INDIA: An Indian national is shot by BSF forces and falsely imprisoned as a Bangladeshi

Dear friends,

The Asian Human Rights Commission (AHRC) has been informed by MASUM, a local human rights organisation in West Bengal that a man who is an Indian national has been falsely identified as a Bangladeshi citizen in a fabricated case created by the Border Security Force (BSF). He was shot in the left leg below the knee by a constable patrolling the border and has been falsely imprisoned without bail and without proper medical treatment. His condition is continuing to deteriorate with no sight of a remedy to either his medical treatment or for the charges being brought against him.

CASE DETAILS:

The victim is a reportedly an Indian national and his name is Mohammad Aptarul Hossain, son of Mohammad Kholil Mondal and he has a school certificate, No.743445, issued by Kalikapur F.P. School, Sadarpur Behala post office, North 24 Parganas district. The school is within the jurisdiction of Haroa Police Station. He was admitted to school on the 12 May 1993, and according to this certificate his date of birth is 13 March 1987. The parents both have valid election identity cards, WB/14/097/279442 and WB/14/097/279426, from the Election Commission of India.

Hossain’s livelihood is working in the paddy fields and on the day of the incident 15 February 2008 at about 12pm the victim was cleaning rice crops in the paddy fields near Border out-post No.2. He was approached by Constable Birendra Kumar Singh and asked whether his real name was Akbar but Hossain told him his real name.  Singh appeared not to believe him and fired one shot into the victim’s left leg below the knee.

A First Information Report (FIR) was filed against Mr. Mohammad Aptarul Hossain by the Gaighata Police Station Case No.54/08 on the 15 February 2008 at 6.55pm, under Sections 186 (obstructing public servant in discharge of public functions, 307 (attempt to murder), 353 (assault of criminal force to deter public servant from discharge of his duty) of the Indian Penal Code, 1860 (IPC) and under Section 14 of the Foreigners Act, 1946 on the basis of the complaint filed by Mr. Nandan Singh, Assistant Commandant, Company Commander, Company E, Battalion No.126 of the Border Security Force (BSF).  It was recorded by Mr. Narayan Prosad Das, Assistant Sub Inspector at Gaighata Police Station, and the Sub Inspector Mr. Goutam Chakraborty took up investigation of the case.

However, all the additional records connected with the FIR (for example, seizure memo, seizure list etc.) were placed before the Additional Chief Judicial Magistrate (ACJM) Court in Banganon on the 19 February 2008, four days after the date of the incident which is against section 157 of the Criminal Procedure Code, 1976.

The BSF FIR alleges that on the 15 February 2008 at 12:15pm Mr. Birender Kumar Singh, Constable of BSF (Constable No.96002556) Battalion No.126, of the Border Out Post Bornberia, while on duty at out-post No.2 observed three intruders entering from Bangladesh to India.

Mr. Birender Singh states that he recognised two of the intruders as being Mr. Paran Mulla and Mr. Akbar from Muslimpara village, Barnaberia Block, North 24 Parganas district, West Bengal.

When Birender Singh shouted at the men to stop he alleges that they attacked him with pieces of brick from the ground and scythe’s they were carrying–a tool used for cutting crops with a long curved blade–and attempted to grab his personal weapon. Singh fired one round from his INSAS rifle (No.433, body No.16580567) and hit the left leg of one of the intruders.

Mulla and Akbar managed to flee towards Muslimpara village. Birender Singh was joined by Constable Mr. Sher Singh (No.90171131) who had come to relieve him and they chased the third intruder through paddy fields before apprehending him.

Birender Singh alleges that preliminary questioning revealed the intruder was Akhtarul Zaman (age 25), son of Abu Bakkar, from Aagbulet village, Goga police station, Jessore district, Bangladesh, and that the following items were taken from the victim: Bangladeshi currency amounting to 300 Taka (USD 4.4) and one iron scythe.

On the same day as the incident on February 15 the victim was sent to the Sub Divisional Hospital, Bongaon, as was Constable Birender Kumar Singh who had sustained injuries to his left hand.

The victim was then moved to the R. G. Kar Medical College and Hospital, Kolkata by the BSF.

On March 8 at 7:15pm the police again arrested the victim and prepared a Memo of Arrest allegedly containing the signature of the victim, yet the previous memo of arrest from the 15 February had instead contained a thumb impression and not a signature.

On March 9 police from Gaighata police station discharged him from the hospital and brought him to Gaighata police station. However, the police claim in a letter dated the 8 March, addressed to the Superintendent of R. G. Kar Medical College and Hospital that they had learned over the telephone that the victim had been discharged on March 7. They also request the Superintendent to hand over the victim to them.

On March 9, the victim was produced before the ACJM at Bangaon and he was sent for judicial custody at Bongaon Sub-Correctional Home.

On the same day the victim was instead moved to the Dr. J. R. Dhar Hospital, Bangaon although the victim failed to receive proper medical care.

On March 17, the victim was not produced in court as was the court’s order as a letter from the Superintendent at the Dr. J. R. Dhar Hospital to the Superintendent of Bangaon Sub-Jail, forwarded to the ACJM, stated that the victim, prisoner No.4991, was unable to walk.

On June 9, the victim was moved to the State Medical College and Hospital by the attending physician of Bangaon Dr. J.R. Dhar Hospital, although there is no paperwork to show that the victim received treatment at the State Medical College and Hospital, Kolkata.

On June 10, the Superintendent of Bangaon Sub-Jail submitted a petition before the ACJM seeking permission to shift the victim to the Dum Dum Central Correctional Home, Kolkata for better medical treatment. The court allowed this petition and the victim was moved.

On July 8, MASUM went to Bongaon Court and found that the victim had been moved to the Dum Dum Central Correctional Home.  They were informed that the victim had been produced before the Bongaon Court on the 24 June 2008 and had lost flexibility in his left leg due to swelling and fluid loss from the injury.

On July 8, the victim was produced before the ACJM Court in Bongaon. It was noted that the victim’s injury was not covered by a bandage but rather tied with an unhygienic towel or cloth. The victim informed the court that treatment for his injury was not going well but the public prosecutor stopped the victim and told him to come down from the witness stand.

On July 22, the victim was scheduled to be produced before the Additional District and Session’s Judge, Bangaon but he was not produced. The victim’s case record was transferred by fast track court to the Additional District and Session’s Judge and after they considered the materials the victim was ordered to be produced on the 24 July 2008 and ordered the Superintendent of the Dum Dum Central Correctional Home, Kolkata to submit an explanation for non-production.

When the victim was not produced on July 24, the Superintendent of the Correctional Home submitted a written explanation explaining that the victim was not physically fit for production.

A petition submitted by the Advocate for MASUM filed on behalf of the victim maintained that the victim has supposedly been receiving medical treatment since 15 February 2008, and on the 10 June 2008 was send by a court order to the Dum Dum Central Correctional Home for better medical treatment, but he still shows no sign of improvement. The petition also asserted that the victim was not receiving proper medical treatment by the authorities concerned and that if the victim succumbed to their injuries it would be due to gross negligence. It appealed for the release of the victim on bail in light of his physical condition and for a report regarding the treatment of the victim.

The court considered the petition and rejected the bail for the victim but directed the Superintendent of the Correctional Home to take the necessary steps for the proper medical treatment of the victim. The Superintendent was also required to submit a report regarding his treatment within a fortnight. The date of the next case is fixed for 20 August 2008.

ADDITIONAL INFORMATION:

The incident was witnessed by two villagers, Mr. Rahim Molla, son of Yastul Molla, and Mr. Nasiral Molla, son of Paran Molla–both from Barnaberia village, Gaighata Police Station, North 24 Parganas district, West Bengal. They informed MASUM that there were no other persons by the name Molla or Akbar as depicted in the FIR by the BSF, or that the seized articles of 300 Taka (USD 4.4) was found on the victim.  Furthermore, the BSF fabricated the name of the victim by falsely putting down Akhtarul Zaman, son of Abu Bakkar, and an address in Bangladesh on the FIR.

Significantly the fact-finding team also found that the other two accused persons, Mulla and Akbar, managed to obtain bail from court without being apprehended by the police. In contrast to the case fabricated and brought against Hossain as a result of the Constable’s actions.

The Memo of Arrest prepared by the BSF of the victim keeps blank the column under ‘the place of arrest’.  Although it contains the official stamp impression of the ACJM, Bangaon it does not contain his signature that may imply that he either intentionally did not sign the paper prepared by the BSF and sent by the Gaighata police, or that the Memo of Arrest was tagged in the judicial record afterwards to create one document.

Furthermore, the seizure memo prepared by the BSF recorded they found one iron scythe and 15 Indian Rupees (USD 0.3). This contradicts the FIR where the BSF claim they seized one iron scythe and Bangladeshi currency of 300 Taka (USD 4.4). The initial seizure list prepared in the Gaighata Police Station several hours after the incident does not mention the seizure of Bangladeshi currency. There are also differences between the distances of the place of occurrence: on the seizure memo the distance is 1 Kilometer, whilst on the BSF FIR the distance is 30 Kilometers.

ADDITONAL COMMENTS:

The Constitution of India, 1950 Article 14 states that ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’.

Article 21 enshrines the fundamental right to protection of life and personal liberty, ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’.

Article 22(2) says 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 the authority of a magistrate’.

As Hossain is not an enemy alien but a citizen of India the constitutional guarantees are applicable to him.  The BSF case against the victim includes the charge under Section 307, attempt to murder, which is a non-bailable offence. Furthermore, charging Hossain under the Foreigners Act, 1946 results in the above articles from the constitution being non-applicable. This further protects the BSF and the unlawful behaviour of Constable Birender Singh, as is compounded by the release of the two other ‘intruders’.

The Border Security Force Act, 1968 was introduced to provide a constitution for, and regulate, the armed forces patrolling and ensuring border security. Article 41(f) affirms that any person subject to this Act who ‘commits any offence against the property or person of any inhabitant of, or resident in, the country in which he is serving’ shall be liable to punishment and tried by a Security Force Court.

Article 14(c) (right to be tried without undue delay) of the International Covenant on Civil and Political Rights (ICCPR) is being firmly breached by the actions of the BSF and the relevant authorities mandated to ensure that he is tried without undue delay. Article 10 of the ICCPR mandates the detainee to be treated humanely. Additionally Article 22 (2) of the UN Standard Minimum Rules for the Treatment of Prisoners, 1957 also mandates the state administration to ensure medical facility for sick detainees. India is a party and signatory to the ICCPR.

SUGGESTED ACTION:
Please write to the authorities mentioned below expressing your concern in this case. Of particular importance is to safety and security of the victim.

The AHRC has also written separate letter to the UN Special Rapporteur on the Question of Torture calling for intervention in this case.

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