee about the complete details of the offence for which the person is arrested or other grounds for such arrest. Section 50-A of the Procedure Code mandates (1) every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information; (2) the police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station; (3) an entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government; (4) it shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.
Section 56 and 57 of the Criminal Procedure Code requires the police to produce the person detained or arrested before a Magistrate and not to exceed the time to produce the person before the Magistrate beyond 24 hours without an approval from the Magistrate.
The police have negated all the above procedures in this case.
Above all, the families have a right to know where their relatives are held and on what reasons. The victims on the other hand, have a definite right not to be tortured and further to be produced before a judicial officer, within 24 hours after arrest.
SUGGESTED ACTION:
Please write to the authorities listed below asking for their urgent intervention in this case. The AHRC is also writing a separate letter to the UN Special Rapporteur on Torture calling for an intervention in this case.
To support this case, please click here: SEND APPEAL LETTER
SAMPLE LETTER
Dear __________,
INDIA: Abduction of three persons from West Midnapur by the state police must be investigated
Name of victims:
1. Mr Kishor Krishna Mahato, alias Kajal, aged 45 years, son of Mr Prafulla Mahato, Pata Shimul village, under the jurisdiction of Jhargram Police Station, West Midnapur District, West Bengal
2. Mr Dulal Mahato, aged 19 years, son of Bhabesh Mahato, Ghritokham village, under the jurisdiction of the Jhargram Police Station, West Midnapur District, West Bengal
3. Mr Abani Mahato, aged 16 years, son of Anghad Mahato, Baddhanath Dighi village, West Midnapur District, West Bengal.
Alleged perpetrators: West Bengal state security agencies stationed at Jangal Mahal and police officers from Jhargram Police Station West Bengal
Date of incident: 6 and 7 September 2011
Place of incident: West Midnapur District
I am writing to you concerning the case of alleged abduction of three persons from West Midnapur District, by the state security forces and the local police. It is reported that the police abducted Mr Kishor Krishna Mahato, Mr Dulal Mahato and Mr Abani Mahato on 6 and 7 September respectively and since then, their whereabouts not known. The families fear that the three may be subjected to torture at the hands of the police and may even be murdered extra-judicially. It is often the practice in similar cases in India, which is commonly known in India as encounter killings. If one need to assume that the police have in fact arrested the three persons, at the very least, such arbitrary arrest and detention violates the law. Of the three persons, Dulal and Abani are just 19 and 16 years old.
Case 1. Mr Kishor Krishna Mahato, alias Kajal, is about 45 years old and is the son of Mr Prafulla Mahato. Kishor is from the backward caste (known as OBC in India) and resides at Pata Shimul village within the jurisdiction of Jhargram Police Station in West Midnapur district.
It is reported that on 7 September 2011, at about 5 pm, the state police and a team of state security service officers named “Joint Forces” brutally assaulted Kishor in full public view at Khanarbandi market. Kishor was in the market to buy groceries and vegetables. It is reported that after the assault, the police took Kishor away. He has been missing ever since. The officers, reportedly 12-14 in number and armed, were in their uniform. They took Kishor away in a prison van. The event happened in full public view in front of all the persons who were present at the market at the time.
Coming to know about the incident Kishor’s wife Sabitri, along with some people from her locality, rushed to Belabera Police Station to enquire what had happened to her husband. However, the sentry and other police officers did not let them inside the police station. The officers also refused to provide any information as to what had happened to Kishor, why he was tortured and where he is detained and for what reason.
It is reported that, at least until MASUM prepared this case report, that is till 9 September 2011, after about 48 hours since the arrest, the police have not produced Kishor before the local magistrate. It is reported that Kishor was involved in activities and was campaigning against the corruption that the former political party in power in the state, the Communist Party of India – Marxist (CPI-M). Kishor is close to the Trinamool Congress, the political party in power in the state. It is also reported that the Maosits operating in the state had assaulted him in the past. Kishor is an active campaigner of the Jharkhand culture and language movement.
Case 2. Mr Dulal Mahato is 19 years old and the only son of Mr Bhabesh Mahato. Dulal is also from the backward community. Dulal is a resident of Ghritokham village, under the jurisdiction of the Jhargram Police Station of West Midnapur district.
It is reported that a day before Kishor was assaulted and abducted by the police, on 6 September 2011 at about 7 pm the police and the members of the ‘joint forces’ from his house. The incident happened when Dulal was at his home along with his parents. It is reported that the police and the members of the ‘Joint Forces’ surrounded Dulal’s house, marched into the house and then indiscriminately assaulted Dulal. Dulal’s parents witnessing the incident tried to intervene and save their child from the police. The police however did not stop and went away with Dulal.
Dulal’s parents enquired about their son at the Jhargram Police Station and at the Manikpara Beat House. However they could not find Dulal in any of these establishments. Finally Dulal’s parents went to the Jhargram Sub-divisional Court on 8 September 2011 thinking that he would be produced in court. But the authorities did not produce Dulal in court. The parents do not know where their son is, why he was assaulted and for what reason the police took him away. As it is in the case of Kishor, Dulal’s parents also fear for their son’s life and believe that he is in danger.
Case 3. Mr Abani Mahato is 16 years old and hence a minor. He is the son of Mr Anghad Mahato. Abani is also from the backward community. He is a resident of Baddhanath Dighi village within the jurisdiction of Jhargram Police Station in West Midnapur district. Abani is a student of class X.
It is reported that the police and the ‘joint force’ abducted Abani from his house on 6 September 2011 from his house. The incident happened at about 10 pm. Abani was home along with his parents when the incident happened. As it was in the case of Dulal, the officers assaulted Abani before taking him away. Neither Abani, nor his parents were informed why he is taken away, assaulted and to where. As it is the case of Dulal, Abani also was not detained at the police station or produced at the court. Abani also is not detained at a juvenile home, which should have been the place for the police to detain him since he is a minor.
It is suspected that the police officers and other state security agencies behind the arrest of all the three persons are one and the same.
I wish to recall your attention to Chapter V of the Criminal Procedure Code, 1973, Act number 2 of 1974, that governs the arrest of a person in India. The interpretation of Section 41 of this Act by the Supreme Court of India in Joginder Kumar vs. State of UP, 1994 Cr. L.J 1981 at pp. 1986 is that a person is not liable to be arrested merely on the suspicion of complicity in an offense. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in cases of heinous, an arrest must be avoided.
Section 41-B prescribes the procedure of arrest and the duties of the officer making arrest. The Section mandates every police officer who makes the arrest to: (a) bear an accurate, visible and clear identification of his name which will facilitate easy identification; (b) prepare a memorandum of arrest which shall be — (i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made; (ii) countersigned by the person arrested; and (c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.
Section 49 prohibits the use of unnecessary restrain at the time of making arrest. The law only allows for the use of such restraint that is required to prevent the escape of the person. In the three instances relating to this appeal, it is reported that all three victims were brutally assaulted by the police at the time of arrest. It must be noted however that since the police did not inform anyone, including the three victims, whether they are arresting the three persons, and since there are no records about their detention at the police stations, the case is no more of illegal detention, but that of abduction as defined in Section 362 of the Indian Penal Code 1860. Should such abduction be for the purpose of questioning or for obtaining leads to the investigation of any crime, it is also prohibited by the Penal Code under Section 348, an offense punishable with three years’ of imprisonment. Section 339 of the Penal Code deals with wrongful restraint, which is also an offence punishable with imprisonment.
Section 50 of the Criminal Procedure Code deals with the rights of an arrested person. The officer making the arrest without an arrest warrant, has to inform the detainee about the complete details of the offence for which the person is arrested or other grounds for such arrest. Section 50-A of the Procedure Code mandates (1) every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information; (2) the police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station; (3) an entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government; (4) it shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.
Section 56 and 57 of the Criminal Procedure Code requires the police to produce the person detained or arrested before a Magistrate and not to exceed the time to produce the person before the Magistrate beyond 24 hours without an approval from the Magistrate.
The police have negated all the above procedures in this case.
Above all, the families have a right to know where their relatives are held and on what reasons. The victims on the other hand, have a definite right not to be tortured and further to be produced before a judicial officer, within 24 hours after arrest.
I therefore urge you to take the following actions in the case:
1. That the police register the complaint of the victims’ families about the three cases;
2. The police record the statement of the witnesses, if any, to the incidents;
3. The Inspector General of Police undertakes an investigation about the three cases and the manner in which the arrests were made;
4. Should the inquiry and the complaint filed by the victims’ families provide adequate information about the breach of law by the state police or by other state security agencies, immediate actions be taken against the officers involved in the cases;
5. A separate investigation ordered into the allegation of torture;
6. The victims provided immediate protection and compensation;
Yours sincerely,
—————-
PLEASE SEND YOUR LETTERS TO:
1. Ms Mamata Banerjee
Chief Minister
Government of West Bengal
Writers’ Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22144328
Email: cm_wb@nic.in
2. Chief Secretary
Government of West Bengal
Writers’ Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22144328
Email: chiefsec@wb.gov.in
3. Additional Chief Secretary (Home)
Government of West Bengal
Writers’ Building, Kolkata, West Bengal
INDIA
Email: sechome@wb.gov.in
4. Director General & Inspector General of Police
Government of West Bengal
West Bengal Police Directorate
Writers’ Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22145486
Email: dgp_westbengal@gmail.com
7. Chairperson
National Human Rights Commission
Faridkot House, Copernicus Marg
New Delhi 110001
INDIA
Fax: + 91 11 2338 4863
E-mail: chairnhrc@nic.in
Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)
