INDIA: Police constables run lower judiciary in West Bengal

Dear friends,

The Asian Human Rights Commission (AHRC) has received information from MASUM, a local human rights organisation in West Bengal, India about the shocking state of the lower judiciary in West Bengal. The AHRC issued an urgent appeal on 26 December 2005 regarding the arrest of Mr Vijay Kumar. For further details please see UA-247-2005. A further inquiry conducted by MASUM into the case has revealed that the current situation of the lower judiciary in West Bengal is such that it indicates a complete collapse of rule of law in the state. Furthermore, the higher judiciary, which is responsible for the administration of judicial affairs, is allowing and endorsing this state of affairs by its unwillingness to interfere or remedy the situation.

It is not the first time that AHRC has raised its concern about such issues from India, and West Bengal in particular. However, the AHRC is yet to receive even a reply from the Indian authorities in this regard. The higher judiciary in India, the Supreme Court of India in particular is known for its innovative approaches in exercising its Constitutional authority in safeguarding the fundamental rights of all citizens. One such attempt was the judgment delivered in 1996, better known as the D.K. Basu case where the court laid down directives to the government which the law enforcement agencies were directed to follow without failure at the time of executing arrest and while detaining persons in custody. These directions are now incorporated into the Criminal Procedure Code of India as a result of the latest amendment of the Code in 2005.

However, it is highly ironic that in the same state where the D K Basu case originated – West Bengal – these directives are flouted openly. Moreover, the judiciary of the state has totally disregarded the directives of the Supreme Court and the law and has let police constables, who are the lowest ranking officers with education qualifications often below secondary level, to execute judicial functions in the state. The AHRC condemns this attitude of the judiciary and calls for your urgent intervention in this matter.

Urgent Appeals Programme
Asian Human Rights Commission
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DETAILED INFORMATION:

Name of the victims:
1. Mr. Vijay Kumar Jaiswal, 24, son of the late Uma Shankar Jaiswal
2. Mr Md. Siraj, 15, son of the late Md. Hanim, residing at 5-Chingritala within the jurisdiction of Belgharia
Alleged perpetrators:
1. Mr Ashis Dutta, Assistant Sub Inspector
2. Mr Sekhar Basu, Inspector of police
3. Mr Nemai Babu, driver (Police Constable)
4. Mr Sankar Babu, Police Constable
All attached to Khardah police station, 24 Parganas (North) District, West Bengal, India
5. The Additional Chief Judicial Magistrate, Barrackpore 24 North Parganas, West Bengal, India
Date and time of incident:  14 December 2005 at about 2.30 at K S Path and continuously thereon at Khardah Police Station

Case details:

MASUM was inquiring into the case of Mr Vijay Kumar Jaiswal who was arrested on 14 December 2005 from his house at about 2.30. MASUM had received a complaint from Vijay regarding his arrest and the way he was treated while in custody. The AHRC had issued an urgent appeal on this case on 26 December 2005. For details please see UA-247-2005. MASUM obtained certified copies of the records regarding this case from the Additional Chief Judicial Magistrate’s Court Barrackpore. MASUM’s inquiry that revealed the following:

1. The arrest was carried out by the police without any search warrant, by police officers in plain clothes who broke open the door of the house in the middle of the night. There were no female police officers who were present at the time, though there were children and female members in the house. It is alleged that seven to eight police officers forced their way into the house and threw things around on the ground while looking for Vijay’s brother. Though Vijay and his family informed the police that they were not aware of Vijay’s brother’s whereabouts, since they had had no contact with him for several years, the officers insisted that the family tell the police where the brother was. The police then informed Vijay and his family that they were taking Vijay into custody and that they would release him only once his brother was produced before their station.

2. During the search the officers also took into their possession a 14 inch color television (Citizen) and three mobile phones (1. Samsung N 191 with subscribed connection with the Reliance Telecom. The owner of the phone is one Mr Dipak of Titagarh, 2. Nokia 2280 also with subscribed connection with Reliance Telecom. The owner of this phone is one Mr Chumur from Chhai Math, Kharda, 3. LG Moonlight 2130 which is also with subscribed connection with Reliance Telecom). Though the law requires a seizure list to be prepared at the time of seizure and the articles to be produced before a court, the police are now denying that they took these items. However, the owners of these items, who had entrusted these with Vijay for repair, are now asking Vijay to return them. With advanced technologies available today and with the help of Reliance Telecom it would be easy to trace the phones and their usage soon after the day of arrest.

3. Vijay informed MASUM that when he was kept at the police lockup at Khardah, he found the second victim, Md. Siraj who said that he had been in police custody since December 5 and that he had not been provided food during that time. He had also not been produced in court despite the law stipulating that all detainees must be produced before the magistrate who entertains jurisdiction over the police station within 24 hours from the time of arrest.

The arrest memo prepared by the police and produced in court regarding Vijay mentions that Vijay was arrested on 18 December 2005 from Sandha Cinema, which is in fact a considerable distance from Vijay’s house. The memo also states that Vijay was taken into custody in the presence of one Mr Rajesh Hela. However, Vijay was actually arrested on December 14. On MASUM’s inquiry it was also revealed that Rajesh Hela is a person who the local police cite as a ‘chance witness’ in many cases. Though the arrest memo records the date of arrest as December 18, the forwarding letter to the court prepared by the same officer who prepared the arrest memo states that the arrest was on December 16.This was also the same for Md. Siraj, with the letter stating that he had been arrested on December 16 – despite the fact that he was actually arrested on December 5. This means that the court was therefore aware that the two detainees were in custody for at least two days before being produced before it. Knowing that this violated that law of producing detainees within 24 hours, the court should have taken action against the police officers.

4. MASUM has informed the AHRC that the reason why the court failed to take action is because the court itself is at fault for what the police do. The AHRC is informed that a thorough perusal of the court order dated 18 December 2005 will reveal that the order was written before December 18 and that it was written by police constables who are posted at the General Records Office (GRO). Moreover the copy of the First Information Report obtained from the court does not mention the date or time of arrest.

The forwarding letter, arrest memo and the First Information Report are documents that the court must meticulously analyse while dealing with any case, right from the production of the accused in court to the time of preparing the judgment in the case. These documents have much bearing upon the way in which justice is administered in each case. In fact it is these procedures which were discussed by the Supreme Court while deciding the D K Basu case in 1996, which are now incorporated into the Criminal Procedure Code of India.

According to the Criminal Procedure Code the magistrate must verify whether all documents regarding arrest are prepared properly and correctly and also must be satisfied that the procedures regarding arrest were followed without failure by the police. This, unfortunately, did not occur in this case. If the police violate these procedures it is definitely due to the lack of responsibility of the judicial officer. A judicial officer who permits judicial orders to be prepared by police constables at the GRO literally violates law and neglects duty and is not worthy to remain in service. The presence of such officers must be a shame to the judiciary of the country and if the higher judiciary permits such gross neglect to continue it indicates nothing but the complete collapse of rule of law.

SUGGESTED ACTION:
Please write to the authorities listed below expressing your concerns over the state of affairs in West Bengal.

 

 

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