The Asian Human Rights Commission (AHRC) has received information from Banglar Manabadhikar Suraksha Mancha (MASUM) concerning the case of custodial torture and fabrication of a false case against two persons by the officers from Baduria and Basirhat police stations. It is alleged that the victims in the case now face a fabricated charge for possession of cannabis and are detained at the Dum Dum Central Correctional Home in West Bengal. It is reported that one of the police officers involved in the incident has demanded Rs. 3000.00 as bribe from the father of one of the victims to stop torturing the victims in custody.
CASE NARRATIVE:
A fact-finding undertaken by MASUM concerning the case has revealed the following details. On 29 December 2011 at about 2 am a team of police officers, reportedly from Baduria and Basirhat police stations, raided the houses of the victims at night. The police assaulted the victims at their home and later arrested them. The officers did not offer any reason whatsoever for the search or arrest. The police complied with no mandatory procedures at the time of the search and arrest and no memo of arrest was issued. Neither did the officer inform the detainees or their relatives where the victims would be taken to at the time of arrest.
The victims in the case are Mr. Rajak Mondal and Mr.Fajular Mondal, both residents of Srikati village, North 24 Parganas district, West Bengal.
The police reportedly later registered a fabricated case against the victims accusing them that the police had arrested them on 31 December 2011 from Moylakhola bus stand and that they had 6.700 kilograms of cannabis in their possession. The family of the victims alleges that this is a false case. They also claim that the illegal search, arrest, fabrication of the false case and detention is due to political revenge to detain the victims for a prolonged period of time. Illegal possession of narcotic and psychotropic substances in India is a serious offense in which obtaining pre-trial bail is extremely difficult.
In the meanwhile it is also alleged that police officer Mr. Sanjoybabu has demanded Rs. 3000.00 as bribe to be paid to the officer and that should the family fail to make the payment the victims would be further assaulted in custody. Fearing for the safety of the victims, Mr. Rashid Mondal, father of Rajak paid the bribe through one Mr. Sahabab Mondal who reportedly works as an informer to the local police. Sahabab had reportedly informed Rashid that the officer, after accepting the bribe, had agreed to stop torturing Rajak.
Days after the arrest the families of the victims were informed that the victims are charged with offences punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. The allegedly false case registered against the victims as Basirhat police station case, crime number 643/2011, is under Section 20 (b) (i) of the Act. It is revealed that even though the arrest was made on 29 December, the victims were produced before a Magistrate only on 1 January 2012, which violates the mandate in law that requires the police to produce an arrested person before a judicial officer within 24 hours from the time of arrest. There are also allegations that the victims were tortured while they were in custody. At the moment the victims are detailed at Dum Central Correctional Home, in West Bengal as under trial prisoners.
ADDITIONAL INFORMATION:
The practice of torture is widespread in India. Unchallenged and unopposed, it has become a normal and legitimate practice for the law enforcement agencies in the country. Torture in custody is reported regularly in India and the instances of custodial torture and other forms of violence is at an alarming rate in India. Reports allege that between 2001-10 more than 14,231 persons have died in police and judicial custody in the country. This means that during the past ten years on an average 4 persons dies every day while in custody.
In a democratic society, the role of the police is to protect the rights of the citizens. However, in India it is well known that the police systematically abuse their authority and employ custodial torture as part of their investigation and fabricates false cases against persons as they wish. The poor, the deprived, women and children and political activists are mostly the victims of police violence.
The barbarity of incarceration is validated by the popular retributive-deterrent philosophy, which is the current sentencing norm in many criminal jurisdictions and India is no exception to this. Fabrication of false cases, custodial violence, including torture and death in police/judicial custody strikes a blow at the rule of law, which demands that the powers of the executive should not only derived from law but also that the same should be limited by law. In this scenario, the lacking of a proper law that criminalises torture creates a congenial environment for the law enforcement agencies to continue with their criminal acts with impunity.
Section 211 of the Indian Penal Code 1860 mandates punishment for fabricating false charges of offences made with intent to injure the victim. Whoever with intent to cause injury to any person, institutes or causes to be instituted any criminal proceedings against that person or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground or such proceeding or charge against that person shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 120B(1) of the code mandates punishment for criminal conspiracy: whoever is a party to criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where no express provision is made in this code for the punishment of such conspiracy, be punished in the same manner as if he had abetted such offence.
Section 384 of the code mandates punishment for extortion that whoever commits extortion shall be punished with imprisonment for a term, which may extend to three years or with fine or with both.
Section 458 of code mandates punishment for lurking house trespass or house breaking by night after preparation for hurt, assault, or wrongful restraint - whoever commits lurking house by night or house breaking by night having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or assault, or wrongful restraint, shall be punished with imprisonment for life either description for a term which may extend to fourteen years and shall also be liable to fine.
Section 326 of the Code mandates punishment by way of imprisonment for a term of ten years to a person who voluntarily causes hurt by dangerous weapons or means.
Section 34 of the code mandates: acts done by several persons in furtherance of common intention that whenever several persons in furtherance of do a criminal act the common intention of the all each of such person is liable for that act in the same manner as if it were done by him alone.
Section 13(1)(d)(i) of The Prevention of corruption Act, 1988 defines that while holding the office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest is said to be commit the offence of criminal misconduct.
Section 13(2) of the Act mandates: any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine.
Article 21of the Constitution of India mandates: No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 39A of the Constitution of India mandates Equal justice and free legal aid -The state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall in particular provide free legal aid by suitable legislations or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Under section 18(3) of the protection of Human Rights Act, 1993 the national human rights commission has amble power to advance cause of compensatory justice to the victims of torture.
Article 5 of the Universal Declaration of Human Rights (UDHR) incorporated the right to protection against torture and the same has been sought to be achieved through declaration of the Fifth United Nations Congress held in 1975. UN Convention against torture provides for redress and compensation to the victim. Article 14 of the convention categorically emphasizes that every state party to the convention must ensure that the tortured victim is provided fair and adequate compensation and rehabilitation. The right to be free from arbitrary detention is a fundamental right. Even though the India has not rectified the convention, India torture is a subject of ius cojens that mandates the state to ensure that the torture is prevented in all jurisdictions.
The clear case of the prohibition against torture was delivered by the supreme court of India in Sunil Batra vs. Delhi Administration reported in 1978 (4) Supreme Court Cases 494. The Supreme Court did not find itself handicapped by the absence of specific provisions against torture in the constitution and gathered support from Article 14 and 19 in holding against the permissibility of torture vis-à-vis persons suspected and accused of crime. At this juncture the prevention of Torture Bill 2010 becomes relevant. The mandatory requirements prescribed in the code of criminal procedure for arrest and also the police did not comply the directives issued by the Supreme Court in the D. K. Basu case in this case.
Khatri vs. State of Bihar reported in 1981 All India Reporter (Supreme Court) p. 928 is an example of how cruel and in human treatment to the prisoners insolates the sprit of constitution and human value as well as Article 21 as far as persons in custody are concerned. The court had held that these rights are available even for prisoners.
In A. Nallassivan vs. State of Tamil Nadu & others reported in 1995 Criminal Law Journal 2754 (Madras) 90 women and 28 children from a village were detained in the office of forest range officer for a night. The court held the detention is illegal, offending fundamental rights and directed enquiry by the Central Bureau of Investigation (CBI) India. The court further added that if a police officer acted contrary to the proviso to Section 160(1)of the code of criminal procedure, such deviation should be reason for prompt punishment, since the policemen may not become a law unto themselves while expecting others to obey the law.
The supreme court of India in Aravinder Singh Bagga vs. State of Utter Pradesh reported in All India Reporter 1994 laid down that the state shall pay compensation to all persons illegally detained and humiliated for no fault of theirs. In this case court discussed the matters fabrication, illegal arrest, etc.and awarded compensation of Rs.10000 each to two victims and an amount of Rs. 5000 to another tortured victim.
The victims in this case are still in prison and denied of bail, while bail is the rule and committal to jail an exception. In the words of Justice V.R. Krishna Iyar "…the issue is one of liberty, justice, public safety, and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process." The Supreme Court of India in Moti Ram vs. State of MP Supreme Court Cases p. 47, held that the consequences of pretrial detention are grave. Defendants presumed innocent are subjected to psychological and physical deprivation in life during their time in jail. Conditions during pretrial detention in India are sometimes worse than those imposed upon convicted defendants. The jailed defendants loose their job, if the person has one, and is prevented from contributing to the preparation of his defence. Equally important, is the burden of rescuing the person from detention falls heavily on innocent members of his family.
Had the police in West Bengal been operating in compliance with the law, incidents as reported in this case would not have happened. It shows that discipline and commitment to duty is not ensured within the rank and file in the force. Violence by the police against the poor and other forms of corruption and crimes committed by the police with impunity is a threat to the the rule of law. Such a force is a threat to the entire country.
SUGGESTED ACTION:
Please write to the authorities listed below requesting their urgent intervention in this case. The AHRC is also writing a separate letter to the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment calling for an intervention in this case.
To support this appeal, please click here:
SAMPLE LETTER:
Dear __________
INDIA: Kindly investigate the case of custodial Torture and fabrication of false case by the West Bengal State
Names of the victims:
1. Mr. Rajak Mondal, son of Mr.Rasheed Mondal aged about 29 residing at Srikati village, North 24 Parganas district, West Bengal
2. Mr. Fajular Mondal son of Mr. Abdar Mondal residing at Srikati village North 24 Parganas district, West Bengal
Alleged perpetrators: The inspector and other police officers of Baduria and Basirhat police stations serving on duty on 29 December 2011
Date of incident: 29 December 2011
Place of incident: North 24 Parganas district, West Bengal
I am writing to express concern regarding a case of custodial torture and fabrication of a false case against two persons by the officers from Baduria and Basirhat police stations. It is alleged that the victims in the case now face a fabricated charge for possession of cannabis and are detained at the Dum Dum Central Correctional Home in West Bengal. It is reported that one of the police officers involved in the incident has demanded Rs. 3000.00 as bribe from the father of one of the victims to stop torturing the victims in custody.
I am informed that a fact-finding undertaken by MASUM concerning the case has revealed the following details. On 29 December 2011 at about 2 am a team of police officers, reportedly from Baduria and Basirhat police stations, raided the houses of the victims at night. The police assaulted the victims at their home and later arrested them. The officers did not offer any reason whatsoever for the search or arrest. The police complied with no mandatory procedures at the time of the search and arrest and no memo of arrest was issued. Neither did the officer inform the detainees or their relatives where the victims would be taken to at the time of arrest.
The victims in the case are Mr. Rajak Mondal and Mr.Fajular Mondal, both residents of Srikati village, North 24 Parganas district, West Bengal.
I am informed that the police reportedly later registered a fabricated case against the victims accusing them that the police had arrested them on 31 December 2011 from Moylakhola bus stand and that they had 6.700 kilograms of cannabis in their possession. The family of the victims alleges that this is a false case. They also claim that the illegal search, arrest, fabrication of the false case and detention is due to political revenge to detain the victims for a prolonged period of time. Illegal possession of narcotic and psychotropic substances in India is a serious offense in which obtaining pre-trial bail is extremely difficult.
In the meanwhile it is also alleged that police officer Mr. Sanjoybabu has demanded Rs. 3000.00 as bribe to be paid to the officer and that should the family fail to make the payment the victims would be further assaulted in custody. Fearing for the safety of the victims, Mr. Rashid Mondal, father of Rajak paid the bribe through one Mr. Sahabab Mondal who reportedly works as an informer to the local police. Sahabab had reportedly informed Rashid that the officer, after accepting the bribe, had agreed to stop torturing Rajak.
Days after the arrest the families of the victims were informed that the victims are charged with offences punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. The allegedly false case registered against the victims as Basirhat police station case, crime number 643/2011, is under Section 20 (b) (i) of the Act. It is revealed that even though the arrest was made on 29 December, the victims were produced before a Magistrate only on 1 January 2012, which violates the mandate in law that requires the police to produce an arrested person before a judicial officer within 24 hours from the time of arrest. There are also allegations that the victims were tortured while they were in custody. At the moment the victims are detailed at Dum Central Correctional Home, in West Bengal as under trial prisoners.
The practice of torture is widespread in India. Unchallenged and unopposed, it has become a normal and legitimate practice for the law enforcement agencies in the country. Torture in custody is reported regularly in India and the instances of custodial torture and other forms of violence is at an alarming rate in India. Reports allege that between 2001-10 more than 14,231 persons have died in police and judicial custody in the country. This means that during the past ten years on an average 4 persons dies every day while in custody.
In a democratic society, the role of the police is to protect the rights of the citizens. However, in India it is well known that the police systematically abuse their authority and employ custodial torture as part of their investigation and fabricates false cases against persons as they wish. The poor, the deprived, women and children and political activists are mostly the victims of police violence.
The barbarity of incarceration is validated by the popular retributive-deterrent philosophy, which is the current sentencing norm in many criminal jurisdictions and India is no exception to this. Fabrication of false cases, custodial violence, including torture and death in police/judicial custody strikes a blow at the rule of law, which demands that the powers of the executive should not only derived from law but also that the same should be limited by law. In this scenario, the lacking of a proper law that criminalises torture creates a congenial environment for the law enforcement agencies to continue with their criminal acts with impunity.
Section 211 of the Indian Penal Code 1860 mandates punishment for fabricating false charges of offences made with intent to injure the victim. Whoever with intent to cause injury to any person, institutes or causes to be instituted any criminal proceedings against that person or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground or such proceeding or charge against that person shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 120B(1) of the code mandates punishment for criminal conspiracy: whoever is a party to criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where no express provision is made in this code for the punishment of such conspiracy, be punished in the same manner as if he had abetted such offence.
Section 384 of the code mandates punishment for extortion that whoever commits extortion shall be punished with imprisonment for a term, which may extend to three years or with fine or with both.
Section 458 of code mandates punishment for lurking house trespass or house breaking by night after preparation for hurt,assult,or wrongful restraint.- whoever commits lurking house by night or house breaking by night having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or assault, or wrongful restraint, shall be punished with imprisonment for life either description for a term which may extend to fourteen years and shall also be liable to fine.
Section 326 of the Code mandates punishment by way of imprisonment for a term of ten years to a person who voluntarily causes hurt by dangerous weapons or means.
Section 34 of the code mandates: acts done by several persons in furtherance of common intention that whenever several persons in furtherance of do a criminal act the common intention of the all each of such person is liable for that act in the same manner as if it were done by him alone.
Section 13(1)(d)(i) of The Prevention of corruption Act, 1988 defines that while holding the office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest is said to be commit the offence of criminal misconduct.
Section 13(2) of the Act mandates: any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine.
Article 21of the Constitution of India mandates: No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 39A of the Constitution of India mandates Equal justice and free legal aid -The state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall in particular provide free legal aid by suitable legislations or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Under section 18(3) of the protection of Human Rights Act, 1993 the national human rights commission has amble power to advance cause of compensatory justice to the victims of torture.
Article 5 of the Universal Declaration of Human Rights (UDHR) incorporated the right to protection against torture and the same has been sought to be achieved through declaration of the Fifth United Nations Congress held in 1975. UN Convention against torture provides for redress and compensation to the victim. Article 14 of the convention categorically emphasizes that every state party to the convention must ensure that the tortured victim is provided fair and adequate compensation and rehabilitation. The right to be free from arbitrary detention is a fundamental right. Even though the India has not rectified the convention, India torture is a subject of ius cojens that mandates the state to ensure that the torture is prevented in all jurisdictions.
The clear case of the prohibition against torture was delivered by the supreme court of India in Sunil Batra vs. Delhi Administration reported in 1978 (4) Supreme Court Cases 494. The Supreme Court did not find itself handicapped by the absence of specific provisions against torture in the constitution and gathered support from Article 14 and 19 in holding against the permissibility of torture vis-à-vis persons suspected and accused of crime. At this juncture the prevention of Torture Bill 2010 becomes relevant. The mandatory requirements prescribed in the code of criminal procedure for arrest and also the police did not comply the directives issued by the Supreme Court in the D. K. Basu case in this case.
Khatri vs. State of Bihar reported in 1981 All India Reporter (Supreme Court) p. 928 is an example of how cruel and in human treatment to the prisoners insolates the sprit of constitution and human value as well as Article 21 as far as persons in custody are concerned. The court had held that these rights are available even for prisoners.
In A. Nallassivan vs. State of Tamil Nadu & others reported in 1995 Criminal Law Journal 2754 (Madras) 90 women and 28 children from a village were detained in the office of forest range officer for a night. The court held the detention is illegal, offending fundamental rights and directed enquiry by the Central Bureau of Investigation (CBI) India. The court further added that if a police officer acted contrary to the proviso to Section 160(1)of the code of criminal procedure, such deviation should be reason for prompt punishment, since the policemen may not become a law unto themselves while expecting others to obey the law.
The supreme court of India in Aravinder Singh Bagga vs. State of Utter Pradesh reported in All India Reporter 1994 laid down that the state shall pay compensation to all persons illegally detained and humiliated for no fault of theirs. In this case court discussed the matters fabrication, illegal arrest, etc.and awarded compensation of Rs.10000 each to two victims and an amount of Rs. 5000 to another tortured victim.
The victims in this case are still in prison and denied of bail, while bail is the rule and committal to jail an exception. In the words of Justice V.R. Krishna Iyar "…the issue is one of liberty, justice, public safety, and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process." The Supreme Court of India in Moti Ram vs. State of MP Supreme Court Cases p. 47, held that the consequences of pretrial detention are grave. Defendants presumed innocent are subjected to psychological and physical deprivation in life during their time in jail. Conditions during pretrial detention in India are sometimes worse than those imposed upon convicted defendants. The jailed defendants loose their job, if the person has one, and is prevented from contributing to the preparation of his defence. Equally important, is the burden of rescuing the person from detention falls heavily on innocent members of his family.
Had the police in West Bengal been operating in compliance with the law, incidents as reported in this case would not have happened. It shows that discipline and commitment to duty is not ensured within the rank and file in the force. Violence by the police against the poor and other forms of corruption and crimes committed by the police with impunity is a threat to the the rule of law. Such a force is a threat to the entire country.
I therefore request you:
1. That the complaints of custodial torture and fabrication of false case in this case be investigated by an independent agency;
2. That the statements of the victims recorded immediately by a judicial officer;
3. The alleged officers placed on immediate suspension;
4. The victims should be produced before appropriate medical officer for treatment;
5. The victim and the witnesses shall be provided adequate protection immediately;
6. The be released on bail without further delay;
7. The entire investigation supervised by a judicial officer and the victim or a member of their family is informed about the progress of the investigation:
8. The government pay an interim compensation to the victim pending the final disposal of their complaints by a court of law.
Yours sincerely,
----------------
PLEASE SEND YOUR LETTERS TO:
1. Director General & Inspector General of Police
Government of West Bengal
Writers Buildings, Kolkata-1
West Bengal
INDIA
Fax: +91 33 2214 4498 / 2214 5486
Email: dgp_westbengal@gmail.com
2. Chief Secretary
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22144328
Email: chiefsec@wb.gov.in
3. Additional Chief Secretary (Home)
Government of West Bengal
Writers' Building, Kolkata, West Bengal INDIA
Email: sechome@wb.gov.in
4. Ms. Mamata Banerjee
Chief Minister
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22144328
Email: cm_wb@nic.in
5. Chairperson
National Human Rights Commission
Faridkot House, Copernicus Marg
New Delhi 110001
INDIA
Fax: + 91 11 2338 4863
E-mail: chairnhrc@nic.in
Thank you
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)
CASE NARRATIVE:
A fact-finding undertaken by MASUM concerning the case has revealed the following details. On 29 December 2011 at about 2 am a team of police officers, reportedly from Baduria and Basirhat police stations, raided the houses of the victims at night. The police assaulted the victims at their home and later arrested them. The officers did not offer any reason whatsoever for the search or arrest. The police complied with no mandatory procedures at the time of the search and arrest and no memo of arrest was issued. Neither did the officer inform the detainees or their relatives where the victims would be taken to at the time of arrest.
The victims in the case are Mr. Rajak Mondal and Mr.Fajular Mondal, both residents of Srikati village, North 24 Parganas district, West Bengal.
The police reportedly later registered a fabricated case against the victims accusing them that the police had arrested them on 31 December 2011 from Moylakhola bus stand and that they had 6.700 kilograms of cannabis in their possession. The family of the victims alleges that this is a false case. They also claim that the illegal search, arrest, fabrication of the false case and detention is due to political revenge to detain the victims for a prolonged period of time. Illegal possession of narcotic and psychotropic substances in India is a serious offense in which obtaining pre-trial bail is extremely difficult.
In the meanwhile it is also alleged that police officer Mr. Sanjoybabu has demanded Rs. 3000.00 as bribe to be paid to the officer and that should the family fail to make the payment the victims would be further assaulted in custody. Fearing for the safety of the victims, Mr. Rashid Mondal, father of Rajak paid the bribe through one Mr. Sahabab Mondal who reportedly works as an informer to the local police. Sahabab had reportedly informed Rashid that the officer, after accepting the bribe, had agreed to stop torturing Rajak.
Days after the arrest the families of the victims were informed that the victims are charged with offences punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. The allegedly false case registered against the victims as Basirhat police station case, crime number 643/2011, is under Section 20 (b) (i) of the Act. It is revealed that even though the arrest was made on 29 December, the victims were produced before a Magistrate only on 1 January 2012, which violates the mandate in law that requires the police to produce an arrested person before a judicial officer within 24 hours from the time of arrest. There are also allegations that the victims were tortured while they were in custody. At the moment the victims are detailed at Dum Central Correctional Home, in West Bengal as under trial prisoners.
ADDITIONAL INFORMATION:
The practice of torture is widespread in India. Unchallenged and unopposed, it has become a normal and legitimate practice for the law enforcement agencies in the country. Torture in custody is reported regularly in India and the instances of custodial torture and other forms of violence is at an alarming rate in India. Reports allege that between 2001-10 more than 14,231 persons have died in police and judicial custody in the country. This means that during the past ten years on an average 4 persons dies every day while in custody.
In a democratic society, the role of the police is to protect the rights of the citizens. However, in India it is well known that the police systematically abuse their authority and employ custodial torture as part of their investigation and fabricates false cases against persons as they wish. The poor, the deprived, women and children and political activists are mostly the victims of police violence.
The barbarity of incarceration is validated by the popular retributive-deterrent philosophy, which is the current sentencing norm in many criminal jurisdictions and India is no exception to this. Fabrication of false cases, custodial violence, including torture and death in police/judicial custody strikes a blow at the rule of law, which demands that the powers of the executive should not only derived from law but also that the same should be limited by law. In this scenario, the lacking of a proper law that criminalises torture creates a congenial environment for the law enforcement agencies to continue with their criminal acts with impunity.
Section 211 of the Indian Penal Code 1860 mandates punishment for fabricating false charges of offences made with intent to injure the victim. Whoever with intent to cause injury to any person, institutes or causes to be instituted any criminal proceedings against that person or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground or such proceeding or charge against that person shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 120B(1) of the code mandates punishment for criminal conspiracy: whoever is a party to criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where no express provision is made in this code for the punishment of such conspiracy, be punished in the same manner as if he had abetted such offence.
Section 384 of the code mandates punishment for extortion that whoever commits extortion shall be punished with imprisonment for a term, which may extend to three years or with fine or with both.
Section 458 of code mandates punishment for lurking house trespass or house breaking by night after preparation for hurt, assault, or wrongful restraint - whoever commits lurking house by night or house breaking by night having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or assault, or wrongful restraint, shall be punished with imprisonment for life either description for a term which may extend to fourteen years and shall also be liable to fine.
Section 326 of the Code mandates punishment by way of imprisonment for a term of ten years to a person who voluntarily causes hurt by dangerous weapons or means.
Section 34 of the code mandates: acts done by several persons in furtherance of common intention that whenever several persons in furtherance of do a criminal act the common intention of the all each of such person is liable for that act in the same manner as if it were done by him alone.
Section 13(1)(d)(i) of The Prevention of corruption Act, 1988 defines that while holding the office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest is said to be commit the offence of criminal misconduct.
Section 13(2) of the Act mandates: any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine.
Article 21of the Constitution of India mandates: No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 39A of the Constitution of India mandates Equal justice and free legal aid -The state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall in particular provide free legal aid by suitable legislations or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Under section 18(3) of the protection of Human Rights Act, 1993 the national human rights commission has amble power to advance cause of compensatory justice to the victims of torture.
Article 5 of the Universal Declaration of Human Rights (UDHR) incorporated the right to protection against torture and the same has been sought to be achieved through declaration of the Fifth United Nations Congress held in 1975. UN Convention against torture provides for redress and compensation to the victim. Article 14 of the convention categorically emphasizes that every state party to the convention must ensure that the tortured victim is provided fair and adequate compensation and rehabilitation. The right to be free from arbitrary detention is a fundamental right. Even though the India has not rectified the convention, India torture is a subject of ius cojens that mandates the state to ensure that the torture is prevented in all jurisdictions.
The clear case of the prohibition against torture was delivered by the supreme court of India in Sunil Batra vs. Delhi Administration reported in 1978 (4) Supreme Court Cases 494. The Supreme Court did not find itself handicapped by the absence of specific provisions against torture in the constitution and gathered support from Article 14 and 19 in holding against the permissibility of torture vis-à-vis persons suspected and accused of crime. At this juncture the prevention of Torture Bill 2010 becomes relevant. The mandatory requirements prescribed in the code of criminal procedure for arrest and also the police did not comply the directives issued by the Supreme Court in the D. K. Basu case in this case.
Khatri vs. State of Bihar reported in 1981 All India Reporter (Supreme Court) p. 928 is an example of how cruel and in human treatment to the prisoners insolates the sprit of constitution and human value as well as Article 21 as far as persons in custody are concerned. The court had held that these rights are available even for prisoners.
In A. Nallassivan vs. State of Tamil Nadu & others reported in 1995 Criminal Law Journal 2754 (Madras) 90 women and 28 children from a village were detained in the office of forest range officer for a night. The court held the detention is illegal, offending fundamental rights and directed enquiry by the Central Bureau of Investigation (CBI) India. The court further added that if a police officer acted contrary to the proviso to Section 160(1)of the code of criminal procedure, such deviation should be reason for prompt punishment, since the policemen may not become a law unto themselves while expecting others to obey the law.
The supreme court of India in Aravinder Singh Bagga vs. State of Utter Pradesh reported in All India Reporter 1994 laid down that the state shall pay compensation to all persons illegally detained and humiliated for no fault of theirs. In this case court discussed the matters fabrication, illegal arrest, etc.and awarded compensation of Rs.10000 each to two victims and an amount of Rs. 5000 to another tortured victim.
The victims in this case are still in prison and denied of bail, while bail is the rule and committal to jail an exception. In the words of Justice V.R. Krishna Iyar "…the issue is one of liberty, justice, public safety, and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process." The Supreme Court of India in Moti Ram vs. State of MP Supreme Court Cases p. 47, held that the consequences of pretrial detention are grave. Defendants presumed innocent are subjected to psychological and physical deprivation in life during their time in jail. Conditions during pretrial detention in India are sometimes worse than those imposed upon convicted defendants. The jailed defendants loose their job, if the person has one, and is prevented from contributing to the preparation of his defence. Equally important, is the burden of rescuing the person from detention falls heavily on innocent members of his family.
Had the police in West Bengal been operating in compliance with the law, incidents as reported in this case would not have happened. It shows that discipline and commitment to duty is not ensured within the rank and file in the force. Violence by the police against the poor and other forms of corruption and crimes committed by the police with impunity is a threat to the the rule of law. Such a force is a threat to the entire country.
SUGGESTED ACTION:
Please write to the authorities listed below requesting their urgent intervention in this case. The AHRC is also writing a separate letter to the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment calling for an intervention in this case.
To support this appeal, please click here:
SAMPLE LETTER:
Dear __________
INDIA: Kindly investigate the case of custodial Torture and fabrication of false case by the West Bengal State
Names of the victims:
1. Mr. Rajak Mondal, son of Mr.Rasheed Mondal aged about 29 residing at Srikati village, North 24 Parganas district, West Bengal
2. Mr. Fajular Mondal son of Mr. Abdar Mondal residing at Srikati village North 24 Parganas district, West Bengal
Alleged perpetrators: The inspector and other police officers of Baduria and Basirhat police stations serving on duty on 29 December 2011
Date of incident: 29 December 2011
Place of incident: North 24 Parganas district, West Bengal
I am writing to express concern regarding a case of custodial torture and fabrication of a false case against two persons by the officers from Baduria and Basirhat police stations. It is alleged that the victims in the case now face a fabricated charge for possession of cannabis and are detained at the Dum Dum Central Correctional Home in West Bengal. It is reported that one of the police officers involved in the incident has demanded Rs. 3000.00 as bribe from the father of one of the victims to stop torturing the victims in custody.
I am informed that a fact-finding undertaken by MASUM concerning the case has revealed the following details. On 29 December 2011 at about 2 am a team of police officers, reportedly from Baduria and Basirhat police stations, raided the houses of the victims at night. The police assaulted the victims at their home and later arrested them. The officers did not offer any reason whatsoever for the search or arrest. The police complied with no mandatory procedures at the time of the search and arrest and no memo of arrest was issued. Neither did the officer inform the detainees or their relatives where the victims would be taken to at the time of arrest.
The victims in the case are Mr. Rajak Mondal and Mr.Fajular Mondal, both residents of Srikati village, North 24 Parganas district, West Bengal.
I am informed that the police reportedly later registered a fabricated case against the victims accusing them that the police had arrested them on 31 December 2011 from Moylakhola bus stand and that they had 6.700 kilograms of cannabis in their possession. The family of the victims alleges that this is a false case. They also claim that the illegal search, arrest, fabrication of the false case and detention is due to political revenge to detain the victims for a prolonged period of time. Illegal possession of narcotic and psychotropic substances in India is a serious offense in which obtaining pre-trial bail is extremely difficult.
In the meanwhile it is also alleged that police officer Mr. Sanjoybabu has demanded Rs. 3000.00 as bribe to be paid to the officer and that should the family fail to make the payment the victims would be further assaulted in custody. Fearing for the safety of the victims, Mr. Rashid Mondal, father of Rajak paid the bribe through one Mr. Sahabab Mondal who reportedly works as an informer to the local police. Sahabab had reportedly informed Rashid that the officer, after accepting the bribe, had agreed to stop torturing Rajak.
Days after the arrest the families of the victims were informed that the victims are charged with offences punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. The allegedly false case registered against the victims as Basirhat police station case, crime number 643/2011, is under Section 20 (b) (i) of the Act. It is revealed that even though the arrest was made on 29 December, the victims were produced before a Magistrate only on 1 January 2012, which violates the mandate in law that requires the police to produce an arrested person before a judicial officer within 24 hours from the time of arrest. There are also allegations that the victims were tortured while they were in custody. At the moment the victims are detailed at Dum Central Correctional Home, in West Bengal as under trial prisoners.
The practice of torture is widespread in India. Unchallenged and unopposed, it has become a normal and legitimate practice for the law enforcement agencies in the country. Torture in custody is reported regularly in India and the instances of custodial torture and other forms of violence is at an alarming rate in India. Reports allege that between 2001-10 more than 14,231 persons have died in police and judicial custody in the country. This means that during the past ten years on an average 4 persons dies every day while in custody.
In a democratic society, the role of the police is to protect the rights of the citizens. However, in India it is well known that the police systematically abuse their authority and employ custodial torture as part of their investigation and fabricates false cases against persons as they wish. The poor, the deprived, women and children and political activists are mostly the victims of police violence.
The barbarity of incarceration is validated by the popular retributive-deterrent philosophy, which is the current sentencing norm in many criminal jurisdictions and India is no exception to this. Fabrication of false cases, custodial violence, including torture and death in police/judicial custody strikes a blow at the rule of law, which demands that the powers of the executive should not only derived from law but also that the same should be limited by law. In this scenario, the lacking of a proper law that criminalises torture creates a congenial environment for the law enforcement agencies to continue with their criminal acts with impunity.
Section 211 of the Indian Penal Code 1860 mandates punishment for fabricating false charges of offences made with intent to injure the victim. Whoever with intent to cause injury to any person, institutes or causes to be instituted any criminal proceedings against that person or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground or such proceeding or charge against that person shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 120B(1) of the code mandates punishment for criminal conspiracy: whoever is a party to criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where no express provision is made in this code for the punishment of such conspiracy, be punished in the same manner as if he had abetted such offence.
Section 384 of the code mandates punishment for extortion that whoever commits extortion shall be punished with imprisonment for a term, which may extend to three years or with fine or with both.
Section 458 of code mandates punishment for lurking house trespass or house breaking by night after preparation for hurt,assult,or wrongful restraint.- whoever commits lurking house by night or house breaking by night having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or assault, or wrongful restraint, shall be punished with imprisonment for life either description for a term which may extend to fourteen years and shall also be liable to fine.
Section 326 of the Code mandates punishment by way of imprisonment for a term of ten years to a person who voluntarily causes hurt by dangerous weapons or means.
Section 34 of the code mandates: acts done by several persons in furtherance of common intention that whenever several persons in furtherance of do a criminal act the common intention of the all each of such person is liable for that act in the same manner as if it were done by him alone.
Section 13(1)(d)(i) of The Prevention of corruption Act, 1988 defines that while holding the office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest is said to be commit the offence of criminal misconduct.
Section 13(2) of the Act mandates: any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine.
Article 21of the Constitution of India mandates: No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 39A of the Constitution of India mandates Equal justice and free legal aid -The state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall in particular provide free legal aid by suitable legislations or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Under section 18(3) of the protection of Human Rights Act, 1993 the national human rights commission has amble power to advance cause of compensatory justice to the victims of torture.
Article 5 of the Universal Declaration of Human Rights (UDHR) incorporated the right to protection against torture and the same has been sought to be achieved through declaration of the Fifth United Nations Congress held in 1975. UN Convention against torture provides for redress and compensation to the victim. Article 14 of the convention categorically emphasizes that every state party to the convention must ensure that the tortured victim is provided fair and adequate compensation and rehabilitation. The right to be free from arbitrary detention is a fundamental right. Even though the India has not rectified the convention, India torture is a subject of ius cojens that mandates the state to ensure that the torture is prevented in all jurisdictions.
The clear case of the prohibition against torture was delivered by the supreme court of India in Sunil Batra vs. Delhi Administration reported in 1978 (4) Supreme Court Cases 494. The Supreme Court did not find itself handicapped by the absence of specific provisions against torture in the constitution and gathered support from Article 14 and 19 in holding against the permissibility of torture vis-à-vis persons suspected and accused of crime. At this juncture the prevention of Torture Bill 2010 becomes relevant. The mandatory requirements prescribed in the code of criminal procedure for arrest and also the police did not comply the directives issued by the Supreme Court in the D. K. Basu case in this case.
Khatri vs. State of Bihar reported in 1981 All India Reporter (Supreme Court) p. 928 is an example of how cruel and in human treatment to the prisoners insolates the sprit of constitution and human value as well as Article 21 as far as persons in custody are concerned. The court had held that these rights are available even for prisoners.
In A. Nallassivan vs. State of Tamil Nadu & others reported in 1995 Criminal Law Journal 2754 (Madras) 90 women and 28 children from a village were detained in the office of forest range officer for a night. The court held the detention is illegal, offending fundamental rights and directed enquiry by the Central Bureau of Investigation (CBI) India. The court further added that if a police officer acted contrary to the proviso to Section 160(1)of the code of criminal procedure, such deviation should be reason for prompt punishment, since the policemen may not become a law unto themselves while expecting others to obey the law.
The supreme court of India in Aravinder Singh Bagga vs. State of Utter Pradesh reported in All India Reporter 1994 laid down that the state shall pay compensation to all persons illegally detained and humiliated for no fault of theirs. In this case court discussed the matters fabrication, illegal arrest, etc.and awarded compensation of Rs.10000 each to two victims and an amount of Rs. 5000 to another tortured victim.
The victims in this case are still in prison and denied of bail, while bail is the rule and committal to jail an exception. In the words of Justice V.R. Krishna Iyar "…the issue is one of liberty, justice, public safety, and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process." The Supreme Court of India in Moti Ram vs. State of MP Supreme Court Cases p. 47, held that the consequences of pretrial detention are grave. Defendants presumed innocent are subjected to psychological and physical deprivation in life during their time in jail. Conditions during pretrial detention in India are sometimes worse than those imposed upon convicted defendants. The jailed defendants loose their job, if the person has one, and is prevented from contributing to the preparation of his defence. Equally important, is the burden of rescuing the person from detention falls heavily on innocent members of his family.
Had the police in West Bengal been operating in compliance with the law, incidents as reported in this case would not have happened. It shows that discipline and commitment to duty is not ensured within the rank and file in the force. Violence by the police against the poor and other forms of corruption and crimes committed by the police with impunity is a threat to the the rule of law. Such a force is a threat to the entire country.
I therefore request you:
1. That the complaints of custodial torture and fabrication of false case in this case be investigated by an independent agency;
2. That the statements of the victims recorded immediately by a judicial officer;
3. The alleged officers placed on immediate suspension;
4. The victims should be produced before appropriate medical officer for treatment;
5. The victim and the witnesses shall be provided adequate protection immediately;
6. The be released on bail without further delay;
7. The entire investigation supervised by a judicial officer and the victim or a member of their family is informed about the progress of the investigation:
8. The government pay an interim compensation to the victim pending the final disposal of their complaints by a court of law.
Yours sincerely,
----------------
PLEASE SEND YOUR LETTERS TO:
1. Director General & Inspector General of Police
Government of West Bengal
Writers Buildings, Kolkata-1
West Bengal
INDIA
Fax: +91 33 2214 4498 / 2214 5486
Email: dgp_westbengal@gmail.com
2. Chief Secretary
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22144328
Email: chiefsec@wb.gov.in
3. Additional Chief Secretary (Home)
Government of West Bengal
Writers' Building, Kolkata, West Bengal INDIA
Email: sechome@wb.gov.in
4. Ms. Mamata Banerjee
Chief Minister
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22144328
Email: cm_wb@nic.in
5. Chairperson
National Human Rights Commission
Faridkot House, Copernicus Marg
New Delhi 110001
INDIA
Fax: + 91 11 2338 4863
E-mail: chairnhrc@nic.in
Thank you
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)
No comments:
Post a Comment