The title of this article, from the timeless Srimadbhagwadgeeta, sums up the basic reason for the existence of a State. The criminal justice system, and its effectiveness, can be said to be one parameter on which one can separate vital states from failed ones. The apex court has recently reiterated a landmark judgement, whereby the police chiefs of the state shall be appointed only by the say so of
the UPSC. This has brought the issue of police reforms to the forefront once
again. However, police reforms cannot be seen in isolation from the reform of
the criminal justice system as a whole.
As
Administrators, it falls on our lot to listen to public grievances. The most numerous
of these grievances relate to land and property, and disputes related to the same. Quite close, on its heels, come the grievance related to police. Almost
all of these relate to Investigation. These issues cover the whole canvas –
from non registration of Report, to wrong (and mala fide) registration of a
false complaint, slow investigation, needless (maybe even wrongful) arrests, or
a lack of arrest where arrest was needed to uphold the law. All these subjects
lie in the chapters concerning the police investigation (except for arrest,
which constitutes a separate part), and, legally, police is totally free to
conduct the same quite independently of any external supervision – executive,
or even judicial (there are apex court’s ruling to the effect, although, maybe,
with their own Court monitored SITs, the rulings become moot, at least for the
higher judiciary). That is an immense power, and it has to be tempered with
commensurate responsibility.
One of my
bosses, now retired, used to call the police the Pratham Nyaayadheesh
(the first judge). This is true, as it is the first (and quite often only) part
of the criminal justice system the majority of the population comes in contact
with. Since a cognizable criminal case, unlike a civil suit, in almost all
instances, must be initiated by the State (Police in this case), and not a
private party, hence, getting the police to initiate a case, after convincing
them to do so, and then getting them to find the perpetrator chargeable, (after
what is surely an exercise in appreciation of evidence, though we simply call
it an investigation) is very much an exercise of a private law suit. Whenever
someone is a victim/ witness/ aggrieved of/by a cognizable offence, he must
report the same to the Police. The police have to reduce it to writing, send information
to the Judiciary, and proceed to investigate the matter. As per Court rulings,
this is the minimum that has to be done, if an information is reported. However, the framers of the CrPC were wise enough to note that the same may be
refused by the officer at the police station, and hence it has provided for
relief at the level of the Superintendent of the Police, and at the level of
the Judiciary too, who may look into the cases of refusal, and direct the
concerned to do their duty.
However, even
with the above mentioned safeguards, the following questions remain unanswered-
1. What if someone provides a wrong
information? The police is duty bound to register a report. Now, report is not
just a ‘report’. It sets off into the motion a court file, with a “Crime
Number”, and an (unfortunate and implicated, in this case) “accused”. The
penalty for providing wrong information is very light under 182 IPC, or
moderate, under IPC 211. That is when the aggrieved party moves a complaint to
that nature, for the prosecution or the courts are generally reluctant to
pursue such matters on their own. Before that, the reputation, mental peace,
and sometimes even the liberty of the falsely accused person are under great
peril.
2. Then again, even if the case is
registered, what is there to ensure that the investigation is being carried out
correctly? One may argue that the trial ensures that any wrong evidence or
inference is struck off by the court. However, there is nothing to tell us if
any evidence was not overlooked deliberately - or ‘pitted’ (to use the
American slang). Investigation is a substantive exercise in itself, and the end
of the investigation case diary cannot, by itself, recreate what went right or
wrong during the whole course. Legally, no one can supervise the police during
the investigation itself, or even direct them to investigate in a certain way.
The correct
answers to both the questions shall be as follows. Firstly, there are very
feeble (and even more feebly used) provisions to restrain the registration of a
wrong Police Report. Hence, there are adequate opportunities to get a wrong FIR
registered, to harass a bonafide person in this jurisdiction. The trouble is,
the Police are duty-bound to register these reports, if the letter of the law
must be gone by. Secondly, there is a system of checking of case diaries
within the police hierarchy, and the superior officers sometimes do take out
time to supervise the same. However, this process is totally causa sui, and
(legally) does not depend on, or answer to the issues raised by a person
aggrieved by the said investigation. There is also a provision of a Protest
Petition which can be filed by the aggrieved complainant with the Magistrate,
in case he disagrees with the finding of the police. However, it is not a mechanism
of continuous monitoring, but rather an end of the process intervention.
That 5-6
sentence paragraph wreaks a total havoc on the actual justice delivery system.
When a Station Officer has decided not to register a report (for reasons we
shall go into later), and the complainant insists on waving the Supreme Court
Orders (or the CrPC) in his face, he may acquiesce. However, nothing prevents
him from registering a false report, initiated by (or by a proxy of) the real
perpetrator who is made an accused in the first FIR! In fact, the SO may
suddenly get very conscious of his duty to register every complaint, when such
a report comes his way. Then, the first FIR can proceed at its own pace, while
on the second report, investigation would run like an express train. Talks of
arrest would be made. Or even if both the FIRs are treated equally, it is the
inherent nature of our criminal justice system that the equal situation is not
equitable. For a (for example) middle class professor, the stigma of being an
“accused” is a big punishment in itself; for a strongman turned politician, it is a badge of honour, as was evidenced a few months back by a gentleman bragging about the number of criminal cases against him, before
threatening to burn down a police station! For a retired government servant,the fee of an off-the-shelf defence lawyer is a considerable drain on savings.
On the other hand, for someone who has amassed a considerable loot, marquee
lawyers are on the retainer. Hence, whenever a “common man” is falsely implicated
an “cross FIR”, his instincts tell him to patch it up with his tormentor. The SO is most
willing to organize this, and become the Antim Nyayadheesh instead of just
the Pratham!
The above
paragraph may sound disrespectful of police officers, and may sound as if the
author considers all police to be venal. That is not so. In my limited time as
an Executive Magistrate, the majority of the officers, even at Sub Inspector
levels, were, by nature, honest, and sincere. However, the political system
which we inhabit, forces the hand of a lot many honest persons. Again, then,
why I am speaking about police alone – isn’t the political system same for all
departments? Yes, it is. We have adequate examples of petty interference –
which beneficiary gets the free solar light, and which one doesn’t. Or for that
matter, who gets the free toilet, the free housing, the ration card, every
little benefit that the welfare state gives out. On a more serious notes, there
are Presiding officers of Revenue Courts, who decide land cases as per
political diktats. However, when it comes to police, the scope of abuse is
at a totally different level. For one, the thing at stake is not a
toilet, or one room house, or even a parcel of land, but the liberty and in
cases, life, of the citizenry. Not the “life” in post PUCL expanded definition,
but in the very crux of it. For seconds, the nexus between the political system
and crime is very much out in the open. The sheer number of dishonorables becoming Honorables is alarming – although, yet again, the Supreme Court has given us some relief in that
matter.
Still, the system cannot prevent the proxies of these debarred criminals from
contesting and even winning the elections. A firm grasp over the police ensures
an easy sailing for those in power (and also for those who are not in power,
for the right price of course). The importance of control over the Police can
be seen in the desperation shown by politicians who are not in control of the
police at the moment!
The latest
Supreme Court order delivers us from this difficulty, but in a very feeble way.
The mere appointment of a DGP by consultation with the UPSC won’t cut much. If
the removal from the post is not restrained the same way, it can make previously
politically non compromised incumbent into a pliant chief! Then again, District
chiefs are not secured from political whims, nor are the thousands of
Inspectors and Sub Inspectors, who are (or can be made into) the Station
Officers. The original judgement has instructions addressing these lacunae, to some extent. This author
had, in a previous article, proposed the system of a board for administration of all Civil Servants, which is not subordinate to any government, but to
the UPSC, just the way the Election Commission, through the state CEO office,
takes over the administrative jurisdiction during the elections. The logic of
the Supreme Court judgement can be extended to this natural conclusion.
However,
merely removing the political cage would not help, until the two questions
raised in the beginning are addressed. Without them, the system would not be
secured from the depredations of the non political actors, or worse, plain
lethargy on the part of the investigating authority. Let us revisit the
question once again. Say a malafide complainant has come to register an FIR
against an innocent accused. Legally, at that instant, the Station Officer has
no choice but to register an FIR, if "the information makes out the
commission of a cognizable offence", regardless of the veracity of the
information itself. Even if the SO is willing to let the law be, the malafide
complainant has the whole media gallery to force the SO’s hand. Then, an
innocent person gets his name in the crime record, and must run from pillar to
post to profess his innocence. He is troubled for no fault of his own. Then
again, if we remove this compulsion of registering the report, there can be
crimes which go unaccounted, simply because the police wont be troubled. The
wordings of the Section 157 of CrPC presents us with quite a conundrum –
"157.
Procedure for investigation preliminary inquiry.
(1) If, from
information received or otherwise, an officer in charge of a police station has
reason to suspect the commission of an offence which he is empowered under
section 156 to investigate, he shall forthwith send a report of the same to a
Magistrate empowered to take cognizance of such offence upon a police report
and shall proceed in person, or shall depute one of his subordinate officers
not being below such rank as the State Government may, by general or special
order, prescribe in this behalf, to proceed, to the spot, to investigate the
facts and circumstances of the case, and, if necessary, to take measures for
the discovery and arrest of the offender; Provided that-
(a) when
information as to the commission of any such offence is given against any
person by name and the case is not of a serious nature, the officer in charge
of a police station need not proceed in person or depute a subordinate officer
to make an investigation on the spot;
(b) if it
appears to the officer in charge of a police station that there is no
sufficient ground for entering on an investigation, he shall not investigate
the case.”
It does seem
to envisage that there are reports which need not be investigated, and makes
procedural provisions for the same under 157(1)(b). However, in the part of
157(1) preceding the proviso, making a report to the Magistrate comes before
the investigation begins. Thus, as per the letter of the law, a criminal case
is to be instituted in the court, even before the IO has applied his mind to
the basics. Even if on application of his mind, IO finds the report frivolous,
he has the option of not investigating, but, as per the language, the
requirement of intimating the magistrate is not done away with. If a syntactically
and semantically correct information of a cognizable offence is received by a
Police Station, it must result in a criminal case as per the letter of the law,
notwithstanding the factual truth of the said information. Hence, the solution
to this twisted knot lies in creating a legal meta-state between the information
and registration of a “criminal case”. It should be mandatory to take in all
information – how so ever frivolous it may be. It should be mandatory to look
into it prima facie, and to convert it into a criminal case only after a
speaking order by the Investigator. In fact, it is what practically does happen
today. However, in absence of existing Statutes to the effect, and in face of
Judicial Orders against it, this system stays in the shadow, where it is prone
to much abuse. False accusations have stayed in human society since ancient
times – it has its own specific Commandment out of Ten – Thou shall not bear
false witness! However, neither biblical commands, nor legal hurdles have been
able to deter false hood. With the prescribed solution, one can avoid the sad
spectacle of unverified falsehoods causing good people trouble.
This brings
us to the verification, which is a solution to the second problem. Legally, the
IO takes no instructions. Not at all. Not even from his superiors – they may
only change the IO, if they feel the IO is wrong or lacking in his
investigation. Even judicial interventions occur when the investigation report
is finally tabled on the dais, not during the process itself. However, as we
know, the process of investigation culminates in the generation of either a
Chargesheet, or a Final Report, based on what the IO finds, and what he deduces
from the same. Minus the power to punish, it is an almost judicial work –
appreciating evidence and forming an opinion. However, unlike the Court
proceedings, which both sides and their counsels aid the judge in forming his
opinion, here, legally, the IO is alone. He may question those he suspects.
However, won’t the complainant be in a good position to give the IO pointers as
to what matters he should look into, especially in “non-mystery” cases?
Similarly, won’t the accused be better placed to point out to evidence that
exonerates him? Since there is no legal system of taking both sides contentions
on the record, it is up to the whim and fancy of the IO over what evidence to
include and what to overlook. We are ever vigilant about the threat of false
and fabricated evidence loading an investigation and trial, but we are
unnaturally blasé about the possibility (and occurrence) of selective inclusion
of evidence. Hence, a system needs to be in place, where the contentions of all
the parties involved can be placed on the record, for the benefit of the
investigation. We can hardly expect to set up court rooms for all the IO in the
country. What is feasible is an online portal, where the parties can put up
their assertions, and evidence in support of the same. There is no dearth of
such portals in the government system. Almost all states have grievance
redressal portals, wherein, among other things, police investigation related issues
are admitted with alacrity, and are then disposed off at the face value of
whatever the police department responds with. Occasionally a conscientious IO
(or his conscientious superior) might take a cue from these petitions and amend
their process. However, in majority of the cases, these inputs don’t make an
iota of a difference on the investigation – because of two reasons – a. There
is no legal need to do so, b. Most petitions are full of assertions for which
there isn’t, and there can’t be any supporting evidence. Somethings on the line
of “Sab mile hue hain. Koi sunwaai nahin ho rahi hai” (Everyone is in
cahoots with others, and no one is hearing me out), instead of hard facts,
like, for example, a screenshot of an abusive message which the IO has
overlooked. In order to ensure better guided investigation in contentious
cases, as well as to better channel the angst against the system which is
generated in these grievance portals, we need to make the twain meet. In fact,
a better way would be create a specific online file for every complaint, in
which the complainant, as well as the accused may put in all the evidence in
their favour, as well as the assertions that go with them. They will go a good
way into ensuring that the IO does justice with his case. More importantly, it
shall present the superiors of the IO (as well as the courts) with a clear picture of the errors and
omissions made by the IO, in case he chooses to ignore any of the evidence.
Post
Script & A Detour
After
speaking purely from a service-neutral point of view above, I must get to some issues
of own tribe now. While there are some voices of dismay from within the ranks
of the Service about the Supreme Court judgement, I think the same is a case of
misapprehension. There is a feeling that “we” may lose control of the police. I
do not think so. Legally, in investigation, police is independent. Whatever
“control” we profess to exercise administratively is extra legal. That, plus,
of course, friendships forged with our Police Service colleagues in the
Himalayan Treks at the Academy, or at evening get-togethers in one-shop-town
postings, also help. For Law and Order issues, the powers of the Executive
Magistrates are enshrined as sacrosanct in the same CrPC from which the police
derive their powers. A politically unburdened police would strengthen the
institution of EM, for it would be easier for the police to carry out the court
orders. In fact, the next logical step, which this author has suggested
earlier, would be political unburdening of the EMs. High Courts currently
exercise only judicial control over them right now. It needs to be extended to
the administrative end too – coterminous with that of the Executive government.
That would be a big step in salvaging the much depreciated office of the
District Magistrate! The Supreme Court judgement in question is a result of
long and tireless efforts of a retired Police Service officer. However, the
counterparts in Administrative Service appear much clueless about it. Based on
political expediency, some of our illustrious seniors have supported the idea
of allowing non careerist personnel to man senior positions in the government.
Some others may have supported it to sound in-step with the media sentiments.
However, the sentiments flowing in the media are often very simplistic, and
mutually contradictory. For media has also supported the said SC verdict on DGP
appointments. So, on one hand, we must believe that the government must not be free to unilaterally choose its police chief, out of an
eligible pool of just about half a dozen Apex Scale IPS officers, as it can
lead to “politically convenient” appointments. On the other hand, it is deemed advisable
to open the arena to potentially thousands of “corporate sector luminaries”
(millions, if we include petty kaarykartas) when an appointment to
senior official positions of the government is concerned; for that, somehow,
would be a politically neutral process! What's sauce for the goose is sauce for
the gander. The service should also move itself to free itself, and its
jurisdiction, from extra legal political constraints. It has been called the
Steel Frame in the older days – in a largely static system of government.
However, in this era of welfare state, the Service is not only frame, but also
the engine and the drive shaft of the State. As any engineer worth his salt can
tell, structural flexibility of theoretically rigid members of a machine can
only lead to inefficiency, inefficacy unpredictability, and failure. The
efforts of the Police Service, and the judgement of the Honorable Court, are
steps in the right direction. One thing is clear from this whole episode – meaningful
administrative reforms (as opposed to “reforms” for the gallery) can never be
brought about by a political process, as the politicians as a class sustain the
biggest loss in the deal. It has to be through the Courts, and it has to take
sustained efforts. What is to be strived for is a politically independent
Civil Services Board, under the UPSC, (with some Judiciary component), which
deals with administration of the Administrators. In case of the police officers, the PIL was moved by a distinguished retired Police Officer; can we
dream to expect something similar from our luminaries? Unconstrained from owning
failures of half baked demagogic ideas, and free to aid and advise fearlessly,
the way the Founding Fathers of the Republic had imagined, we would have a much
better record to show. If nothing else, we would be spared of ugly political sparring over who “controls” us!
