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SC has powers to direct police to register FIR for ‘complete justice’

New Delhi, Dec. 5: The Supreme Court has powers both under the Constitution and the Criminal Procedure Code to direct police to register a formal case if it suspects that a crime has been committed, lawyers pointed out.

The subject assumes significance against the backdrop of a conclusion by the apex court that it cannot pursue the sexual harassment allegation levelled by an intern against former judge Asok Ganguly. The court has based its decision on two factors: Ganguly had retired and the law intern was not on the rolls of the court.

However, the Supreme Court could have acted to restore public confidence in the “majesty of justice” and referred to the police the report of a three-judge panel that looked into the intern’s charges, a top Constitution lawyer said on condition of anonymity.

Several lawyers felt that the apex court could have set an example by directing the police to conduct a probe.

“The Supreme Court may be correct by the letter of law, but not by the spirit of law. We have very high hopes from the Supreme Court and its judges. We feel the Supreme Court is the guardian of the citizens’ liberty. This conduct of not taking action merely because Justice Ganguly has retired is quite surprising,” said Amarender Sharan, former additional solicitor-general and a senior lawyer in the Supreme Court.

According to him, since the apex court panel had said the intern’s statement prima facie disclosed “unwelcome behaviour”, there was no reason why it should have hesitated in making a formal recommendation to the police to proceed in accordance with law.

“Since the offence is cognisable, the court should have taken action under 154 CrPc (related to FIR). They have also powers under Article 142. But why 142 when there is ample power under 154 CrPC itself?” Sharan asked.

Article 142 of the Constitution says that “the Supreme Court, in the exercise of its jurisdiction, may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament….”

The article adds that “the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself”.

Police plan

A senior Delhi police officer said tonight that they were planning to start a suo motu case against Ganguly on the basis of the statement that has been uploaded on the Supreme Court’s website.

But the officer said the term “unwelcome sexual behaviour” was too vague for the police to comprehend whether it was a case of molestation or sexual assault.

“We are going to contact the victim again and persuade her to lodge a formal complaint with us so that we can get her statement recorded…. It is only after that can we book the accused under the specific sections of the IPC,” the officer said.

The officer added that the progress of the probe would depend on cooperation by the intern. “The probe will not proceed further if the girl does not cooperate with us,” he said.

Last month, Delhi police had contacted the intern but she cited the three-judge panel’s inquiry and was not keen on a parallel probe, the officer said. “Now that the panel has made its stand clear, we appeal to her to come forward and help us bring the perpetrator to book…,” the officer added.

Senior officers held an emergency meeting tonight at the police headquarters. “We have discussed several possible steps, including sending a team to Calcutta to question the former judge since he had been named in the report. But the girl’s statement is very important to proceed against him,” an officer said.

Another officer said he was disheartened by the Supreme Court decision against following through. “What was the need for setting up the fact-finding panel if there was no power to ensure that the case reached its logical conclusion? The Supreme Court should have forwarded the girl’s statement, along with the panel report, to us,” said the officer, who did not want to be named.

MAMATA WRITES TO PRESIDENT

Bengal chief minister Mamata Banerjee posted the following message in Facebook on Thursday evening: “Today I have already addressed a letter to the Hon’ble President of India for taking appropriate action urgently for the grave misconduct committed by Retd Justice A.K. Ganguly. Strong action is essential at this moment to enable people to repose trust and faith to the sanctity of the high office he holds.”

The Trinamul Congress has more than once said that Ganguly should step down as the Bengal Human Rights Commission chairperson since his name was made public in relation to the sexual harassment case. If the chairperson of a body like the human rights commission does not step down on his own, the state government can act under Section 23 of the Human Rights Act, 1994. The state government has the power to recommend to the President the removal of occupants of such posts. The President can forward the state’s recommendation to the Supreme Court if the charges relate to misbehaviour and misconduct.

The Supreme Court will conduct a hearing where the person as well as the state can put forward their cases. If the apex court feels that removal is warranted, it can direct the state to replace the person. But in certain cases such as unsound mind and conviction for moral turpitude, the President can remove the chairperson on the recommendation of the state, without taking recourse to the Supreme Court.