RELATIONS BETWEEN THE STATES AND MAINTAINCE OF LAW AND ORDER BRUTALITY & BIASES
There are numerous cycle of events and layers of functionality present at investigation of the case, Different bodies of the government works collectively in coordination with each other to meet the ends, for a proper maintenance of law and order there must be applied laws equally to citizens without scope of any bias and prejudice between the two people. However, when it comes to actually implementing the laws and securing the justice, the idea the same is sometimes obstructed because of unfair practices on the part of those responsible for safeguarding the laws and responsible for maintenance of peace and order. It hence becomes extremely necessary for a lucid and swift law and order situation to have multiple agencies keep checking on each other functions rigorously but at the same time not interrupting the functions of each other completely. Ultimately no body, government or department is superior than the citizens and to make each and every body of the government in sync with each other, which can only happen by legislating the transparent laws and effectively enforcing the same with proper check and balances to each other.
RELATIONS BETWEEN THE STATES AND MAINTAINCE OF LAW AND ORDER
There can be conflict between the two states while investigating a matter, it can be various reasons for the same but the entire picture of these conflict boils down in two simple theories related to formation, functioning and organization of the police department:
First theory is on the organization which is, the way the law and order system in India is organized and functions the police department is under executive that too at a state level, it is also necessary for the police department under the state level because the police is the only body of the government which is in direct conversation and contact at the ground level and in order to hold the law and order with stability the same is also essential, moreover there is also another much wider reason behind the same which is that the very formation of the states is on the basis of linguistic basis which was one of the major and highly considered component while the state was made, hence each state must be having population speaking two or three or more languages hence the government and the police is supposed to know the knowledge to handle the law and order situation better hence it is necessary to have a state level executive control over the police department, because ultimately the law and order situation has to be both maintained and executed on the population which is in the states only.
Second theory which works as a reason behind the conflicts between the two states is the law itself, there could be cases in which the investigation has to be carried out beyond the state territories, there could be the cases in which there are multiple parties connected to an incident, there could be cases where the overall control of over police department is naturally wider than the other considering the jurisdictional angle of the cases, In these cases ultimately the decisive body is the Supreme court because according to the legal framework of the constitution the investigation at the first place is conducted by the police department of the particular state,
An investigation is a pretrial process in which the main aim of the police is to collect the evidence against the accused and identify the other trails of the crime which could potentially lead the same to the accused, the investigation starts after the filing of an FIR, however to conduct an investigation to a crime the criteria to having to lodge the complaint is not mandatory according to section 157, code of criminal procedure and the investigation can be conducted on being getting informed of an cognizable offence, moreover an investigation can also be conducted on the orders of magistrate under section 156(3), section 159 and section 202.
The word First Information Report is not used in the code of criminal procedure, “The aim of the FIR is to collect and assimilate the information earliest, and subsequently the police can start the investigation without the orders of the magistrate.
CAUSE OF ACTION OVER AN OFFENSE:
The cause of action is nothing but presence of facts or facts on which reliance a suit can be filed on the other person, for a suit to be filed some or more facts shall be connecting to that of a person who feels to be a victim of the case irrespective of the place ones residing in is distant from the place crime is committed or not, instead of being a negative factor between the police departments of different state, it is a uniting factor and forces the justice to be served in spite of interstate activities as the cause of action of a particular case can be endless, and hence the parties outside a particular jurisdiction can also take part in the proceedings as a victim as it is there that even if a place or the person has part or full connection with the cause of action of the crime it shall be considered fit for that particular person to file a case for the justice or being a party to the particular ongoing case.
INVESTIGATION OF THE CASE OUTSIDE ONE’S TERRITORIAL JURISDICTION:
In the case Satvindar Kaur vs State (Govt. of N.C.T of Delhi)it is opined by the Hon’ble Supreme Court of India that according to the chapter 12 of code of criminal procedure the same is given that a cognizable offence has to be investigated under the territorial jurisdiction of the court and the territorial jurisdiction of police station is same to that of the courts having jurisdiction over the local area, and only those respective police stations will have the power to investigate the case. Supreme court also asserted that However, it is also given in chapter 12 that the investigating officer on no grounds shall be barred to investigate solely on the basis of territorial jurisdiction if an officer feels facts to be left unattended or some additional facts to be investigated the officer is free to investigate without any sort of restrictions by any authority or any person, BUT such report however instead of submitting of the higher authorities of justice it shall be humbly submitted to the police station which have the jurisdiction over the case under the section 168, 169, 170 of the code of criminal procedure. It was further stated by the supreme court of India that if the police officer who do not have the jurisdiction comes to a conclusion to shut the case due to no affiliation and manifestation of the charges the same will not itself shut the case unless the same is not opined by the police station having the jurisdiction over the case.
These are the factors that basically leads to a tussle between the two state’s and their police departments because the state in which crime has actually committed is always in a dominant position than the state which mere have a cause of action of the state, Hence because of the domination of one state the political web also works to make the investigation even more complicated, undirected and delayed, there are different political parties in different states which ultimately control a high profile case and its investigations which leads to even more complications in delivering of justice.
The measures stated above can be used to ease a situation a bit and if nothing is working to the way of justice ultimately the courts are the last resort to channel the investigations at the right place, it is the solution that will bypass all the political harnesses and can direct the investigation to the right hands.
However, if its established that the police are not working in a proper way, and the investigation is not properly conducted or channelized or material facts are being ignored that particular investigation can be taken form that particular department and transferred to the other departments:
The other departments like Central Bureau of Investigation, If the political nexus is so firm over something that the police is unable to work properly in any circumstances, or in case of any arbitration solely on the police agencies the case can be forwarded to Central Bureau of Investigation. The CBI has the jurisdiction all over India and it is premier investigation police agency in India, the same operates under the Department of Personnel, Ministry of Personnel, Grievances, Government of India (central level) which under the office of Prime minister of India. When it comes to investigation and its authenticity it comes among the best investigation agencies in the world, The transference of the case to the CBI will completely change the investigation agencies and the authorities controlling such investigations which will completely eradicate any arbitration and will ensure “right” investigation as CBI is one of the topmost investigating agencies in India.
The nature of cases allotted to CBI is very limited and very distinct in nature and not ordinary cases, the cases where an injustice caused will potentially affect the public interest and is against the sovereignty and integrity of the nation or gross injustice which is against the very fundamentals of justice. The case can be allotted to CBI on the recommendation of Central government after proper reasoning of the government that the same case falls under the special criteria and the same case is completely out of preview and out of scope of the present investigation agencies to conclude. Since there is a lot of political interference is involved in some cases HENCE a case can be recommended to the CBI by Hon’ble High Courts & Supreme Court of India.
State Of West Bengal & Ors vs Swapan Kumar Guha & OrsIt was opined by the hon’ble Supreme court of India that if on the basis of the facts and evidences received by the investigation agencies for instance police department after the complaint is lodged, there is a an affirmative report of the cognizable offence then the investigation must be conducted and if the there is no such disclosure of the cognizable offence then according to the directions of the Hon’ble Supreme Court of India then by the powers of the High court under Article 226 or under section 482 of the code of criminal procedure, the high court have the authority terminate the investigation.
Babubhai v. State of Gujrat and OthersIn the above case it was opined by the Hon’ble Supreme court of India that the Free and Fair investigation is a an essential part of criminal justice system and article 20 and article 21 of the constitution of India, the investigation CANNOT be conducted by the investigation agencies UNDER ANY CIRCUMSTANCES by the investigation agencies for instance Police department in a biased, and arbitrary manner no matter how slight is the guilt of the investigation agencies, If the same is conducted the general rule of non-inference of the Court into the investigation will subside and the Courts can interfere in such investigation subsequently.
Bathula Nagamalleswara Rao & Ors vs State, in the above case it was held by the Apex court that if the delay in lodging the FIR is justified then no fatality could be imposed but if there is an unreasonable delay it will always be looked upon as a suspicion.
BRUTALITY & BIASIS
The unprecedent debate over police misconduct in India and the United States has captured the attention of people and various human rights associations including the American Bar Association, around the world. The instances in India of police bias, unfair treatment and brutality, as well as selective persecution of particular communities have always been a question of debate for everyone.
Considering the two most debatable incidents: the Palghar lynching to which the police were meek bystanders and violence by Uttar Pradesh police against people protesting the Citizenship Amendment Act, especially children. Other excesses have also come to the fore during the lockdown to prevent the spread of coronavirus, such as the indiscriminate use of lathis against people violating the restrictions as well as against providers of essential services.
The number of deaths of people in the custody of the Indian police are staggering. Between April 2017 and February 2018, India recorded a staggering 1,674 custodial deaths, a rate of five custodial deaths per day, according to statistics placed by the Home Ministry before the Rajya Sabha. Uttar Pradesh topped the list, with 374 deaths reported in this period of under a year.
There are a number of things that we generally ignore in the society and this ignorance gradually turns into acceptance and then becomes ordinary. Policemen are generally seen beating the common people and we misunderstand that behavior as a role of police in maintaining order in the society, many people wear helmet while riding a two wheeler not for their safety but because of the apprehension they have in their mind that the traffic police would beat them and seize their vehicle. This apprehension in the mind of people is because of the brutality and arbitrary act of the police, rather than seeking the way of the courts the policemen generally takes law in their hands and acts according to their whims and fancies. There have been numerous cases of police misconduct, here in this article I have tried explaining the arbitrary nature of police via some important cases and recent incidents that took place in India.
JEYARAJ AND FENIX:
CUSTODIAL DEATH AT TOOTHUKUDI, TAMIL NADU
Facts of the case:
Jeyaraj Ponraj, 62, and his son Fenix Jeyaraj, 38, owned a shop named APJ Mobiles in Thoothukudi, Tamil Nadu. Due to the outbreak of corona virus the police made an announcement on June 18th, that all the shopkeepers had to close their shops at 8 p.m. and no one would be allowed to open their shop after that time.
Someone informed the police the next morning, that is 19th June, that Jeyaraj had passed an offensive comment on the Police. After this, on 19th June a constable approaches Jeyaraj at around 7:30 p.m., Jeyaraj at that time was standing in front of his shop, this incident was recorded by a CCTV from King’s Electricals, located besides APJ Mobiles, next to Jeyaraj and Fenix’s shop.
Jeyaraj was being taken to the vehicle of the Police vehicle, which was parked on the other side of the road, seeing this Fenix reaches there but is immediately seen returning to his shop, in the CCTV-footage, recorded by Kings Electricals’ CCTV. According to Fenix’s friend, Jeyaraj was taken to the police station by the police in their vehicle and Fenix was asked to come and talk to them regrading this matter in the police station.
It can also be seen in the CCTV-footage recorded by the CCTV of Kings Electricals that by this time all the other near-by shops were open which invalidates the point made by Police in their FIR, that the shop owned by Jeyaraj and Fenix was breaking the lockdown rules. As per Fenix’s friend the duo was followed by three acquaintances on the way to police station.
The acquaintances heard cries of both Jeyaraj and Fenix throughout the night, the next morning that is on 20th June, both of them were taken to Sathankulam hospital, where the family saw the both in a bad condition and shape, also the pant of Fenix and veshti of Jeyaraj was covered in blood.
After spending three hours at the hospital the two were taken to the Sathankulam magistrate court and the Magistrate sent them to Kovilpatti sub jail. The family then had no clue of the two for two days, until the two were shifted to a nearby hospital on 22nd June. Fenix succumbed to the injuries and died in the evening of 22nd June, his father, Jeyaraj died on 23rd June.
Police is required in the society to maintain law and order and not to punish and kill the offenders of law. This case of Jeyaraj and Fenix’s custodial death has raised various concerns and questions regarding the third-degree torture of police.
In 2017, the law commission said that they are considering this bill on a serious note but to bring this bill, a change in Indian Penal Code, Indian Evidence act and Criminal Procedure Act is required, which in itself is a huge task to accomplish but bigger than this is the brutality of police and atrocities that are being committed by police which is increasing exponentially. In 2019 there were 17000 plus custodial deaths and hence if this thing is not addressed immediately the number is going to increase in future and law would vanish one day, anarchy would prevail in the society and the stringer section would oppress the weaker section.
In the present case of Jeyaraj and Fenix, both of them were illegally detained by the Tamil Nadu government, they did not break any of the lockdown rules, still they were taken into custody and beaten up, InRadul Shah v. State of Bihar, 1983, Radul shah was also illegally detained for 14 years the Supreme Court realized that if the constitutional right of any individual is violated by the State then compensation would be awarded to the one who suffered damages.
In the case of Saheli v. Commissioner of Police, the police along with the Zamindar misbehaves with the mother and his 9 year old child, following which the child dies, this case is important because in this case the Supreme Court gave option to the Delhi administration to recover the amount of the incident from the police officer who was involved in this incident.
In Nilbati Behera v. State of Orissa, 1993, Suman Mehar was who was in the custody of the police was found dead the next day on the railway track with multiple injuries, in this case the petitioner was awarded compensation.
CORRUPTION & BRIBERY - According to the bribery list released for 2019 by the Anti-corruption bureau (ACB) among 44 state government departments Maharashtra police department has the most corruption complaints against it.In, 2019 ACB has registered 194 cases against the police department and arrested 269 corrupt personnel for bribery.
MISINTERPRETATION OF POWER –
Most famous example – Frame somebody under false charges, and while framing false charge cops always try to show that they are very conscious and solving a case properly but in so many leading case facts is totally different.
In State of West Bengal & Ors vs Swapan Kumar Guha &Ors (1982),three judge benches of the Supreme court had emphasized that there is no such thing as unfettered discretion. Explaining the often-misunderstood Privy council judgement in the case of Emperor vs Khwaja Nazir Ahmed (1944), the supreme court said that the police cannot investigate a FIR which does not disclose the commission of a cognizable offence.
In another caseLalita Kumari vs Govt. Of Up & Ors(2013), supreme court held that the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to the commission of a cognizable offence. A police officer can foreclose aFIR before an investigation under Section 157 of the code, if it appears to him that there is no sufficient ground to investigate the same.
ABUSE OF POWER OF INVESTIGATION
Malicious prosecution & misuse of the provision of Section 156(3) Crpc, which empowers a magistrate to order the police to register a case and investigate
In Priyanka Shrivastava & Ane vs State of Up & Ors (2015), a division bench of the Supreme court had acknowledged the abuse of the provision. And in a catena of judgements, it has been held that the magistrate is bound to apply his judicial mind to the complaint.There are also many leading cases in which victim of malicious prosecution got compensation.
Bambi Narayan vs Subh Mathews &Ors (2018)after a long wait of 22yrs victim got compensation of Rs 50 lakh.
It is imperative to understand the framework for pursuing grievances against police excesses. Remedies, including compensation, can be sought before the High Courts and the Supreme Court under the Constitution of India for violations of fundamental rights. However, these constitutional courts are not widely accessible and usually deal only with egregious cases where the burden of proof is high.
Relief can also be sought before the National and the State Human Rights Commissions set up under the Protection of Human Rights Act, 1993, but their recommendations are not binding on the respective governments. Additionally, as of December 2019, three states did not have State Human Rights Commissions. In two states, the commissions were completely dysfunctional, while in ten states, the post of chairperson of the commission was vacant.
Criminal complaints can be filed against the concerned officers for offences under the Indian Penal Code, 1860, but there is no mechanism for an independent investigation. As a result, police personnel often refuse to register first information reports against their colleagues. The safeguard under Section 197 of the Criminal Procedure Code, 1973, is also often misused. This section requires prior sanction from the concerned government when a public servant, which includes a police officer, is accused of any offence committed in the discharge of official duty.
Lastly, since police is a state subject under the Constitution, disciplinary proceedings and punishment for errant police officers such as suspension, removal or deduction of salary is provided under respective state enactments. However, these proceedings, too, are tainted by the lack of independent and impartial oversight.
Keeping in mind that the numbers of custodial deaths in Uttar Pradesh were the highest in the country between April 2017 to February 2018, the continued failure to constitute these authorities in India’s most populous states is worrisome. Moreover, considering that the authority, as envisaged by the Supreme Court, was to be an independent one whose recommendations were binding, these deviations convert legal reforms into mere dead letters of the law.