Influenced By Strife

Prof Mehraj Uddin Mir
Prof Mehraj Uddin Mir

I. The Perspective:

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Police is the first agency in the criminal justice system, their approach and attitude in handling the cases has a very important bearing on the final disposal of the case. They occupy strategic position in respect to social control, probably only next to family and other personal groups in importance.

Police investigation is very important and crucial in the entire Criminal Justice Process. The police have a statutory authority to carry out the investigation of a crime and they are bound to collect evidence for the sake of evidence. They have the power to investigate cognizable offences, even with out the permission of the Magistrate concerned. The Criminal Procedure Code gives unfettered powers to the Investigating agency and even High Court does not interfere with such investigation.

Police Investigation has its impact upon the accused and victim in particular and the society in general. The slightest error or willful negligence or inadvertence on the part of Investigating Officer on one hand can be helpful to the accused in securing an acquittal, but on the other hand it can detrimental to the rights of the victim and people lose their faith in the system and raise doubt in the mind of the people at large.

Prosecution is an important link between the Investigating agency and Court and therefore, Prosecutor has very vital role in the judicial process. The prosecutor has a broad discretionary powers. He/She has to examine the facts submitted by the Investigating officer with legal eye and present the case in the court of law. He/She represents the State and interest of the State is almost entirely in his/her hands. He is a quasi-judicial officer, who determines on the basis of evidence submitted to him by the Investigating agency, whether a criminal offence has been committed. The public interest demands, prosecutor to speak and act freely and fearlessly in the discharge of his important official functions and duties.

II. Jammu & Kashmir Police:

The State of Jammu and Kashmir has a well organized police force with its head quarters at Srinagar and Jammu. The Police has different wings dealing with various aspects of crime, crime prevention, crime detection, crime intelligence, crime control and traffic control. The author 32 years back in the year 1981 has written a detailed paper on “Police in Jammu and Kashmir.” [Kashmir Today Vol. VI No. I June 1981], where in the author on the basis of research concluded that the Police in the State has performed vital role to control the increasing crime rate and the people by and large have confidence in them. However, over the decades the scenario has changed and police has not only lost its grip on the law and order situation, but have failed to maintain transparency and people by and large have lost faith in the police department. There are many factors responsible for all this which are known to every one.

III. Jammu And Kashmir Police Bill, 2013

The Home Department of Jammu and Kashmir in pursuance of the directions of the Apex Court in Prakash Singh’s case (2006) have drafted a Bill called as “Jammu And Kashmir Police Bill, 2013” and the draft of the Bill has been placed on the Website seeking observations and comments within a period of 15 days.

It is really appreciable that the State Government has finally come out with the Bill. The Draft Bill thirteen Chapters with 155 Sections. The chapters pertain to Definition and Interpretations (S.1 & 2); Duties, Responsibilities and Functions of the Police (Ss. 3-36); The Police Stations (Ss.37-45); Constitution and Organization of the Police Service (Ss. 46-63), Training and Capacity Building (Ss. 64-65); Superintendence and Administration of Police (Ss.66-80); Policing in the context of Public Order and International Security Challenges(Ss.81-86); Effective Crime Investigation (Ss.87-90); Service Conditions, Control and Discipline (Ss. 91-99); Police complaints Authorities, (Ss. 100-120); Regulations of Public Assemblies & Traffic (Ss. 121-130); General Offences and Punishment (Ss.131-145) and finally with various Miscellaneous issues.(Ss. 146-155)

Preparation of the draft no doubt in itself is commendable exercise, but the learned drafters by and large have been coloured by the Special Laws which have been in vogue in the State over last more than two decades. It also appears that J & K Police over the decades have worked with the paramilitary forces and even at times with the Army, the Bill appears to be influenced by such experiences, which is bound to have far reaching implications with detrimental impact to both Police as well as the Society at large. Establishment of the Police Complaints Authority is a welcome step and if followed in letter and spirit may help to restore the lost confidence of the people in the Criminal Justice System. Further, the Draft Bill in the light of Apex Court direction provides for tenure appointment of the top bra in the police force, which if adhered shall help the police office to discharge their duties as per their consciousness and protect from the wrath of the politicians.

IV. A Brief Over-View of Draft Bill, 2013

A close over-view of the draft bill reveals that every thing revolves around the Director General of Police, which in my view is not the basic spirit of the Prakash’s Singh Case. The Apex Court in the Prakash Singh’s Case (2006) gave seven directions and the main focus is on the Police Investigation, Prosecution and Transparency. The Draft Bill has left all these matters in abeyance. After, a brief examination of the Bill, I have identified near about 22 points and submitted for the consideration of the authorities. Some of the important issues in my opinion are as under;

a) Free Entry of the Police: S. 16(2)

S. 16 (2) of the proposed Bill provides;

“Any Police Officer shall, for giving effect to the provisions of S. 16(1), have free entry in every public place including private establishments where members of the public are present.”

Why the Police Officer should be given a license to violate “Right of Privacy.” It is violative of the Constitution and therefore needs to be scraped.

b) Medical Treatment of the accused person or suspect: (S.20)

S. 20 of the proposed Bill deals with Medical Treatment of the accused or suspect.

The language of the Section is commanding and smells not only selectiveness on the part of the Police, but it is also authoritative in nature and it appears as if the police wants to get the accused or suspect to be examined by Doctor of their choice.

c) Action in respect of injury to the Accused person/Suspect: (S.22)

S. 22 of the Proposed Bill deals with “Action in respect of injury of those in Police custody. Dealing with a injured accused person, whether injured during arrest or in the police custody is a sensitive matter and the police has to be objective rather subjective in dealing with the case. In my opinion there should be in-built mechanism in the Section to the effect that the injured person should be referred to the Medical Superintendent or his nominee for examination and treatment.

The injured person should be examined by a team two or three Doctors and they should submit the report through the Medical Superintendent with a copy to the injured person.

d) Sufficient facilities at the Police Station. (S.38)

S. 38 of the proposed Bill is silent about gender sensitivity. The facilities should include women force and facilities which are gender friendly.

e) Persons competent to verify the Station diary and custodial facilities (S.45)

Station diary and custodial facilities often come for discussion with claims and counter claims. S. 45 of the proposed Bill is a proactive step in this direction and provides that Chairperson and members of the State Human Rights Commission

or the State or District Complaint Authorities may verify …

In my opinion District & Sessions Judge or Chief Judicial Magistrate or a Commissioner appointed by the Hon’ble Court on the basis of a written request of the aggrieved person/party should be included in the Section.

f) Prosecution Wing (S. 58)

The Prosecution is very important in the Criminal Justice Process. S. 58 of the proposed Bill provides that the Government may on the recommendation of the Director General of Police, appoint a Director Prosecution……

The Prosecution Wing as per Apex Court directions should be totally separate from the Police. It has been done in most of the States and there is no reason to wait for the recommendation of the Director General of Police.

g) Training and Capacity Building: (S. 65)

Training and Capacity building is an important factor for efficient functioning and the proposed Bill has addressed to this issue. S. 65 provides for training and capacity building.

Training and capacity building should be given top priority and it is of utmost importance that the inputs regarding better habits, proper behaviour, respect human dignity, respect for women, dealing with children, demonstration of patience, importance of F.I.R. and pro-active role in the disaster management should be inculcated in them.

h) Composition of State Security Commission: (S. 68)

Composition of the State Security Commission is once again a proactive step in a right direction. However, in order to give wider spectrum, two MLA’s each one from the Ruling party and Opposition Party to be nominated by the party should in included in the Commission.

i) Effective Crime Investigation: (S.87)

Police Investigation is the back bone of the Criminal Justice Process. The Apex Court has made it clear that Police Investigation should be separated from the Law and Order functioning of the Police.

S. 87 of the Proposed Bill attempts to dilute the important direction of the Supreme Court, as the proposed Section provides that the Government on the recommendation of the Director General of Police and having regard to the population of the area or circumstances prevailing in the area, by order, separate the “investigation police from law and order police” …. This provision of the proposed Bill is undermining the basic direction of the Apex Court. Investigation should be separated from the Law and Order functioning of the Police.

j) Service Conditions, Control and Discipline (Ss. 91-99)

This is an important chapter in the proposed Bill. We must be conscious of the fact that the police personnel at the lower level are always at a disadvantageous position, because of the impact of job profile, nature of the work, duration of the working hours, job risks, job threats, sword of the transfers/explanations, command from the top, promotional avenues, non-cooperation of the public, less frequency of their visits to their home/relatives, and last but not the least education of their children and welfare of their family. The author on behalf of Bureau of Police Research and Development, New Delhi has conducted a Pilot Study entitled “Plight of the Families of the Police Personnel (2007)” and found that a good number of the police personnel suffer on these counts and discharge their duty under psychological depression and strain.

S. 91 to S. 99 of the proposed deal with the Service Conditions, Control and Discipline of the police force and as per S.91 subject to the approval of the Government, the Director General of Police, may amend, annul….In my opinion in the proposed Bill, there should be in-built provisions for the time bound promotions of the Police personnel, better service conditions, proper health care, and also for the education and welfare of their children.

k) Police Officer to be always on duty: S. 92

S. 92 of the proposed Bill provides that police officer to be always on duty. The language of the Section is not clear. It is to be re-casted, otherwise it will have far reaching implications at the operational level.

l) Police Complaints Authority: (Ss.100–120)

The proposed establishment of Police Complaints Authority under the Bill is a welcome step and in tune with apex court’s directions. The proposed Authority should be Autonomous in character and its office must be located at a place where access of the people to the office of the Authority is not difficult.

V. Recapitulation:

Police in the entire Criminal Justice System is a very segment. Police are at the entry point of the Criminal Justice System and re-entry for the failure of other sub-systems. They represent the most visible segment of the system and are expected to be symbol of law and order in the society. To the average person, they represent State and State’s efficiency to a great extent depends on the efficiency of police.

The proposed Bill, 2013 is an important land mark in the history of Police in the State but it has to be in tune with changing scenario and has to address to various important issues which have emerged in the post Prakash Singh’s Case. The decision in the Prakash Singh’s case was given in the year 2006 and it took the Government eight years to prepare the draft Bill and address only some of the directions of the Apex Court leaving important issues of Criminal Justice System on the mercy of Director General of Police is bound give birth to a number of technical and legal issues at the operational level. In the PPP made by the Police in the first and only meeting convened by the Police at its Srinagar, Head Quarters under the Chairmanship of Hon’ble Justice B.A.Khan (former Chief Justice), the apprehensions were expressed and request was made to furnish a copy, but no thing was communicated till the proposed Bill was placed in the Public domain on 14th of Feb. 2013. The proposed Bill is an important document and pros and cons of each Section need to be discussed and tailored in the changing scenario and case law on the subject.

Dr. Mehraj Uddin Mir, (Professor of Criminal Law) former Head & Dean, Faculty of Law, University of Kashmir, is teaching in the School of Legal Studies, Central University of Kashmir and has been associated with the study of ‘Science of Crime’ (Criminology) since last more than four decades. He has a number of publications on the subject and has visited a number of Universalities and jails in India and abroad. Dr. Mir has visited a number of countries and delivered special lectures on the issues regarding Criminal Justice System including Police. He has a number of research publications on the subject and a book on “Crime and Criminal Justice System in India.” He has completed a number of UGC/ICSSR major research projects on the subject. Dr. Mir is a recipient of national and international awards including the fellowship of Max Plank Institute of International Criminal Law (Germany). He has been very recently awarded Kumarappa Reckless Award, the highest award in Criminology, by the India Society of Criminology, Chennai in a massive function organized at Delhi in National law University.

(Part of this paper was carried in the print edition)


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