October 10, 2011 : The Asian Human Rights Commission (AHRC) has received information from Banglar Manabadhikar Suraksha Mancha (MASUM) concerning two more cases of police violence from West Bengal. It is reported that in the two separate incidents of arrest, the police at the time of arrest, not only failed to comply the law and procedures, but were also engaged in torturing or threatening the arrestee or his relatives. There is also an allegation that at least on one occasion, the police have stolen gold ornaments and or other valuables from the arrestee’s house. This however is not the first occasion where the state police and the central security forces stationed in the state have reported to be openly violating the law.
Case 1: Mr Dhiren Mahato, son of Mr Suren Mahato, resides at Nuniakundari village within the jurisdiction of Jhargram Police Station in Paschim Medinipur district of West Bengal state. The state police, accompanied by a team of officers from the Joint Force arrested Dhiren on 17 July 2011 from a local teashop at Bodhna market, near Banshtala Railway Station within the jurisdiction of Jhargram Police Station in Paschim Medinipur district. The Joint Force is a team of government security agencies constituted to deal with the Maoists in West Bengal. The Force reportedly comprise of officers from Border Security Force, Central Reserve Police Force, Eastern Frontier Rifles and other armed forces of the government.
Dhiren had gone to the market for shopping household goods. After shopping, Dhiren went to a nearby teashop. At the time, police officers from Manikpara Police Outpost came there accompanied by officers from the Joint-Force and surrounded the entire market. Then the officers reportedly approached Dhiren and ordered him to get into their vehicle. Dhiren refused to comply as he did not know why he is been asked to accompany the police and to where. Upon refusal, the officers assaulted Dhiren and dragged him into their vehicle. The police and Joint Force left the place with Dhiren.
At the time of arrest, the officers did not issue a memo of arrest, neither was Dhiren informed why he is taken into custody, where he is taken to and no memo of arrest No memo of arrest was prepared and the family members of the victim were not informed about the capture of the victim by the police.
Since Dhiren did not return home as expected by the family, his family went to the Manikpara Police Outpost to enquire about Dhiren. The police officers at the outpost did not however provide the family with any information concerning Dhiren nor did they acknowledge the arrest. On 18 September, the family went to Jhargram Police Station and to the local court in Jhargram in search of Dhiren. However, they received no information about Dhiren. On 19 September Dhiren’s mother, Bedan Mahato, submitted a written complaint before the Sub-Divisional Officer, Jhargram concerning the illegal detention of her son. The officer received the complaint. However, no action followed.
Then on the same day (19 September) the family came to know that Dhiren is produced before the Additional Chief Judicial Magistrate, Jhargram, Paschim Medinipur by the Jhargram police. The family also came to know that the police have now named Dhiren as an accused in Jhargram Police Station case no. 32/2011 dated 6 February 2011, registered under sections 342/364/511/307/379/34/506 of Indian Penal Code, 1860. This case is based upon the complaint by a cement company named Rashmi Cement Limited. Dhiren’s name is not mentioned in the complaint, that speaks about alleged criminal acts committed by the Maoists.
The court did not release Dhiren on bail. The allegation that the police tortured Dhiren at the time of arrest and while in custody is not considered until date or investigated. There has been no action against the police officers or against the Joint Force for arresting Dhiren breaching all legal formalities to be complied by the officers at the time of arresting a person.
Case 2: Mr Amiya Mahato, son of Mr Sadananda Mahato, is a resident of Kaimashole village, within the jurisdiction of Manikpara Police Outpost of Jhargram Police Station in Paschim Medinipur district of West Bengal state. Amiya works at a mineral water bottling unit at Chhanapara.
On 20 June 2011 at about 5pm, the Officer-in-Charge of Manikpara Police Outpost raided Amiya’s house. Some men in civilian uniform accompanied the police officer. The men were armed. When the officer arrived at Amiya’s house, his wife was at home. The officer asked Amiya’s wife about Amiya’s whereabouts, while at the same time they started breaking household articles and ransacking the house. The men allegedly took gold ornaments kept at the house and some documents of material value from a cupboard by breaking it open. No recovery reports were prepared for the taking of the documents or of the ornaments. The men and the officers restrained Amiya’s wife from entering the house and at the same time continued questioning her. They asked her whether her husband worked at the mineral water bottling unit for which Amiya’s wife answered ‘yes’. Then the officer and the men left the house and arrested Amiya from the mineral water bottling unit.
As it was in the Dhiren’s case, no arrest memo was issued. Neither did the officers inform Amiya or the persons present at the time of arrest the reason for Amiya’s arrest or where he would be taken. Some workers at the unit immediately went to Amiya’s house and informed his wife about what had happened. Hearing about the arrest of his husband, Amiya’s wife went to the local police station in search of the victim. However, the officers did not allow her to enter the station. Amiya’s wife went to Jhargram courts on 21 June, and 22 June expecting that her husband would be produced in the court. However Amiya was not produced in court.
On 23 June at about 9am Amiya’s wife met once again the Officer-in-Charge of Manikpara Police Outpost and enquired about her husband. The officer completely denied the arrest. On the same day Amiya’s wife submitted a written complaint to the Sub-Divisional Officer, Jhargram Subdivision alleging that her husband was illegally arrested and detained. On that day however, the police officers from Manikpara Police Outpost and officers from the Joint Force brought Amiya to his house. The police officers brought Amiya from their vehicle and brutally assaulted him in front of his family members. Then they forced Amiya to sign on papers in which nothing was written. Then the officers went inside the house and brought out a “sabal”, an iron hand tool used for digging; and a “gaiti” another hand tool made of iron and wood, also used for digging and some batteries and took these things with them and went away with Amiya.
On 24 June, the police produced Amiya in the court of Additional Chief Judicial Magistrate Court, Jhargram. The police produced Amiya in court, implicating him in a case. The case is registered at the Jhargram GRP Police Station as case number 5/2010, dated 25 May 2010 registered against “unknown persons” under sections 427 of the Indian Penal Code, 1860, sections 150 and 151 of the Indian Railways Act, 1989 and sections 3 and 4 of the Explosive Substances Act, 1908. It is reported that later the Central Bureau of Investigation also included sections 212, 323, 325, 326, 307, 320 and 201B of the Penal Code and sections 16 and 18 of the Unlawful Activities (Prevention) Act, 1967. As far as the AHRC is informed, the Amiya is still in detention.
On 24 June, Amiya’s father filed a written complaint about the torture the police have committed against Amiya, that too at least on one occasion, in full public view to the Sub-Divisional Officer, Jhargram. The officer accepted the complaint into records, however has not taken any action upon it.
The two cases above are yet another set of example about how the law enforcement agencies in India refuse to comply the law and procedures in the country. The case also throws certain insight into the nature of police investigation.
Concerning arrest: Section 41-B of the Criminal Procedure Code, 1974 mandates the following: Every police officer while making an arrest shall:-
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;
(b) prepare a memorandum of arrest which shall be – (i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made; (ii) counter-signed by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.
Section 41-C mandates (1) The State Government shall establish a police control room-
(a) in every district; and
(b) at State Level.
(2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests.
(3) The control room at the Police Headquarters at the State Level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged and maintain a database for the information of the general public.
Section 41-D mandates, [w]hen any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation though not throughout interrogation.
Section 49 mandates, that [t]he person arrested shall not be subjected to more restraint than it is necessary to prevent his escape.
Section 50 mandates,(1) Every police officer, or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.
Section 50-A mandates, (1) Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information.
(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station.
(3) An entry of the fact as to who has been informed of the arrest of such person shall be made in the book to be kept in the police station in such form as may be prescribed in this behalf by the State Government.
(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.
Section 54 mandates, (1) When any person is arrested, he shall be examined by a medical officer in the service of Central or State Governments and in case the medical officer is not available by a registered medical practitioner soon after the arrest is made:..
(2) The medical officer or registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted.
(3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.
Section 56 mandates that, a police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer-in-charge of a police station.
Section 57 mandates, no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
All these provisions of the Code, mandated to be followed by the police in both the cases reported above have been violated in this case. However, this is not the first case that the AHRC is reporting from India where the police or other security agencies have negated the statutory provisions at their whims. However, not in a single case the police officers who have violated these provisions of law have been investigated or prosecuted for breaking the law.
While the question as to whether Dhiren and Amiya have committed the offences alleged against them is for a court to decide in a criminal trial, the police have no reason to torture the victims. In fact, as quoted above, it is a violation of law, and further is an offence punishable under the Indian Penal Code, 1860. However, as evidenced from Amiya’s case, the police while torturing the victim also obtains signatures from the victims on empty papers, which they use at later stages to fit their defence should there be an allegation of torture or ill treatment against them by the victim. In a similar fashion, the medical doctors also issue medical certificates without examining the detainees and in most cases, the medical officers fail to record the complaints the persons produced before them for medical exanimation narrate.
The culmination of all this is the continuance of the practice of torture in India. And as it is evidenced on this case, in most of the cases, the victims are poor or illiterate or daily wage earners, who have no means, financial or by way of support to challenge the police and their actions. Neither does the Magistrates before whom the victims are ultimately produced take any initiatives to verify whether the victims are tortured while in custody. Fearing further torture and ill treatment at the hands of the police, the victims never complain about the violence they suffer at the hands of the law enforcement agencies. Even if an investigation is ordered into a case, there cannot be expected any independent investigations as it is the practice in India that the senior police officers investigating an accusation of torture of their subordinate officers try to save their officers from prosecution.
Source : www.humanrights.asia