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One of the most agonising ways of police harassment is implicating innocent people in false cases. In this article, for the sake of legal rigour and correctness of my conclusions, I have based my inferences on cases where the malicious prosecution of victims was conclusively established by the Supreme Court or high court.
As such, I am not commenting on the recent spate of arrests made in connection with various agitations, as there is no judicial pronouncement on them yet.
Usual methods by which cops abuse their powers of investigation
The legal concept of malicious prosecution has been discussed at great length by a division bench of the SC in West Bengal State Electricity Board vs Dilip Kumar Ray (2006). The Law Commission’s 277th report speaks of wrongful prosecutions to include malicious prosecutions and prosecutions instituted without good faith. For the latter, relying upon the SC’s judgment in Harbhajan Singh vs State of Punjab (1965), the law commission said that it would include a prosecution instituted negligently without due care and attention also.
In practice, to harass you through false cases, the cops:
• Invoke sections of law much in excess of what might have really transpired (such as invoking Section 308 IPC, that is, attempt to commit culpable homicide not amounting to murder with a punishment of up to seven years, even as in reality only a scuffle might have taken place, fit for the non-cognizable Section 323 IPC with a punishment of up to one year only);
• Invoke sections of law the very ingredients of which are not found in the FIR (such as invoking Section 124A IPC, that is sedition, for any sloganeering in direct contravention of Supreme Court judgments like Kedar Nath Singh vs State of Bihar (1962) and Balwant
Singh and another vs State of Punjab (1995));
• Invoke sections of law, which are bogus in the sense that nothing of that sort might have happened (For example, the cops can make a complainant falsely claim that his golden chain was also snatched in the course of a simple scuffle, thereby invoking robbery or dacoity also in the charge with a much heavier punishment.);
• Invoke Arms Act or Explosives Act by ‘planting’ arms or explosives on to a person and through those sections weave the victim into a terrorism charge;
• Rope in even those people in a case, who might not even be present at the place at the time of the incident (It is quite common in rural land disputes for entire extended families to be listed as accused even as some of them might be living thousands of km away at the time of the incident.); and
• Proceed to arrest people immediately even as arrest may not be warranted, simply to put him through public humiliation.
Many evil-minded people, acting on their own, at the behest of the police or some political or otherwise influential person, abuse the provision of Section 156(3) CrPC, which empowers a magistrate to order the police to register a case and investigate. In Priyanka Srivastava & Anr vs State of UP & Ors (2015), a division bench of the SC had acknowledged the abuse of the provision. This has been happening in spite of the fact that in Ajai Malviya vs State of UP and Ors. (2000) and in a catena of judgments, it has been held that the magistrate is bound to apply his judicial mind to the complaint. Whenever the police frame somebody under false charges, their stock excuse is that if a complaint is given to them, they are bound to register a case and investigate. In other words, they try to project that they are so conscientious that they have to investigate every single word that is narrated before them. The law speaks differently, however. In State Of West Bengal & Ors vs Swapan Kumar Guha & Ors (1982), a three-judge bench of the SC had emphasized that there is no such thing as unfettered discretion. Explaining the often misunderstood Privy Council judgment in the case of Emperor vs Khwaja Nazir Ahmed (1944), the SC said that the police cannot investigate an FIR which does not disclose the commission of a cognizable offence.
A constitution bench of the SC, in the case of Lalita Kumari vs Govt. of U.P.& Ors (2013), held that the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to the commission of a cognizable offence. A police officer can foreclose an FIR before an investigation under Section 157 of the code, if it appears to him that there is no sufficient ground to investigate the same.
Coming to their abuse of the powers to arrest, in Joginder Kumar vs State Of UP (1994), the SC had held that arrest could not be made by police in a routine manner. Subsequently, the Code of Criminal Procedure (Amendment) Act, 2008 also provided that, except under certain circumstances to be placed on record, instead of arresting the accused, the police will now be obliged to issue him a ‘notice of appearance’ for any offence punishable with imprisonment up to seven years. In Lalita Kumari, the SC held that while registration of FIR under Section 154 of the CrPC is mandatory, arrest of the accused immediately on registration of FIR is not at all mandatory. Regrettably, all such lofty pronouncements notwithstanding, police are still using arrest as a major tool of harassment.
In Vinay Tyagi vs Irshad Ali @ Deepak & Ors (2012), Irshad Ali, an informer for the special cell of the Delhi Police and the Intelligence Bureau, was falsely implicated in a criminal case when he did not oblige an unjust demand of theirs. The CBI filed a closure report in the case. While acquitting him, a division bench of the SC acknowledged that investigations could be unfair, tainted or people could have been falsely implicated. In Girja Prasad Sharma and Ors. vs Umashankar Pathak (1972), a division bench of the MP high court had found an SI guilty of falsely implicating Umashankar Pathak, an advocate who had staged a hunger strike on the question of food scarcity in Panna, MP. In Thana Singh vs Central Bureau of Narcotics (2013), a division bench of the SC had also commented upon the plight of under-trial prisoners. In Babloo Chauhan @ Dabloo vs State Govt. of NCT of Delhi (2017), the Delhi high court expressed grave concern over wrongful prosecution and incarceration of innocent persons, and their acquittal after many years of imprisonment, highlighting the need for a legislative framework for providing relief to such persons. In pursuance of this, the Law Commission of India’s Report No 277, titled ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ was submitted on August 30, 2018.
The most horrifying example of police falsely implicating people is the case of Adambhai Sulemanbhai Ajmeri & Ors vs State of Gujarat (2014) pertaining to the Akshardham temple attack of 2002. The Gujarat police had implicated six people, of which three were awarded the death penalty, two life imprisonment and the last five years’ jail by a POTA court in 2006. In 2014, a division bench of the SC acquitted them all. From the hangman’s noose to freedom, it took them nearly 12 years to get justice. In one of the severest indictments of the police ever, the SC ripped apart the investigation by the Gujarat police, pointing out scores of shocking mistakes. The court observed:
“We intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing.”
The Surat bomb blast had taken place in 1993. In 2014, a division bench of the SC in Hussein Ghadially vs State of Gujarat (2014), acquitted all eleven persons who were charged in 1995 and had been convicted by the TADA court for 10-20 years in 2008. It took them 19 years to get justice.
Parvez Ahmad Radoo, a Kashmiri research scholar, was accused of carrying explosives for attacks and declared a Jaish-e-Muhammad terrorist in 2006. He could get a discharge in 2013 only. The police appealed this decision, which the Delhi high court, in State vs Parvez Ahmad Radoo (2014) dismissed and found glaring loopholes in the investigation.
Faulting the Delhi Police’s special cell for investigation done ‘defying logic, prudence and reason’, the Delhi high court, in the case of Mohd Iqbal vs State (2013) acquitted two Kashmiri businessmen accused of conspiring to bomb the New Delhi railway station in 2006. At least 13 more such false cases of the Delhi police alone, which were blasted away in courts, are listed with details in my work Leadership Failure in Police.
On January 29, 2010, four youths Dalip, Deepak, Ravinder and Vikas were arrested by the Jahangirpuri police in Delhi and charged with offences of robbery and attempt to cause death or grievous hurt. During the trial, the victim testified that he had given false testimony against the four at the behest of a businessman. Acquitting them, the trial court ordered a compensation of Rs 50,000 to each of them. While accepting that a serious ‘lapse’ had been committed, the police opposed the compensation. They went to the high court and lost.
