NO SUCCOUR: Aditi Bhattacharya, who was assaulted recently, was initially unable to file an FIR
|Some common cognisable and non-bailable offences
- Torture of a bride
by her husband and
- Causing grievous
- Kidnapping for
Sonali Paul (name changed on request), a 39-year-old resident of south Calcutta, commutes to Canning every day, where she works for a government-aided organisation. In August 2010, she began to be harassed by a group of five men on the local train. On one occasion, she was seriously molested and very nearly fell from the moving train. Naturally, Paul went to the police to register a complaint.
However, the officials at the police station near Canning refused to register a first information report (FIR). The South 24 Parganas superintendent of police also did not pay any heed to her predicament, despite two written complaints.
Finally, in December 2010, Paul was forced to move a petition under Section 156(3) of the Code of Criminal Procedure (CrPC) before the Alipore court magistrate in Calcutta. And it was only after a direction by the court that the police station in question was forced to register an FIR. Subsequently, one of the prime accused was also arrested.
Paul is not alone. Every day, thousands of common people in India are subjected to untold harassment as the police often refuse to register FIRs even when people come with serious complaints. The recent incident of Aditi Bhattacharya, daughter of retired scientist Aparesh Bhattacharya, is another case in point. Though she was assaulted and molested, officials of Baruipur police station did not take down a complaint. That is, not until intense media pressure forced them to do it 48 hours after the incident took place.
“There are many cases where complaints of the aggrieved are not taken down. We get three or four complaints daily, sometimes more, on the fact that the police are not even registering an FIR,” asserts Sunanda Mukherjee, chairperson, West Bengal Commission for Women.
What’s more, even if an FIR is registered, the accused is often charged with bailable offences (when the offence was actually a non-bailable one) and allowed to walk free within a few days.
So what can you do if you are faced with a similar situation? A particular section in the CrPC can come to your rescue. “Many don’t know that Section 156(3) of the CrPC has been designed to help people who face police apathy and inaction,” says Kaushik Gupta, an advocate at the Calcutta High Court.
One can file a petition under this section if the police refuse to note a complaint or register an FIR. It can even be used if the police, after registering an FIR, files bailable charges for a non-bailable offence.
If the police does not register an FIR, the victim can complain to a senior police officer (superintendent of police in the case of districts and a deputy commissioner in the case of cities) under Section 154(3) of the CrPC. If no action is taken despite that, one can approach a magistrate with the relevant jurisdiction and file a complaint before him under Section 156(3) of the CrPC.
If the magistrate is prima facie satisfied with the allegations, he can direct the officer in charge of the police station to admit an FIR and initiate investigations into the offences alleged. As Debojyoti Deb, an advocate at Calcutta High Court says, “Many a time, in crucial cases, where the police refuses to accept a complaint, the victim can directly approach a magistrate.”
In fact, according to a recent Supreme Court judgment, Sakiri Vasu vs state of UP, the victim can make an application before the magistrate to call for a report from the investigating officer. “In this particular case the apex court ruled that under the provision of Section 156(3), a magistrate can monitor the entire process of investigation,” says Gupta.
However, there are several conflicting Supreme Court judgments on police action in case of an FIR. So on February 27 this year, the matter was referred to the Chief Justice of India by a three-judge bench of the apex court for the formation of a Constitution bench of at least five judges for an authoritative judgment on the matter, reveals Gupta.
The problem of police apathy is not new, however. In 1996-97 a police commission was set up by the then Left Front government in West Bengal, where the Association for Protection of Democratic Rights (APDR), a human rights organisation, made several recommendations to make the police more responsible and accountable. Introducing punitive measures for obstructing access to justice was one of them.
But activists rue that nothing has been done so far. “Leave alone heeding the recommendations, the commission has not even published its report yet,” says a visibly disgusted Sujato Bhadra, secretariate member, APDR.
Bhadra reveals that though the Supreme Court had issued a directive to the states to form grievance cells (in the Prakash Singh vs Government of India case, 2005), Bengal is yet to have a single one of them.
Others say that by and large, the police are loath to file an FIR unless the charge is a grave one. “Except in such cases as rape, murder, Section 498A (related to dowry demand or marital torture and abuse), or grievous hurt, the police are reluctant to register an FIR and often ask the victims to get a court order first. So usually we complain to the superintendent of police or the district magistrate as a first step,” says Abhishek Mukherjee, a lawyer at Alipore Court.
Section 200 of the CrPC is yet another avenue that may be tapped by those who face harassment at the hands of the police when they go to file an FIR. “If you are aggrieved by police inaction, you can register a complaint before the magistrate under section 200 of the CrPC,” says Deb. “In extreme cases, the concerned magistrate might even directly issue an arrest warrant against the accused,” he adds.
So don’t let police apathy get you down. There are enough remedies in the law to get around the problem.