GENERAL APPEAL (India): A failing criminal justice system betrays the poor in India, especially the women 

Dear Friends,

The Asian Human Rights Commission (AHRC) has received information from MASUM, a human rights organisation in West Bengal that a corrupt policing system and an insensitive judiciary in India is promoting human rights violations against the poor. The two cases mentioned below were investigated by MASUM and it depicts the extent to which the criminal justice system has fallen in India. The two cases are also examples of how such a failing system affects the rights of the poor in India, especially the women.

CASE 1:

Mrs. Momena Bibi was married to Mr. Naharul Mondal on 28 April 2006. Momena is from a poor family. It is alleged that Momena was forced by Naharul into a sexual relationship with him prior to their marriage. Naharul and Momena are from the same village. Even though Momena and Naharul were married, Naharul’s family refused to accept the marriage. Naharul’s father Mr. Alauddin is a boatman working for the Border Security Force (BSF). The BSF is deployed along the Indo-Bangladesh border. Being a paramilitary force a job in the BSF is considered to be a privileged job in the remote border villages in India. Alauddin being a boatman with the BSF is hence in a position to make use of his identity of a BSF employee to his advantage.

The marital relationship between Momena and Naharul was not smooth. It is alleged that Naharul was cruel to Momena when she stayed with Naharul at his house. It is also alleged that Naharul’s parents and his sister were also misbehaving with Momena. When the cruelty became intolerable, Momena had to leave her in-law’s house and return to her house and she started living with her parents. Naharul followed Momena to her house and started spending the nights at Momena’s house while at daybreak he would return to his house. Naharul’s family was opposed to this however.

On 25 June 2006 at about 3am Naharul’s parents along with his sister and another person from the locality, Mr. Bhuttu Mondal, came to Momena’s house and physically assaulted Momena and her parents accusing them as responsible for the marriage between Momena and Naharul. They also threatened the family that they would kill them. Aggrieved by the assault Momena went to the Jalangi police station on the same day to lodge a complaint upon the incident. However, the police officers at the station refused to register Momena’s complaint and asked both families to report at the station to settle the matter.

It is alleged that in the meanwhile a case was filed in the court of the Chief Judicial Magistrate Berhampur on 7 June 2006 against Naharul. It is alleged that this case was filed by Naharul’s sister Mrs. Papiya Bibi, where she posed as Momena in the court. The case was filed under the relevant provision of the Criminal Procedure Code of India claiming maintenance from Naharul. It is further alleged that once the case was on record, Papiya posing as Momena in court entered into a compromise deed with Naharul, showing that the relationship between Momena and Naharul was terminated at Momena’s initiative and that she has pronouncing Thalaq. In the deed it was also mentioned that Naharul has paid 10,000 rupees [US 227$] as a permanent settlement. It is suspected that in fact the person behind the entire drama was Naharul’s father Alauddin.

Later, on 9 July 2006 when both families appeared at the Jalangi police station, Alauddin challenged Momena by showing documents from the court which showed that their relationship has been terminated by an order from the court. It is then Momena was aware that there was a case in court filed in her name by someone else and the documents were forged to manage a decree of divorce. Shocked by the entire incident Momena approached the Jalangi police on 30 July 2006 to lodge a complaint against her in-laws, particularly Papiya and Naharul for obtaining a court order by fraud. However, the Officer in Charge at the police station Mr. Somnath Chatterjee insulted Momena at the police station by shouting at her and also asked her to wear her complaint, which she intended to file at the police station, as a pendant. Hearing this Momena asked the officer the reference number at the police station regarding her earlier complaint. However, the police officer refused to give any details.

Momena and Naharul are from Dayarampur village of Murshidabad district in West Bengal. The village is within the jurisdiction of Jalangi police station. This police station is notorious for the atrocious acts committed by the officers of this police station against the villagers residing within its jurisdiction. The AHRC in the recent past has issued several urgent appeals on cases from this police station against which no action whatsoever has been initiated by the state or central government in India. For further information please see UA-59-2005, UA-73-2005, UA-116-2005, UA-130-2005, UA-161-2005, UA-163-2005, UA-196-2005, UA-232-2005, UA-283-2006 and UA-298-2006.

It is important to note that a Criminal Court in India cannot decree a divorce in a Muslim Marriage if the petition before the court is one for maintenance under the Muslim Women Protection of Rights on Divorce Act. The court can only decide the quantum of maintenance to be paid by the husband to the wife in such a case. However, in this case the court not only failed to verify who the actual petitioner was but also pronounced a decree of divorce in the absence of any jurisdiction.

CASE 2:

Mrs. Sunita Shaw was married to Mr. Binod Shaw on 28 January 2003. Soon after marriage Sunita was subjected to cruel treatment by her in-laws and her husband. They were demanding for more money to be brought from her home. In fact Sunita’s parents had gifted Sunita with money, jewels and household articles at the time of her marriage. It is alleged that Sunita’s in-laws were not satisfied by the gifts that she brought and were pushing her to bring more. It is also alleged that Sunita’s father tried to intervene at various times trying to negotiate terms with Binod and his family so that Sunita is no more ill-treated at home. It appears that none of these attempts yielded result.

On 25 July 2005 Sunita’s brother Mr. Pappu Jaiswal was informed that his sister was brutally tortured by her husband and her in-laws on 25 July and during the immediate preceding days. He was also informed that on 25 July his sister was forced to commit suicide by burning herself inside the house. He was informed that his sister was asked to pour kerosene over her body and set herself ablaze. The information was soon confirmed and it was also known that Sunita was admitted at SSKM hospital with 98% burns on her body.

Pappu lodged a complaint regarding the incident at the Golabari police station on 26 July 2005. The complaint was registered as Golabari police station case number 179/2005 dated 26 July 2005 under Sections 498A [cruelty to wife by husband and in-laws], 326 and 34 of the Indian Penal Code. However, it is alleged that the then investigating officer of the case Mr. Mominul Islam did not investigate the case properly. It is also alleged that even though Pappu had named the probable accused in the case, none of them were arrested by the officer immediately. Sunitha died on 28 July 2005 at the hospital. After Sunitha’s death, the police incorporated an additional offense to the earlier crime registered. They amended the police-charge to include Section 304B in the crime.

Sunita’s family was not satisfied in the progress of the investigation in the crime. This prompted them to lodge a complaint with the Women’s Commission in India. The complaint to the Commission was filed on 18 August 2005. After its inquiry the Commission mailed to Sunita’s family its report on 19 June 2006. The Commission’s report also contained a report submitted by the Superintendent of Police, Howrah regarding the police investigation into the case.

In the report dated 2 February 2006 filed by the police to the Commission, the police have mentioned that Sunita had given a statement to the then investigating officer informing the investigating officer that she suffered burns in an accident in the kitchen at her husband’s house while she was boiling milk for her child. The police report appears to be a fabricated one with numerous anomalies with the circumstances of the case which challenges the authenticity of the report.

The statement allegedly given by Sunita appeared to have been narrated in colloquial Bengali, though Sunitha was not fluent in speaking Bengali. The statement also carried her left thumb impression and was recorded on 25 July 2005, even prior to the police being informed about the incident. The postmortem report regarding Sunita’s death mentions that her body suffered from 98% burns and the only portion of her body which had her original skin retained was her abdomen. In such a circumstance how can Sunita give a left thumb impression in the statement? After suffering 98% burns it is highly improbable for the person to stay conscious, if not to give a statement in a language she was not fluent in. The report also falls short of any scientific evidence indicating the cause of injuries that led to Sunita’s death, though in the report the police rely upon the witness statement that Sunitha’s dress caught fire from an LPG stove.

In addition to the anomalies in the police report, there are many other glaring indicators that suggest that the police not only failed to water down the crime, but also helped to breach some procedural formalities that ought to have been followed in the case of the death of a person. One such example is the inquest report. In India if a person dies due to unnatural circumstances, the police is to arrange for a spot inquest, which need to be conducted by an Executive Magistrate. However, in Sunitha’s case the inquest was prepared by Mrs. Asmini Samanta, the then Secretary of the SSKM hospital. In spite of all these anomalies no further action was taken in Sunitha’s case. It appears from the police report that the police have dropped all further action in the case.

Other relevant information:

In India, the domestic law provides only two options for an aggrieved person to initiate a criminal investigation. One is by lodging a complaint with the police and the other is by approaching the court with a petition. In either case the investigation is conducted by the local police or any other branch of the law-enforcement agencies in India.  As regards to the crimes mentioned above the investigation of the crime is with the police. However, policing in India requires greasing and lubrication by way of influence or bribes for the police to investigate without which the police often write-off the case. This monopoly by the police is misused by the police to accept bribes from the accused to save them from any criminal prosecution.

In the second case mentioned it appears that the police have reluctantly registered the crime since it is a statutory requirement in domestic law to register a crime in a case when a woman die from unnatural causes within seven years of her marriage. This provision in Indian law under Section 498 A of the Indian Penal Code is to prevent the practice of Dowry. This provision of law is used in conjunction with the provisions of the Dowry Prohibition Act of India.

It is apparent that when this case is finally taken up at the court for trial the accused will be easily acquitted owing to the lack of any convincing evidence to convict them. The stage of the investigation in this crime after two years is such that nothing so far has been brought to light by the investigating officer which would fasten the possibility of a conviction of those who indirectly worked to kill Sunita. This is in spite of the continued attempt by Sunita’s relatives to push the investigating agencies to do their work properly. The AHRC has called upon the attention of the authorities in India on these issues through a recent statement issued by the AHRC. For further information please see AS-209-2006 and AS-206-2006.

India is now planning to ratify the United Nations International Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. However even if the Convention is ratified the implementation of the Convention and the specificities regarding improvement of policing depends much upon how far the basic requirements regarding policing like adherence to rules and procedures are followed by the officers.

SUGGESTED ACTION:
Please send a letter to the relevant authorities mentioned below urging for an immediate and thorough investigation into these cases in particular and also into the aspects of general policing in India so that disciplinary actions are taken against the police officers if they are found responsible for breach of duty.

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