Armed Together Against Civil Liberties And Human Rights
By Wali Laskar
29 March,
2008
Countercurrents.org
Although there is no indigenous
Armed Opposition Group operating in Barak Valley, the southern part
of the North Eastern state of Assam in India comprising of Cachar,
Karimganj and Hailakandi districts with a population of about four
million, has been notified as 'disturbed area' under the infamous
Armed Forces (Special Power) Act, 1958. It May not be denied that
some members of the AOGs based in neighbouring states of Manipur,
Nagaland or other parts of Assam try to use the area as a rest house,
however, in most cases in vain mainly due to the fact that people
of the area are peace loving and unsympathetic towards violent way
of life. 80% of the people depending basically on agriculture are
just struggling to survive the odds of weather and fate. They do not
nurture any great expectations or exacting demands against the State
or God. Are these the reasons why Indira Gandhi dubbed the valley
as 'Island of Peace'?
This 'island of peace' has been disturbed now for quite some time
as much by the 'disturbed area' of the AFSPA as by activities of members
of groups believing in Freedom of Assuming Special Powers with Arms.
Many a family gets sandwiched between AFSPA and FASPA. This double
victimization happens when some members of an AOG in the dead of night
come to a house and ask for food, bed and other luxuries at gun points.
There is no way out to escape the bullets even in case of hesitance,
leave alone the option of denial. In the morning well after they had
gone away the state security forces arrive and in the name of search
and interrogation they virtually wreak havoc on the lives of the people
present in the house. Severe beatings with gun butts and bayonets,
destruction of household goods, sexual assault on women and children,
humiliation and every other type of torture and other cruel, inhuman
or degrading treatment or punishment are meted out. State security
forces wear shield of legal impunity by virtue of ASFPA and members
of AOG are stripped off any legal garb under the FASPA and no law
can touch them. How many of such cases constitute a fit case for application
of international humanitarian law?
There is a more terrific development in the situation now. A rapport
has been developed, of late, between the members of state security
forces and members of certain AOGs. They hatched a conspiracy to cut
all tongues and fingers which would move in protest or rise to point
the fact respectively and started acting to translate it in reality.
Such a collective effort of Assam Police, Central Reserve Police Force
and an AOG come into light with death of Jamir Uddin Laskar, 35 years,
of village Boincherra (also known as as Bhaicherra) under the Katlicherra
Police Station in the district of Hailakandi in Barak Valley of Assam
on 22 October, 2007 at about 10am caused by bullet wound fired upon
by five CRPF personnel belonging to E-147 company camping at Gharmura,
Hailakandi. According to the eye witness account of the incident the
deceased was collecting grass for his cattle from a nearby paddy field
when the jawans came accompanied by a villager known as CRPF informer
who identified the deceased by pointing his finger and the jawans
shot several rounds of bullets at him. The report of Barak Human Rights
Protection Committee fact-finding team cites two possible causes of
this murder: (i) Jamir Uddin's elder brother was earlier killed by
some members of an AOG and since then he was working actively against
the AOG and was vocal against the rapport between the CRPF and that
AOG and (ii) there was a family feud between the supposed CRPF informer
and the deceased.
This is a case of blatant violation of the inviolable right to life
recognized in Article 6 of the International Covenant on Civil and
Political Rights to which India is a party and has the obligation
under Article 2 of that Covenant "to ensure that any person whose
rights and freedoms as herein recognized are violated and shall have
an effective remedy, notwithstanding that the violation has been committed
by persons acting in an official capacity". This right is also
guaranteed under Article 21 of the Constitution of India and the right
to remedies also flows from this Article. Moreover, in Indian ordinary
criminal law this act of murder falls squarely under section 302 of
the Indian Penal Code, 1860 and section 174 of the Code of Criminal
Procedure, 1973 (CrPC). These sections of law impose a mandatory duty
on the police and magistrate to register a First Information Report
of the case and hold inquest and other preliminary inquiry. But the
CRPF and Assam Police defying the authority of law and slapping on
the face of logic registered an FIR against the deceased in Katlicherra
police station.
It is a practice followed by the security forces in independent India
established by the British police to suppress the freedom movement
that if a person is in the hit-list simply go to his home, call him
and shoot him to death. Thereafter file an FIR charging the deceased
of attempt to murder under section 307 of the IPC and put on record
that he was died in an encounter in your exercise of power either
conferred by section 100 of the IPC which gives the right to self
defence or 46(3) of the CrPC which empowers police to use force necessary
to effect an arrest. The question whether the practice has any legality
in it came for consideration before National Human Rights Commission
in Case No. 234 (6)/93-94. The observation of the Commission deserves
to be quoted in extenso: "Section 154 CrPC provides that if information
is given orally relating to the commission of a cognizable offence,
the officer-in-charge of the Police Station shall reduce it into writing.
Section 156 speaks of power of Police officers to investigate cognizable
cases. Section 157 provides that if a cognizable offence is suspected
from the information received or from other sources, the officer-in-charge
of the Police Station shall forthwith send a report of the same to
the Magistrate empowered to take cognizance of such offence and he
shall proceed to take up investigation of the case. Section 173 requires
the investigation to be completed with expedition and as soon as it
is completed to forward the investigation report to the concerned
Magistrate. The investigation must be directed to find out if and
what offence is committed and as to who are the offenders. If, upon
completion of the investigation, it appears to the officer-in-charge
of the Police Station that there is no sufficient evidence or reasonable
ground, he may decide to release the suspected accused, if in custody,
on his executing a bond. If, however, it appears to him that there
is sufficient evidence or reasonable ground to place the accused on
trial, he has to take necessary steps as provided in Section 170 of
the Code. In either case, on completion of the investigation, he has
to submit a report to the Magistrate. The report of investigation
in such cases should be examined thoroughly by the Magistrate so that
complete application of the judicial mind is available to ensure just
investigation and upright conclusion. The Magistrate, on consideration
of the report, may either accept the same or disagree with the conclusions
and call for further investigation as provided in Section 173 (8)
of the Code. If the Magistrate accepts the report, he can take cognizance
of the offence under Section 190 of the Code.
"Section 157 (1) requires the officer-in-charge of the police
station to apply his mind to the information received and the surrounding
circumstances to find out whether there is reason to suspect the commission
of a cognizable offence which he is empowered under Section 156 to
investigate. He cannot mechanically accept the information received.
When the information received indicates that death was caused in the
encounter as a result of the firing by the Police, prima facie the
ingredients of Section 299 IPC which defines culpable homicide are
satisfied. This is sufficient to suspect that an offence of culpable
homicide has been committed. Thus, Section 157 of the Code is attracted
calling for investigation. Any plea like causing of the death in the
case does not constitute an offence either because it was done in
exercise of the right of private defence or in exercise of the powers
of arrest conferred by Section 46 of the Code, can be accepted only
after investigating into the facts and circumstances. Section 100
of IPC provides that right of private defence of the body extends
to the voluntary causing of death if occasion for exercise of the
right falls in any one of the six categories enumerated in that Section.
Whether the case falls under any one of the six categories, can only
be ascertained by proper investigation. Similarly, when Section 46
(3) of the Code is invoked, it has to be ascertained as to whether
the death of the deceased occurred when he forcibly resisted the endeavour
of the Police to arrest him and whether the deceased was accused of
an offence punishable with death or imprisonment for life. Without
proper investigation, the Police officer cannot say that the causing
of the death in the encounter was not an offence either because it
was done in exercise of the right of private defence or was done in
legitimate exercise of the power conferred by Sec. 46 of the Code.
"Section 174 of the Code says that when the Police officer in
charge of the Police station receives information that a person has
been killed by another, he shall make an investigation about the apparent
cause of death and submit a report to the District or Sub-Divisional
Magistrate and also to take steps to arrange for the autopsy of the
body. These provisions indicate that unnatural death has to be taken
note of seriously by the Police and required them to find out by investigation
the real cause of death. The responsibility is greater when it is
the Police that are the cause of unnatural death. There is also a
general feeling that most of the encounters are fake. It is, therefore,
in public interest that the conduct of the Police involved is subjected
to proper scrutiny by investigation. To avoid the possibility of bias,
the investigation in such cases should be entrusted to an independent
agency like the State CID by a general order of the Government. We
are, therefore, of the opinion that when information is received in
the Police Station about the causing of the death by the Police officer
in an encounter, the officer-in-charge of the Police Station must,
after recording that information, draw the inference that there is
reason to suspect the commission of an offence and proceed to investigate
the same as required by Section 157 of the Code. If such a procedure
is not required to be followed, it would give licence to the Police
to kill with impunity any citizen in the name of an encounter by just
stating that he acted in 'the right of private defence' or under Section
46 of the Code. A procedure which brings about such unjust, unfair
and unreasonable consequences cannot be countenanced as being within
Article 21 of the Constitution."
There is another more recent case of blatant disregard of law and
human rights which, on the other hand, concretely establishes the
theory of rapport between security forces and AOGs. On 19 March, 2008
at about 10.30 pm one Gypsy and two 407 truck-ful of CRPF personnel
belonging to 147 battalion camping at Kashipur, Cachar along with
Mr. S C Nath, an Assistant Sub Inspector of Police posted at Borkhola
police station in Cachar, came at Behara Bazar under the jurisdiction
of Katigorah police station, Cachar and picked up Mr. Ranjit Roy,
Mr. Birbikram Deb and Mr. Raju Kar at gun point.
These three youth are ordinary residents of Behara Bazar and by occupation
businessmen with small shops at the bazaar. As usual they were shutting
the shutters of their shops after the day's drudgery to go home when
they were accosted by the said security forces. The CRPF personnel
started to beat them with gun butt and bayonet inflicting intentionally
severe pain causing sufferings and hurts on their persons apparently
to intimidate them and rob them of their belongings. When at the scream
of the victims people started to come out and gather around the scene
the CRPF men took them aboard a vehicle and went away.
They went to an adjacent temple named Loknath Mandir at Nilcherra
and woke up Mr. Sandipan Chakrabarti and Subir Guha, drivers of the
temple, who were asleep there. Here also the CRPF jawans applied their
gun butts and bayonets causing more serious injuries to both the said
persons with intention to force them to board a vehicle at which Mr.
Swapan Bhattacharya, the priest of the temple, protested. Abuses and
intimidation were also hurled at him. But on the possibility of waking
up nieghbourhood people by this hullabaloo the CRPF personnel left
these two victims.
Now they went with the first mentioned three victims not to the Katigorah
police station under which jurisdiction they were in action but to
the Borkhola police station and tried to persuade Mr. Ajijur Rahman,
the Officer in Charge of the police station, to register an FIR against
the victims by producing six fresh bullets and claiming that these
had been found with the victims. After interrogation Mr. Ajijur Rahman
denied to admit the CRPF theory that the victims belonged to any non-state
armed organizations as well as to frame them as such. But Mr. Ajijur
Rahman himself detained the victims illegally for the whole night
instead of making arrangement for their medical treatment. He acted
in contravention of strictures of the law of the land and international
human rights law, perhaps, as well-known practice of Assam Police
suggests, for a few thousand rupees from the victims.
There was an eerie environment of fear and tension everywhere in Barak
Valley when the news reached people the next morning. Despite this,
some individuals and organizations including Barak Human Rights Protection
Committee came into action and contacted senior police officers and
the Deputy Commissioner of Cachar. The five victims were sent to the
Silchar Medical College and Hospital, Silchar for treatment.
ASI S C Nath stated on 20 March, 2008 at the Office of the Superintendent
of Police in the presence of media and social and human rights activists
that CRPF personnel themselves had kept the bullets in the pockets
of the victims forcibly. Senior CRPF officer S S Bohar made himself
present at the SP office a little later and apologized to the people
for the incident of the day before. He admitted that CRPF acted wrong
information and also promised that there would be an inquiry into
the matter. SP, Cachar also promised to take necessary actions in
this regard.
On the other hand, Mr. Biswajit Sinha, the OC of Katigorah police
station denied to register the complaints filed by the Mr. Ranjit
Roy and his two companion victims and by the authority of Nilcherra
Loknath Mandir as FIRs. Mr. Ranjit Roy and others alleged in their
complaints that Mr Tapan Deb, Mr. Sujit Deb of village Dinanathpur
and Mr. Sanjay Mahato of village Chayaranbasti were behind the whole
incident. Local people alleged that these three persons are known
as CRPF informer as well as members of an AOG having a camp in the
area. Mr. Kanailal Bhattacharya, joint secretary of Desh Bondhu Club,
was called on his cell number 94353 72029 from +9194356 66043 at 6.
57 pm on 21 March, 2008 and threatened with death apparently for his
co-operation with BHRPC fact-finding team. The caller was Tapan Deb
and the number from which the call was made is usually used by local
chief of the AOG, Mr. Bhattacharya alleged. He also claimed that Mr.
Tapan Deb, Mr. Sujit Deb and Mr. Sanjay Mahato have been using the
AOG camp as their hideout. Local people also alleged that Mr. Haidar
Hussain Laskar, an ASI at Behara Outpost works as an informer of the
AOG more than as a police officer on the ground that if he was given
any information regarding the trafficking of arms and ammunitions
and other illegal activities of the AOG he cautions them instead of
taking any actions against them.
In the complaint Mr. Ranjit Roy, Mr. Birbikram Deb and Mr. Raju Kar
also alleged that the CRPF personnel took away rupees 2,275.00 (two
thousand two hundred and seventy five) only, rupees 6,000.00 (six
thousand) only and a wrist watch and rupees 2,320.00 (two thousand
three hundred and twenty) only from them respectively at gun point.
The victims and local people alleged that this incident is only a
spoke in the larger ring of the conspiracy between the men holding
arms, legitimately or illegitimately, against the civilians to extort
and exploit them and to ensure permanence of this terror regime by
setting example of the persons who might dare to protest. Efforts
of fabricating evidence by keeping bullets in the pockets of the victims
and producing them at the police station and of efforts of framing
them at least under section 122 of the Indian Penal Code, 1860 intending
to procure their conviction under that section attract section 195
of the IPC which is a non-cognizable offence. The CRPF personnel attempted
to institute a criminal proceeding on the false charge of collecting
arms with intention of waging war against the government of India.
This attempt also amounts to a non-cognizable offence as per law laid
down in section 211 read with sections 511 and 195 of the IPC. The
threatening phone call to Mr. Kanailal Bhattacharya reinforces the
conspiracy theory of the local people and sections 120B and 34 of
the IPC come into play.
Fist of the many offences committed by CRPF and AP personnel that
day is the criminal trespass fitting squarely under section 447 of
the IPC. If they were to arrest the victims on a reasonable suspicion
they should have procured warrant and informed the concerned police
station and made themselves accompanied by a responsible officer of
that police station and a respectable local citizen. They did nothing
of the sorts. So they entered the property of the victims with criminal
intention.
Further, they picked up the victims at gun points committing contempt
of law of the arrest as established by international human right treaties
and customary laws, the Constitution of India, the CrPC, 1973 and
the mandatory requirements issued by the Supreme Court of India and
Guidelines regarding arrest issued by the National Human Rights Commission.
Their beatings by bayonets and gun butts causing acute pain and serious
injuries to the victims not only violate UN Code of Conduct for Law
Enforcement Officials but also come under section 325 of IPC at the
least. This act of violence by security forces also fits in the definition
of torture given in Article 1 of the United Nations Convention Against
Torture and Other Cruel Inhuman or Degrading Treatment or Punishment
to which India is a signatory. Such torture is also prohibited by
Article 7 and 10 of the International Covenant on Civil and Political
Rights to which India is a party. Torture also violates right to life
under Article 21 of the Indian Constitution as held by the Supreme
Court in numerous judgments.
The act of dacoity alleged in the complaints of the victims is a serious
crime falling under section 395 which is cognizable, non-bailable
and punishable with imprisonment for life or rigorous imprisonment
for10 years or fine. Illegal detention of the victims at Borkhola
police station by the OC also constitutes the offence of wrongful
confinement under section 344 of the IPC.
So there appears a prima facie case against ASI S C Nath, CRPF personnel
taking part in the 'operation' and supposed CRPF informers under sections
120B, 34, 447, 193, 325, 395, 506, 342 and 211 read with 511,155 of
the IPC. Many of the offences are serious and cognizable.
Section 154 of the CrPC imposes a duty on an officer in charge of
a police station to register the complaint in a proper form if he
gets information regarding commission of a cognizable offence. The
OC, Katigorah P.S. failed to perform intentionally this statutory
mandate by denying to register the complaints of the victims. This,
in turn, attracts section 166 of the IPC which lays down offence of
disobeying law by public servant with intent to cause injury to any
person.
This is a practice on the part of the security forces to maintain
a de fecto regime of impunity for their delinquent colleagues. Impunity
encourages repetition of the crimes and violations of human rights.
So no violation is to be let to go unattended. Wherever there is a
violation of a right there accrues a new right to remedies. Indeed
the right to remedies is the most important human right. The International
Covenant on Civil and Political Rights provides this right in Article
2. The UN Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment contains it in Article 14. The Constitution
of India guaranteed the right to remedies in Articles 226 and 32 under
which the Supreme Court and High Courts of India held that this right
is also implicit in Article 21. Right to remedies include (a) access
to justice consisting of impartial investigation of the complaint
and prosecution and conviction of those found guilty in a fair trial,
(b) reparation for harm suffered and (c) right to know the truth about
the violations.
In which way the people should go for enforcement of their rights
and exercise of liberties? The Gandhi way or the Mao way? 6 years
of fast unto death of Irom Sharmila is not a very inspiring case in
all respect. But it is always good to strive for apparent impossible
and unattainable.
