CRIMINAL PROCEDURE CODE AND CONSTITUTION OF INDIA
THE amendment to the Code of Criminal Procedure in 1973 was a landmark in the Constitutional history of India, because it marked the completion of the process of separation of Judiciary from Executive, a concept that is enshrined in the
Directives Principles of States policy, inserted in part IV of the Constitution of India. Article 50 says ‘The state shall take steps to separate Judiciary from Executive in the public service of the state’ After this amendment, the power of taking cognizance was taken away from the Executive branch of Magistracy and was given to Judiciary. This was a milestone and in a way a landmark in the history of evolution and process of democratization of bureaucracy also. It was conceived that the common citizenry would now be more protected from the bloody claws of Executive branch of Magistracy. However it is a matter of debate as to whether this goal was achieved and the purpose was solved.
The maintenance of public order and tranquility, which is loosely referred as “Law & Order”, remained one area, which came in the share of executive branch of Magistracy. Chapters XA, XB, XC & XD of CrPc are the chapters, which deals in unlawful assemblies, Public nuisances, urgent cases of nuisances or apprehended danger and Disputes related to immovable Property respectively. By and large the sections in these chapters are preventive in nature and are supposed to be executed by the Executive branch of Magistracy. Apart from this, sections 107-124 of chapter VIII of CrPc also give some power to Executive Magistrates, which are purely preventive and prohibitory in nature.
We all know that this above-mentioned system is followed in every territory of this Nation except in the areas where Police Commissioner System has been introduced.
The chapter X-A of Cr.P.C., which deals with situation arising out of the breakdown of law &order due to unlawful assemblies, requires a lot of deliberations and introspection because this section has become a contentious issue between the Police and the Magistracy. The section 129 authorizes a Police officer not below the rank of Sub Inspector in absence of an Executive Magistrate to command any unlawful assembly to disperse, whereas; section 130 empowers Executive Magistrate of highest rank present on the spot to command to disperse such unlawful assemblies. Section 132 gives protection against persecution to the officers who have ordered firing on the unlawful assembly.
The above provisions of CrPC have largely failed to come up to the expectations of people as well as the State also. After every police firing on mob, there is a lot of hue and cry. Human rightists, democrats and champions of civil liberty suddenly come on the picture and almost every time the State Government under pressure orders for an enquiry by some Commission. Needless to say that this Commission then embarks and initiates the enquiry, which rarely concludes and gives report on time. Public memory is short and people tend to forget everything. Every one except the relatives of those who lost their lives in the firing and the officers who face the pains of enquiry forget every thing. The above system of ‘Joint’ responsibility & ‘Joint command’ has hopelessly failed. The recent infamous Khahalgaon police firing have again exposed the inherent weaknesses of the present system of dealing with unlawful assemblies. The startling revelation by the suspended SDM of Khahalgaon has raised many questions, which the lawmakers and law enforcers must answer. The suspended SDM reportedly said that he had never ordered the police to open fire and all what has been done was not ordered by him. Media reports and news channels footage suggest that the DM and the SP were present there. If it true then according to section 130 of CrPC, this firing will presumed to have been ordered by the DM and the SP because the District Magistrate naturally is the Executive magistrate of highest rank. It is also very shocking to learn that the erring and rowdy police men allegedly at the behest of DM and SP Bhagalpur made the SDM Khahalgaon hostage in his official residence and threatened him to sign the “firing order” or face the consequences. It is more surprising to learn the even after this incident the Government did not act. This is not a single and an isolated incidence of this kind in this state. Several times the “order” is obtained forcibly by the policemen from the Magistrate.
With the passage of time, the system of deployment of police force and Magistrate has undergone a big change. Now the DMs issue a so called “Joint order” jointly signed by DM and SP, a system which does not figure anywhere either in CrPC or in the Police Manual. The authority of DM has been undermined to such an extent that some times the SPs themselves deploy the police force and ask the DM to depute Magistrates with them. The DM is helpless enough and is left with no option but to obey the written dictates of the SPs. The institution of the District Magistrate is as old as the British period itself. There is no denying the fact that we have inherited the legacy of British and the system of District Magistracy still continues. The District Magistrate is supposed to maintain “Law & Order” in his District. But some people rightly say that the “Law” has gone in to the hands of “Judiciary” and “Order” has gone into the hands of “Police” and the District Magistrate is left with “&” only. Naturally the subordinate Magistrates are the tails of this “&”. This is a very sad situation and therefore must be changed.
If the law & order enforcing mechanism has to be made more people friendly, the executive parts of Magistracy has to be given more “Teeth” and “Claws”. Robert Kligard has said, “Monopoly plus discretion minus accountability is equal to authoritarianism which leads to corruption. For every incident of breakdown of Law & Order, the District Magistrates are held responsible, but when it comes to the real power of policing, the power flows from the stars of the uniform of SPs. Some people rightly say that DMs are no longer District Magistrates rather they are “District Managers”.
PROHIBITORY ORDERS U/S 144 AND POLICE
Even in the cases related to chapter X-C i.e. section 144 of CrPC, the situation is far from satisfaction. This section confers powers on
“Executive Magistrates” (EM SDM, ADM and DM) to issue prohibitory orders to prevent occurrence of public nuisances or apprehended danger. This is an order, which is hardly obeyed by parties and complied by the police. The police officer would comply with this order only when it has been promulgated at their instance and serve their purposes. Otherwise this order is never taken seriously by any police officer. In case of its non-abidance, the EM can do nothing except for lodging a complaint in the court of CJM u/s 188 of IPC, which itself is a bailable one. The experience says that this section has lost its vigour and impact to such an extent that people often make mockery of it. On the eve of every festival and election, prohibitory orders u/s 144 of CrPC are promulgated but it makes hardly any difference on the activities of people in general and political activists in particular.
MAGISTRACY AND LAND DISPUTES
Chapter X-D confers some powers on EMs with regard to land and water disputes. There is plethora of cases related to land disputes u/s 145 -147 of CrPC in the courts of EMs in different Districts of Bihar. These cases and orders made therein are hardly of any use and hardly serve any purpose. The EM, even after fully knowing the fact that some powerful persons have forcibly grabbed the land in question and the petitioner has been dispossessed illegally, he can hardly do any thing in this regard, because there is no provision of “Delivery of possession” in these sections of CrPC. The section 145 empowers the EMs only to pass order taking into account the actual physical possession over the land in question. He has been specifically and strictly forbidden to discuss upon and pass orders regarding “Right to Title and Right to Possession”, which is the exclusive jurisdiction of Civil Courts. Thus even after knowing the facts, the civil administration is helpless in this regard and the poor dispossessed Justice seeker is left for running from pillar to post for getting his possession restored. Of course; there is a provision in sub section 4 of section 145 of CrPC that if such dispossession has been done two months before the receipt of information to the court, the EM can make an order and he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub section 1 of this section. It means that even in such cases, in which the dispossession has been done very recently, the EM is technically not empowered to make order and deliver back the possession to the poor and week dispossessed person. It means that if a person has been illegally dispossessed from his rightful property, he has to go to the Civil Court and file either a title suit or an eviction suit for getting his property back to his possession. It is needless to mention here that it will just add “one more number” in the two crore sixty three lacks and 36 thousands cases lying pending in different courts here in India. This is the state of affairs, which surprisingly bothers none including the lawmakers.
Ours is a democratic and welfare State. We should and must listen to the grievances of our citizen and try to deliver instant justice to them. For this purpose “Janta Darbars or Janta Ke Darbar mein” programmes are held right from CM to DM and BDO to SHO. At every Janta Darbar, the authorities receive huge number of petitions regarding illegal and forcible dispossession from the land. These petitions ultimately reach to the CO of the concerned Block, the last ladder in the revenue administration hierarchy for ‘Needful action’. Now these poor justice seekers fall in the unending processes of dispensation of Justice, because what to talk of CO, even the DM is not empowered to restore possession of land. It is very surprising sometimes to learn that even the DMs ask the subordinate officers to restore possession. The ignorance of law on part of the men in Government and in the press causes lots of confusion and they start blaming the civil administration for not doing anything in this regard. The Electronic and Print media are full of such reports. If in some cases the CO, SDM or DM dares to deliver possession, those persons who had dispossessed the petitioner will naturally drag these officers into court of law. There are hundreds of cases in which officers are facing proceeding in such matters in different courts. Section 145 clearly says that the EM has to pass order stating the “Actual physical possession only” even if the possession is by wrongful means. It means that the EM has to declare only the actual physical possession and say nothing about the right to possession or right to title. In the famous Ram Sumer Puri Mahant V/s State of UP case, the Hon’ble Supreme Court of India has ruled that when a title suit is lying pending in civil court, proceeding under the executive court can not continue. These are some of the glaring examples, which expose the hollowness of these laws.
MAGISTRACY AND PEACE AND PUBLIC TRANQUILITY
Chapter VIII of CrPC provides for provisions related to security for keeping peace and for good behaviour. Sections 107 – 124 deal in these cases in which the EM is empowered to initiate proceedings. When an EM receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond for keeping the peace. When the person fails to execute bond or breach the bond after its execution, he can be sent to jail subject to some conditions. But figures available with Police Head Quarters suggest that the number of persons sent to jails in this section is almost Zero. Gone are the days when these provisions had been very effective in dealing with law & order matters. Now one can imagine very well that when the POTA and TADA have failed, how these sections can be effective. Some times its sounds very joking when we find that some hardened criminals facing 302 IPC charges are asked to execute bond under section 107 of CrPC. The time has come the re-think over this entire gamut of problems; otherwise these provisions will become a stock of laughter.
In any democratic State the executive machinery cannot be allowed to grow its nails and claws in such a way that it pierces and injures its own citizens and infringes upon the human rights and civil liberty of the common people. But at the same time the wings of Civil law enforcing agency should not be crippled in such a way that it fails to fly. Over a period of time, bit-by-bit we have made the civil administration a toothless and jawless agency. That is why in spite of best intention; the civil administration is not performing up to the expectation of the state and the citizen. The protection of human rights and dispensation of justice has been enshrined in our Constitution. The directives principles of state policy, which has been inserted, in part IV of the Constitution of India speaks about separation of Judiciary and Executive. The idea was to protect the citizen from the excesses of Executive. But unfortunately the amendment to the CrPC in 1973 could not fulfill this purpose in the sense that while it curtailed the powers of civil officers, it immensely enhanced the power of police. It is said that the Fire is a good servant but a bad master. After all ours is not a ‘Police State’ and therefore, the police machinery, if allowed to go unbridled, will create more problems than what it will solve. The Police should be given free hand in dealing with the matters related to crime and its investigation. But so far as its role in matters of law & order is concerned, there should be an effective mechanism and safeguard so that it cannot perpetrate atrocities on the citizens. Here comes the role of executive branch of Magistracy. Had there been effective provisions in the CrPC for police firing, the incidents like Kahalgaon could have been avoided. Unfortunately it is not being given the kind of significance and attention, which it deserves. Surprisingly the Administrative Reforms Commission headed by Mr. Veerappa Moily also failed to peep into this aspect of Governance.
Undoubtedly, India has 17% of world’s population and is making 9% of annual growth. We are poised to become an economic super power. The growing economy, diversifying markets and opening up of societies are adding new dimensions in the governance here in India. There is no denying the facts that the Liberalization, the Privatization and the Globalization (LPG) have thrown many challenges to civil administration, but civil administration does not mean caring for propertied class only. After all only 1.87% population of India are HNI and rest 98.01% are those whose lives still depend on how the civil administration work for them. They cannot be allowed to be swayed away by the market forces. It is here the role of civil administration becomes very important. The growing problems of Naxalism and Maoism are the by products of abject poverty and social injustice. In a state like Bihar, if the land disputes are to be redressed quickly and land reforms to be implemented successfully, more incisor teeth have to be added in the jaws of Executive branch of Magistracy, otherwise things will go from bad to worse. The importance of Executive Magistracy has been underlined by the Hon’ble Supreme Court of India in the famous case of State of Karnataka v/s Praveen Bhai Togadia. The ruling says ‘Courts should not normally interfere with matters relating to law and order which is primarily the domain of the concerned administrative authorities. They are by and large the best to asses and to handle the situation depending upon the peculiar needs and necessities ,within their special knowledge .The courts cannot in such matters substitute its views for that of the competent authority {AIR 2004 SC 2081;(2004) 4 SCC 684.}.
Time has come to redefine the role of the Magistracy vis-à-vis Law and Order. Merely by raising more battalions of Para-military forces, the law and order situation in normal times cannot be improved.
