Wednesday, 2 May 2012

Statement on dependent judiciary in West Bengal

Banglar Manabadhikar Suraksha Mancha (MASUM), an initiative of human rights activists working mainly to minimise torture by the state agencies from our society. In this process we are extending medical, legal, social and psychological support to the victims of torture. We are implementing a programme under the aegis of United Nations Voluntary Funds for Victims of Torture (UNVFVT).

We, MASUM is supporting the victims of torture / killings by the people in uniform in 37 cases running in different criminal courts of West Bengal since last 3 years where petitions under sections 156(3) of Criminal Procedure Code in respective judicial magistrate’s courts were filed and accepted. The need to file those petitions under section 156(3) of Criminal Procedure Code was that the police refused to register complaints against the accused Border Security Force / police personnel and also the district Superintendent of Police did not act in spite of receiving complaints against the erring police officials of their refusal to take appropriate legal action against the accused BSF personnel.

The settled principle of law that the police are bound to register an FIR whenever information disclosing cognizable offence is received was violated in each cases for which petitions under section 156(3) of Criminal Procedure Code were filed therefore praying before the concerned magistrate of sending those complaints to the respective police stations for registering FIR against the accused BSF / police personnel.     

It is our mixed experience that the some of those petitions were allowed by the concerned judicial magistrate and some of them were rejected. The concerned Magistrate set forth reasons for such rejection that the ordinary criminal court has no power to permit prosecution against Border Security Force.  It is hereby worthy to mention that the Chief Judicial Magistrate, Berhampore, Murshidabad district earlier allowed some petitions to be treated as FIR against accused BSF personnel and the same court, later rejected three petitions on the ground that the ordinary criminal court has no power to permit prosecution against Border Security Force.

On the other hand the Additional Chief Judicial Magistrate, Lalbagh, Murshidabad allowed petitions under section 156(3) of Criminal Procedure Code to be treated as FIR against the accused BSF personnel almost in the same time.

Under such experience on 27.4.2012 our advocate went to Basirhat Court district North 24 Parganas to move two petitions under sections 156(3) of Criminal Procedure Code before the Additional Chief Judicial Magistrate, Basirhat, North 24 Parganas. In one petition (being case no. C 496/2012) the complainant was Ms. Selima Gazi whose husband was allegedly stabbed and tortured by the accused BSF personnel on 25.8.2011 and since then she has no clue of his whereabouts. So the complaint was filed under sections 323 / 324 /325/ 326/ 341/ 201/ 211/ 307/ 34 of Indian Penal Code. In another petition (being case no. C 497/2012) the complainant was Mr. Abdur Rahman who along with other five men were brutally assaulted and criminally intimidated on 22.8.2011 by the accused BSF personnel. So the complaint was filed under sections 323 / 324 /341/ 504/ 506/ 34 of Indian Penal Code

During hearing both the complainants stood before the court and the concerned Additional Chief Judicial Magistrate, Basirhat heard the advocate appeared for the complainants. After hearing the cases the said concerned judicial magistrate kept pending her decision and later on the same day the advocate came to know that those petitions were rejected and no reason was recorded in the case records for such rejection.

From the above observations it is clear that the presiding officers of the concerned courts in state of West Bengal acting under the same law delivered different orders on the complaints where the complainants filed petitions seeking prosecution against the accused perpetrator BSF / police personnel. It is true that the courts have the power to exercise discretion while passing order but such discretion must be fair, just and reasonable. But the disparity of judicial orders shown in such 37 cases vividly establishes that the judiciary is insensitive in committing fair and equal justice towards the victims of torture and extra-judicial executions in the hands of the accused people in uniform. Moreover, discretion does not mean typified pro- government stance and in this case more precisely echoing the position taken by the police.     

We are also concerned with some recently happened incidents in West Bengal where it appears that the judiciary failed to apply its judicial supervision over gross violation of rights and framing of innocent persons in concocted police cases initiated by police which is still an active arm of the state atrocities. We recently came across the heinous incident of the arrest of eight (8) Mahatama Gandhi National Rural Employment Guarantee Scheme (MGNREGS) workers from Lakhanpur Gram Panchayet, Hura Block, Purulia district on23rd April 2012. The facts have emerged that this arrest is a means by which the administration and Panchayat want to suppress any protest against their own corruption and illegality in implementation of MGNREGS. At present the workers have been remanded to jail custody for 15 days up to 8thMay 2012 by order of the court, causing huge problems for them and their families, as all of them are daily wage earners.

The recent incident of Nonadanga eviction and suspicious police action is still afresh in our memory where numbers of persons are still languishing in jail. The media reports vividly highlighted the incidents of police torture happened during and subsequent to the eviction. It is noticeable that the some activists and eminent persons are framed in criminal charges for protesting against the said eviction drive. The judiciary before which such criminal cases are pending is merely passing orders on wish of public prosecutor and police who are ultimately acting by the instruction of government. The judiciary is reluctant to take any judicial notice of violation of people’s rights in any way in such cases.  Recently, 11 evictees being arrested from the site while protesting illegal eviction drive and demanding proper rehabilitation, were sent to police remand till 3rd of May.

It is invariable that individual rights guaranteed under the law against the arbitrary action of the state are bound to fail if we do not have a strong judiciary and will be forced to live not under the rule of law but under the rule of state arbitrariness.        

We hope that our esteemed judicial system will take notice of our legitimate concern and show a fair legal attitude towards the victims of torture and extra judicial executions in the hands of the state agencies and provide fair and equal justice both in papers and practice thereby prevail the rule of law. The recent happenings in judicial process, out rightly laced up with the governmental stand of curbing dissent voices and thwarting of human right practices. The government in West Bengal likes its predecessor squeezing democratic space in society and numbing independent authorities and in this process unduly maneuvering judiciary and this act became a threat for democratic and non partisan functioning of state affairs. Independent judiciary is not a reality in our country and human rights fraternity is demanding for the same for quite long, in this regard MASUM vehemently protested against keeping and maintaining of judicial records and writing the judicial orders by police in West Bengal but recent uncaring attitude shown by a section of judicial officers further hampered the long cherished goal of judicial independence in the state.

Kirity Roy,
Secretary, MASUM 

Kirity Roy
Banglar Manabadhikar Suraksha Mancha
National Convenor (PACTI)
Programme Against Custodial Torture & Impunity
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