Dear friends,
The Asian Human Rights Commission (AHRC) is gravely concerned about an incident relating to the detention and assault of two US medical students by the police in Ghaziabad, Uttar Pradesh, India. The students were allegedly held on fabricated charges of assault against a man and were detained without permission for bail for 18 days. To date they continue to suffer from harassment by the school chairman and the police.
Monica and Manish are permanent residents of the US studying in India. They were admitted to the Santhosh Medical College, Ghaziabad, Uttar Pradesh and paid USD 50,000.00 each as course fees at the time of admission. In addition Mr. Mahalingham, the Chairman of the Medical School borrowed USD 56,818.00 from Monica and Manish as a loan, which he promised that he would repay.
During early 2002 Monica and Manish asked for the money for which they had lent to Mr. Mahalingham and dates were set for the repayments. Soon Mr. Mahalingham began to coerce the two by failing them in the exams. Consequently on 16 January 2002 Monica and Manish approached the Allahabad High Court seeking judicial intervention to re-examine the papers. The High Court subsequently ordered the Professor and Head of Department of the Allahabad Medical College to re-examine the answer book of Monica in March. On re-evaluation it was declared that Monica had passed the paper that she originally failed. The judge also ordered for the surgery practical exam to be retaken at Agra medical College. In the process of deciding this case the court took note that, the respondents had attempted to harass and fleece the petitioner and her parents.
However, on obtaining their certificates from the college, not only did it carry invalid dates regarding the period of their study, it also contained unsatisfactory remarks that taint their character. The students then contacted the principal of the institution to seek for his assistance. The principal advised them that there was nothing he could do but to attempt to patch up their issues with Mahalingham. Monica and Manish recorded this conversation and again approached the Allahabad High Court asking for the directions from the court to obtain proper certificates. The court made an order for the Santhosh Medical College with effect to issue proper certificates but these have yet to be delivered.
Upon the students file of criminal complaint against Mahalingham for an offence under section 138 of the Negotiable Instruments Act of India, Mahalingham returned part of the money that he had borrowed (Section 138 of the Negotiable Instruments Act defines the offence of issuing a cheque with the knowledge that it would not be honoured on due presentation and prescribed punishment for the same). However, through help from local Mafia members and the police from Vijaynagar police station, Mahalingham continued his threats against Monica and Manish.
On 2 May 2004 without any prior warning the Vijaynagar Police took Monica and Manish into custody while they were outside Mahalinghams office. The police threatened them to withdraw the criminal case they had filed against Mahalingham and began beating them with wooden sticks and fists, as well as kicking them with their boots causing injury.
On 2 June 2004 Mahalinghams driver Mr. Joginder broke the windshield of Monica and Manishs car and called the police. The police officers from Vijaynagar police station lead by Station Officer Mr. Anil Saminya, Constable Mr. Rajvir Guatam and the driver of the police jeep arrived and started beating Monica and Manish repeatedly whilst also attempted to sexually abuse Monica in public. The police officers further threatened that they would bring false charges against them if they did not withdraw the case immediately.
Following the incident Monica and Manish were immediately admitted to a government hospital for treatment and they took photographs of their injuries. They then approached the Allahabad High Court asking for judicial intervention in obtaining a First Information Report (FIR) registered against the police officers involved in the assault and also against Mahalingham for instigating the police in committing the offence. Accordingly under the direction of the court on 28 November 2005 an FIR was registered against the police officers and Mahalingham.
The police were infuriated and made further threats that Monica and Manish would not return to the US in proper shape. The Vijaynagar police retaliated by filing false FIR [FIR no: 21/06 dated January 14 2006 under sections 452, 323, 336, 504, 506 and 427 of the Indian Penal Code] against Monica and Manish with the result that they were arrested and detained at Dasna Jail in Ghaziabad on 15 January 2006 only to be released on February 1. The 1st Additional City Judicial Magistrate Court rejected a bail application filed by Monica and Manish on the grounds that the prosecution allegations were that of attempted murder under section 308 of the Indian Penal Code.
The police had alleged that Monica and Manish assaulted an aide of Mahalingham, Mr. Rajendar Kuntal and through the incident Kuntal had suffered injuries. The police charge was registered on January 14 mentioning that Kuntal had suffered injuries to his head and neck causing profuse bleeding.
The AHRC has learnt that in fabricating the case, Kuntal was admitted to MMG Government District Hospital Ghaziabad allegedly to obtain a medical certificate for his injuries. A certificate dated January 14 was issued from this hospital after examining Kuntal yet finding no injuries. This certificate was however not produced when Monica and Masish were summoned to the court. It was only through a second certificate obtained three days later from the Batra Hospital in Delhi that Kuntal was able to substantiate his allegations of bodily injuries. In this context it is of concern to note that the Additional Judicial Magistrate allegedly took efforts to retain custody of the detainees for 18 days and transferred the case to the Sessions court in the absence of any medical evidence to support the prosecution charge and waited for the second medical certificate to be produced.
The case of Monica and Manish was taken up by the United States Department of State on a complaint filed by Monica and Manish. The US State Department consequently communicated with Uttar Pradesh State government through its consulate based in New Delhi expressing concern over the case. The State Department also advised Monica and Manish to get in touch with an attorney to sort out the legal issues involved in their case. The Court of Session Judge later granted bail.
The AHRC is informed that Monica and Manish still face continuous threats from Mahalingham and the local police. As of today their parents have joined them to provide security for them to complete their course and return to the US.
FACTS IN ISSUE:
The Criminal Procedure Code of India mandates the courts to order custody of detainees only when such custody is necessary for the dispensation of justice.
With regard to this case it would seem that at the time of the hearing at the 1st Additional City Magistrate there was no supportive evidence to assert that Kuntal had suffered any injury. The police charges were registered on January 14, however the medical evidence was only obtained three days later. At the time of the hearing there was no supportive evidence to assert that Kuntal had suffered any injury, and in the absence of actual evidence, the allegations against Monica and Manish for charges of attempted murder were unsubstantiated.
It is further alleged that Monica and Manish had brought to the notice of the court that the arresting officers were already facing criminal charges for torturing and threats towards them. They had also informed the court that there exists a first medical certificate that was issued in the name of Kuntal soon after the alleged incident showing that Kuntal had not suffered any injuries at all.
To a reasonable court this submission should have generated suspicion regarding the authenticity of the charges under which Monica and Manish were arrested. The court should have asserted its authority for the prosecution to provide substantial evidence to the prosecution case. It is surprising to note that the court completely ignored these aspects and waited for days together for the prosecution to produce a medical certificate to show that Kuntal had suffered injuries. It is equally difficult to understand why the court had to extend the remand custody of Monica and Manish for 18 days.
It is submitted that the court should have raised questions regarding first, the authenticity of the evidence and secondly, the admissibility of such evidence. It would seem that the court had negated its obligations to assert evidentiary burden upon the prosecution to substantiate their case, with the result that the prosecution was able to abuse the judicial process.
Had the court been concerned about Monica and Manish returning to the US and evading any further process of law the most reasonable option for the court would have been to seize their passports. The AHRC is concerned about judicial procedures which have been adopted by the magistrate court casting doubts upon the impartiality of the entire hearing.
BACKGROUND INFORMATION:
Privately financed professional institutions run various professional courses. These are highly influential with the government authorities in India, especially the police. The management of these institutions very often provide free seats for children of influential government officers so that if any complaint arises against the institutions they would never surface or be investigated. Santhosh Medical College is no exception to this. Children of various high profile government officers, even ministers and their relatives are provided free seats in this institution.
In the recent past the police in Uttra Pradesh were in the news for their alleged involvement in accepting bribes and for refusing to exercise proper police duties. Corruption is rampant within the local police and it is reported daily within newspapers in the state and the country.
SUGGESTED ACTION:
The AHRC is extremely concerned that the two students are in imminent threat to continue their studies in India. The AHRC is equally surprised at the course of action adopted by the Gazhiabad Local Maigstrates Court in dealing with their case. Of the authorities named below, the AHRC urges you to write to the Chief Justice of the Allahabad High Court in particular requesting an inquiry into the alleged indifferent attitude of the 1st Additional City Judicial Magistrate and also to other government authorities requesting them take appropriate actions against the medical school, its management, Dr. M.L. Sindhwani, the doctor who issued the second medical certificate and also the police officers involved in this case. The AHRC is in possession of copies of documents related to this case, particularly the medical certificates.
Automated email letters can be sent by the AHRC Urgent Appeals on-line support system. To support this appeal please refer to http://www.ahrchk.net/support.php?ua=UA-197-2006. For those contacts without an email address, we ask that you still write a letter and post or fax this. If you have any problems or questions using this system, please feel free to contact us at ua@ahrchk.org.
To support this case, please click here: SEND APPEAL LETTER
SAMPLE LETTER
Dear _________,
INDIA: Clarification is needed for the case of the dentention of two US citizens who were arrested without evidence
Name of victim:
1) Ms. Monica, daughter of Dr. Narendra Kumar, residing at K-8, Sector 12, Pratap Vihar, Ghaziabad, 201009, Uttar Pradesh, India
2) Mr. Manish Kumar, son of Dr. Narendra Kumar, residing at K-8, Sector 12, Pratap Vihar, Ghaziabad, 201009, Uttar Pradesh
Names alleged perpetrators:
1) Mr. Anil Saminya, formerly Station House Officer, Vijay Nagar Police Station, Gazhiabad, Uttar Pradesh
2) Mr. Rajvir Guatam, Police Constable, formerly attached to Vijay Nagar Police Station, Gazhiabad, Uttar Pradesh
3) Mr. P. Mahalingam, The Chairman, Santhosh Medical College, Ghaziabad, Uttar Pradesh
4) Dr. M. L. Sindhwani, Batra Medical Hospital, North Delhi]
Date of incident: Since early 2002 and continuously thereon
Place of incident: Santhosh Medical College Gazhiabad, Uttar Pradesh
I write to bring to your attention two students at the Santhosh Medical College, who have been harrassed and illegitimately detained and continue to face intimidation by their alleged perpetrators. According to the information I have received, the victims have on numerous occasions been intimidated by the perpetrators and now live in fear.
Monica and Manish are permanent residents of the US studying in India. The Chairman of the Medical School, Mr. Mahalingham borrowed a loan from the students for USD 56,818.00 and promised to repay the sum. When the students subsequently asked for the return of the money Mr. Mahalingham began to coerce the two by failing them in their exams. The students sorted judicial intervention for redress, however these actions aggravated the Chairman who asserted his influences with the police, with the result that on 15 January 2006, the students were arrested and detained for 18 days.
A fabricated case was charged against the students for the assault of Mr. Kuntal. [FIR no: 21/06 dated January 14 2006 under sections 452, 323, 336, 504, 506 and 427 of the Indian Penal Code]. Kuntal is the aide to Mr. Mahalingam, the Chairman of the Santhosh Medical College Ghaziabad, against whom the victims had filed earlier criminal charges registered under the direction of the Allahabad High Court.
A medical certificate issued by the MMG Government Hospital Ghaziabad on the evening of 14 January 2006 reveals that there were no injuries or other abnormalities sustained by Kuntal. However, this medical certificate had been concealed by the police and was never presented to the 1st Additional City Judicial Magistrate Court Ghaziabad. Instead the police used a concocted certificate obtained from a private hospital in Delhi three days after the alleged incident.
I am informed that upon the arrest, the victims were produced at the 1st Additional City Judicial Magistrate Court, Ghaziabad. Once in court, the victims informed the court that there exists a medical certificate issued by the MMG Government Hospital, dated 14 January 2006, which proves the allegations were made on fabricated charges and that the police were trying to wreck vengeance against the victims.
I am surprised in the manner in which the 1st Additional City Judicial Magistrate Court has dealt with the case. The Criminal Procedure Code of India mandates the courts to order custody of detainees only when such custody is necessary for the dispensation of justice. With regard to this case it would seem that at the time of the hearing there was no supportive evidence to assert that Kuntal had suffered any injury. The police charges were registered on January 14, however the medical evidence was only obtained three days later. At the time of the hearing there was no supportive evidence to assert that Kuntal had suffered any injury, and in the absence of actual evidence, the allegations against Monica and Manish for charges of attempted murder were unsubstantiated.
It is further alleged that Monica and Manish had brought to the notice of the court that the arresting officers were already facing criminal charges for torturing and threats towards them. They had also informed the court that there exists a first medical certificate that was issued in the name of Kuntal soon after the alleged incident showing that Kuntal had suffered no injuries at all.
To a reasonable court this submission should have generated suspicion regarding the authenticity of the charges under which Monica and Manish were arrested. The Magistrate was informed by the victims while they were produced in court that there are pending criminal charges against the police officers who arrested the victims and that these charges were registered against the police officers for torturing, assaulting and trying to sexually abuse the female victim in this case months before the police registered a case against the victims for which they were detained.
What is more is that there were no medical certificates attached along with the police file produced in court to show that the allegedly injured Mr. Kuntal had suffered any injury. It is surprising to note that the Magistrate even in the absence of any evidence on record, extended the detention of the victims. It is equally worrisome to learn that once a medical certificate was produced from a private hospital days after the arrest of the detainees, the Magistrate ignored the plea of the detainees that there is a genuine medical certificate issued from MMG Government Hospital Ghaziabad which would show that the alleged injured was not injured at all. The Magistrate later dismissed the bail application, extended the remand and transferred the case to the Sessions Judges Court, which all ensured the detention of the victims in custody for 18 days.
The court could have asserted its authority for the prosecution to substantiate their case. It is surprising to note that the court completely ignored these aspects and waited for days together for the prosecution to produce a medical certificate to show that Kuntal had suffered injuries. It is equally difficult to understand why the court had to extend the remand custody of Monica and Manish for 18 days.
It is submitted that the court should have raised questions regarding first, the authenticity of the evidence and secondly, the admissibility of such evidence. It would seem that the court had negated its obligations to assert evidentiary burden upon the prosecution to substantiate their case with the result that the prosecution was able to abuse the judicial process.
I am shocked to learn that the intention of the police was to detain the victims as long as possible and to pressure them to withdraw their complaint which they have lodged against the police officers and Mr. Mahalingham, the Chairman of Santhosh Medical College, a privately funded medical college. I am also informed that Mr. Mahalingham and the management of the college are quite influential in Uttar Pradesh. The manner in which the case was handled at the 1st Additional City Judicial Magistrates Court is such to raise the suspicion of anyone.
I therefore request you to take appropriate action in this case, to order an impartial inquiry into the manner in which this case was handled at the 1st Additional City Judicial Magistrate Court Ghaziabad. I also request you to initiate actions against Dr. M. L. Sindhwani of Batra Hospital in North Delhi, if it is found that the doctor has issued a concocted medical certificate in the name of Ranjedar Kundal, which was later produced as false evidence in court. I also request you to direct the state police authorities to take appropriate action against the police officers named above who fabricated the case and also assaulted the victims while they were in custody.
Yours sincerely,
______________________
PLEASE SEND YOUR LETTERS TO:
1. Mr. Justice Ajoy Nath Ray
Chief Justice, Allahabad High Court
1, Lal Bahadur Shastri Marg, Allahabad
11, Kalidas Marg, Lucknow
INDIA
Fax: 91 532 2420344 b
Email: alldhc@sancharnet.in
2. Mr. Justice Y. K. Sabharwal
Chief Justice of India
The Supreme Court of India
1, Thilak Marg, New Delhi 110001
INDIA
Fax: 91 11 23383792
Email: supremecourt@nic.in
3. Prof. Manfred Nowak
Special Rapporteur on the Question of Torture
Attn: Safir Syed
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9230
Fax: +41 22 917 9016 (ATTN: SPECIAL RAPPORTEUR TORTURE)
E-mail: ssyed@ohchr.org / urgent-action@ohchr.org
4. Mr. Leandro Despouy
Special Rapporteur on the independence of judges and lawyers
Attn: Sonia Cronin
Room: 3-060
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9160
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR INDEPENDENCE JUDGES & LAWYERS)
E-mail: scronin@ohchr.org / urgent-action@ohchr.org
5. Ms Leila Zerrougui
Chairperson
Working Group on arbitrary detention
Attn: Mr Miguel de la Lama
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9006 (ATTN: WORKING GROUP ARBITRARY DETENTION)
Email: mdelalama@ohchr.org / urgent-action@ohchr.org
6. Ms. Yakin Erturk
Special Rapporteur on Violence against Women
Attn: Ms Vernonica Birga
Room 3-042
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9615
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR VIOLENCE AGAINST WOMEN)
Email: vbirga@ohchr.org / urgent-action@ohchr.org (please also cc: rrico@ohchr.org)
7. Honourable David C. Mulford
The Ambassador of the United States of America
U.S. Embassy
Shantipath, Chanakyapuri
New Delhi 110021
INDIA
Fax: +91-11-2419-0017
Email: acsnd@state.gov
Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (ahrchk@ahrchk.org)
