Laws you must know to handle police harassment in India

In this article, Hritik Sharma discusses Laws you must know to handle police harassment in India.

Introduction

Various petitions complaining about the harassment are being reported and filed before the courts seeking directions to abstain the police authorities from harassing people in the shade of doing the investigation.

And one of the primary reason has been that the Police Authorities does take a benefit on the part of the common people as they don’t have the knowledge of the provisions which are providing them remedies in each of the situations.

As to keep yourself safe from being a victim of such harassments keep a take of the laws which are being stated or under which the work is done.

What is an Investigation

Under Section 2(h) of the Code of Criminal Procedure Investigation is defined as, “investigation” includes all the proceedings under this code for the collection of evidence conducted by a police officer or by any other person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

Here it ends with the formation of the opinion as to whether on the material collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by filing of a charge-sheet under Section 173, Stated under the case Union of India v. Prakash P. Hinduja.

A three-judge bench in H.N.Rishbud v. State of Delhi, while indulged in an investigation, has stated that under the Code, Investigation consists generally of the following steps:

Proceeding to the Place,
Detection of the Facts and Situation of the case,
Discovering and Arresting the Suspected offender,
Gathering the Pieces of evidence relating to the commission of the offensive act which may consist of:

The investigation of numerous people (including the accused) and the markdown of their statements into writing, if the officer thinks fit about it.
The exploration of places or apprehension of things considered necessary for the investigation and to be produced at the time of the trial.

Formulation of the opinion as to whether the material gathered there is a case to place the accused before the Magistrate for trial and if so taking necessary steps for the same by filing a charge sheet under Section 173. In Adri Dharan Das v. the State of W.B., it has been stated that:

“Arrest is a part of the procedure of investigation expected to get many purposes. The accused may have addressed the insights about the different points of intention, planning, commission and impact of the crime and connection of other people, if any, in the crime.”

More Cases Exploring the Dimensions of Investigation

Cases	Judgements/ Interpreting the dimensions of the Term “Investigation”
Niranjan Singh v. the State of U.P.	The Investigation is not an inquiry or a trial before the court and because of which the Legislature did not consider any inconsistency in an investigation as of ample importance to impair or otherwise form any affliction or in the inquiry of the trial.
State of Bihar v. J.A.C.Saldanha	There is a clear-cut and well separate circumvent purview of activity in the field of crime detection, punishment, and further investigation of an offence is the field exclusively reserved for the executive in the Police Department.
S.N.Sharma v. Bipen Kumar Tiwari	The Police Official Power to investigate is self-reliant, hence there is no control of the magistrate, over the Police.

Recently in the case A.N. Lalman Lal v. State of Tamil Nadu, the High Court of Madras, a Single Judge comprising of Hon’ble Justice M.S. Ramesh, addressed a petition filed under Section 482 of Code of Criminal Procedure Code, pleading to the court about directing the Police(Respondent), to not harass the petitioners under the guise of investigation.

The Court accounted that the Investigative Officers powers are not restrictive in the terms of the enquiry either about a non-cognizable offence or a cognizable offence but it is needed to be checked that whether such powers are legitimately exercised.

The Court observed, though the Code of Criminal Procedure empowers the Magistrate to be a guardian in all the stages of the police investigation, there is no power which allows him to interfere with the actual investigation or the mode of investigation.

The Court held that it’s exercising powers’ under Section 482 of the Criminal Procedure Code would not definitely allow it to interfere with the investigation conducted by a police officer but, it would also not neglect the instances of harassment under the guise of an investigation by the police. It is needed to be kept under the criteria that the word “harassment” does have a very wide meaning and hence, the word “harassment” is different from the view of petitioners and from the view of the respondents that they thought it to be “harassment”.

Guidelines Issued by the Court

The court issued the following guidelines to circumvent such situations of the harassment which can take place while the investigation is under process:

When there is a Situation where any person is summoned by the reason of being named in the complaint or any witness to the incident complained of, The Duty of the police officer is to summon such person through a written summon under Section 160 of the Code of Criminal Procedure, Specifying a particular date and time for appearing before them for certain investigation.
There should be a Recording in the Daily Diary/ Station Diary/ General Diary of the Police station about the minutes of the investigation.
The Police Officer should not indulge in any kind of harassment done to the people while doing any investigation.
The Guidelines decided for the preliminary enquiry or registration of F.I.R. by the Hon’ble Supreme Court in Lalita Kumari v. Government of Uttar Pradesh and others shall be strictly followed;

There are the Guidelines Specified by the Court are being Stated as follows:

Registration of FIR is compulsory, stated in Section 154 of the CrPC., if the information reveals commission of a cognizable offence and no preliminary inquiry is permissible in such a situation;
If the information gathered does not reveal a cognizable offence but it shows a demand for an inquiry, a preliminary inquiry may be conducted only to ascertain whether a cognizable offence is disclosed or not;
If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be delivered to the first informant immediately and not later than one week.
The Officer cannot omit or avoid his duty of registering about the offence committed if it is revealed as cognizable. An Action must be taken against culpable officers who do not register the FIR if the information received by him discloses a cognizable offence;
The purview of a preliminary inquiry is not to verify the truth or otherwise of the information received but only to confirm whether the information reported reveals any cognizable offence.
As the General Diary/ Station Diary under which all the information are being recorded can be used to state that whether the collection of information reveals that a certain offence is cognizable and whether the relevant information is leading the police to report an FIR, or leading to an inquiry.

Here in the case, The issue which arises for consideration was whether a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commision to a cognizable offence under Section 154 of the code of Criminal Procedure, 1973 or do the police officer has the power to conduct a preliminary investigation in order to test the accuracy of such information before registering the issue.

A Writ petition was filed under Article 32 of the Constitution, by one Lalita Kumari being a minor at that time filed the same through her father, Shri Bhola Kamat for issuance of a writ of Habeas Corpus for the directions to be taken against the respondents herein for the protection of his minor daughter who has been kidnapped. The objection was that on date 11/May/2008, a written report was submitted by the petitioner before the police officer-in-charge of the police station concerned who didn’t take any action about the same. Consequently, when the Superintendent of Police was moved, an FIR was registered. According to which the petitioner, consequently states that the measuring steps were not taken either for apprehending the accused or for the recovery of the minor girl child.

How do I handle Police harassment in India?

Never indulge in a fight with a police officer, despite being the fact that you know that the police officer is wrong, Just be Calm, Polite and Humble all the time.
Whenever there is a situation where a victim is needed to go to a Police Station to Complain Against a Police Officer, always take a lawyer with you.
If there is a need to file a complaint against a Police Officer, over his misconduct, the victim should file it in the commissioner’s office in the city.
Whenever, A police officer does not file FIR , the victim may send the substance of the information, in writing and by post to the Superintendent of Police concerned, who after getting satisfied that such information discloses the commission of a cognizable offences like Murder, Theft, Robbery, shall either investigate the case himself or he can direct an investigation to be made by any police officer subordinate to him.
If the complaint filed to the Superintendent of Police still does not result in your favour, the victim can make a visit to the nearest Magistrate and can get his complaint registered. After which, the magistrate will order to the police to register the FIR.
If a person being the victim of the misconduct because of the omission of a duty of a police personnel, which can be any violation of duty or wilful breach or neglect of any rule or regulation, shall be liable to be punished under section 29 of Indian Police Act,1861 with,
- A penalty up to 3 months’ pay; or
- Imprisonment up to 3 months; or
- Both penalty and imprisonment.

If a Police Personnel summons you to be present at the police station, always go but with a lawyer.

A Victim can even make complaints to the Jurisdictional DCP, whenever, a police personnel was impolite to you.

Never make an argument over a law to a police personnel unless you are a lawyer.

Police Complaint Authority (PCA)

The Police Complaint Authority was created in 2006, After the SC directed all States to begin a reformation in their Police, After the Judgement in the Prakash Case, The SC of India given the directives for structural reform of the police, by establishing Police Complaints Authorities at the state and District level, with immediate effect. The Decision was to be Primarily due to increment in huge number of Complaints against the police and the lack of Accountability, as well as the intention behind setting up police complaints authorities was to make sure that a local mechanism expert in handling a wide scope of complaints against the police, including the most serious, was readily available to the public at large.

Complaints which can be filed with the Police Complaints Authority

The Authority shall investigate into accusations of “Serious Misconduct” against the police personnel, as detailed on a complaint received from any of the following:

A victim or any person on his/her behalf;
The National or the State Human Rights Commission;
The police; or
Any other source

By the word “Serious Misconduct”, it states the coverage of the offences;

Death in police custody;
Grievous hurt, as defined in section 320 0f the IPC,1860;
Rape or attempt to commit rape;
Arrest or detention without due process of law;
Extortion;
land/house grabbing; or
Any incident involving serious abuse of the authority.

The Authority may also investigate before referring to the complaint as filed, only after getting satisfied with the truth of the complaint.

How to File a Complaint with the Police Complaint Authority

A Complaint can be filed in PCA, on your own and in an authority existed in your nearby area/district.
The complaint can be filed by any other person who has witnessed any misconduct committed by the police.

To file a Complaint

First of all, you should make a contact to PCA and ask for a prescribed Format in which a person can submit the complaint. A person can send a complaint via Post, Fax or submit it in person.

Note: The complaint is needed to be filed or lodged as quickly as possible after the incident.

The Complaint should be in writing and must include:

Name
Address
Contact Details

You need to describe the incident like;

What Happened;
When it Happened;
Against whom you are complaining about, describing the name, address of the police station where the police official exists;
What was said or done;
Whether someone else was present at that time, who witnessed the incident when it was taking place and if any contact details you have of them.
Describe the Loss or Damage incurred by you.

You can also attach any relevant documents which can make your complaint stronger, Documents Like:

Photographs showing of the Incident, or
Photographs of the Injuries or Damage incurred;
Medical Report or any Certificate issued by doctor subjecting the nature of the injuries if any inflicted upon;
Evidence of Station Diary.

Prior to the Submission of the complaint, always keep a copy of the complaint and the documents, and in case you have submitted it in person always take a receipt with a date stamped on it as a record, and if you submit your complaint by registered post, always keep a receipt of the same safe. As all these receipts and the copies will work as a proof to acknowledge that you have sent the application being sent by the authority.

Conclusion

In the end, it states that no one is above the law, and all the citizens are equal under the eyes of the law.

And whenever people face such kind of Atrocities they should always keep in mind that there is a need to have a self-awareness of the laws as the remedies provided to them or whenever facing such kind of situations always consult a Lawyer,

Apart from all of this, there is also a provision under Article 226 of the Constitution of India, to file a writ petition in the High Court,

The Court here issued the guidelines, as needed to be recorded to create a level of transparency in their work while addressing the same whenever, there is state of conflict founded and by abiding through Chapter XII of the Code of Criminal Procedure and the Police Act which explicitly states that every activity related to investigation and as well as the other activities should have a written record in the police diary or general station diary.

By abiding through the Guidelines here the Police Officials not only create a level of transparency as well as it will create a faith on the Police Authorities as well as it will deplete the amount of time which is given by the court, to entertain such kind of cases which are just being created because of misconducts on the behalf of a Police Personnel, as well it will give opportunity to the court to address more cases which require much more important time of the court.

References

Cases

Union of India v. Prakash P. Hinduja- AIR 2003 SC 2612
H.N.Rishbud v. the State of Delhi- AIR 1955 SC 196
Adri Dharan Das v. the State of W.B- 2005(2)ALD(Cri)67
Niranjan Singh v. the State of U.P- AIR 1957 SC 142
State of Bihar v. J.A.C.Saldanha- AIR 1980 SCR 326
S.N.Sharma v. Bipen Kumar Tiwari- AIR 1970 SC 786
Lalita Kumari v. Government of Uttar Pradesh- WRIT PETITION (CRIMINAL) NO. 68 of 2008
Prakash Singh and Others v. Union of India- Writ Petition 310 of 1996

Hritik_Sharma :

Rakesh Kumar Singhal ラケシ　クマール　シング ראקש קומאר

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Sunday, March 10, 2019